Juniata Packing Co.

National Labor Relations Board - Board Decisions

Jun 1, 1970

182 N.L.R.B. 934 (N.L.R.B. 1970)

934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Juniata Packing Company and Amalgamated Meat Cut-
ters and Butcher Workmen of North America , Amalga
mated Food Employees Union Local 590 , AFL-CIO
Case 6-CA-4470
June 1, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On November 14, 1969, Trial Examiner Harry H
Kuskin issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision The Trial Examiner also
found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed Thereafter,
the Charging Party and the General Counsel filed excep-
tions to the Decision with supporting briefs, the Respond-
ent filed cross-exceptions with a supporting brief and
a brief in support of the Trial Examiner's Decision,
and the General Counsel and Respondent filed answering
brief s
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions, cross-exceptions, and briefs, and the
entire record in this case, and adopts the findings, conclu
sions, and recommendations of the Trial Examiner only
to the extent consistent herewith
I The Trial Examiner dismissed the complaint allega-
tion that Respondent had violated Section 8(a)(5) of
the Act on the ground that the Union's majority status
was "tainted" by supervisory participation in the
Union's organizational drive We do not agree
On December 18, 1968, 9 or 10 of Respondent's
employees gathered at the home of admitted Supervisor
Robert Sprankle to discuss ways and means of obtaining
higher wages from Respondent The choice of the site
of the meeting was dictated by the fact that four or
five of those present were participants in a regularly
held poker game which rotated among the homes of
the players That night it was Sprankle's turn to be
host and in fact after the employee meeting adjourned
a poker game was held At the meeting, Sprankle initially
suggested that the employees get together themselves
and personally confront Plant Manager Igou with a
demand for a wage increase Sprankle's suggestion was
immediately rejected on the ground that Igou would
be totally unsympathetic to such an approach Employee
Leroy Riggleman suggested that they contact a union
to assist them In the discussion that followed, Riggleman
said that he knew of a meatcutter' s union and volunteered
to get in touch with the organization All agreed to
this course of action and on December 31, 1968, Riggle-
man contacted Union Representative Conte After being
advised that Respondent's employees were interested
in joining the Union, Conte told Riggleman to set up
a meeting at which time he would explain matters regard-
ing the Union to the employees Riggleman then made
arrangements for holding the meeting at a hall in Tyrone
on January 3, 1969 '
The meeting was held as scheduled on January 3
and was attended by approximately 26 employees2 and
Robert Sprankle Riggleman introduced Conte, and
Conte proceeded to outline the advantages offered by
the Union and the procedure by which the Union could
be their representative He explained that a majority
of the employees had to select the Union as their collec-
tive-bargaining representative and that the establishment
of a majority could be accomplished through either
a Board-conducted election or the signing of authoriza-
tion cards Conte recommended the latter course and
the employees unanimously agreed The employees then
began making comments and asking questions from the
floor After about two-thirds of those present had risen
and spoken in favor of the Union, and unidentified
employee (not Sprankle) asked Conte whether the Union
could represent an individual "who had authority in
regard to directing people " Conte explained that
under the Act, a supervisor would be excluded from
the unit The employees then identified the individual
in question as Sprankle and said they wanted him in
the unit Sprankle spoke up at that time and said that
he was in favor of the Union and that the employees
needed a Union He added that he wanted to know
what protection he would have if he were not included
in the unit Conte's efforts to determine whether Sprankle
was a supervisor proved unsuccessful and he asked
Sprankle to accompany him downstairs so that he could
call his superior to find out what to do about the situation
Sprankle agreed While the two men were out of the
room, authorization cards were distributed Twenty-two
cards were executed during their absence Upon their
return, Conte informed the employees that the doubts
as to Sprankle's status had not been resolved but that
Sprankle would sign a card His card, he advised, would
not be presented to the Company Conte then collected
all the cards and the meeting ended a sh9rt time later
Between January 3 and 15 the Union obtained signed
authorization cards from 12 additional employees, bring-
ing its total to 34 in the 47-man unit , and held one
further Sprankle did not attend that meeting The record
also shows that during this period Sprankle and employee
J Walls told employee Jack Smith that the only way
to get anything better was to get a union Sprankle
also told employee Herschel Hale that, if the Union
got in, there would be 40 hours of work for everyone
All dates hereafter are in 1969 unless otherwise indicated
The record shows that Sprankle persuaded one employee to go
to the meeting and told two others that the meeting was to be held
None of the three employees executed authorization cards at the meeting
although one did so thereafter
182 NLRB No 140
JUNIATA PACKING COMPANY 935
and more work Smith and Walls had previously signed
cards at the January 3 meeting Hale never signed a
card On January 15 all the employees who signed
cards went on strike Sprankle did not join the strike
and remained at work On January 17, 32 of the 34
card signers signed a petition asking the Company to
recognize the Union as their collective-bargaining repre-
sentative and advising it that the strike would terminate
if the Company would recognize the Union Sprankle
did not sign the petition nor is there evidence that
he participated in its formulation
Based on the foregoing facts, we cannot say that
Sprankle's activities were such as to have deprived
the employees of an opportunity to freely choose a
collective-bargaining representative and thereby "taint-
ed" the Union's card majority Thus, the purpose of
the December 1968 gathering at Sprankle's home was
not to organize for the Union but to discuss ways
and means to obtain higher wages from Respondent
Sprankle's sole contribution at this meeting was a sugges-
tion to approach the employer directly which was reject-
ed in favor of Riggleman's proposal to seek the aid
of the Union Thereafter, Sprankle's participation in
the organizational drive was minimal It was Riggleman
who contacted the Union and introduced Conte to the
employees Sprankle's statement of support of the Union
during the January 3 meeting occurred after two-thirds
of the employees had expressed themselves in favor
of the Union, and it is clear that even though serious
doubts as to Sprankle's eligibility for inclusion in the
unit were raised and explained to the employees, they
nonetheless executed authorization cards Any remaining
doubt as to Sprankle's minimal effect on the Union's
campaign is totally removed on consideration of the
events subsequent to January 3 On January 15, all
those who signed cards went out on strike and, on
January 17, 32 of the 34 signed a petition demanding
recognition and offering to return to work if it were
granted On the other hand, during this period Sprankle
did not attend the sole union meeting that was held,
remained at work while the employees struck, and did
not sign the petition Finally, there is no evidence that
Sprankle at any time solicited a single authorization
card himself Under these circumstances, which reflect
no coercive effect as a result of Supervisor Sprankle's
participation in the campaign, we conclude, and find,
that the Union represented an uncoerced majority of
the employees in the unit found appropriate on the
date of the demand for recognition
2 We also do not agree with the Trial Examiner's
finding that the only operative factor in the Union's
decision to call a strike on January 15 was its desire
to secure recognition from the Respondent The record
shows that on January 10 the employees met with Conte
and discussed Respondent's refusal to recognize the
Union, its threat to close the plant if the Union were
selected as the collective-bargaining representative, and
the possibility of recourse to strike action Based on
these and other considerations, the employees unani
mously voted to give its employee committee the right
to take whatever action it deemed necessary On January
14, Conte met with the employee committee which,
after discussion of the situation , voted to call a strike
on the following morning Conte testified that the com-
mittee "discussed the position of the Company in regards
to the fact that they would close the plant and the
cutting of hours, the overall attempt of the Company
to discourage the employees in their bid for recognition "
Finally, the picket signs carried by the employees during
the strike stated "Juniata Packing Company Unfair,
this employer in violation of National Labor Relations
Act, Amalgamated Food Employees Union Local 590 "
Under these circumstances we cannot say that the sole
operative factor behind the strike was the Union's
request for recognition The employee discussions lead-
ing to the strike call indisputably involved Respondent's
unlawful prestrike conduct as well as its failure to grant
recognition to the Union In view of Respondent's wide-
spread Section 8(a)(1) and (3) conduct we conclude
that it is reasonable to infer that this conduct played
a part in the decision to go out on strike, and we
find that the strike commencing on January 15, and
at all times thereafter, was an unfair labor practice
strike Indeed, we would reach the same conclusion
even if the Union had not been shown to have represent-
ed a majority of the employees in the unit
3 As a consequence of our determination that the
strike of January 15 was an unfair labor practice strike,
it follows that the striking employees were entitled to
immediate reinstatement when they unconditionally
requested such reinstatement on March 20 As a further
consequence of this determination it is necessary to
review the Trial Examiner's finding that certain strikers
were rendered ineligible for reinstatement by virtue of
their misconduct during the strike After carefully balanc-
ing the nature of the employees' conduct in the two
incidents discussed below against Respondent's unfair
labor practices,' we conclude that, with the exception
of employee Claude Clinton, it would best effectuate
the policies of the Act to reinstate all those discharges
found ineligible for reinstatement by the Trial Examiner
The attack on employee Smith Robert Smith began
work for Respondent on February 10 At the end of
that workday at 4 p in he got into his car and proceeded
to the warehouse of Byer Brothers where he had a
job working nights He was followed from Respondent's
plant to the warehouse parking lot by employees Clinton,
Harpster, Shultz, and Herbert Sprankle in the latter's
car According to Smith's credited testimony, as he
got out of his car he noticed the four men coming
toward him with Clinton about 10 feet in the lead
At the time Smith had a 12-inch sawed off bolt in
his pants pocket Clinton said, "I hear you are working
at Juniata Packing " When Smith answered affirmatively,
Clinton told him, "You had better not go to work
tomorrow " Smith indicated that he was determined
to go to work, whereupon Clinton set upon him causing
them both to fall to the ground While they were on
the ground Clinton struck Smith three times on the
head causing minor injury During the scuffle the other
9 See H N Thayer Company 115 NLRB 1591 1593 1606
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three stood some 10 feet away . When Clinton and Smith
fell to the ground one of the three said , "Come on
Butch [Clinton ], he's not worth it." Clinton got up
and backed off and Smith went into the warehouse.
Smith did not brandish the bolt he had prior to being
accosted by Clinton . Sprankle testified that the men
followed Smith to urge him to honor the picket line.
The incident involving employee Kirkpatrick: Early
one morning in February employee Kirkpatrick, in a
state of intoxication , went to the pickets and suggested
flattening some tires . One of the pickets opposed it.
Kirkpatrick then suggested breaking a plant window
which was also opposed. At this point Kirkpatrick said,
"I'm going to do it anyway ." He then proceeded to
the plant on his own and broke a window with a board.
As noted , we have carefully considered the above-
described incidents in conjunction with Respondent's
unfair labor practices and have weighed one against
the other . We believe that Clinton ' s action in physically
attacking the person of nonstriker Smith was an act
of violence that outweighs the Respondent ' s unfair labor
practices and which has rendered questionable his ability
or fitness for future satisfactory service at the Respond-
ent's plant. We therefore affirm the Trial Examiner's
finding as to Clinton . We feel , however , the actions
of Clinton ' s compatriots stand in a different posture.
Their participation in the attack consisted in no more
than being bystanders to the scuffle . Their avowed pur-
pose in following Smith was to urge him to join the
strike and there is no evidence to attribute a more
sinister motive . They did not attempt to egg Clinton
on and there is evidence that once the short -lived scuffle
began one of them urged Clinton to stop . Although
their collective presence was certainly intimidating, this
is insufficient to show a "joint venture." In any-event,
we hold that the nature of their conduct is outweighed
by Respondent's unlawful prestrike activity . We strike
a similar balance with respect to the Kirkpatrick incident.
The aggravated character of Respondent 's unfair labor
practices preponderates over this single episode.
Although we do not condone the destruction of private
property we ' note that Kirkpatrick's conduct appears
to have been attributable to drink rather than to malice
or a proclivity to damage Respondent's porperty. Under
these circumstances we do not believe his conduct has
any bearing upon his future job performance or renders
him unfit for future service . Accordingly, we shall order
the reinstatement of employees Sprankle , Shultz, Harp-
ster , and Kirkpatrick.
4. One of the authorization cards presented when
the Union demanded recognition on January 3 was that
of George Burns who had been hired the previous Friday
but who had not yet reported to work because of illness.
After the union representative left, Plant Manager Igou
approached Supervisor Sprankle with copies of the
authorization cards and remarked with reference to
Burns "here is a man who has signed a card and
who has never worked a moment for the Company."
Igou told Sprankle to tell Burns not to start work until
the matter could be cleared with Respondent ' s attorney.
Sprankle delivered the message to Burns. Sprankle also
related the incident to several employees . He told
employee Albert Sprankle that "Igou was really pissed
because . . . there is a man who hasn ' t worked a
day yet and here he has signed a card already" and
that Igou had given him instructions to tell Burns not
to come to work until Igou had spoken to a lawyer.
Supervisor Sprankle also told employee Phillip Payne
that Igou "was not going to allow Burns to go to
work until this thing with the Union was settled ." Finally,
Sprankle informed employee Samuel Patton that Igou
was "pissed off" because Burns had signed a card
and had not started to work yet.
Contrary to the Trial Examiner , we hold these state-
ments to be violative of Section 8(a)(1) of the Act.
It is the content of message communicated and not
the character of the communicator that is crucial here.
The fact that Sprankle was a prouniori supervisor does
not detract from the coercive nature of the message
conveyed . Igou was specifically identified as being angry
at Burns ' union , activity and his anger was identified
as the cause of Burns not being allowed to work. The
clear implication is that employees risked reprisal from
Igou if they engaged in union activities. Even if the
remarks were delivered in the friendliest manner, they
conveyed a plainly coercive implication and are therefore
violative of the Act.4
5. We have found that the Union represented a majori-
ty of Respondent ' s employees in a unit appropriate
for bargaining on the date of its demand for recognition.
We also find that since that date Respondent has engaged
in a consistent pattern of unlawful conduct in its effort
to thwart the Union . This conduct , has included the
discharge of an employee for his union activities ; interro-
gation of employees in regard to their union activities
and attitudes ; threatening employees with loss of their
Christmas bonus and retirement fund benefits , and other
economic loss, in reprisal for their engaging in union
activities ; threatening employees that a planned wage
increase would not be granted because of the union
activities of such employees ; threatening employees that
the plant would close down if such employees engaged
in union activities ; and promising a substantial. wage
increase to a striking employee if he would abandon
the strike and return to work . In addition , Respondent
unlawfully refused to timely reinstate 21 striking employ-
ees. We find that such conduct would reasonably be
expected to have the effect of undermining the Union's
majority , and that it destroyed the conditions necessary
to the holding of a free and fair election . We also
find Respondent ' s refusal to bargain in these circum-
stances to be in violation of Section 8(a)(5) of the
Act. We conclude that in order to protect the statutory
rights and interests of the employees and to remedy
the violation of Section 8(a)(1), (3), and (5) committed,
it is essential , that the Respondent be ordered to recognize
and bargain with the Union as the statutory representa-
tive of its employees for the purposes of collective
bargaining.'
5
Mid-South Towing Company, 177 NLRB No 123, (TXD)
5 N.L R B . v Gissel Packing Company , 395 U.S . 575 (1969)
JUNIATA PACKING COMPANY 937
CONCLUSIONS OF LAW
1. Respondent is an employer 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. An appropriate unit of Respondent ' s employees
for purposes of bargaining is a unit of all employees
engaged in the slaughtering , manufacturing , production,
and handling ' of meat and meat products and in the
delivery and maintenance functions at Respondents Ty-
rone , Pennsylvania , facility , excluding Jack Igou, office
clerical employees and guards , professional employees
and supervisors as defined in the Act.
4. Since January 6, 1969 , Amalgamated Meat Cutters
and Butcher Workmen of North America , Amalgamated
Food Employees Union Local 590, AFL-CIO, has been
and' is the exclusive representative of all employees
in the aforesaid appropriate unit for purposes of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing, on or about January 10, 1969, and
at all times thereafter , to bargain collectively with the
above -named labor organization as the exclusive bargain-
ing representative of all its employees in the appropriate
unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. The strike which commenced on January 15, 1969,
was an unfair labor practice strike from its inception.
7. By discriminating as follows in regard to hire or
tenure of employment of its employees , thereby discour=
aging membership in the Union , Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(3) and ( 1) of the Act:
(a) Laying off indefinitely and, in effect , discharging,
and thereafter refusing to reinstate , George Burns
because of his union activity.
(b) Conditioning the return to work of unfair labor
practice strikers in its letter to them of April 3, 1969,
upon their returning as new employees.
(c) Discharging Joan Campbell , a striking employee,
and thereafter refusing to reinstate her, for alleged willful
misconduct during the strike , - where it affirmatively
appears that such misconduct did not occur.
(d) Failing to offer unfair labor practice strikers Philip
Payne, George McClellan, Charles McClellan, Warren
Getz, Guy Miller, Leroy Riggleman , Warren Parson,
and Betty Thomas Everhart reinstatement at the time
of thier unconditional request for reinstatement and
by failing to offer immediate reinstatement to Kenneth
Renney, Joseph Smith, Louis Estego, Caroline Getz,
Ronald Moore , and Pearl Ramsey upon their uncondition-
al request for reinstatement.
8.. By discharging striking employees Herbert Spran-
kle, Robert Harpster , Daniel Schultz, and Charles Kirk-
patrick for alleged willful misconduct during the strike
where it has been found that the strikers ' activities
were vitiated by Respondent ' s unlawful conduct,
Respondent thereby discriminated in regard to the hire
or tenure of employment of its employees and discour-
aged membership in the Union , in violation of Section
8(a)(3) and (1) of the Act.
9. By the following conduct which interfered with,
restrained , and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act,
Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act:
(a) Interrogating employees concerning their union
activity and attitude toward the Union.
(b) Threatening employees with economic reprisals
for engaging in union activity ; namely , with loss of
their Christmas bonus, loss of the retirement fund, with-
holding their annual wage increase , and closing down
the plant.
(c) Promising a substantial wage increase to a striking
employee if he would abandon the strike and return
to work.
(d) By the conduct of Supervisor Sprankle in commu-
nicating ' the coercive remarks of Plant Manager Igou
to its employees , Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
10. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having concluded that the strike commencing January
15 was an unfair labor strike from its inception, we
find that it will effectuate the purposes of the Act
to order that Respondent offer all strikers who have
made unconditional offers to return to work ' immediate
and full reinstatement to their former jobs, or, if those
jobs no longer exist , to substantially equivalent positions,
without prejudice t0 tliei f seniority or other rights and
privileges and make them whole for any loss of earnings
they may have suffered as a result of the discrimination
against them, by payment to each of them of a sum
of money equal to that which he would have earned
as wages from the date of such discrimination, i.e.,
the date of the unconditional offers to return to work,
to the date of Respondent ' s offer of reinstatement, less
his net earnings during such period, with backpay and
interest thereon to be computed in the manner prescribed
by the Board in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , the National Labor Relations
Board hereby orders that the Respondent, Juniata Pack-
ing Company, Tyrone, Pennsylvania , its officers , agents,
successors, and assigns , shall:
(f) Post at its plant in Tyrone, Pennsylvania , copies
of the attached notice marked "Appendix".7 Copies
With the exception of employee Clinton
In the event, this Order is enforced by a Judgment of a United
(Cont )
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, on forms provided by the Regional
Director for Region 6, after being signed by a representa-
tive' of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said,notices are not altered,
defaced; or covered by any other material.
(g) Notify the said Regional Director, in writing, with-
in 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Amalgamated Meat Cutters and Butcher Workmen of
North America, Amalgamated Food Employees Union
Local 590, AFL-CIO, as the bargaining representative
of its employees concerning wages, rates of pay, hours,
and other terms and conditions of employment in the
following appropriate unit:
All employees engaged in the slaughtering, manufac-
turing, production and handling of meats and meat
products and in the delivery and maintenance func-
tions at Respondent's Tyrone, Pennsylvania, facili-
ty, excluding Jack Igou, office clerical employees
and guards, professional employees and supervisors
as defined in the Act.
(b) Discouraging membership in, or activities on
behalf of, Amalgamated Meat Cutters and Butcher Ware-
housemen of North America, Amalgamated Food
Employees Union Local 590, AFL-CIO, by refusing
reinstatement to unfair labor practice strikers upon their
unconditional offer to return to work, by laying off
indefinitely and, in effect, discharging an employe for
engaging in union activity, by discharging a striking
employee for alleged willful misconduct during a strike
where it affirmatively, appears that such misconduct did
not occur, and by discharging striking employees for
alleged willful misconduct during a strike where it is
found that the strikers' activities were vitiated by the
unlawful conduct of the Respondent.
(c) Interrogating employees concerning their union
activity or attitude toward representation by a union
in violation of Section 8(a)(1) of the Act.
(d) Threatening employees with (1) the loss of their
Christmas bonus, (2) the loss of their retirement fund,
(3), the withholding of their annual wage increase, or
(4) the closing of the plant for engaging in union activity,
or (5) loss of their jobs.
(e) Promising a wage increase to a striking employee
if he would abandon the strike and return to work.
(f) If any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall be changed
to read "Posted Pursuant to a Judgment of the United States Court
of Appeals Enforcing an Order of the National Labor Relations Board "
(a) Upon request, bargain collectively with Amalga-
mated Meat Cutters and Butchers Workmen of North
America, Amalgamated Food Employees Union Local
590, AFL-CIO, as the collective-bargaining representa-
tive in the unit found appropriate herein, and embody
in a signed agreement any understanding reached.
(b) Offer to George Burns immediate and full rein-
statement to his former job or, if that job no longer
exists to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make, him whole for any loss of earnings he may
have suffered as a result of the discrimination practiced
against him, in the manner set forth in the section
of the Trial Examiner's Decision entitled "The Reme-
dy. 11
(c) Offer to Joan Campbell, Philip Payne, George
McClellan, Charles McClellan, Warren Getz, Guy Miller,
Leroy Riggleman, Warren Parsons, Betty Thomas Ever-
hart, Herbert Sprankle, Robert Harpster, Daniel Shultz,
and Charles Kirkpatrick immediate and full reinstatement
to their former jobs, or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them as well as Kenneth Renney, Joseph Smith,
Louis Estego, Caroline Getz; Ronald Moore, and Pearl
Ramsey, whole for any loss of earnings they may have
suffered by reason of the discriminatory failure to rein-
state them at the time of their unconditional offer to
return to work on March 20, 1969, in conformity with
the Board's Decision herein. ,
(d) Preserve and, upon request, make available to
the Board and its agents, for examination' and., copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all `other
records necessary in determining the amount ;due as
backpay.
(e) Notify George - Burns, Joan Campbell, 'Philip
Payne, Warren Parsons, Betty Thomas Everhart, Herbert
Sprankle, Robert Harpster, Daniel Shultz, and Charles
Kirkpatrick if presently serving in the Armed Forces
of the United States of their right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to
give evidence, the National Labor Relations Board found
that we, Juniata Packing Company, violated the National
Labor Relations Act, and ordered us to post this notice
and to carry out its provisions.
The law gives you the right:
To form, join, or help unions
JUNIATA PACKING COMPANY 939
To choose a union to represent you in bar-
gaining with us
To act together for your common interest
or protection
To refuse to participate in any or all of
these things
The Board has ordered us to promise you that:
WE WILL NOT interfere with your rights.
WE WILL NOT refuse to recognize, and bargain
collectively concerning rates of pay, wages, hours
of employment, and other conditions of employment
with Amalgamated Meat Cutters and Butcher Work-
men of North America, Amalgamated Food
Employees Union Local 590, AFL-CIO, as the
exclusive representative of all employees in the
appropriate bargaining unit described below.
WE WILL NOT question you concerning your
union activity or your attitude toward representation
by a union.
WE WILL NOT threaten that (a) you will lose
your Christmas bonus, (b) you will lose your retire-
ment fund, (c) we will withhold your annual wage
increase, (d) you will lose your job, or (e) we
will close the plant because you are engaging in
union activity.
WE WILL NOT promise a wage increase to a
striking employee if he would abandon the strike
and return to work.
WE WILL NOT discourage membership in, or
activities on behalf of, Amalgamated Meat Cutters
and Butcher Workmen of North America, Amalga-
mated Food Employees, Union Local 590, AFL-CI-
O, or any other labor organization, by refusing
reinstatement to unfair labor practice strikers who
have unconditionally offered to return to work,
by laying off indefinitely and, in effect, discharging
an employee for engaging in union activity, by
discharging a striking employee for alleged willful
misconduct during a strike, where it affirmatively
appears that such misconduct did not occur, and
by discharging striking employees for alleged willful
misconduct during a strike where it is found that
the strikers' activities were vitiated by the unlawful
conduct of the Company.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their right to self-organization, to form
labor organizations, to join or assist Amalgamated
Meat Cutters and Butcher Workmen of North
America, Amalgamated Food Employees Union
Local 590, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives
of their own choosing, or engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities, except to the
extent that such rights may be affected by an agree-
ment requiring membership in a labor organization
as a condition of employment , as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL, upon request , recognize and bargain
collectively with Amalgamated Meat Cutters and
Butcher Workmen of North America, Amalgamated
Food Employees Union Local 590, AFL-CIO, as
the exclusive representative of our employees in
the bargaining unit described below concerning rates
of pay, wages, hours of employment, and other
conditions of employment, and we will embody
any agreement reached in a signed agreement upon
request of the bargaining representative. The bar-
gaining unit is:
All employees engaged in the slaughtering,
manufacturing, production and handling of
meats and meat products in the delivery and
maintenance functions at the Employer's Tyr-
one, Pennsylvania, facility; excluding Jack
Igou, office clerical employees, and guards,
professional employees and supervisors as
defined in the Act.
WE WILL make Kenneth Renney, Joseph Smith,
Louis Estego, Caroline Getz, Ronald Moore, and
Pearl Ramsey whole for any loss of earnings they
may have suffered by reason of our discriminatory
failure to reinstate them immediately upon their
unconditional request for reinstatement on March
20, 1969
WE WILL offer to George Burns and to Joan
Campbell immediate and full reinstatement to their
former jobs, or, if those jobs no longer exists,
to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges,
and make each of them whole for any loss of
earnings he may have suffered as a result of the
discrimination against him.
WE WILL offer to Philip Payne, George McClel-
lan, Charles McClellan, Warren Getz, Guy Miller,
Leroy Riggleman , Warren Parsons, Betty Thomas
Everhart, Herbert Sprankle, Robert Harpster, Dan-
iel Shultz, and Charles Kirkpatrick immediate and
full reinstatement to their former jobs, or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges and make them whole
for any loss of earnings they may have suffered
by reason of our discriminatory failure to reinstate
them.
WE WILL notify the above-named employees if
presently in the Armed Forces of the United States
of their right to full reinstatement upon application
in accordance with the Selective Service Act and
the Universal Military Training and Service Act,
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as amended, after discharge from the Armed
Forces
JUNIATA PACKING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
1536 Federal Building , 1000 Liberty Avenue, Pittsburgh,
Pennsylvania 15222, Telephone 412-644-2977
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H KusKIN, Trial Examiner This proceeding
was heard at Hollidaysburg, Pennsylvania, on August
19 to August 22, 1969 A complaint, as amended at
the hearing, issued herein on July 7, 1969, based on
a charge, a first amended charge, a second amended
charge, and a third amended charge, filed on January
15, February 10, April 18, and July 2, 1969, respectively
The complaint, as amended, alleges, in substance, that
Juniata Packing Company, herein called Respondent,
has violated Section 8(a)(1) of the Act by interrogating
employees as to their union membership, activities, and
sympathies, by creating the impression that its employ-
ees' activities are under surveillance, by promising an
employee a wage increase if he would abandon the
strike which was initiated on January 15, 1969, by Amal-
gamated Meat Cutters and Butcher Workmen of North
America, Amalgamated Food Employees Union Local
590, AFL-CIO, herein called the Union, and would
then return to work, by threatening employees variously
with loss of their Christmas bonus and retirement fund
benefits and with plant closure and cessation of opera-
tions if they selected the Union as their bargaining
representative, and by telling employees that a planned
wage increase would not be granted because of the
Union's organizational campaign, and it alleges further
that Respondent has violated Section 8(a)(3) of the Act
(1) by failing and refusing, after the aforesaid strike
terminated on March 23, 1969, to reinstate 21 named
employees to their former or substantially equivalent
positions of employment because they engaged in the
aforesaid strike, which it caused and/or prolonged by
its unfair labor practices, (2) by conditioning the rein-
statement of these 21 employees upon their filling out
and filing with it individual applications of employment,
(3) by reducing the working hours of employees Warren
Parsons and Charles Kirkpatrick because of their union
and concerted activities, and (4) by discharging and
failing and refusing to reinstate George Burns because
of his union and concerted activities, and it alleges
still further that Respondent has refused, and continues
to refuse, to recognize and to bargain with the Union
since January 6, 1969, as the exclusive bargaining repre-
sentative of an appropriate unit of its plant employees
notwithstanding the Union's designation and selection
by a majority of the employees in said unit on the
above date Respondent's answer denies that it has
violated the Act in any respect alleged herein
Upon the entire record, including my observation
of the witnesses, including their demeanor while on
the witness stand, and after due consideration of the
briefs of the General Counsel and Respondent,' I make
the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The complaint, as amended, alleges, and Respondent
admits, that it is a Pennsylvania corporation engaged
in the processing and sale of meat products at its only
plant located in Tyrone, Pennsylvania, and that, during
the 12 months preceding the issuance of this complaint,
it received for plant use goods and materials valued
in excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania I find, upon the forego-
ing, as Respondent also admits, that Respondent is
engaged in commerce within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint, as amended, further alleges, and
Respondent also admits, and I find, that Amalgamated
Meat Cutters and Butcher Workmen of North America,
Amalgamated Food Employees Union Local 590,
AFL-CIO, is a labor organization within the meaning
of the Act
' Throughout the hearing counsel for Respondent preparatory to
cross examination of witnesses for the General Counsel moved for
the production of any statement given by such witness to representatives
of the General Counsel prior to the hearing In such instances where
the General Counsel claimed that an affidavit or part thereof given
by the witness then under cross examination by Respondent did not
relate to the subject matter of the witness testimony I examined
the statements in camera and permitted counsel for the General Coun
sel over objection of Respondents counsel to withhold either the
entire affidavit or part thereof if such entire affidavit or part thereof
did not relate to the subject matter of the testimony of the witness
Counsel for Respondent acknowledges that this was done in accordance
with Section 102 118 of the Board s rules and regulations However
he contends that his cross examination was thereby curtailed and he
was denied procedural due process I find this contention to be lacking
in merit and adhere to my rulings I note in this connection that
the Jencks Act (18 U S C 3500) of which the Board was clearly
mindful in drafting this rule was interpreted by the Supreme Court
in Palermo v United States 360 U S 343 as requiring the production
of statements if their contents related to the subject matter of the
witness testimony The case of Brady v Maryland 373 U S 83
cited by Respondent in its brief is clearly distinguishable from the
instant case
JUNIATA PACKING COMPANY 941
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts and Sequence of Events
On a Friday night in December 1968, about 10 of
Respondent's employees gathered at the home of admit-
ted Supervisor Robert Sprankle in order to discuss ways
and means of getting more pay from Respondent; some
5 of these employees were to play poker on the premises
thereafter as they had done frequently on Friday nights
in the past at the home of one of the poker playing
group. Supervisor Sprankle's proposal that the employ-
ees proceed on their own and go to see John C. Igou,
the general manager and also secretary of Respondent,
concerning the matter of more pay was defeated. Instead,
the assemblage decided to have employee Leroy Riggle-
man contact the Union.2 This he did, and a meeting
was arranged for the evening of January 3, 1969,3 at
a hall in Tyrone referred to hereinafter as the Hookeys.
About 26 employees and Supervisor Sprankle attended
the meeting . Adolph Conte, an organizer for the Union,
presided at the meeting. At first, Conte discussed prelimi-
nary matters, including some background information
on the Union and how it could, by representing them,
help them gain economic advantages. Conte explained
that union representation of Respondent's employees,
in order to negotiate with Respondent concerning wages,
hours, and fringe benefits, could be achieved either
through a Board election in which a majority of the
employees to be represented selected the Union, or
through the presentation of union authorization cards
signed by such majority to Respondent for a card check.
Conte then added that the Union recommended the
card-check route. The assemblage voted unanimously
to follow the recommendation of the Union. In the
course of ' explaining the composition of the"bargaining
unit', Conte • mentioned that supervisors would, among"
others, be excluded and gave his understanding of the
functions of a person who would be deemed a supervisor.
Thereupon, the employees said "in unison" that they
wanted Robert Sprankle included in the unit. At this
point, Robert Sprankle spoke up and said that he was
in favor of the Union and that the employees needed
a union, but if he was not going to get protection,
he would not sign a card. There followed a colloquy
between Conte and Robert Sprankle as to the nature
of his functions and duties and how they squared with
the definition of supervisor. Because Conte had some
doubt as to supervisor, he suggested that Robert Sprankle
and he leave the meeting in order to telephone Conte's
superior. The suggestion was followed and a telephone
call was made to one Anthony J. Lutty, the recording
secretary of the Union. After the situation was explained
to Lutty by Conte, Lutty advised that, as there was
a reasonable doubt as to his status, Robert Sprankle
could sign the card with the understanding that the
card would not be used in support of the Union's
card showing thereafter to be made to Respondent.
' It would appear that Supervisor Sprankle also joined in this decision.
All dates hereinafter are in 1969 , unless otherwise indicated
Robert Sprankle also spoke to Lutty on the telephone
at that time. While Conte and Robert Sprankle were
out of the meeting room on this mission, which took
about 15 or 20 minutes, union authorization cards were
being distributed to the employees at the meeting for
their signature. Twenty-one cards were signed during
this interval.' Upon the return of Conte and Robert
Sprankle to the meeting, Conte explained that there
was a reasonable amount of doubt as to whether Robert
Sprankle was a supervisor and that, in these circum-
stances, Robert Sprankle was to sign a card but his
card was not to be used for the purpose of demanding
recognition. Thereupon, Robert Sprankle signed a card,
which card, along with the 21 cards theretofore signed,
was collected and turned over to Conte. Another item
of business at the meeting was the appointment of
the following' employees to serve as union committee-
men: Albert'Sprankle, Herbert Sprankle,g Leroy Riggle-
man, John Walls, Jack Smith, and Betty Thomas."
By January 6, Conte had in his possession 32 signed
union authorization cards exclusive of Robert Sprankle's
card. On that date, Conte, accompanied by Harold Die-
bier, an organizer for the International with which the
Union herein is affiliated, called upon John C. Igou,
Respondent's plant manager, and advised him that the
Union represented a majority of the employees and
wished to arrange a meeting for discussion of wages,
hours, and fringe benefits for the represented employees.
Conte also presented Igou with photostatic copies of
these 32 signed union authorization cards, exclusive
of Robert Sprankle's card, and with two copies of
a,recognition agreement.' Igou's response thereto was
that .these matters-would, have to be , taken ,up by letter
with, Respondent's. attorney, and he orally furnished
them with the attorney's name and address. Conte pro-
ceeded,, to wriw down.. this information. At the same
time , Igou leafed through the photostatic copies of the
cards. During the course thereof, Igou inquired from
a secretary as to the identity of George Burns, one
of the alleged discriminatees herein, whose name
appeared on one of the photostats. Upon learning from
her that Burns had been hired on January 3 to report
to work on January 6, and had called in sick, Igou
remarked, according to the uncontradicted testimony
of Conte, corroborated in part, by Diebler, "he is sure
off to a good start." When Conte attributed the situation
to' the Union's thoroughness and prompt action, Igou
added, "You sure are."" Igou admitted noticing that
these,were photostats of cards from some of the Compa-
ny's drivers , and packers, and commenting to Conte
" The General Counsel introduced into evidence 22 cards bearing
date of January 3.
S Albert and Herbert are brothers of Robert Sprankle, Albert and
Robert being twins.
" Betty Thomas became Betty Thomas Everhart, through marriage,
in the interval between January 3 and the date of the instant hearing
' The documents were those being used by the Union for retail
food markets and Conte conceded that he presented them in error
" Burns did not thereafter report for work , having been advised,
at Igou's direction , that he was not to report to work until Respondent
got in touch with him Whether or not Bums was discriminatorily
discharged on January 6 is one of the 8(a)(3) issues in the case
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Diebler that, a little over a year before, the Teamsters
Union had tried to organize only a portion of the plant
The session concluded with the understanding that the
Union would contact Respondent's attorney concerning
the matter When Conte left, he indicated that he was
leaving the photostatic copies of the authorization cards
and the two copies of the recognition agreement with
Igou However, Igou did not retain the photostats
Instead, he destroyed them around noon of the same
day, upon instructions of company counsel
A letter, dated January 7, was thereafter sent by
the Union by certified mail both to Igou, as general
manager of Respondent, and to William Vanderlin, Esq ,
the company attorney designated by Igou In it, the
Union stated that it was confirming the facts that Conte
and Diebler presented authorization cards to Igou on
January 6 and then requested recognition of the Union
as the bargaining representative "for the employees
of the Juniata Packing Company " In addition, the Union
mentioned therein its readiness to negotiate a collective-
bargaining agreement immediately, and requested advice
as to when Respondent would be available to do so
Enclosed in the letter were two copies of a proposed
recognition agreement, apparently as replacements for
the recognition agreements given to Igou in error, the
day before The recognition agreement described the
unit as "all [of Respondent's] employees engaged in
the slaughtering, manufacturing, production and handling
of meats and meat products, delivering and maintenance,
except office clericals, stenographers and other office
employees and supervisors "
The Union's letter elicited a letter in reply from
company counsel," under date of January 10, which
was apparently received by the Union on January 13
The letter, apart from accusing Conte and Diebler of
using "trickery and chicanery" and high handed methods
with Igou on January 6, which charges are totally unsup-
ported in the record, acknowledged that photostatic
copies of authorization cards and a recognition agree-
ment, not applicable to its type of business, were given
to Igou, and that the photostatic copies were thereafter
destroyed by Igou pursuant to its instructions, it also
rejected the demand for recognition, in substance
because it firmly believed that the Union lacked the
claimed majority status in the unit described in the
replacement recognition agreement and because, in its
view, the Union's claim of representation, as well as
the determination of the scope and composition of the
unit could best be decided through existing election
procedures under the National Labor Relations Act
In the interim, also on January 10, Conte met with
Respondent's employees in order to discuss develop-
ments from the time of the Union's request of Respond-
ent for recognition up to the time of this meeting
According to Conte, he told them what happened when
the Union requested recognition and he was, in turn,
told by various employees (1) that their working hours
" Mr Vanderlin is a member of the law firm which appeared in
this proceeding through William R Tait Jr Esq to represent Respond
ent The letter was signed by Mr Tait in behalf of the law firm
had since been curtailed, (2) that management had told
them that Respondent would close the plant before
it would recognize the Union, and (3) that management
had also told them that there was no need for a union
and sought to discourage them from participating in
union activities A consequence of the meeting was
a vote by secret ballot in which the employees voted
unanimously to give the union committee permission
"to take whatever action was necessary to support
their demands for recognition "
On January 14, Conte and Diebler came to the plant
and spoke to Igou again Conte and Diebler renewed
the request for recognition of the Union and Igou again
referred them to company counsel At this point, Conte
added that "the employees were prepared to support
their demands for recognition " This terminated the
meeting and Conte and Diebler left Later that day,
Conte and Diebler met with the union committee in
order to discuss developments Upon completion of
the discussion, the committee voted to call a strike
at Respondent's plant to begin the next morning
The strike began at 7 a in on January 15, and 32
employees joined therein The plant continued to operate
throughout the strike which lasted until midnight of
March 22 Some of the key developments during this
interval were (1) Respondent's January 16 letter to the
employees saying that this matter could be settled quickly
and peacefully by a Board election, that Respondent
had filed a petition for such an election, and that the
Union could show its good faith by permitting everyone
to return to work immediately, (2) the actual filing of
a petition for an election by Respondent which did
not reach fruition,"' (3) a "petition" signed by the 32
striking employees on January 17 expressing their willing-
ness to return to work if Respondent recognized and
bargained with the Union, plus the Union's attached
statement directed to that portion of Respondent's letter
of January 16 urging an election, in which the Union
expressed its willingness to go to an election immediately
if the election is held by an impartial third person"
before the employees return to work, (4) the filing of
a petition for a Board election by the Union on February
10, which also did not reach fruition,12 (5) the Union's
letter of March 20 announcing the termination of the
"' The petition was in fact filed on January 16 in Case 6-RM-374
However due to the filing of charges of 8(a )( 1) (3) and (5) in the
instant proceeding by the Union on January 15 the Regional Director
for Region 6 advised Respondents counsel that he was holding the
petition in abeyance because of such charges Thereafter on January
28 the petition was withdrawn
" No such election was ever held
12 The Union s petition was filed in Case 6-RC-4921 The Union
also filed on February 10 a request to proceed with the petition despite
its pending unfair labor practice charges However on February 27
the Regional Director advised the parties that he was holding the
petition in abeyance because of pending charges against the Union
by Respondent in Case 6-CB-1673 These charges were subsequently
resolved by a settlement agreement between Respondent and the Union
with the approval of the Regional Director Although a hearing in
Case 6-RC-4921 was thereafter convened on April 16 the hearing
was postponed at the request of counsel for the Union before any
witness was called to testify The petition was subsequently withdrawn
by the Union on April 18 and such withdrawal was approved by
the Regional Director on April 21
JUNIATA PACKING COMPANY 943
strike as of midnight on March 22 and the unconditional
request therein for the reinstatement of those employees
who were still on strike,13 (6) the followup request
on March 22 by Conte and Diebler for such reinstate-
ment, made to Igou, and (7) the actual termination
of the strike in conformity with the Union's March
20 letter
Respondent has refused to reinstate 6 of the 21 striking
employees, alleged in the complaint, as amended, to
have been discnminatorily refused reinstatement, for
the claimed reason that they engaged in misconduct
during the strike which rendered them unsuitable for
continued employment Of the remaining 15 employees,
Respondent has during the period between April 14
and May 27 reinstated 6 of them In addition to the
reinstatement issue, this case presents such issues as
(1) the extent of 8(a)(1) conduct, if any, committed
by Respondent both before and after the beginning
of the strike, (2) whether Respondent discriminatorily
curtailed the hours of work of two employees in violation
of Section 8(a)(3) and (1) of the Act, (3) whether
Respondent unlawfully refused to bargain before the
strike, and (4) whether the strike was an economic
or unfair labor practice strike
B Interference, Restraint, and Coercion
Mike Pallo, John C Igou, R F Bayer, Sr , Herbert
Bayer, and Robert Sprankle are the management repre-
sentatives involved in the incidents or conversations
detailed hereinafter '" The supervisory status of Pallo,
Igou , and Sprankle is admitted As to both Bayers,
I am persuaded, and find, that they are, as alleged
in the complaint, as amended, agents of Respondent
acting in its behalf Of these five, only R F Bayer,
Sr , did not appear as a witness
In the interest of an orderly presentation of the 8(a)(1)
issues herein, I shall group the relevant evidence accord-
ing to the management representative involved
1 Mike Pallo
Employee Philip Payne testified that, on January 3,
Pallo came over to the shipping desk where he was
working and asked him if he had been invited to the
meeting at the Hookeys, and that he replied that he
was going to attend As heretofore found, a meeting
by a group of employees with a representative of the
Union was scheduled for that evening at the Hookeys
Also according to Payne, on January 10, Pallo spoke
to him again about the Union This time he was working
in the cooler and Pallo said that, "he couldn't understand
" There were some defections from the strikers ranks during the
strike e g John Walls Don Walls Jack Smith and Charles Hunter
14 Pallo is the assistant manager Igou as heretofore found is the
general manager and secretary of Respondent and holds a 9 percent
stock interest in Respondent R F Bayer Sr is chairman of Respond
ent s board of directors and also owns stock in Respondent the amount
of which is not revealed by the record Herbert T Bayer is president
of Respondent and also assistant treasurer Robert Sprankle is the
foreman of the kill and cut department
why we wanted to initiate having a union , because
we would lose our Christmas bonus and our retirement
fund " In addition, Pallo asked him what he was going
to do, and his reply was that he was going along with
the majority Pallo's parting remark was, "I think you
are very foolish "
There is further testimony by employee Herbert Spran-
kle attributing antiunion remarks to Pallo He fixed
the time as a few days after January 6 and the place
as the cooler According to him, Pallo remarked to
him that he, Pallo, "wished he had a couple of more
years in,15 he would be the hell out of this mess "
He, Herbert Sprankle, then urged Pallo to "hang on
for a little bit, maybe we would have this mess straight-
ened out " To this, Pallo replied that, "before the
Company would recognize the Union they would close
up the shop first "
As to all the foregoing, Pallo denied, on direct, that
he ever talked to Payne or to Herbert Sprankle or
to anyone about the Union or about a union meeting
During cross-examination by the General Counsel, he
categorically denied, at first, that he knew that the
Union was trying to organize the Company However,
when pressed, he changed his testimony to say that
he first learned of the Union's organizational efforts
when the strike, which began on January 15, was in
progress He also disclaimed any knowledge that the
Union had some authorization cards from the employees
and had come in to speak to Igou As already found,
the latter episode occurred on January 6 And while
there is testimony, on direct, by Pallo that he was
out sick for 2tf days in the beginning of January, nowhere
does it appear that he was away from work on the
days mentioned in the testimony of Payne and Herbert
Sprankle Pallo was, at all relevant times, a working
assistant manager who was in almost continuous contact
with the employees throughout the plant, and he was
Igou's assistant and acted in Igou's place and stead
when Igou was away from the plant, on occasion In
these circumstances, and in light of the Union's contact
with Igou on January 6 and in view of the speeches
by Igou to employees on January 14 on the shipping
floor about the union situation , as hereinafter found,
it taxes one's credulity to believe that Pallo was devoid
of any knowledge of union activity until sometime after
the strike began on January 15
In all these circumstances, and because Pallo
impressed me as an evasive witness, I do not credit
his denials Instead, I credit both Payne and Herbert
Sprankle who testified in a forthright and convincing
manner I therefore find, in accordance with the testimo-
ny of Payne, that Pallo interrogated him on January
3 about whether he was going to attend a union meeting,
and interrogated him again , on January 10, as to what
he was going to do about the Union, and further that
on the latter date, Pallo threatened Payne that the
employees would lose their Christmas bonus and their
retirement fund as a consequence of the plant's unioniza-
" Apparently Pallo will be ready for retirement after a couple more
years of service with Respondent
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion; and finally, I find, in accordance with the testimony
of Herbert Sprankle, that on or about January 8, Pallo
threatened that the Company would close down its opera-
tions rather than recognize the Union. Accordingly,
I conclude, and find, that by Pallo's aforesaid acts
of interrogation concerning employee activity in behalf
of the Union and by Pallo's aforesaid threats of economic
disadvantage'to employees because of their union activi-
ty, Respondent interfered with, restrained, and coerced
its employees in violation of Section 8(a)(1) of the Act.
2. John C. Igou
On January 14, Igou spoke to Respondent's employees
in three different groups, at different times of the day,
about their desires for union representation. In this
manner, he was able to reach the day-shift employees,
the drivers who are out of the plant during the day,
and the night-shift employees. To these groups of
employees, assembled by him, Igou referred to the
Company's past relationship to its employees and the
settlement of differences between the Company and
its employees and the settlement of differences between
the Company and its employees amicably and without
a union."' He pointed out that the Company felt that
a union was not needed by the employees but added
that if they felt otherwise the proper way to go about
it was to have a Board-conducted election. When concern
was expressed over the length of time required for
this suggested approach, Igou told the employees that,
in order to speed the process, Respondent would itself
petition for a Board-conducted election."
The critical testimony, in this connection, relates to
Igou's conversation with several employees, among
whom are Albert Sprankle, Larry Showalter, and Sam
Patton, shortly after he delivered his speech to the
first group, which included these individuals. Igou's
own version of the incident, which is, in large part,
"` Igou had in his hand a speech prepared by counsel for Respondent
which, he testified, he "closely followed but did not read from it."
" There is record testimony by employee John Walls, who was
in the first group, that "Igou talked to us about the union situation,
he also mentioned to us, refreshing our memories due to the fact
that the state inspection was coming in, he also mentioned the fact
that we had a sewage disposal problem , which was going to [cost]
quite heavily and he said with this all combined , it could cause us
maybe to close up " However , Walls was unsure of himself and did
not impress me as a reliable witness In addition , I note the countervailing
testimony of employee Samuel Patton, another witness for the General
Counsel, who was also present in the first group, that he did not
hear Igou say during the meeting that he would close the plant down
I note, too, that employee Betty Thomas Everhart testified, on direct,
that she heard Igou talk to all three groups and that he told each
group that, "if the union came in the place would be boarded up "
However, on cross-examination by counsel for Respondent, she revised
her testimony to say that this remark was made only to the third
group of employees , in addition , she acknowledged , after being shown
her preheating affidavit to a Board agent, that she swore therein that
she heard Igou speak to all the groups and at no time did Igou promise
any benefits to anyone nor did he threaten anyone
In this state of the record, including the denials by Igou that he
threatened , during these speeches , to close the plant, I am persuaded,
and find, that the record falls far short of establishing that Igou uttered
any threat during these speeches. Accordingly, I find that allegation
6(b) of the complaint , as amended , has not been sustained
the same as that testified to by Albert Sprankle; Showal-
ter and Patton is as follows: He was passing through
the killing floor and saw people in a huddle discussing
what probably was the speech that he had just delivered.
He walked up to the group and asked if he could
join in the discussion. The employees agreed that he
could and explained that they were interested in getting
more money and that was the reason for the discussion.
Whereupon, he told the group, "that we had a 10
cents an hour raise in the making, but that now we
would have to hold it up." It is evident from the
context in which this occurred, and I find, that, even
accepting Igou's version, the stumbling block implied
was the Union's organizational activity. However, I
am persuaded, and find, from the mutually corroborative
testimony of Albert Sprankle, Showalter, and Patton
on this point that Igou made a direct reference to the
union activity then in progress as the stumbling block
to a 10-cent raise.
Igou also testified that Respondent has had a practice,
dating back at least to 1958, of granting a wage increase
to the employees during the last week of January, retro-
active to January 1,1" and that, except for the year
1964, a raise was granted in January of each year through
1968. The matter of a raise is first considered at the
board of director's annual meeting on the third Saturday
in January.'" Thereafter, on the last Saturday in January,
Respondent holds a stag party2' for its employees at
the lodge of R. F. Bayer, Sr., the chairman of the board,
where the raise is announced by him during a speech
to the employees. In the year 1969, according to Igou,
the board of directors held their meeting on the Saturday
following January 14 and then "discussed the legality
of the raise and decided to contact [its] attorneys."
It is thus apparent that, in this instance, Igou's remarks
about holding up the annual wage increase were precipi-
tate and antedated consideration of the annual wage
increase by the board of directors."
It is well established, and the Board has repeatedly
held, that "an employer confronted with a union organiz-
ing campaign should decide the question of granting
or withholding benefits as he would if a union were
not in the picture; if his course of action in granting
or withholding benefits is prompted by the Union's
presence, he violates the Act."22 I have heretofore found
that Igou gave as the reason for withholding of the
annual wage increase to Respondent's employees the
fact that Respondent was confronted with an organiza-
'" At first, Igou testified, during cross-examination by the General
Counsel, that not in all instances were these raises made retroactive
to January 1. However, after being shown his preheating affidavit
to a Board agent, he charged his testimony to indicate uniformity
in this practice
" The relevant date in 1969 was January 18
21 Apparently the female employees have a separate party.
" Thereafter, upon receiving an opinion from its attorneys in late
January or early February, Respondent granted the annual increase
in February retroactive to February I There is, however, no allegation
in the complaint, as amended, that Respondent further violated the
Act by this variance in the retroactive date from the January I date
in former years
11 The May Department Stores Company dlbla Famous-Barr Compa-
ny, 174 NLRB No. 109 , and cases cited therein in fn. 5.
JUNIATA PACKING COMPANY
tional campaign; and that he did so, in advance of
the time for consideration of the wage increase by
Respondent's board of Directors. It follows, therefore,
and I find, that by Igou's statement that Respondent
would hold up the annual wage increase because of
the organizational campaign then in progress Respondent
violated Section 8(a)(1) of the Act.23
3. Robert Sprankle
As heretofore found, when Igou leafed through the
photostatic copies of signed union authorization cards
handed to him by the union organizers on January
6, he noticed the photostatic copy of George Burns'
card. At that point, Igou remarked that, "Burns was
sure off to a good start" in signing a card before January
6, the day he was scheduled to report for work. There-
after, also on January 6, Igou told Robert Sprankle
to tell Burns , who called in sick that day, not to start
work until he, Igou, cleared it with Respondent's counsel.
The record discloses that a few days later Robert Spran-
kle reported on developments concerning Burns to his
brother, Albert, and to employees Philip Payne and
Sam Patton. Albert Sprankle testified that Robert Spran-
kle told him that, "Igou was really pissed because
. . . there is a man who hasn't worked a day yet
and here he has signed a union card already," and
that Igou told him, Robert, to tell Burns not to come
in until he, Igou, talked to his lawyer. Payne's testimony,
in this connection, was that Robert Sprankle told him
that Igou "was not going to allow Burns to go to
work, until this thing with the Union was settled."
And according to Patton, Robert Sprankle's words con-
cerning this matter were , "some S . O.B. signed a card
and Mr. Igou is pissed off." The General Counsel alleges,
in substance , in paragarph 6(h) of the complaint, as
amended, that Robert Sprankle, by the aforesaid con-
duct, advised employees of Igou's hostility toward cer-
tain other employees because of the latter's union activi-
ties , in violation of Section 8(a)(1) of the Act. In view
of my findings herein of Robert Sprankle ' s role in initiat-
ing employee concerted activity for a wage increase
which gave rise to an organizational drive by the Union,
and in view of his adherence to the Union as evidenced
by his signing a union authorization card , albeit with
a string attached , 24 and his manifestation to the rank-
and-file employees of his support of the Union 's organi-
zational objectives , I am unable to find that these remarks
by an admitted supervisor, even assuming without decid-
ing that they are otherwise vulnerable, were calculated
to, or tended to, restrain or coerce employees in violation
of Section 8(a)(1) of the Act.25 In these circumstances,
I conclude, and find, that the allegations of paragraph
21 The cases of Becker Sound and Gravel Co., 157 NLRB 557,
and Uarco, Inc., 169 NLRB 1153, relied upon by Respondent in its
brief, are clearly distinguishable and do not require a contrary result.
" As already found, Robert Sprankle signed the card with the under-
standing that it was not to be used to establish the Union's majority
status among the employees.
' This is not to say, however, that they have no relevance to whether
the alleged discriminatory discharge of Burns was wrongfully motivated
945
6(h) of the complaint, as amended, have not been sus-
tained by the record.
In addition, as the General Counsel has adduced
no evidence in support of the allegation in paragraph
6(g) of the complaint, as amended, that Robert Sprankle
created and gave the employees the impression that
their union activities were being kept under surveillance,
I find, here too, that these allegations have not been
sustained by the record.
4. Herbert Bayer
Employee Herbert Sprankle testified that a week or
10 days after the strike began he had occasion to make
a telephone call to Herbert Bayer at his home in an
attempt to find out the whereabouts of Herbert Bayer's
father, R. F. Bayer, Sr. According to Herbert Sprankle,
he had prior thereto gone to the home of R.F. Bayer,
Sr., in response to the latter's telephone call to him
asking him to come there in order to have something
explained to him about the Union and had found no
one at home. After learning from Herbert Bayer that
his father was not there either, he and Herbert Bayer
had a conversation, at the urging of Herbert Bayer.
During this conversation, also according to Herbert
Sprankle, he sought to discuss the fact that he had
to work too long in order to make any money, but
Herbert Bayer claimed that he, Bayer, was unaware
of what was taking place. However, at one point, he
mentioned that common ordinary laborers are making
$2.50 to $3 an hour. At this, Herbert Bayer inquired
as to what he was earning , and, upon learning that
he was making $2.19 an hour, offered him $2.50 an
hour if he would abandon the strike and return to
work. He also asked Herbert Bayer if he would put
their understanding in writing , and Herbert Bayer said
he would. There were no further developments after
this conversation and Herbert Sprankle continued to
strike. As to the foregoing, Herbert Bayer admitted
that, during his conversation with Herbert Sprankle,
he urged him to abandon the strike and return to work.
However, he denied that there was any mention during
the conversation of Sprankle's weekly rate or hourly
rate, or that he offered Sprankle any wage increase
to return to work . I note, in this connection, that Herbert
Bayer testified , at one point during cross -examination
by the General Counsel, that wages were not discussed
during their conversation and, at a later point during
such cross-examination , that the matter of wages "came
up but [he] couldn't discuss it." It was also Herbert
Bayer's testimony throughout that he did not know
anything about the wage situation at Respondent 's plant
and therefore could not have discussed this subject
with Sprankle. However, since Bayer was the president
of Respondent, was on the board of directors which
decides on wage increases in January of each year,
and was present at the board of director's meeting
in January 1968,when the annual wage increase, then
in force, had been voted to the employees, his denial
of any knowledge of the wage situation runs counter
to the logic and probabilities of the situation. In these
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, including the fact that Herbert Bayer
did not testify in a forthright manner , at times, and
did not impress me as a reliable witness, I do no credit
his denials Instead, I find, on the basis of Herbert
Sprankle's testimony which impressed me as worthy
of credit, that Herbert Bayer promised him a substantial
wage increase if he would abandon the strike and return
to work And I find further that Respondent violated
Section 8(a)(l) of the Act thereby 21
5 R F Bayer, Sr
As part of its strike activity, the Union had a picket
line on March 3 in front of the premises of Bayer
Brothers, which is also located in Tyrone, about 2
miles from Respondent Herbert Bayer, the president
of Respondent, is also president of Bayer Brothers
R F Bayer, Sr , as already found, is Herbert Bayer's
father, is chairman of the board of directors of Respond-
ent, and holds an undetermined amount of stock in
Respondent
Employee Guy Miller testified, without contradiction,
that the following occurred while Chester Miller and
he were on the picket line at Bayer Brothers on that
day R F Bayer, Sr , approached them and said, "When
are you boys going to stop this foolishness and go
back to work " Bayer followed this with the remark
that "the Company would never recognize the Union
because it would put them bankrupt and they would
have to go out of business " At this point, Bayer gave
the names of a few companies which the "Union had
gotten into" and had put them out of business " Miller
was unable to recall the names of the companies men-
tioned by Bayer
Respondent contends that this statement, even if
made, " is a mere prediction of possible economic effect
of increased costs rather than a threat of reprisal to
force employees to abandon the Union " The Supreme
Court has recently held that an employer "may even
make a prediction as to the precise effects he believes
unionization will have on his company In such a case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer's
belief as to demonstrably probable consequences or
to convey a management decision already arrived at
to close the plant in case of unionization See Textile
Workers v Darlington Mfg Co , 380 U S 263, 274
No 20 "27 I am satisfied that the remarks attributed
to R F Bayer, Sr , by Guy Miller do not meet this
test Thus, R F Bayer, Sr , made no mention of any
management decision to close the plant in case of unioni-
zation And while he did make mention of bankruptcy
as a consequence of unionization, he failed to indicate
how such bankruptcy would eventuate by an reference
(1) to any demands by the Union for wage increases
and other benefits, (2) to Respondent's present state
of solvency and (3) to the impact on such solvency
if such demands were honored Indeed, it is apparent
See Kelly Brothers Nurseries Inc 145 NLRB 285 303 304
" N L R B v Gissel Packing Company Inc et at 395 U S 575
that no economic demands had as yet been made upon
Respondent by the Union
Accordingly, I find, on the basis of the uncontradicted
testimony of Guy Miller, which I credit, that R F Bayer,
Sr , did not tell Miller what he reasonably believed
will be the likely economic consequences of unionization
that are outside of Respondent's control, but, instead,
threatened economic reprisal, in the form of plant clo-
sure, to be taken solely on Respondent's own volition
I find further that Respondent thereby violated Section
8(a)(1) of the Act 21
C Some of the Alleged 8(a)(3) Conduct
I The alleged discrimination against George Burns
George Burns was hired as a knifeman in the cut
and kill department by Igou on January 3 and was
to report to work around 7 a in , on January 6 However,
Burns did not report as scheduled Instead, Burns had
his wife telephone Respondent with word that he was
unable to report because he was sick Around 7 a in ,
when Igou inquired from Supervisor Robert Sprankle
as to "where he was using the new man," the reference
being to Burns, he learned that Sprankle did not then
know of the whereabouts of "the new man " Igou
took no action with respect to Burns at this point
Later that morning, while leafing through the photostatic
copies of union authorization cards handed to him by
Conte, the union organizer, Igou noticed the name of
George Burns on one of the photostatic copies He
thereupon inquired from his secretary as to Burns' identi-
ty and learned that Burns was, in fact, "the new man "
At this, Igou remarked, in the presence of organizers
Conte and Diebler, that Burns was "sure off to a good
start " Later that day, Igou told Robert Sprankle to
tell Burns not to come in until he checked with Respond-
ent's attorney That evening, during a telephone conver-
sation with Burns, Robert Sprankle relayed the message
to Burns
I have heretofore found that Robert Sprankle told
certain employees that Igou was"pissed" because Burns
had signed a card for the Union before he started
working for Respondent and, in consequence, Burns
was not to come in to work until this matter was
cleared up with Respondent's attorney It is also patent
that Burns' conduct of signing a union authorization
card, irrespective of the timing thereof in relation to
his first day of work for Respondent, is a form of
protected union activity under the Act Accordingly,
it follows therefrom, and I find, that Respondent laid
off Burns indefinitely and, in effect, discharged him
for engaging in protected union activity and thereby
violated Section 8(a)(3) and (1) of the Act
I am cognizant, in this connection, of Respondent's
contention, in its brief, that subsequent events make
it "obvious that Burns never had an inclination to work
for Respondent company and that the allegation of the
Complaint [of discrimination against Burns] should be
Z" See N L R B v Gissel Packing Company Inc supra
JUNIATA-PACKING COMPANY
dismissed." However, for the reasons given herinafter,
I find this contention to be lacking in merit. Respondent
points (1) to an exchange of letters between Respondent
and Burns in February; (2) to the fact that he was
one of the individuals to whom Respondent sent its
letter, dated April 3, enclosing an "Application for
Employment" and asking that it be completed, and
to his failure to complete the application; (3) to Igou's
attempt to contact Burns within the last 2 weeks before
the instant hearing and that he got no answer; and
(4) to Burns' ambivalent testimony as to whether he
was sick or went to work for another employer on
January 6 and to the related testimony of employee
Jack Smith.
As to (1), the record shows that Respondent sent
a letter dated February 13 to Burns, the text of which
was, "There seems to be some misunderstanding about
your employment status with our company. If you desire
employment with [Respondent] you may report to work
on Monday, February 17, 1969. At that time you may
make out an application and complete the necessary
employment forms." The record also shows that, by
letter dated February 21, Burns replied, "I accept your
offer to return to work at [Respondent] but I feel that
I cannot return to work until the Union problem is
resolved and pickets are removed." I find that Burns'
answering letter makes clear that, since he had joined
with the strikers, he was unwilling to abandon the strike
and return to work and that he would return to work
when the strike was settled. Accordingly, I find further
that this exchange of letters falls far short of establishing
that Burns never had an inclination to work for Respond-
ent.
As to (2), the April 3 letter enclosing the "Application
for Employment" stated that the application was "to
be completed for re-employment" at Respondent. The
letter thus ignored Burns' status as an unlawfully separat-
ed employee who had thereafter joined the strike, and
conditioned his return to work on reapplying anew and
being accepted for reemployment. Such a condition was,
in the circumstances, in derogation of his reinstatement
rights.29
As to (3), Igou's testimony show only that about
2 weeks before the instant hearing, he made an abortive
attempt to reach Burns on the telephone by placing
a telephone call to one of Respondent's customers having
a business in the neighborhood where Burns lives. While
Burns ' testimony shows that he did learn from his
wife about this time that someone had been to his
home with an offer of a job with Respondent at wages
which would top what he was then making , this evidence,
without more, falls far short of establishing that a valid
offer was then made known to him.
Finally, as to (4), while it is true that, during cross-
examination by counsel for Respondent, Burns vacillated
between saying that he went to work elsewhere on
January 6, which was the day he was to report to
work for Respondent, and saying that he was sick that
PN See additional findings hereinafter as to the legal effect of this
letter from Respondent.
947
day and did- not work, I am satisfied, and find, that
this was due to his confusion as to dates. In these
circumstances, and especially in light of my observation
of Burns while testifying, I find that he testified credibly,
on direct and redirect examination, that he was sick
on that day and did not go to work. And while there
is testimony by Jack Smith that he spoke to the brother
of Burns on the morning of January 7 and the brother
told him that Burns "had to go to work" that day
to a job in another town, this testimony, apart from
its hearsay character, fails to detract from the finding
above that Burns was sick on January 6, and did not
go to work.
2. The alleged discrimination against Warren Parsons
and Charles Kirkpatrick in the reduction of hours of work
Employee Charles Kirkpatrick testified that, on Janu-
ary 6, employee Warren Parsons and he were coming
back from lunch and had reached the killing floor when
Robert Sprankle, their supervisor, approached them and
said that "[Parsons and he] were not supposed to work
over 40 hours a week until the union business is settled."
However, Parsons' version of this incident attributed
no comment about the Union to Sprankle. According
to him, Sprankle came back and spoke to him while
he was weighing beef311 and gave him the message that,
"Igou said that you are going to have to be cut down
to eight hours a day"; that he thereupon asked the
reason; and that Sprankle replied that, "I didn't know
how to- burn sides or anything." He testified further
that Sprankle said that Kirkpatrick's hours would be
cut, too. In these circumstances, and since Kirkpatrick
did not impress me as a reliable witness whereas Parsons
did, I do not credit Kirkpatrick's testimony that Sprankle
mentioned the Union,during this episode.
It is noteworthy, in connection with the foregoing,
that Kirkpatrick first signed a union authorization card
on January 15, and it is not contended, nor is there
any warrant for finding, that Respondent erroneously
believed that he was a union adherent on January 6.
Further, as the credible evidence does not warrant an
inference that Igou issued his. instructions to Sprankle
after rather than before he had had an opportunity
to see that the photostatic copy of an authorization
card belonging to Patton was among the photostatic
copies of cards presented to him, I perceive no warrant
for finding that Igou had knowledge of Patton 's union
activity at the time. In all these circumstances, and
even assuming, without deciding, (1) that Patton was
told, as he testified, that faulty work was the reason
for, the reduction in his hours and further that the
record fails to establish that this was, in fact, the reason,
and (2) that, contrary, to Igou's testimony, there was
no company policy of trying to hold new employees31
Parsons fixed the time as during the week of January 6, but
did not give the day of the week or the hour
" Parsons had started working for Respondent in September 1968.
Although the starting date of Kirkpatrick is in dispute, was Kirkpatrick
testifying that it was late in December 1968 "before the first of the
year," and with Igou testifying that it was early in January 1969,
(Cont )
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to 40 hours a week. I am unable to find that the record
preponderates in favor of a finding that the hours of
either Kirkpatrick or Parsons were reduced for union-
connected reasons. Accordingly, I find further that the
allegations of the complaint, as amended, have not been
sustained in this respect. -
D. The Alleged Refusal To Bargain
The complaint, as amended, alleges that "all employ-
ees engaged in the slaughtering, manufacturing, produc-
tion and handling of meats and meat products and in
delivery and maintenance functions at Respondent's Ty-
rone, Pennsylvania, facility, excluding salesmen, office
clerical employees and guards, professional employees
and supervisors as defined in the Act," constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. Respon-
dent agrees with the above-described unit except that
it would, contrary to the General Counsel , include in
the unit three employees, two of whom do selling and
packing '31 while the other does some driving as well33
and would exclude from the unit, while the General
Counsel would include, George Burns.
As to Burns' unitplacement, I have heretofore found
that Respondent laid him off indefinitely or, in effect,
discharged him, in contravention of the Act after he
was hired. Accordingly, as his employee status was
fixed at the time of such unlawful conduct, and as
he was hired as a production employee, it follows,
and I find, that he should be included in the claimed
appropriate unit. . I
As to Jack Igou , one of the remaining .three disputed
employees, the `record shows that he is the son of
John C. Igou, who is the general manager and also
the secretary of Respondent and who owns 9 percent
of Respondent's outstanding Stock. Accordingly, as he
is the son of a substantial shareholder in a closely
held corporation; he is, apart from other considerations,
not includable in the unit34 and I would accordingly
exclude him. With respect to Shively and Barkman,
the record discloses that they service assigned independ-
ent groceries in a given area, as well as those they
solicit on their own. They spend the first 4 days of
each working week getting orders from their customers.
Each Friday they report to the plant and perform packing
and shipping functions alongside other production
employees.33 Like the other production employees, they
I find that Kirkpatrick was a new employee at the time of the alleged
reduction in hours, as was the case , I also find , with Patton.
31 William Shively and Oscar Barkman.
33 Jack Igou Unlike the other two, Igou apparently does some deliver-
ing of orders solicited by salesmen.
Respondent has one part-time employee who does only selling and
works only I day a week , and has a semiretired employee who does
a little selling . Respondent does not seek their inclusion in the unit
Respondent also has employees who are classified as packers and
as packer drivers, but it has no category known as drivers The packer
drivers pack I day or part of a day and drive the rest of the time
3' See Foam Rubber City #2 of Florida , Inc , doing business as
Scandia, 167 NLRB 623.
3s Apparently , Shively works from 8 a in to noon on Fridays, while
Barkman works from 8 a.m. to 4 p in
have the same supervision, are hourly paid, have the
same employee benefits, such as insurance, holidays,
vacations, and cash bonuses,"' and punch a timeclock.37
Both Shively and Barkman have come up through the
ranks. Thus, Shively progressed from driving 5 days
a week to selling 2 days a week and driving the rest
of the time, and, finally, to his present post of selling
4 days a week. And Barkman progressed from being
a butcher in the cooler 5 days a week to doing selling
1 day,, 2 days, 3 days, and finally 4 days a week.
On Fridays, Shively and Barkman report to work in
work clothes similar to other production employees.38
However, unlike the production employees, salesmen
packers use their own cars in their work, and are paid
a mileage fee therefor by Respondent;39 in addition,
they have some latitude in arranging terms of payment
with a customer and are supplied with credit cards
by Respondent for use in making telephone calls in
connection with their selling.
I am persuaded that the foregoing similarities between
Shively and Barkman and the other employees in the
unit claimed to be appropriate by the General Counsel,
including particularly the fact that they work with the
plant employees 1 day each week, and have progressed
through the ranks to their present jobs, and the further
facts that they enjoy the same employee benefits, have
the same supervision, and have comparable earnings
to other employees in the unit, establish that they have
a substantial community of interest with the other
employees. Accordingly, I would include them in the
appropriate unit. However, as the unit alleged in the
complaint , as amended , is a conventional unit found
many times to be appropriate in businesses and opera-
tions of this nature40 and as the inclusion of Shively
and Barkman in the unit would contitute an insubstantial
variance from the unit,41 I am satisfied, and find, that
this, without more, would not defeat the 8(a)(5) allega-
tions herein.
1. The majority issue
As already noted, a claim of majority status and
a request for recognition and bargaining were made
by Conte and Diebler orally to Igou on January 6;
by a letter from the Union to Igou dated January 7;
again by Conte and Diebler orally to Igou on January
3R The bonuses for salesmen do not depend upon the amount of
business they do ,
37 The first 4 days of the week, they punch in each morning and
usually punch out when they return from their route On some occasions,
when they return late from their day's work, they are allowed to
report their finishing time orally the next day. Each morning, Igou
speaks to them separately. As Igou explained, they "look over the
operation and see what is to be moved."
3e When selling , they wear a coat and tie
I credit Igou's testimony as to their duties while they are in the
plant on Fridays.
3s Each salesman has liability insurance coverage on his car and
pays for it himself.
40 See S S Logan Packing Company, 152 NLRB 421, 427.
I note that Respondent took no specific position respecting these
disputed employees in its letter of January 10 in reply to the Union's
demand for recognition, indicating only in this respect that it desired
Board determination of the appropriate unit
41 See Washington Coca-Cola Bottling Works, Inc., 117 NLRB 1163
JUNIATA PACKING COMPANY
14; and thereafter to Igou and other officials of Respon-
dent in the form of a petition dated January 17 and
signed by the striking employees manifesting their will-
ingness to return to work if recognition was granted
to the Union as their bargaining representative. In this
connection, I find that the photostatic copies of 32
signed union authorization cards, which were presented
by Conte to Igou as proof of majority status on January
6, were, in effect, by Respondent, witness the fact
that they were destroyed by Igou upon advice of counsel
shortly after Conte and Diebler left their conference
with him.
The General Counsel contends, in substance, that
the Union represented at all relevant times a majority
of Respondent's employees in the appripriate unit. After
including Burns,' Shively, and Barkman, there were at
such times 47 employees in the unit. The Union placed
in evidence as proof of majority 34 union authorization
cards. Of these, 21 were signed at the-union meeting
on January 3; 5 were signed on January 4; 5 were
signed on January 5; 1 was signed on January 10; and
1 was signed on January 15. However. Respondent
contests the validity of all 21 cards signed at the union
meeting on January 3, allegedly because they are tainted
by the involvement of Supervisor Robert Sprankle there-
in. And with respect to all the cards secured by the
Union between January 3 and 6, Respondent contends
that they cannot be counted because the employees
concerned attended the meeting on January 3 and/or
the meeting at Robert Sprankle's home in December
1968, and/or because the cards were obtained by threats,
coercion, and intimidation. Respondent further contends,
in effect, that apart from the cards, neither the strike
of January 15 nor the petition dated January 17 demon-
strated that the Union represented an uncoerced major-
ity.
2. The role of Supervisor Robert Sprankle in'the Union
I have heretofore found as follows: It was at the
meeting convened at Robert Sprankle's home in Decem-
ber 1968 that about 10 of Respondents employees, after
casting aside Robert Sprankle's proposal to have a group
of employees go to see Igou on the matter of getting
more pay, decided unanimously to have employee Riggle-
man contact the Union. Robert Sprankle apparently
joined in this decision. Thereafter an organizational meet-
ing was held at the Hookeys on January 3 and about
26 employees and Robert Sprankle attended. During
the course of the meeting, the employees voted unani-
mously to seek recognition from Respondent and to
demonstrate their majority status to Respondent via
signed union authorization cards. When it became appar-
ent during the course of the meeting, but before the
cards were distributed for signature, that supervisors
were not to be included in the unit, rank-and-file employ-
ees expressed "in unison" their desire to have Robert
Sprankle included in the unit. At this point, Robert
Sprankle said that he favored the Union and that the
employees needed a union but if he was not going
to get protection he would not sign a card. Also at
949
this juncture, Conte, the union organizer in charge of
the meeting, engaged Robert Sprankle in a colloquy
about his functions and duties. Conte, however, had
doubts as to how to resolve Robert Sprankle's status
for unit purposes, and, with the knowledge and apparent
acquiescence of those present at the meeting, left the
meeting with Robert Sprankle and took the matter up
with Conte's superior on the telephone. After about
15 or 20 minutes, Conte and Sprankle returned to the
meeting. Conte then explained that there was a reason-
able amount of doubt as to Robert Sprankle's status
but that the interim decision was to have Robert Sprankle
sign a card with the understanding that the card would
not be used in support of the Union's card showing
thereafter to be made to Respondent. At this point,
Robert Sprankle - signed a union authorization card.
Thereafter, the cards signed by the employees- at the
meeting during the above 15- or 20-minute interval,
as well as the card of Robert Sprankle, were collected
and turned over to Conte.
In addition to the foregoing, there is uncontradicted
testimony, which I credit, that Robert Sprankle solicited
employees to go to this meeting . Thus, employee Judy
Decker testified that Robert Sprankle asked her if she
was going, and that he also told her that it would
be to her benefit, to go; employee Susan Hoff testified
that Robert Sprankle told her about the meeting and
asked her to attend; and employee Hershel Hale testified
that Robert Sprankle told him of the meeting.
It is clear from the foregoing that Robert Sprankle's
connection with the organizational effort of the Union
had been, as of the time of the January 3 meeting,
a significant one. It is also evident that the employees
attending that meeting were aware of this and were
opposed to any rupture in that relationship because
of his role as supervisor. It is further apparent that
Sprankle was prepared to preserve as much of this
relationship as possible, regardless of the impact of
the Act on his inclusion in a bargaining unit with the
employees. This he manifested at the time of such
threatened rupture by saying that he favored the Union
and that the employees needed a union. It was in such
a context, and also with the understanding that Conte,
the union organizer, had left the meeting for a short
while in order to get some definitive answer on the
issue involving Robert Sprankle which was troubling
them, that the employees proceeded to sign authorization
cards for the Union. And it is noteworthy that the
employees did not deliver their signed cards to the
Union until they were told by Conte that Robert Sprankle
was to sign a union authorization card but with a limita-
tion on its use for recognition purposes, and until Robert
Sprankle did, in fact, sign a card and thereby underscored
his solidarity with them.
It follows, and I find, from the above, that Supervisor
Robert Sprankle had a considerable impact on the pro-
curement of the authorization cards at the meeting on
January 3 and tainted them.42 Since there are 22 signed
•42 See Sopps, Inc., 175 NLRB No. 49; Welding & Industrial Products,
Ltd. & Carbonic Products Corp., 167 NLRB 881.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards'in evidence, which bear date of January 3, and
21 of them were signed at the union meeting, I find
that the' 21 cards may not be counted in' determining
the Union's majority status.43 The remaining 13 cards,
in evidence, are, 'of course, insufficient to establish
majority status in a unit of 47 employees. Moreover,
I am satisfied, and find, that Robert Sprankle's aforesaid
connection with the Union cannot be disassociated from
the events surrounding the procurement of authorization
cards by the' Union from January 3 up to the time
of strike,44 and that the 13 cards in this group are,
accordingly, also tainted. In addition, in these circum-
stances, I am unable to attach overriding weight on
the majority issue to the fact that a majority of Respond-
ent's employees- joined the strike called by the Union
on January 15, and/or to the fact that 32 of the 34
employees whose signed cards are in evidence signed
the Union's petition of January 17 which was delivered
to Respondent, and stated that the signatories are ready
and willing to return to work as soon as Respondent
recognizes the Union and bargains collectively with it.
Accordingly, as the record does not support a finding,
that the Union had been freely chosen by a majority'
of Respondent's employees in the appropriate unit either
at the'time of the Union' requested recognition or at
the time Respondent denied recogniton, I conclude,
and find, that the allegation that Respondent has violated
Section 8(a)(5) of the Act has not been sustained.45
" See Insular Chemical Corporation, et at , 128 NLRB 93, 98,99
44 I note, in this connection , the undenied testimony of employees
Jack Smith and Hershel Hale, which I credit. Thus, Jack Smith testified
that Robert Sprankle and employee John Walls told him on one occasion
that the only way to get anything better was to get a union And
Hale testified that Robert Sprankle said that if the Union got in there
would be 40 hours of work for everyone and more pay.
41 Assuming, however, that the Board reaches a contrary conclusion
to mine as to the impact, of Robert Sprankle's role in' the Union
on the validity of the cards, further findings would be necessary in
order to ascertain whether the Unionihad majority status at all relevant
times In such eventuality, the posture of the case would be that
Respondent ( 1) has stipulated as to the authenticity of the signatures
and dates on 21 of the 34 union authorization cards, in evidence,
and as to the fact that these 21 signatories read the cards before
signing them, and (2) contests the validity of, 11 of the remaining
13 cards, in evidence, on the ground that they were obtained through
threats, coercion , and intimidation . My findings and conclusions in
this frame of reference would be that the 21 cards, as to which Respond-
ent has stipulated, are valid and are to be counted toward establishing
a majority, as are the two cards in evidence as to which Respondent
raises no objection And as to the 11 remaining cards, I note that
Respondent relies on specific testimony relating to the circumstances
of the card signing by employees Judy Decker and Chester Miller,
and some general testimony of employee Ronald Moore Thus Judy
Decker testified that she was solicited to sign the card at her home
by Jack Smith and that he told her at the time that, if [she] didn't
sign the card, that [she] would be on the outside looking in"; Chester
Miller testified that employee John Walls made the same remark to
him 2 days before he signed the card at the instance of Jack Smith,
and Ronald Moore testified that , after he had signed a card, he heard
that if you didn't sign a card you would be on the outside looking
in, and that everybody knew'of these statements. I am not persuaded
that this ambiguous remark had a coercive effect' on either Decker
or Miller Thus, Decker signed the card in her own home and made
no comment, concerning this remark by Smith to her husband who
was in another room ,' and she told her husband ' at the time only
that she was signing the card And Miller testified that when he signed
the card, 2 days after the above remark, Smith told him that, "if
[he] want[s] to sign this card, it is okay, if not that is okay, too "
'E. The Nature of the Strike
It is apparent from my findings heretofore that, as
of the time of the strike on January 15, the Union
and Respondent were at odds over how to determine
the representative status of the Union for recognition
purposes, with the Union insisting on demonstrating
its majority status through signed authorization cards
rather than by a Board election, and with Respondent
eschewing the former route and urging the latter. Thus,
on January 13, the Union received the January 10 letter
from Respondent's counsel which urged a Board election
and, in effect, rejected the Union's request for recogni-
tion on the basis of its showing of union authorization
cards theretofore made, in person , by Conte and Diebler
on January 6 and, in writing, by the Union's letter
of January 7. The 'Union's response thereto was the
visit of Conte and Diebler to Igou at the plant on
January 14 in order to renew the request for recognition
on the basis of the signed union authorization cards.
And when Igou referred them to company counsel as
he had on January 6, Conte replied that, "the employees
were prepared to support their demand for recognition,"
implying thereby, I find, that the' Union was prepared
to strike for recognition.4e
Bearing on whether this was the sole ground for
the' strike which ensued are the following: There is
testimony by Conte that Diebler and he met on January
14 with the union committee, which I have already
found was given permission unanimously by the employ-
ees at the January 10 meeting "to take whatever action
was necessary to support their demands for recognition";
and that the committee voted, after discussion, to call
a strike on the following morning . While it was Conte's
testimony that "one of the reasons" for calling the
strike was "no recognition by the employer," he intimat-
ed that there were additional reasons. However, I note
that for the committee to have proceeded to call a
strike for other than recognition would have been to
go beyond the authority vested in it by the employees .47
As to the strike itself, it began on January 15 at 7
a.m. Thirty-two employees joined the strike. The picket
signs carried by employees were phrased in general
terms, namely, "Juniata Packing Company Unfair, this
Employer in violation of National Labor Relations Act,
Amalgamated Food Employees Union Local 590." How-
ever, an index of what the employees, as well as the
I
And as to the other nine employees in this group, absent any direct
evidence of any coercive remarks to them at the time they signed
their respective cards, I find no sufficient basis in Ronald Moore's
above testimony for invalidating their cards Accordingly, I would find
further that the II cards in this group are valid and should be counted.
In sum, therefore, all the cards, in evidence, would be counted, if
my finding that they were tainted by Robert Sprankle's role in the
Union is not adopted by the Board
46 So far as appears there was nothing said by Conte or Diebler
about the employees also being ready to demonstrate against violations
of 'Sec. 8(a)(1) and (3) alleged herein to have been committed by
Igou and other management representatives as of that time.
41 In this connection , Conte testified that the union committee "dis-
cussed the position of the Company in regards to the fact that they
would close the plant 'and the cutting of hours, the overall attempt
of the Company to discourage the employees in their bid for recognition "
JUNIATA PACKING COMPANY
Union, considered their basic strike demand emerges
from the following: On January 16, Igou wrote the
employees a letter in which he asserted that a Board
election would be the better way of determining the
Union's majority status and advising them that he had
filed a petition with the Board seeking such an election."'
The reply was in the form of a petition prepared by
Conte and signed by all 32 employees on strike; it
stated that the signatories to the petition were prepared
to return to work as soon as Respondent recognized
and bargained with the Union,as the collective- bargaining
representative of its employees. Conte appended to the
petition thereafter, at the suggestion of counsel for
the Union, a specific answer to Igou's bid for an election,
which said that the employees were willing to' comply
with Respondent's wishes for a secret-ballot election,
provided such an election were held immediately and
prior to the return to work, and provided further that
such an election would be conducted by an, impartial
third person."' It'is noteworthy here, too, that the unfair
labor practices, alleged herein to have occurred as of
this time , went unmentioned in both the petition and
the appended portion, the only reference being to the
matter of union recognition . And 'I have heretofore
found that the Union was not lawfully entitled to recogni-
tion on January 15 on the basis of its card showing.
In light of all the foregoing, I am persuaded, and
find, that the record fails to preponderate in favor of
a finding that the unfair labor practices, found herein
to have antedated the strike, were operative factors
in calling the strike. Accordingly, since the record does
affirmatively establish only that the Union's quest for
recognition was an operative factor, I conclude, and
find, that the strike was economic in origin 50
The alleged refusal to reinstate the strikers in violation of
Section 8(a)(3),
As heretofore found, by letter of March 20, the Union
notified Respondent of its decision to terminate the
strike as of midnight March 22, and "unconditionally"
41 A petition in Case 6-RM-374 was, in fact, filed on January 16,
by Respondent, as heretofore found.
"B The signatories to the petition were apprised of the additional
language
So See Insular Chemical Corporation et al, supra.
The Complaint, as amended, alleges, in effect, that, if the strike
was an economic strike in origin, it was, nevertheless, thereafter convert-
ed into an unfair labor practice strike by the unfair labor practices
occurring after the strike began Although I have found two incidents
of violation of Sec 8(a)(1) by Respondent during this period, namely,
(1) Herbert Bayer's offer to Herbert Sprankle, a week or 10 days
after the strike began, of a wage increase if he abandoned the strike,
and (2) the remark of R F Bayer, Sr., to Guy Miller and Chester
Miller on March 3, while they were picketing Bayer Brothers as part
of the strike against Respondent , that Respondent "never would recog-
nize the Union because it would put them bankrupt and they would
have to go out of business ," there is no showing here , nor am I
of the view, that these acts contributed to the prolongation of the
strike. Accordingly, I perceive no warrant for finding that any conversion
of the strike from an economic stoke to an unfair labor practice
strike ever took place before it terminated on March 22. See, in this
connection , Baldwin County Electric Membership Corporation, 145
NLRB 1316, 1318.
951
requested. reinstatement as of the, following Monday
March 24, of all striking employees. The letter also
advised Respondent that Conte would contact Respond-
ent on March 22 in order to work out details of the
termination of the strike and the employment of strikers.
In line with the above letter, Conte and Diebler appeared
at the, plant on March 22 and spoke to Igou in an
effort to make arrangements for the return of the strikers.
The record shows further that Igou declined to discuss
the matter with Conte and Diebler. Igou told them
to take the matter up with counsel for the Company,
but added that he "would be willing to speak to any
individual who would contact [him] themselves."
Although neither Conte nor Diebler did thereafter contact
counsel for Respondent, it is nevertheless clear, and
I find, that the Union's, letter of March 20 to Respondent,
which was followed up by,Conte and Diebler on March
22, constituted a valid application for reinstatement on
behalf of the employees who were still on strike as
of March 22:
The following chain of events came in the ,wake
of the above valid application for reinstatement by the
Union: During the morning of March 24, according
to the uncontradicted testimony of Igou, some strikers
reported to him at the plant concerning returning to
work. The first one to come in was Robert Harpster;
and he told Harpster that he. had been discharged for
willful misconduct during the strike. He was visited
thereafter, about 8:30, by about 12 to 15 employees
in a group. He explained to them that business had
been cut in half due to the work stoppage , that he
did not need all the employees, that some of them
had been permanently replaced, and that others were
under charges which made them unsuitable for employ-
ment . He also informed them that "the proper wa^
would be for them to come to me, one at a time,
and ',we could, try to work out a schedule, for return."
Still another visitor was striker Philip Payne. He was
also told about the decline in business due to the strike,
that the Company could not use him then, and that
the Company would get in touch with him as soon
as business picked up. It would appear from Respond-
ent's payroll records, in, evidence as General Counsel's
Exhibit 40, that, about this time , Respondent reinstated
the following among the striker's: Larry Showalter, Sam
Patton,1 Don Hall, Albert Sprankle, Ted Steele, and
Chester Miller. The record does not disclose what steps
preceded their return to work,
On March 25, Respondent dispatched a letter to each
of the following: Herbert Sprankle, Robert `Harpster,
Claude Clinton, Daniel Shultz, 'Joan Campbell, and
Charles Kirkpatrick, and another letter to , 14 of the
15 other employees who had also struck and had not
yet returned to work.5t In the first mentioned letter,
Respondent advised each individual involved that he
as been terminated as of March 24, 1969, because
of [his] actions and for serious misconduct during this
work stoppage." In the second mentioned letter,
Respondent thanked the individual striker for offering
" I e , to all except Burns
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to return to work on March 24, referred to the decrease
in sales because of the strike and promised, as soon
as business conditions warrant it, to contact him to
see if he still desired employment. Those who received
this letter were sent another letter, under date of April
3,1969, and signed by Igou, as manager , in which was
enclosed an "Application for Employment." Burns also
received such a letter. The text of the letter was, as
follows:
Enclosed you will find an application blank to be
completed for re-employment at Juniata Packing
Company. If you wish to return to work would
you please indicate the date you would be available
to return. If we do not hear from you by Tuesday,
April 8, 1969 we will assume that you have accepted
employment elsewhere and do not wish to return
ti Juniata Packing Company.
If you do not expect to return to work at Juniata
Packing Company and are eligible for retirement
benefits would you please make application in writ-
ing for your benefits.
The complaint, as amended, alleges that Respondent
has discriminated against 21 strikers, for whom such
unconditional offers to return were made, by failing
and refusing to reinstate them. Respondent defends as
to 15 of them as follows: It contends that six of them52
were discharged on March 25, as indicated in the March
25 letter to them mentioned above, for willful misconduct
which made them unsuitable for reemployment; that
three of them53 refused reinstatement; and that six of
themS4 voluntarily abandoned their employment.55- And
as to the other six,511 it apparently rests its defense
on the fact, as stipulated by the parties, that they
were reinstated on various dates between April 14 and
May 27.
I shall first consider the alleged willful misconduct
incidents. Respondent relies On an episode in which
strikers Claude Clinton, Robert Harpster, Herbert Spran-
kle, and Daniel Shultz are concerned, on an episode
involving striker Charles Kirkpatrick, and on another
one involving Joan Campbell.
a. The episode involving Clinton, Harpster, Shultz, and
Herbert Sprankle
Robert Smith began to work at Respondent's Tyrone
plant on February 10. He finished his work that day
at 4 p.m., and got into 6 car and drove for about
2 miles to the warehouse of Bayer Brothers where
he had a job working some nights during the week.
As he left Respondent's plant, Clinton, Harpster, Shultz,
and Herbert Sprankle followed him in the latter's car.
12 Namely, Claude Clinton , Robert Harpster, Herbert Sprankle , Daniel
Shultz, Charles Kirkpatrick, and Joan Campbell.
" Namely, Philip Payne, George McClellan, and Warren Getz
s' Namely, Charles McClellan, Guy Miller, Leroy Riggleman , Warren
Parsons, Betty Thomas Everhart , and George Bums
as I have heretofore treated with this defense insofar as it relates
to George Burns
11 Namely, Kenneth Renney, Louis Estego, Joseph Smith, Ronald
Moore, Caroline Getz, and Pearl Ramsey
When Smith arrived at his destination, he parked his
car on the parking lot near Bayer Brothers, and the
other car, which had followed him closely, parked about
three car spaces away. According to Smith, this then
occurred: He locked the driver's side of the car, moved
over to the passenger's side and got out of the door
on that side, which was the side away from the other
vehicle. He had a 12-inch sawed-off bolt in his pants
pocket at the time. At this point, he noticed that the
four men from the other vehicle were coming towards
him and one of them, Clinton,51 said, "I hear you
are working at Juniata Packing." When he answered,
"Yes," he was told, "You had better not go to work
tomorrow." He indicated his determination to go to
work and was then "jumped" by Clinton.SB The other
three in the group were standing about 10 feet away
from his car. Both Clinton and he landed on the ground,
with Clinton on top of him. One member of the group
then said, "Come on Butch ,59 he 's not worth it." There-
upon, Clinton and he got up, and he went around to
the front of his car and proceeded toward Bayer Brothers
in order to go to work. At that point, Herbert Bayer90
came out of the warehouse with another individual and
said, "Butch you have caused enough trouble now,
you had better leave or I am going to have the police
here in about 5 minutes." Subsequently, he was asked
by Herbert Bayer what had happened. He told Bayer
that the man had followed him from the Juniata plant
and had "jumped" him. He then went inside and to
work. During cross-examination, Smith added the follow-
ing to the above account of this episode: He pulled
the bolt otit from his pocket after he had gotten up
from the ground and started walking toward the front
of the car, having noticed that the men were following
him. He held the bolt in his right hand with his arm
in a cocked position as he walked towards the warehouse,
and no one in the foursome was ever between him
and the warehouse while__he held the bolt aloft. He
also testified, at this time, that when Clinton approached
him there was some mention by Clinton that he, Clinton
had a family to support, and his reply was that he
had a family to support also; that everything was spoken
in a normal tone of voice ; and that , during the jumping
incident, Clinton punched him three times in the head,
leaving no scars but three lumps. Respondent also called
on one Edward Denny, an employee of Bayer Brothers,
as a corroborating witness. At the time in question,
according to Denny, he was on the third floor of the
warehouse looking out a window which faces the parking
area. The distance from the foot of the warehouse
building to where this episode occurred was about 100
feet. According to Denny, he overheard only that part
of the conversation in which Clinton spoke about Smith
taking Clinton's job and the comment of one of the
others to Clinton later in the episode of "come on
57 At the time he did not know Clinton
s' Smith explained that he meant thereby that Clinton grabbed hold
of him and knocked him down and they fell down together.
SB Butch is Clinton' s nickname.
As heretofore found , Herbert Bayer was the president of Bayer
Brothers and the president and assistant treasurer of Respondent
JUNIATA PACKING COMPANY 953
Butch, he's not worth it." While he said at first that
he saw Clinton either push Smith or hit him, he quickly
added that "[he] didn't notice, [he] didn't see which."
He also testified that he saw them fall to the ground
and then get up on their own; that, at that point, Smith
ran6' over towards the front of his car and that was
when he noticed that Smith had a rod in his hand.
Also according to Denny, as Smith proceeded from
his car to the warehouse, while holding the rod, Clinton
followed Smith over to where the trucks go in the
plant, while the other men walked away from Smith .112
Testifying for the General Counsel on this episode
were Clinton and Herbert Sprankle. According to Clin-
ton, they followed Smith in order to tell him to honor
the picket line, and only he spoke to Smith-he being
in the forefront of the others by about 5 feet; that
he spoke in a normal voice, and began by asking Smith
if he realized what he was doing; that he followed
this, after getting an answer which he cannot recall,
by asking Smith whether he realized that he was taking
a job from a man on the picket line; that Smith's
reply was "I don't give a f-,113 I'll cross the picket
line"; and , although he made no gesture toward Smith,
the latter produced at that moment a pipe of about
12 to 16 inches in length which seemed to him to
be made of steel , and which Smith held in his right
hand, with his upper right arm in a horizontal position
and his right elbow in a vertical position to the ground;
that he reached up and grabbed hold of Smith's wrist
and made an attempt to take the object away from
Smith; that, in the scuffle, both Smith and he fell to
the ground, he being on top of Smith; that he did
not strike Smith, seeking only to take the object away
from Smith but without success; that Smith managed
to get on all fours and was trying to get up; that
he threw a "half nelson" on Smith but, at that point,
Harpster, who had been standing with Herbert Sprankle
and Shultz about 10 feet away, came over and said,
"[Smith's] not worth it', and helped him to get up;
that Smith also got up and walked to the front of
his car with the object still in his hand; and that the
incident closed when Bayer appeared in front of the
warehouse, yelled something to Smith, and Smith walked
into the warehouse. Herbert Sprankle's version of this
episode was generally corroborative of Clinton 's testimo-
ny, except that he attributed the fact that both Smith
and Clinton fell to the ground to the presence of a
little bit of snow and ice on the ground, and that,
in his version, after Harpster spoke up, and before
they left, Clinton and Smith exchanged a few more
words and Clinton took "a step or so toward Smith."
It is apparent from all the foregoing that the testimony
is in sharp conflict as to, when Smith first brandished
the metal bolt. Arguing against the credibility of the
testimony of Clinton and Sprankle that Smith brandished
it before the scuffle and not thereafter is the fact,
Smith 's testimony made no mention of having done any running.
Nz Smith, in his testimony described above, made no mention of
being followed by Clinton from the car virtually to the warehouse,
at the conclusion of this episode
An obscenity.
as testified to by all four witnesses, thgt Clinton's cohorts
stood by as spectators during the scuffle. Indeed, if
as Sprankle testified, Clinton was being menaced by
a "quite deadly" looking instrument, the logic and proba-
bilities of the situation suggest that Harpster, Shultz,
and he would have interceded quickly +either to overpow-
er Smith or to pull Clinton away from the area of
danger. They did neither, suggesting to me, and I infer,
and find, that Smith rather than ' Clinton and Sprankle
testified credibly as to when the metal bolt was brand-
ished. Accordingly, as the metal bolt was not brandished
until after the scuffle, I find, on the basis of Smith's
testimony"" that Clinton jumped him when he resisted
Clinton's importuning to respect the picket line,65 causing
Clinton and him to ' fall to the ground and that, while
he was on the ground, Clinton struck him in the head
three times.66'And I find further, because all four strikers
were engaged in a joint venture in following Smith,
that Harpster, Shultz, and Herbert Sprankle are equally
culpable with Clinton for this incident, which was coer-
cive in nature and was calculated to instill fear of
physical harm in Smith, a nonstriker, and which did,
in fact, result in physical harm to Smith.17 Accordingly,
I find that, in discharging Claude Clinton, Robert Harp-
ster, Daniel Shultz, and Herbert Sprankle and thereafter
refusing to reinstate them because it had an honest
belief that they had engaged in acts of misconduct
in the course of their strike activity, of which misconduct
they were in fact guilty, Respondent did not violate
the Act."e
b. The episode involving Charles Kirkpatrick
At 2 o'clock one morning in February, Kirkpatrick,
accompanied by Daniel Shultz, approached the picket
line. On picket line duty at the time were employees
Jack Smith and Don Walls. They gave uncontroverted
and mutually corroborative testimony as to the following:
Kirkpatrick was intoxicated and suggested flattening
some tires, but Smith opposed any such action. Kirkpa-
trick then suggested breaking a window at the plant
"' I credit Denny's testimony only to the extent that it was corrobora-
tive of Smith's testimony. I am persuaded that his other testimony
was given to exaggeration
'' Although Clinton was about 3 inches shorter than Smith, who
is 6 feet tall, and weighed about 155 pounds as against 170 pounds
for Smith, I am satisfied from, my observation of both Clinton and
Smith on the witness stand that Clinton, whd appeared to be a much
more pugnacious and aggressive person than Smith , would not have
been deterred by these physical differences
"" I take cognizance of the record evidence that Clinton was acquitted
by a justice of the peace on charges by Smith based on this episode.
However, this acquittal has no controlling significance here, as I am
bound to decide this matter on the record made before me
"r With respect to the coercive nature of this type of conduct, see
N.L.R.B. v Thayer Company, 213 F 2d 748, 755 (C.A. 1), cert denied
348 U.S. 883
" See N L R.B v. Burnup and Sims, 379 U.S. 21
As the strike was an economic strike throughout, h follows that
there is no warrant for applying the principles of Thayer Company,
supra, and weighing the misconduct during the strike of these four
strikers against unfair labor practices by Respondent unrelated to the
strike in order to determine whether they are, despite their misconduct,
still entitled to reinstatement
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Smith also opposed this suggestion At this point,
Kirkpatrick said, "I'm going down and break it anyhow "
He then proceeded, on his own, to the plant, and broke
a plant window with a board He thereafter reported
to Smith, Walls, and Shultz that he had done so It
is also evident from General Manager Igou's testimony,
and I find, that as a result of an investigation of this
incident, Respondent was led to believe that Kirkpatrick
was the one involved in this incident In light of the
above, I find, here too, that Respondent's discharge
of Charles Kirkpatrick was the result of an honest
belief that he had engaged in an act of misconduct
in the course of his strike activity and that he was,
in fact, guilty of such misconduct 00 And I conclude,
and find further, that Respondent did not violate the
Act by discharging him and thereafter refusing to rein-
state him '
c The episode involving Joan Campbell
The incident involving Campbell took place around
6 p m , on February 27 According to Campbell's uncon-
tradicted testimony, the following occurred After shop-
ping in a grocery store near the plant, she and her
11-year-old son walked over to the picket line She
engaged in conversation with pickets Thomas Conner
and Joseph Smith, who were then on picket duty Within
a few minutes, a truck from one of Respondent's custom-
ers, namely, Cold, Inc , arrived at the plant in order
to pick up some meats She and the two pickets spoke
to the driver of the truck Conner was the first to
talk to the driver but she did not overhear their conversa-
tion In her conversation with the driver, she told him
that she had dealt with Cold, Inc , being a user of
that company's freezer and of frozen goods which that
company delivers She also said that the strikers did
not want the driver to enter the plant and asked him
to go somewhere else "until the trouble was settled "
The driver's reply which was relayed to her by Conner
was that the hour was late and he did not want to
go back up the road, and that he had to get home
During this exchange, her son told her to lie in front
of the truck and it would not go in, that the truck
would not go over her 70 At this, the pickets and she
laughed about this remark The driver did thereafter
take the the truck into the plant and nobody tried
to stop him At the time, the driver said that he was
going in but would not come back to the plant Whereup-
on, she and her son went home In addition, to the
above, Campbell denied threatening to damage the truck
or to harm the driver on that evening or at any other
time
Joseph Smith, one of the pickets referred to above,
corroborated Campbell as to the remark made by Camp-
bell's son and the fact that they all laughed at the
remark It 'was also his testimony that, refeiring to
Campbell lying down, "we said that that sure as heck
°° The fact that Kirkpatrick was drunk at the time is I find not
a mitigating circumstance in the premises
°" Campbell is a big woman and of considerable weight
would upset the truck " Smith could not say whether
Campbell spoke to the driver that evening, but he testified
that he did not hear anyone threaten to damage the
truck or to harm the driver Although he also testified
that he heard Conner say to the driver that the next
time he, the driver, came to the plant, he, Conner,
would pull out in front of the truck with his car,"
nowhere does it appear that Campbell was involved
in this remark
I find, on the entire record, that Respondent had
an honest belief that Campbell had engaged in an act
of misconduct in the course of her strike activity 72
However, I am persuaded, on the basis of Campbell's
uncontradicted testimony and the testimony of Smith
which corroborates portions of her testimony, that Camp-
bell testified credibly as to this incident and that she
did not engage in the misconduct attributed to her by
Respondent 73 Accordingly, I conclude, and find, that
Respondent discharged Campbell on March 25 and there-
after refused to reinstate her in violation of Section
8(a)(3) and (1) of the Act 74
d The remaining strikers involved in the alleged refusal to
reinstate
Pertinent, in determining the aforesaid allegation of
discriminatory refusal to reinstate the 15 remaining strik-
ers, is the further allegation in the complaint, as amend-
ed, that Respondent unlawfully conditioned their rein-
statement upon the filling out and filing with it of individ-
ual applications for employment I shall treat with this
further allegation now The General Counsel relies, in
this connection, on the April 3 letter which was sent
by Respondent to all strikers, except the six who received
the letter of discharge It is apparent from the text
of this letter that there was enclosed in the letter an
"Application for Employment" and that the employees
were told therein that "the application blank [was] to
be completed for re-employment" at the Company, that
they were to indicate their date of availability if they
wished to return to work, and that if Respondent did
not hear from them by April 8, Respondent would
assume that they did not desire to return The record
shows that these applications began to be used in Septem-
ber 1968 in connection with new hires and that, as
of the date of the April 3 letter, Respondent had not
required its employees, who had been hired before Sep-
tember 1968 and had not filled out any application,
to fill out such an application for placement in their
files It shows further that Respondent made no demand
to fill out such applications on or about April 3 upon
those employees who had been hired before September
1968 and had stayed on the job during the strike I
note, too, that, Igou admitted sending applications to
" A Volkswagon
It is evident that Igou received a communication from Cold Inc
concerning this incident
See N L R B v Burnup and Sims supra
Although the complaint as amended alleged only an unlawful
refusal to reinstate as to Campbell I find that the issue of her unlawful
discharge was litigated in this proceeding
JUNIATA PACKING COMPANY 955
employees on strike who were hired after September
1968 and had filled out such applications when hired.
In the light of all the foregoing, including the, designation
on the form as "Application for Employment," the
reference in the letter to "re-employment" rather than
reinstatement , the failure of the letter to indicate that
the striker involved was to be reinstated to his former
position without loss of seniority and other benefits,
and the requirement that each striker make an individual
application for employment, despite the unconditional
request theretofore made by the Union in behalf of
all the strikers, I am persuaded,' and find, that the
letter indicated to the striker, although not in express
language , that he was to return to work as a new
employee.75 As economic strikers, these employees were
entitled to reinstatement to the extent that they had
not been replaced by the time of, the 'unconditional
request for their reinstatement of March 20 and to
the further extent that replacements left after this uncon-
ditional request for reinstatement .711 And it is well settled
that strikers who are entitled to reinstatement upon
request are entitled thereto free of any discriminatory
condition and not as new employees.77 Accordingly,
I conclude, and find, that by its April 3 letter conditioning
the return of these 15 strikers to work upon their return-
.ng as new employees, Respondent discriminated against
them in violation of Section 8(a)(3) and (1) of the Act.78
As heretofore indicated, Respondent apparently rests
its defense as to the allegation of discriminatory refusal
to reinstate 6 of these 15 employees, namely, Kenneth
Renney, Louis Estego, Joseph Smith, Ronald Moore,
Caroline Getz, and Pearl Ramsey, on the stipulation
of the parties that they were "reinstated" on various
dates between April 14 and May 27. In view of this
stipulation, and absent any proof that Respondent could
have returned these individuals to their respective jobs
sooner than it did, or that Respondent, in fact, required
them to return as' new employees with loss of seniority
and other rights and privileges, I find that the record
falls short of establishing that Respondent engaged in
discrimination in the course of "reinstating" them to
their jobs. Accordingly, I find that this allegation of
the complaint, as amended, has not been sustained as
75 In light of all the foregoing , I attach no weight to Igou's testimony
that it was not really necessary to return the , application blanks in
order to return to work
'" See The Laidlaw Corporation, 171 NLRB No. 175, enfd 414
F. 2d 99 (C. A. 7) '
The record discloses that only 10 permanent replacements were hired
as of March 20 (namely Kenneth Eyer, Robert Smith, Mary Briggs,
Carole Hunter, Donald Weakland, Richard Steele , James Focht, Jose-
phine Quarry, James Adams, and David Grazier), and that, of these
10, 2 left after the request for reinstatement (namely, Donald Weakland
and James Focht). There is no indication in the record of the identity
of the striker who was replaced by any of these replacements
See Robinson Freight Lines, 114 NLRB 1093, 1096
7e According to Igou , Respondent "rehired" Ronald Moore (in the
latter part of April), although he did not fill out an application However,
in view of the fact that Igou testified further that he was the only
one of the strikers who was "rehired," who did not fill out an application,
I find that Ronald Moore's experience was the exception rather than
the rule in the implementation by Respondent of its April 3 letter,
and that this testimony of Igou does hot militate against the validity
of the above finding
to Kenneth Renney, Louis Estego,.Joseph Smith, Ronald
Moore, Caroline Getz, and Pearl Ramsey.
There remains for consideration Respondent's defense
as to the failure to reinstate eight of the nine other
strikers; namely, Philip Payne, George McClellan, War-
ren Getz, Charles McClellan, Guy Miller, Leroy Riggle-
man, Warren Parsons, and Betty Thomas Everhart. As
to George Burns, who is also one of the nine„ I have
heretofore dealt with Respondent's defense as to the
allegation of discriminatory refusal to reinstate him.
It Js noteworthy that although Respondent had hired
10 permanent replacements '711 Respondent does not con-
tend that all or some of, these eight strikers were not
entitled to their jobs because they,had been permanently
replaced prior to any valid application for reinstatement
by them or in their behalf. Indeed, the contrary •is
indicated by Respondent's March 25 letter to them thank-
ing them for offering to return to work and promising,
as soon as business conditions warrant it, to contact
them to see if' they still desired employment. Instead,
it defends on the special grounds discussed hereinafter.
As to employees 'Philip Payne, George McClellan, and
Warren Getz, it contends that they refused its offers
of reinstatement. And as to Charles McClellan, Guy
Miller, Leroy Riggleman, Warren Parsons, and Betty
Thomas Everhart, it contends that they voluntarily aban-
doned their employment for the reasons hereinafter giv)
en. I find these contentions to be lacking in merit.
As to the first mentioned group, it is true that Payne
refused an offer of a job on April 8 and another offer
on April 18. I need not here decide whether these
jobs were more onerous than the one held by Payne
at the time of the strike,, for the fact remains that
Respondent had, as of April 8 or 18, not done anything
to disabuse the employees of the impression that it
had created by its April 3' letter that they were to
return as new' employees. In these circumstances,
Payne's refusal of these offers does not bar his right
to reinstatement under the Act."' As to George McClel-
lan, I am' cognizant of Igou's undenied testimony that
sometime early in May he offered McClellan his old
job, but this offer was not accepted. And as to Warren
Getz, I note the undenied testimony of Igou that, on
or about the first of May, he offered Getz "his job
back," but Getz refused on the ground that he preferred
to stay on the job he then had with another employer.
However, for the same reason given above in the case
of Payne, I also find here that the refusal by George
McClellan and by Warren Getz of the separate offers
made by Igou to them does not bar their right to reinstate-
ment under'the Act.
As to the other group, the record discloses that Charles
McClellan, Guy Miller, and Leroy Riggleman, in
response to Respondent's letter of April 3, applied to
Respondent for their retirement benefits. As this step
'B Two of these replacements left Respondent's employment there-
after
'° The fact that Payne thereafter requested his retirement benefits
from Respondent is, in light of my findings hereinafter in the cases
of Charles McClellan, Guy Miller, and Leroy Riggleman , also no bar
to his right to reinstatement
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was taken in face of the alternative , offered to them
in the same letter , of returning as new employees,
I find that these strikers did not thereby voluntarily
withdraw, from their employment with Respondent. As
to Warren Parsons there is - testimony by Igou that Par-
sons telephoned him sometime in March to say that
he was working at another job and was not interested
in picketing and -to ,, say further that he was interested
in,getting his Christmas savings money out of the bank
and was told by the bank to get in touch with Igou
so as to allow him to do so. I note that thereafter
Respondent sent Parsons the April 3 letter concerning
returning to work . It is thus apparent , and I find, that
Parsons' telephone conversation with Igou did not consti-
tute a voluntary abandonment of his employment with
Respondent and was not so viewed by Respondent.
Parsons sought thereby to get Igou ' s assistance in with-
drawing his Christmas savings out of the bank. And
as to Betty Thomas Everhart, the facts that she moved
from Tyrone, Pennsylvania , where the plant is located,
to neighboring Altoona, Pennsylvania, and did not notify
Respondent either of this , or that she had married and
that her name was now Everhart, in no way constitutes
a voluntary abandonment of employment with Respond-
ent. Finally, as to Burns, I have heretofore found that
he did not at any time voluntarily abandon employment
with Respondent.
Accordingly, in light of the above and as the attempted
justifications for not reinstating these eight strikers are
without merit, as it is apparent from the payroll records,
in evidence , that a full complement was again attained
by Respondent after the valid application for reinstate-
ment by the Union in their behalf , and as, under the
law, these eight strikers were entitled to reinstatement
either at the time of , their unconditional request for
reinstatement , or if their jobs were not then available,
at the time their jobs' did become available ,81 it follows,
and I find, that on dates uncertain in this record,82
the respective jobs of these individuals were or became
available but Respondent filled these jobs with replace-
ments. By thus failing to offer each of these eight
strikers reinstatement when their jobs were or became
available after the strike, Respondent violated Section
8(a)(3) and (1) of the Act.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. By the following conduct which interfered with,
restrained , and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act,
Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act:
(a) Interrogating employees concerning their union ac-
tivity and attitude toward the Union.
(b) Threatening employees with economic reprisals
for engaging in union activity; namely , with loss of
their Christmas.bonus, loss of the retirement fund, with-
holding their annual wage increase , and closing down
the plant.
(c) Promising a substantial wage increase to a striking
employee if he would `abandon the strike and return
to work.
4. By discriminating as follows in regard to hire or
tenure of employment of its employees , thereby discour-
aging membership in the, Union, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(3) and (1) of the Act:
(a) Laying off indefinitely and, in effect , discharging,
and thereafter refusing to reinstate , George Burns
because of his union activity.
(b) Conditioning the return to work of economic strik-
ers in its letter to them of April 3, 1969, upon their
returning as new employees.
(c) Discharging Joan Campbell. a striking employee,
and thereafter refusing to reinstate her; for alleged willful
misconduct during the strike, where it affirmatively
appears that such misconduct did not occur.
(d) Failing to offer economic strikers Philip Payne,
George McClellan, Charles McClellan, Warren Getz,
Guy Miller, Leroy Riggleman , Warren Parsons, and
Betty Thomas Everhart reinstatement either at the time
of their unconditional request for reinstatement, or if
their jobs were not then available , at the time their
jobs did become available.
5. Respondent has not discriminated in violation of
Section 8(a)(3) and (1) of the Act with respect to strikers
Claude Clinton, Robert Harpster , Herbert Sprankle, Dan-
iel Shultz , and Charles Kirkpatrick , by discharging them
for engaging in misconduct during the strike and there-
after refusing to reinstate them , or with respect to
strikers Kenneth Renney , Louis Estego, Joseph Smith,
Ronald Moore , Caroline Getz, and Pearl Ramsey, in
the course of reinstating them to their jobs.
6. Respondent has not discriminated , in violation of
Section 8 (a)(3) and (1) of the Act , against Warren Parsons
and Charles Kirkpatrick with respect to their hours
of work per week.
7. Respondent has not refused to bargain collectively
with the Union in violation of the Act.
8. Respondent has not violated the Act insofar as
the complaint , as amended , alleges any other violations
of the Act not found herein.
THE REMEDY
11 See The Laidlaw Corporation , supra.
92 These dates may, however , be determined at the compliance stage
of this proceeding
Having found that Respondent engaged in certain
unfair labor practices , I will recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
JUNIATA PACKING COMPANY
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act (1) by laying off George Burns
indefinitely and, in effect, discharging him on January
6, 1969, and thereafter refusing to reinstate him, and
(2) by discharging Joan Campbell on March 25, 1969,
and thereafter refusing to reinstate her, I shall recom-
mend that Respondent offer them immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of earnings they may have suffered as a result
of the discrimination against them, by payment to each
of them of a sum of money equal to that which he
would have earned as wages from the date of such
discrimination to the date of Respondent's offer of rein-
statement , less his net earnings during each period,
with backpay and interest thereon to be computed in
the manner prescribed by the Board in F W Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Company, 138 NLRB 716 In the case of Burns, whose
discharge antedated the strike, I recommend that his
backpay commence on the date of his discharge on
January 6, 1969 However, as Campbell was an economic
striker who had unconditionally applied for reinstatement
prior to the time of her discharge, and as the record
does now show the impact upon her job of the curtail-
ment of operations during the strike, I shall recommend
that her backpay commence in accordance with the
situation maintaining as to her job, i e , if her job
was available at the time of her discharge, her backpay
shall commence as of March 25, 1969, if her job was
not then available her backpay shall commence from
the date her job did become available 83 The applicable
date can be determined at the compliance stage of
this proceeding
I have also found that Respondent discriminated in
violation of Section 8(a)(3) and (1) of the Act against
economic strikers Philip Payne, George McClellan, War-
ren Getz, Charles McClellan, Guy Miller, Leroy Riggle-
957
man, Warren Parsons, and Betty Thomas Everhart by
failing to offer them reinstatement to their former jobs,
which reinstatement they had unconditionally requested,
when such jobs were or became available Here, too,
although a full complement was again attained by
Respondent after such unconditional requests for rein-
statement, it is not clear from the record on what
date each of the above individuals was, in fact,
replaced 84 I shall therefore recommend that Respondent
offer to these eight named individuals immediate and
full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason
of the discriminatory failure to reinstate them, by pay-
ment to each of a sum of money equal to that which
he normally would have earned as wages from the
date of the discriminatory failure to reinstate him to
the date of Respondent ' s offer of reinstatement, less
his net earnings during such period, with backpay and
interest thereon computed in the manner prescribed
in the preceding paragraph 85
[Recommended Order omitted from publication ]
' As found heremabove Respondent did again attain a full comple
ment after the Union s valid application for reinstatement in behalf
of the striking employees
' These dates are however ascertainable and may be determined
at the compliance stage of these proceedings
ea In the case of Charles McClellan Guy Miller Leroy Riggleman
and Philip Payne the record shows that they initiated action to receive
retirement benefits from Respondent Accordingly backpay shall be
reduced to the extent of the retirement benefits heretofore received
from Respondent by them as well as by their interim earnings However
if reinstatement is not desired backpay if there be any due to such
individual shall be payable from the date of the discriminatory failure
to reinstate to the date of such individual s application to Respondent
for retirement benefits and shall be reduced to the extent of interim
earnings covering the same period