Mark Twain Marine Industries

National Labor Relations Board - Board Decisions

Mar 5, 1981

254 N.L.R.B. 1095 (N.L.R.B. 1981)

artd
Uniorr
North1
June
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CHAIRMAN
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--
'
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Inc., PILRB (1950), F.2d 1951).
,:ramined
B.J. Pro-
wnzale Compmy. Inc. d/b/a B.JP. 206
8C0 (1973), F.2d 1975),
linding
Sec. 8(aHI)
wtth complsints.
the parti's'
filst
wa!;
ORDER
WILL
WILL solicit
WILL
WE WILL
1095 MARK TWAIN MARINE INDUSTRIES
Mark Twain Marine Industries, Inc. Local
No. 87, Laborers International Union of
America, AFL-CIO. Case )4-CA- 12254
March 5, 1981
DECISION AND ORDER
On 30, 1980, Administrative Law Judge
William Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel an answering brief.
The Board has considered the record and the at-
tached in light of the exceptions and
briefs has decided to affirm the rulings, find-
ings,] and conclusions of the Administrative Law
Judge to adopt his recommended Order, as
herein.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations adopts as its Order the recommended
Order of the Law Judge, as modi-
fied and hereby orders that the Respondent,
Mark Twain Marine Industries, Inc., West Frank-
fort, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
ommencled Order, as so modified:
1. Add the following after paragraph
In any other manner interfering with,
or coercing employees in the exercise of
the guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Law Judge.
FANNING, dissenting in part:
to my colleagues, I would not find that
Respondent violated Section by providing
employees with stamps and envelopes to mail their
union resignations. An antiunion employ-
ee provided the envelopes and used Respondent's
postage meter. The Administrative Law Judge
Respcndent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
544 enfd. 188 362 (3d Cir. We have
carefully the record and find no basis for reversing his findings.
With respect to the Administrative Law Judge's reliance on
Painting ond Decorating Co..
NLRB enforcement denied 512 599 (6th Cir. we
note that in that case the court disagreed with the Board's that
the respondent violated by expressing anger at employees'
going lo the union their There, however, unlike here.
collective-bargaining agreement provided that employees
should take up their grievances with their supervisors. In addition,
there not, in that case, any independent evidence of union animus.
ferred that, because Respondent would not con-
done such activity, the employee either obtained
Respondent's permission or acted at its direction.
That is speculative. Absent the slightest evidence
that Respondent was aware of the employee's ac-
tions at the time or subsequently ratified them, a
prepondenrance of the evidence does not support
the violation.
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

After a hearing at which all parties were represent-
ed by their attorneys and afforded the opportunity
to present evidence in support of their respective
positions, it has been found that we have violated
the National Labor Relations Act in certain re-
spects and we have been ordered to post this
notice and to carry out its terms.
Accordingly, we give you these assurances:
WE WILL NOT indicate displeasure with em-
ployees for going to the Union with their com-
plaints.
WE NOT tell our employees that they
will have more benefits, wages, and rights
without a union by dealing with their employ-
er on a "one on one" basis.
WE WILL NOT tell our employees that by se-
lecting a union to represent them they have
given up their rights to the utilization of Na-
tional Labor Relations Board processes.
WE WILL NOT urge our employees to take
their problems to management thereby unlaw-
fully soliciting grievances.
WE WILL NOT promise merit increases to
our employees if they should abandon the
Union.
WE WILL NOT distribute circulars in which
we advocate that employees abandon union
representation in order to save the expense of
dues and to protect their rights.
WE NOT employees to with-
draw from union membership, abandon their
strike, and return to work.
WE NOT advise unfair labor practice
strikers that they have been removed from the
payroll and do not have jobs anymore.
NOT create the impression of sur-
veillance by telling employees that we have
had their phones tapped.
254 NLRB No. 144
91
pdyroll
WILL
collective-
agreed-
The
STATEMENT
AFL-
6
8(a)(l), (3),
particlrlar-
ly,
8(a)(l),
8(a)(l),
8(a)(l) (3), 10A 10F
8(a)(l) ( 9 , 11A 11C
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT provide envelopes and post-
age to employees for the purpose of helping
them to resign from the Union.
WE WILL NOT foster the creation of an ex-
ecutive committee to supplant the employees'
lawful collective-bargaining representative.
WE WILL NOT maintain and promulgate an
unlawful no-solicitation rule.
WE WILL NOT discharge employees by in-
forming strikers that they have been removed
from the and replaced at a time when,
in fact, they have not been replaced.
WE WILL NOT fail or refuse to reinstate
unfair labor practice strikers notwithstanding
their having made unconditional offers to
return to work.
WE WILL NOT require replaced unfair labor
practice strikers to complete new job applica-
tion forms before being considered for rein-
statement.
WE WILL NOT discharge employees because
of their union activities.
WE WILL NOT unilaterally implement con-
tract proposals effecting changes in wages and
other terms and conditions of employment of
employees in the unit represented by the
Union.
WE NOT withdraw recognition from
the Union and thereafter fail or refuse to rec-
ognize the Union as the exclusive
bargaining representative of the employees in
the unit represented by the Union.
WE WILL NOT refuse to execute the
upon collective-bargaining agreement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer to all unfair labor practice
strikers, including Andrew Anderson, full and
immediate reinstatement to their former posi-
tions or, in the event their former positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges, dismissing if neces-
sary, any person hired by us on or after Febru-
ary 2, 1979, and make them whole for any loss
of pay which they may have suffered by
reason of our refusal to reinstate them, with in-
terest.
WE WILL remove from the personnel files of
all unfair labor practice strikers all unlawfully
required new job applications.
WE WILL recognize and, upon request, bar-
gain with Local Union No. 87, Laborers Inter-
national Union of North America, AFL-CIO,
as the exclusive collective-bargaining represen-
tative of all employees in the appropriate unit
described below with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment. appropri-
ate unit is:
All production and maintenance employees
including truck drivers at our West Frank-
fort, Illinois manufacturing plant and ware-
houses, excluding office clerical, engineer-
ing, technical, quality control, professional,
sales and salaried employees, timekeepers,
foremen, guards, inspectors and other super-
visory employees as defined in the National
Labor Relations Act, as amended.
WE WILL execute the collective-bargaining
agreement agreed upon by us with the Union
on January 31, 1979.
DECISION
OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on April 16 through 19, April
30 through May 4, and May 14 through 16, 1979. The
original charge was filed on February 9, 1979, and
amended on March 7, 1979, by Local Union No. 87, La-
borers International Union of North America,
CIO, hereinafter called the Union. The original com-
plaint issued March 30, 1979, and was amended on April
10, 1979, and at the hearing. The complaint, in its final
form, alleges that Mark Twain Marine Industries, Inc.,
hereinafter also called Respondent, violated Section
and (5) of the National Labor Relations Act,
as amended, hereinafter called the Act. More
the complaint alleges that employees of Respondent,
since February 2, 1979, engaged in an unfair labor prac-
tice strike which was caused and prolonged by certain
unlawful activities perpetrated by Respondent and that
the Union did, on or about February 13, 1979, make an
unconditional offer to end the strike and have the em-
ployees return to work. The underpinnings of the allega-
tion that the strike was an unfair labor practice strike are
dependent upon eight allegations that Respondent violat-
ed Section paragraphs 9A through 9H of the
complaint. The bases for the allegation that Respondent
prolonged the unfair labor practice strike are dependent
upon eight additional allegations that Respondent violat-
ed Section paragraphs 91 through 9 P of the com-
plaint; six allegations that Respondent violated Section
and paragraphs through of the com-
plaint; and three allegations that Respondent violated
Section and paragraphs through of
the complaint.
unfa~r
infra.
All
iu11
filed
1.
,.he
$50,000,
$50,000
point.$
2(6)
11.
ZJnion
2(5)
Ill.
8(a)(I)
werc:
comir~g
.egard
re1:overing
confacted Rayburn
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alec
Or orders and brought the matter attention' unil re- --
' Manis
sentment
MARK TWAIN MARINE INDUSTRIES 1097
Respondent in its answer denied the commission of
any labor practices and interposed a number of af-
firmative defenses which will be dealt with
parties were represented at the hearing and were
offered opportunity to be heard and to present evi-
dence ard argument. The General Counsel and Respon-
dent briefs. Upon the entire record and my observa-
tion of the demeanor of the witnesses, and after giving
due consideration to the briefs, I make the following:
T H E BUSINESS OF RESPONDENT
Respondent, an Illinois corporation, is engaged in the
manufacture and sale of recreational boats at its facilities
at West Frankfort, Illinois, and in the State of Missouri.
During year ending February 28, 1979, a period rep-
resentative of its operations during all times material
herein, Respondent, in the course and conduct of its
business, manufactured, sold, and distributed at its West
Frankfort, Illinois, place of business products valued in
excess of of which products valued in excess of
were shipped from said place of business directly
to located outside the State of Illinois. The com-
plaint alleges, the answer admits, and I find that Respon-
dent is an employer engaged in commerce within the
meaning of Section and (7) of the Act.
T H E LABOR ORGANIZATION INVOLVED
The is a labor organization within the meaning
of Section of the Act.
T H E ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violations
1. Paragraph 9A of the complaint alleges that during
the latter half of November 1978 Respondent's supervi-
sor, Raburn Moore, told an employee that some employ-
ees causing trouble by going to the Union instead
of to him.

With
to this allegation, the record indicates that
Joyce I-Ioppers, an employee of Respondent since
August 1977 and a member of the Union, had been off
work from surgery. Before returning to work
she her superior, Moore, department
manager, an admitted supervisor, and asked to be as-
signed a different job than she had been doing, an easier
one, putting windshields in the boats, while recuperating.
Moore agreed. During this period Hoppers worked with
another employee Patti Dyas and both worked for Assis-
tant Supervisor Sharon Mannis' who in turn worked for
Moore. Mannis been a rank-and-file employee up
until jus: prior to Hoppers' going on sick leave at which
time she was appointed assistant supervisor.
After Hoppers returned to work and worked with
Dyas for several weeks they noted that Mannis appeared
to be telling them how and do their jobs when
they had never before had to be so instructed. They took
umbrage at what they considered unnecessary directions
Also &,pears in the record as Sharon
There was some comment to the effect that "perhaps
Sharon's job had gone to her head." Things did not im-
prove thereafter. Mannis, according to Hoppers, contin-
ued to order her and Dyas around: "Before we could
even much more than get a windshield started good on
one boat, she was already telling us what boat to go to
next, as if we didn't know." Hoppers also complained in
her testimony that Mannis also followed her and Dyas to
the bathroom and would stand and wait there until the
two employees returned to their work stations. She testi-
fied also that Mannis would stand next to the boat in
which she and Dyas were working, holding a watch, ap-
parently timing them. These supervising methods utilized
by Mannis angered Hoppers, particularly since she had
never had any production problems connected with her
work in the
Patti Dyas, Hoppers' partner, an employee of Respon-
dent since February 1977 and a member of the Union,
supported the latter's testimony to the extent of stating
that she and Mannis did not get along and that she and
Hoppers had brought their dissatisfaction with Mannis to
the attention of Margaret Fisher, the Union's business
manager, who told them both that she would do what
she could but that they should keep their Dyas
joined Hoppers in testifying that she felt that when
Mannis became assistant supervisor the "power had gone
to her head." She stated that she felt that this was the
case because of the way Mannis would follow her
around with a clipboard, even to the bathroom and
would set up her work for her despite the fact that she
had always been able to complete her assignments with-
out such supervision in the past. Dyas, like Hoppers,
clearly resented Mannis' approach to supervision though
in her testimony she denied it. According to Dyas,
Mannis did not like her and the feeling was mutual.
One day in late November 1978, Mannis came over to
where Hoppers and Dyas were working and tried to
hand Hoppers a written reprimand, a pink slip. Hoppers
refused to accept the reprimand and stated that she
would not do so without a union official being present.
Mannis asked Hoppers to "just look at it." Hoppers
asked what it was for and Mannis replied that it was for
her "smart attitude." Hoppers replied that it was not
her attitude that was the problem and once again refused
to accept the reprimand unless Mannis agreed to have a
union representative present. A union representative was
not called, Hoppers did not accept the pink slip, and the
incident ended there. Since Mannis did not insist that
Hoppers accept the pink slip without the presence of a
union representative and no reprimand resulted, I find no
violation here.3
The day after the pink slip incident Ray Moore came
over to where Hoppers and Dyas were working. He
called Dyas over to the side and engaged her in conver-
sation. He accused her and others of getting a lot of
other people on the line stirred up, of causing trouble,
and of going to the Union for problems that she should
There was some dissatisfaction along the line with the fact that
Mannis had been doing work and that this was also a cause for
as was Mannis' supervisory work.
Sharon Mannis did not testify.
1098 DEClSlONS
tiid
conbersation
disci~ssion
"
As
seve~al
o t h e ~
Af!er
H o p ~ e r s
with
~ccused
~ n d
Moore
him.4
I>yas, em-
p1oyet:s
arisem5
conce~ning
Moclre
Iklannis
bitc
Initii~lly
time
' ,ecord
H~~ppers lestified,
could not go
' Nlr yccific part~cularly
with 9A,
8(a)(l)
J. Provenzale
Inc., B.J.P.
(1973);O
Rayburn
All
for."7
512 F.2d (6th
the Sixlh
'
OF NATIONAL LABOR RELATIONS BOARD
have been going to him about, problems which did not
have anything to d o with the Union. Dyas testified that
she not know what Moore was talking about but de-
scribed him as being in an "uproar" and added that "a
lot cf other people around there were too." Though the
lasted for 20 to 30 minutes and included a
about work related problems, Dyas could re-
member little else about it. She did recall, however,
saying something "about getting Sharon Mannis off my
back
far as the key statement concerning "going to the
Union for problems which she should have been going
to Moore about," Dyas testified that she had in fact gone
to Marge Fisher, to the president of the Union several
times about different problems, and also to Ray Moore
times with different problems. The record is un-
clear as to what problems were taken to each by Dyas
than her dissatisfaction with Mannis.
the conversation between Moore and Dyas was
conciuded, Dyas was sent back to work and Moore told
that he wished to speak with her. Hoppers went
with Moore away from the line where Moore opened
the conversation by telling Hoppers how concerned he
was all of the problems which the employees were
having on the line. He complained that she and Dyas
were keeping everyone on the line stirred up and that
certain people were causing him problems that had never
caused problems before. He then asked Hoppers if she
knew what it was all about and if she had a solution.
Hoppers replied that she did not understand herself what
was going on and did not know what to tell him. Moore
then Hoppers and Dyas of giving Mannis a hard
time that was what was wrong. Hoppers became
upset because she felt that she and Dyas were being
blamed for everything. As was the case with Dyas,
stated that the employees were going to the
Union instead of t o He then asked Hoppers if she,
Patti Sarah Bandy and Carol Smith, the other
working in the same department, would be will-
ing tc meet with him and Ron Kelly, the production
manager, the following Wednesday after work in order
to see if they could iron out all the problems that had
Hoppers agreed to talk to the other employees
the suggestion and promised to get back to
Moore with their reply.
testified that after Mannis became an assistant
supervisor he became aware of a problem between her
and the employees in her department. She was, accord-
ing to him, "having a hard time getting some of the
people t o do what she asked them to do." She also told
Moore that she had to run to the bathroom about every
20 minutes to get Dyas and Hoppers back to work. Fi-
nally, complained to Moore that certain employ-
ees were bad-mouthing her and that one had called her
"a I."
Moore did nothing about Mannis' complaints
but eventually felt that he had to do something about the
hard which Dyas and Hoppers were giving to
The is not clear as to the context in which this statement was
made. however, that Moore never told her that she
to the Union about her problems.
problems were identified.
Mannis because the entire line "was in an uproar" and all
that the employees talked about was Mannis' promotion
and why she had been promoted. The net effect, accord-
ing to Moore, was a slowdown in production, so finally
he decided to transfer Hoppers to another job in order to
separate her from Dyas. He was unable to remember,
however, having any private discussions with Dyas and
Hoppers as they described in their testimony.
regard to allegation I find in accordance
with the testimony of Hoppers and Dyas that Moore
registered displeasure with their going to the Union with
their complaints. His statements concerning their not
going to the Union when viewed in the apparent context
o f his chastisement of them for allegedly harrassing their
supervisor must be considered as an assertion on Moore's
part that he did not like dealing with his employees
through their chosen representative. Similar circum-
stances have been viewed by the Board as intimidation
and a violation of Section because such statements

necessarily have the effect of inhibiting free exercise of

employees' Section 7 rights, B.
Company,
d/b/a Painting and Decorating Co., 206
NLRB 800 Colony Furniture Co., 168 NLRB 725
(1967). In accord with the cited cases, I find Respondent
in violation here.
2. Paragraph 9B of the complaint alleges that, some

time during the latter half of November 1978, Respon-

dent's supervisor, Moore, told an employee that

he would not meet with employees if a union representa-

tive were present.

With regard to this allegation the record indicates that,

when Hoppers had the above-described conversation

with Ray Moore, she did as he requested and talked to

the other employees in the department about Moore's

proposed Wednesday meeting.
agreed to the meeting.
Later that evening, however, Hoppers talked the matter
over with her husband who advised her that the employ-
ees should not meet with Moore and Kelly without a +
union representative being present.
The following day, before work started, Hoppers met
with Dyas and one of the other employees and told them
of her husband's suggestion. They all agreed that for
their own protection they should have a union represen-
tative at the meeting. Thereafter, when the buzzer went
off announcing that it was time to go to work, Dyas and
Hoppers walked over to Ray Moore and Hoppers asked
him whether he was still interested in having a meeting.
Moore replied that he was. Hoppers then said, "O.K., we
have talked it over. If we can have a union representa-
tive, we are willing to meet." Moore, in reply, stated,
"No Way!" Hoppers then asked, "Why not, Ray?" and
Moore in turn asked, "Why would you want one? This is
not union business." Dyas then answered, "Because we
are union, we pay our union dues so that we have repre-
sentation, and that's what they are there Moore
then stated, "I am not going to deal with the Union."
Hoppers pursued the matter by saying, "You pick them.
Reversed 599 Cir. 1975). Though this case was re-
versed by United States Court of Appeals for the Circuit, I am
nevertheless bound hy the Board's decision.
From the combined credited testimony of Dyas and Hoppers.
ab<,ut beaver^?^
Wt:
th~:
be,ween
thele
asked
Ml~ore
filed
gievance
01' r ightsg
of
IlJovember
supervisor, Re-
spondenl:
A1 Frc:ye,
: ~ l s o secretary-
M x g e officials.1°
--
IJ
Cf. New 179
(1969), NLKB
' O
tht:
Fr:ye
Lampley
Lampley
Lampley
Lampley
Lampley
12,
visit12
9C,
Lampley
Laney,13
Lampley
Lampley
hours.14
Was
' I "petit~on"
l 2 Of ice
'"nderson Roberson, supervisor
sew." also
~ndividuals
l 4
1099 MARK TWAIN MARINE INDUSTRIES
How Tom You seem to like Tom Bea-
vers. don't care who it is as long as we can have
someone there. We don't want them to say anything, just
be there." Moore replied, "No, I don't like Tom Beavers.
I don't like any of those people, and I hate Marge
Fisher." When Moore made it plain that he would not
hold meeting with union representatives present,
Hoppers and Dyas turned around and walked off.
At no time during this discussion or the one previous
to it Hoppers and Moore did Moore indicate
that reprimand o r punishment was contemplated. Nor
was a grievance in any way involved. Simply put,
Moore the employees in Mannis' department to
meet wi h him one day after work to discuss unspecified
problems, most likely pertaining to their differences with
their supervisor. When these employees refused to meet
with unless they had union representation, he
dropped the whole idea rather than get involved with
the unicn officials all of whom he personally disliked.
Neither Dyas nor Hoppers asked for the meeting and no
one a grievance over the differences which existed
between Mannis and the employees who worked under
her, which grievance might have been the subject matter
of the procedure outlined in the contract.
Since nc meeting ever took place there was no need for
union representation and consequently there was no vio-
lation anyone's Section 7 I recommend dis-
missal this violation.
3. Paragraph 9C of the complaint alleges that some
time in o r early December 1978 Respondent's
Rodney Laney, told an employee that
had instructed supervisors not to interfere with
another employee's efforts to circulate a union decertifi-
cation petition during working time at Respondent's
place of business.
an employee of Respondent since 1972 was,
during relevant times herein, employed as a messenger.
He was an ex-union official who served as
treasurer and as business manager for the Union as late
as March 1978, when he resigned following a dispute
with Fisher and other union Freye
also toot training courses at the University of Illinois
and was therefore better versed in labor law than the
average employee. Jean Lampley, Freye's sister-in-law,
testified that Freye was not alone among employees who
were dissatisfied with the Union's operations. Other
members, according to her, stated that they were dissat-
isfied with the way the Union handled its business, par-
ticularly complaining that the Union's leadership acted as
a clique, not letting them know what was going on and
refusing to act on their grievances. They begrudged
paying dues and receiving nothing in return, according
to Lamp ey.
Freye, because of his belief that there was certain dis-
contentment among employees with the Union's service,
The Urion's business agent.
England Telephone and Telegraph Company. NLRB 5 3
and 179 527 (1969).
The dispute concerned whether Fisher would handle grievances or
whether business manager and stewards would d o so as the constitu-
tion and the contract requires, according to Freye. This, plus the fact
that a later grievance tiled by Freye was not processed by the Union.
afforded possible reasons for being dissatisfied with the Union.
went to with the idea of preparing a petition to
remove the Union as the employees' bargaining represen-
tative. agreed and together they composed the
petition. On December 4, 1978, signed and
dated the petition and on the following day began solicit-
ing the signatures of other employees. Freye did not par-
ticipate in the circulation of the petition, probably be-
cause his duties as messenger kept him away from the
plant. testified credibly that no member of man-
agement had anything to d o with the composition of the
petition and there is no evidence that management was
involved in a positive sense in its circulation. By Decem-
ber 7, had solicited approximately 70 signatures
and on that day apparently returned the petition to
Freye who signed and dated it. Subsequently Freye
mailed the petition" to the Board offices in St. Louis.
On December Freye filed an official National
Labor Relations Board petition to decertify the Union.
However, the filing proved untimely and the petition
was consequently either withdrawn o r dismissed. During
a second to the Board offices in St. Louis, the
reason for the Board's action was explained to Freye,
and further options concerning various means of dealing
with the Union were enumerated by the Board agent.
Literature was also given to Freye at the time, some of
which he distributed at the plant.
The complaint does not allege that management was
involved in the composing o r circulation of the decertifi-
cation petition other than as quoted in paragraph
above. With respect to that specific issue employee Clau-
dia Anderson testified that, sometime in October o r No-
vember 1978, she saw circulating a petition
during working hours on one occasion. Present in the
area at the time, according to Anderson, was Rodney
an admitted supervisor. When Anderson saw
circulating the petition she complained to
Laney, asking him why was allowed to go in
through the departments and circulate the petition
during working Laney replied that he could not
d o anything about it and that he had been told not to
stop her. This testimony, unrefuted by other witnesses, is
the basis for allegation 9C. Laney was not called.
Inasmuch as Anderson's testimony not refuted and
she was a credible witness, I find that the incident oc-
curred just as she described. Moreover, although Re-
spondent denied the 9C allegation in its answer, in its
brief Respondent defended against the allegation by stat-
ing that it had a no solicitation rule in effect at the time
but that it had never been enforced. During the hearing,
Respondent offered a good deal of testimony to show
that solicitation was carried on in the face of the no-so-
licitation rule on many occassions and for many
This is perhaps more properly termed a showing of inter-
est.
Freye had visited the St. Louis Regional earlier to pick up
some forms.
testified that Jerry "a over uphol-
stery and cut and sew," and Hazel Vaughn, a "foreman over cut and
were present. N o testimony was adduced to prove supervisory
status of these two and they were not alleged in the complaint
to be supervisory.
Anderson testified that she did not actually see the petition.
IIX)
cadses. l 5
in-
tel
Lampley
ac.ually
Lampley
Moore.16
Lampley
viltue
i n ~ l v e d
tht:
plant,17
opin-
an:, circu-
lat
Sh,'rt (1969),18
Respon-
dei~t 's innoc-
UOIIS.
/I.
time Ray-
bum
employee
prclblems
know
-
take1 acci-
denti.
E~nployee with.regard
l 6
:! 10
I.!
of
Lampley spe.
cilic;~lly
I 7 exis-
Icncc no-solic~tation
lhat .he
wen unlon
working 1 thae
rfTec at-
I~lurJo* the petltlon.
' * Amrmed F.2d
terminat-
ed,19 of ice
Rayford
Blan-
kenship
-
received.20
l o
20 admissib~lity
I DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent takes the position that, inasmuch as
it had not enforced the no-solicitation rule in the past
with regard to nonunion related matters, it could not
lawfully d o so with regard to the decertification petition.
It, therefore, gave its supervisors instructions not to
fere with its circulation.
Claudia Anderson's testimony, though credited, was
not very explicit. She did state that she saw
with the petition but did not state that she saw anyone
handed the petition to sign or that anyone
signed it in her presence. Hoppers and Dyas also testified
to seeing discuss the petition with 10 or 12 em-
ployees in the presence of Mannis and Howev-
er, since there were over 200 employees employed by
Respondent at this time and the General Counsel could
find only 2 witnesses to testify that was circu-
lating the petition on company time, I cannot find by
of this limited testimony that Respondent was re-
sponsible for o r sufficiently in the circulation of
decertification petition to warrant the finding of a
violation. Respondent's position, in light of its permissive
attitude toward solicitation at the that it should
not interfere with the circulation of the petition, in my
view, is the correct one. T o interfere with the spontane-
ous movement to decertify the Union would, in my
ior, be unwarranted. Since the record does not reveal
involvement on the part of Respondent in the
on of the decertification petition, I find Respondent
committed no violation with respect thereto, Hamburg
Corporation, 175 NLRB 284 and that
Laney's explanation to Claudia Anderson as to
position concerning the matter is basically
Paragraph 9 D of the complaint alleges that some
in early December Respondent's supervisor,
Moore, told an official of the Union that Respon-
dent had instructed supervisors not to discuss
with her.
Concerning this allegation the record reveals that cer-
tain employees complained to Marge Fisher, the Local's
president, that Sharon Mannis was pushing them too
hard. Fisher called Mannis and asked her to meet with
her during break time. Mannis replied that she did not
whether she was allowed to d o so but would get
There was, for instance, a petition circulated and signed by some 36
employees requesting that Respondent fi l l in a number of potholes in the
parking lot. There were also several instances where collections were
up for employees who had suffered financial setbacks due to
Susan Wolke supported this testimony to the
various instances of solicitation permitted on working time.
Hoppers testified that this incident occurred on working time after
the p.m. break. It would appear to me, however, that, if there were
or employees gathered around including Hoppers herself, this incident
was more likely an extension of the breaktime rather than a gathering
employees called together by in the middle of a workday
to address them concerning the petition.
Though Claudia Anderson testified that she was aware of the
of the rule, that she had been told 5 or 6 years ago
was not to talk union on working time, and that in January she
had told by Jerry Roberson, her superior, not to talk during
time. do not consider incidents sufficiently significant to
my overall view that Respondent did not violate the law by its
toward circulation of the decertification
419 1275 (8th Cir. 1969).
back to Fisher on the matter. She failed to d o so, howev-
er, and the following day, when Fisher saw her, she
asked her about it. Mannis advised Fisher that she had
discussed the matter with Ray Moore who told her to
forget it. Fisher thereupon went to talk with Business
Manager Tom Beavers about the incident. Subsequently,
both Fisher and Beavers together sought out Moore to
discuss the situation. During the three-way conversation
which followed, Fisher asked Moore why he had told
Mannis not to discuss the employees' complaints about
her with Fisher. Moore stated that he had been instruct-
ed not to discuss any of the employees problems with
her. When Fisher asked for an explanation, Moore re-
plied that he would discuss and work out the problem
with Beavers. Fisher accepted this decision without ques-
tion, presumably because Beavers, as business manager,
was, according to the Uniform Local Union Constitu-
tion, in charge of employer-union relations. Since the ar-
rangement was acceptable to everyone at the time, no
grievance was filed, and the incident was not alluded to
in the original charge, it appears to me that it was in-
cluded in the complaint as a makeweight device. More-
over, shortly after this incident, Beavers was
and Fisher took over the of business man-
ager after which Respondent dealt directly with her on
all such matters. I find no violation here.
5. Paragraph 9E of the complaint alleges that on or
about December 18, 1978, Respondent's attorney and
agent, T . Blankenship, told assembled employ-
ees that they would have more benefits, wages, and
rights without a union by dealing with the Employer on
a "one to one" basis.
The record reveals that this allegation concerns a set
of three meetings held on December 18 at which
addressed the employees of Respondent. The
General Counsel relies, to prove his case, on the testimo-
ny of his own witnesses and on two transcripts of three
tapes taken during the meetings by Blankenship himself.
Respondent relies on these tapes and on the testimony of
both its own and the General Counsel's witnesses. The
witnesses' testimony will be dealt with on an individual
basis. The tapes are
Employee Jane Loss testified credibly on behalf of the
General Counsel that, during Blankenship's second
speech on December 18, he told the employees that if
they bargained "one on one" it was a much better
system than going through the bargaining unit, and that
if employees had problems and could not settle them
Prior to his termination Beavers advised Fisher that the problem
had been worked out between himself and Philip Pace, the personnel di-
rector.
Ruling on was held in abeyance pending receipt of tes-
timony from witnesses who testified to having heard the speeches of
which the tapes are purported to be true and accurate reproductions.
Since these tapes were offered by Respondent's counsel as true and au-
thentic reproductions of his speeches, I receive them as such. They are
also subject, of course, for use as admissions against interest. I consider
the tapes reflective of what Blankenship said albeit not reflective of all
that he might have said. Inasmuch as the one allegedly full tape and one
partial tape fail to fully cover all three speeches, quite obviously they are
not deemed to have done so. Thus, the testimony of certain witnesses
may be considered to reflect portions of Blankenship's speeches not cov-
ered in his tapes and transcripts.
I101
it.21
Employee McReaken,
Blenkenship
.ind
\'ern
their
( 2 .
14.
wa:;
vrould
also
Yo11
union
con~plaint,
(lice,
con~plaint.
going
hammer.
desig-
two
Clovernment
2 ' Emplc~yee Sentel
Simms that
BLANKENSHIP:
i
the
MARK TWAIN MARINE INDUSTRIES
with their foremen they should go see Vern Simms, vice
president of manufacturing, and he would take care of
Susan who attended the same
meeting, testified equally credibly that told
the employees that they had the same rights under the
Taft-Hartley Act as they would have with their Union,
and that if they had a problem they should g o person to
person talk with someone then specifically men-
tioned Simms as the person to whom they should
bring problems.

Employee John Griffin testified as follows:

Now did Mr. Blankenship say anything about
benefits received by employees?
Well, the only thing he talked about is we
would have better benefits without a union, better
working relationship with the company than if we
working through a union.
Excerpts from the Blankenship tapes reveal the general
tenor of his speech:
Now, I made the statement earlier, d o you know
tha: you, as employees have more rights without a
union than you d o with the union. Everybody hol-
lers, ah, no, no. Let me tell you a fact. Number one,
it be illegal for me to stand here and tell you
something that was not true. Number two, it would
be just as illegal for me to blow things out of
proportion. What I tell you must be a fact, and it is.
gave the union your right that you already
have under the law. In addition, you've gave the
the right to say what was and was not and is
an is not good for you . . . . Now, you've got a
right? The law says, you've got a union,
you've got to take it to the union. If the union says
no that's it. Whoa. Without the union, you can
go down to the N.L.R.B. and say hey, I've got a
They've got an attorney down there that
sits down and takes down an affidavit and says d o
you solemnly swear, and I say, I do; sit down. They
to come down on the company with a
That's what your money pays for already.
With a union, the only thing you d o is you
natt the union to have all that power over here,
right?
If o r more people [engage in "concerted activi-
ties" without a union] they've got this whole Feder-
al . . . staffs of attorneys and prosecu-
tors down here like you wouldn't believe, to protect
you . . . . On the other hand, with the union, you
d o something, the company takes action; guess
what, you've got to do. You've got to g o to the
unicn . . . . Now you can't g o to the N.L.R.B.
down here in St. Louis. You can't call them and
Brenda similarly testified that Blankenship said
that cared about what employees thought and they should go
to him with their problems.
have them come up here because you have desig-
nated the union to have that right. That's what it's
all about.
On the other hand, with a union-listen to this be-
cause it is very important-with a union you have
given that power to the union; whatever the union
says, okay, and I'm not talking about the people in
the plant. I'm talking about the union itself. You've
given it to them-they did back in 1970. So what-
ever the union and this company agrees to with o r
without you, that's the way it's going to be.
MEMBER OF AUDIENCE: What kind of job securi-
ty would we have? [Without a union.]
MR. BLANKENSHIP: More, as a matter of fact, than
what you've got now. The only difference is-the
only difference is you don't have to pay twice to
get it. You don't have to come up front with the
fifty dollars initiation fee and the seven dollars a
month because you use the law.
At one point during the meeting when one employee
complained that employees were forced to work over-
time and would be fired if they refused, the following ex-
change took place:
MR. That's the union contract.

MEMBER OF AUDIENCE: Yeah.

MR. BLANKENSHIP: That is with the union here.

Your union contract does specify that. What I'm
talking about is without the Union. You're right.
Much more without it than with it, because with a
union contract, it specifies in black and white. It's
meant to control you.
MEMBER OF AUDIENCE: Well, the company sure
does.
MR. BLANKENSHIP: Okay. Now what I'm saying
is, wouldn't you rather control yourself!
MR. BLANKENSHIP: This company will negotiate
with the Laborers Union if the employees feel like
it . . . . But on the other hand if the employees,
through a concerted effort . . . decided that you
wanted more, these people would have to sit down
and negotiate with you. And you can even-it's
possible folks-let me tell you something-to get
even more than what union asks for. For example,
if the union asks for 6% increase in salary and
fringe benefits, as a concertive group, you could
even demand more than that. But with the union
what happens is simply this: The union can come
back to you and say you've designated me to repre-
sent you. Consequently, I'm saying that's all I'm
1
'Thus,
b o ~ n d
ad./ised
L repre-
unlon
tia~ion
ovc:rtime con-
tra(:t
shc'uld
sali~ry impliedly
low
alle-
U n ~ o n
per;on,"
wages,
8(a)(l)
with
exclusive
iict
8(a)(l). eagle's, Inc.,
(1978).22
8(a)(l)
Glenside (1
threatening
Inc.,
(1978);
Ucdified F.2d
(1977);23
Inc.,
8(a)(I).
IS, Ray-
Blan-
kenship
Blanken-
8(a)(l) Shulman's Inc.
(1974);24
Rayford
Sentel
[H]e
[H]e
23 F.2d
24 F.2d
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to ask them for, and you're going to have to 233 NLRB 491 asking employees to provide
buy it. copies of affidavits given to Board agents, Anserphone.
236 NLRB 931 (1978); or similar circumstances. On
the same philosophical bases, I would find that Respon-
MEMBER OF AUDIENCE: . . . don't know how
they can make a living on what they have got here.
M R . BLANKENSHIP: That's not because of the
company. That was done by virtue of the union ne-
gotiating that.
from the above excerpts, Blankenship's purpose
is quite clear. After first holding himself out to be an
expert and assuring the employees that he was legally
to tell them only the truth without distortion, he
them that they would have more rights without
a nion than with one; that by selecting a union to
ser t them the employees had given their rights away;
that by selecting a union to represent them they had
sornehow given up their rights to use the processes of
the National Labor Relations Board; that without a
they would have more job security than they had
at he time and would not have to pay union dues o r mi-
fees for it; that the Union was responsible, due to
the contract, for the employees being forced to work
under threat of being fired; that the union
was meant to control the employees; that they
rather control themselves; that if the employees
withdrew from the Union and through a concerted effort
would bargain with the Respondent it would be possible
"to get even more than what the Union asks for . . . in
and fringe benefits"; that the Union was
not bargaining in earnest on their behalf; and that the
wages received by the employees were not the
Conpany's fault but rather due to the Union's negotiat-
ing them.
I find that the above-described testimony and the por-
tions of the tapes reviewed above amply support the
gat on contained in paragraph 9 E of the complaint and
tha Respondent by urging the employees to abandon the
in favor of dealing "one on one," "person to
o r in a concerted fashion with Respondent and
by implying that it would grant increased benefits,
security and other rights if they did so, violated
Section of the Act. Moreover, Blankenship's
urg ng of the employees to join concertedly to bargain
Respondent rather than through their recognized
bargaining representative, under these circum-
stances, hardly seems to be other than a thinly veiled at-
tempt to get the employees to organize their own union,
an which has been found innumerable times to be in
violation of Section 234 NLRB
11411 Finally, it has been held violative of Sec-
tion of the Act to engage in the obstruction of
Board processes, whether it be discharging employees
for giving testimony at the National Labor Relations
Board hearings, Hospital, 234 NLRB 62 978);
employees with reprisals for utilizing Board
processes, ABC Specialty Foods, 234 NLRB 475
assisting employees in obtaining legal counsel
before talking to Board agents, Florida Steel Corporation,
in other respects 588 943 (5th Cir. 1979).
dent interfered with Board processes and with the Sec-
tion 7 rights of employees when it advised them, through
Blankenship, that by selecting a union to represent them
they had given up their rights to the utilization of Board
processes in violation of Section
6. Paragraph 9 F of the complaint alleges that on or
about December 1978, Respondent's attorney,
ford T . Blankenship, told employees to take their prob-
lems to Respondent's vice president, o r to their foreman,
rather than to the Union.
The record clearly reflects, as noted above, that
did, in fact, urge employees to seek out Vice
President Simms to have him take care of their problems.
In the context of his entire speech, I find that
ship was, in essence, soliciting grievances which he
stated would be rectified. At a time when these employ-
ees were already represented by an exciusive bargaining
agent, such activity is considered interference with their
rights to such representation and has been found in viola-
tion of Section of the Act. of Nor-
folk, 208 NLRB 772 Ring Metals Company, 198
NLRB 1020 (1972).
7. Paragraph 9G of the complaint alleges that on or
about December 18, 1978, Respondent's attorney and
agent, T. Blankenship, told employees that Re-
spondent would be more willing to give merit raises
without a union.
With regard to this allegation employee Brenda
credibly testified concerning Blankenship's speech:
said that w e could get more from the Taft-
Hartley Act, from the government, without having
to spend the money w e worked hard for and get
the same protection.
said that by the Taft-Hartley Act that we
would be protected, as far as our wages and all this,
that if we depended on the company, that we
would receive merit raises, if we deserved them,
rather than waiting for the Union to bargain for us
for those raises, and then up our union dues and
that, after they would get this for us.
Though the specific term "merit increases" does not
appear in Respondent's transcript of the tape of the
speech given by Blankenship, the following excerpt, one
of several representative of the same argument, more
than implies such a promise if the emoloyees were to
abandon the Union:
MR.BLANKENSHIP: Listen. This company cannot
promise you anything. But work-related problems
are very real. One of the things I keep hearing and
I've heard is that "I come to work every day. I
work hard. Suzie over here, she comes to work
three days, possibly two out of the week, and the
Reversed 587 735 (5th Cir. 1979).

Reversed with respect to remedy 519 498 (4th Cir. 1975).

'he',
better
give
the),
Respondent 8(a)(l)
paragr~ph 9G.
rights.The
blr
Unio~l's
insulied
hat1
"I
."
Sect~on
they
Ur~ion.
Blar~kenship's
ing w& oppos~tion
goal
bargainiiig
isuance
was,
Concret~!
Ceran,ic
Corjloration,
employee
a.m.
letter,15
8(a)(l)
8(a)(l)
Nordstrom, Inc.,
Tulare d /
8(a)(l)
~ ~ - -
26 Grilfin
t~ t i f i ed
supervisors instrucled
to ro
1103
I
MARK T W A I N M A R I N E INDUSTRIES
res- of the time she's loaded. When she's here, she's
got a hangover-or he's got-I should say
too." . . . But when it comes time to get a raise,
doesn't it hurt you to know that that person who's
been putting the screws to you and everybody else
is going to get the same amount of money that you
get',' Where is there equity in that? Boy, if I do a
job than somebody else, they better give me
a hunk of money, and I ain't-you know, if they
somebody else the same amount of money that
give me, eventually I'm going to get mad.
find that the General Counsel has sustained the
burden of proof with regard to this allegation and that
did, in fact, violate Section as alleged
in
8. Paregraph 9H alleges that on or about January 5,
1979, Respondent distributed to employees a circular ad-
vocating that employees abandon union representation to
save the expense of dues and to protect their
record supports the allegation fully. The document re-
ferred to was entitled "Get a Clearer Picture" and was
supposedly circulated to counter an earlier document cir-
culated the Union: "Get a Clearer Picture." Whereas
the document merely enumerated the benefits
which it claimed to have attained for the employees, Re-
spondent's document charged that the Union's publica-
tion the employees ability to think for them-
selves, set forth half-truths, and was vague. Respon-
dent through its publication stated, feel the Union has
indicated .ts intentions to further abuse you . . The
document went on to tout the benefits enjoyed by em-
ployees of nonunion plants and indicated that non-union
employees enjoy the same benefits as union employees. It
claimed further, as did Blankenship in his December 18
speech, that every item discussed in the Union's publica-
tion could be attained through "concerted activities
under 7 of the Federal Labor Management Rela-
tions Act" and that, "by this means, employees save the
money have to pay the Union, and they keep their
rights by law. With a Union, employees pay a union and
give away their rights to the Union . . . . It's possible
your wage!,, benefits and working hours would be far
greater if the company had not been required to deal
with the You folks that deserve a merit pay raise
know what I mean."
Thus, the publication entitled "Get a Clearer Picture"
echoes speeches of December 18. At a
time when Respondent was supposed to be engaged in
good-faith bargaining to reach a new collective bargain- -
agreement-it inconsistently acting in
to such a by advising employees of the futility of
supporting :he labor organization which represented
them and with which Respondent was engaged in collec-
tive and telling them that they did not need a
union. The of such a publication, particularly at
the time it was certainly in violation of the Act. Illi-
nois Pipe Company, 203 NLRB 223 (1973);
Dallas Company, 219 NLRB 582 (1975); Hamil-
ton Avnet Electronics, 240 NLRB 781 (1 979) Kux Manu-
facturing 233 NLRB 3 17 (1977).
9. Paragraph 91 of the complaint alleges that on or
about February 12, 1979, Respondent's supervisor, Rich-
ard Yates, told a striking that he could return
to work when he resigned from the Union.
With regard to this allegation the record reveals that
on February 2, 1979, the employees went out on strike.
Among them was John Griffin. Griffin testified that on
February 2 at o r about 7 he received a call from his
foreman, Richard Yates, Respondent's transportation
manager and admittedly a supervisor within the meaning
of the Act. According to Griffin, Yates asked him why
he was not at work. Griffin, in return, asked Yates if the
strike had been settled. Yates replied that at that point
the parties were not even negotiating. Griffin's rejoinder
was, "Well, I can't very well cross the picket line."
Yates then stated, "Well, if you want your job, go to the
post office, get a registered send it to the Union,
tell them you withdraw and come on to work, your job
is waiting for you," Yates continued, "I can't keep hold-
ing your job for you, I got to hear from you on it." Grif-
fin replied that he would let Yates know something in
the next day or so, that he would have to talk to Marge
Fisher about it. Yates replied, "Well, if we don't hear
from you within the next day or so, I'm going to have to
let somebody else have your job.
I find that Respondent's effort through Yates to solicit
the withdrawal of Griffin from the Union was violative
of Section in light of its continuing campaign to
undermine the Union as reflected by the December 18
statements and those contained in the pamphlet
"Get a Clearer Picture." Case law holds that such solici-
tation is not unlawful where it occurs free of union
animus as, for instance, where the only motive is an
effort to minimize the picketing's disruptive impact on
the operation of a business, 229 NLRB
601 (1977). But where it occurs in the midst of an em-
ployer's unlawful campaign to destroy a union, the oth-
erwise lawful solicitation is tainted and becomes part and
parcel of the unlawful campaign. It has been held that
where such conduct occurs juxtaposed with other em-
ployer activity violative of the Act, it likewise is viola-
tive. Smith's Complete Market of County, Inc.,
b/a Smith's Complete Market, 237 NLRB 1424 (1978). 1
so find.
10. Paragraph 9J of the complaint alleges that, on Feb-
ruary 12, Respondent mailed letters to striking employ-
ees, advising each that "you have been removed from
our payroll as an employee by virtue of you being re-
placed." Respondent, in its answer, admitted having en-
gaged in the activity described in paragraph 9J but
denies that by doing so it violated the law.
Inasmuch as I will find infra that the strike which oc-
curred on February 2, 1979, was induced by Respon-
dent's campaign to undermine the employees' trust in
their union as evidenced by its activities described
Yates testified credibly that he explained lo that submission
of a resignation to the Union before returning to work was for his own
protection. He did not, however, explain further. Yates that he
had made the call on his own without having been instructed to do so by
higher management because Grilfin was a good worker. He added, how-
ever, that he had attended a meeting where were
as what tell employees.
11114
LAB( IR
a b ~ v e , strik-
in!; pay-
ro 1
Ccast
11.
fo~feited
The Sentel
went
Fe>ruat-y
G r ~ b , ~ ~
Sentel
Gr13b
fillcd Sentel
que'sted unem-
plo
1,ater Sentel
thal
the11
vidcd.
Sentel
their
retu:n
known
'
Sent':l
llespondent
8(a)(l) Sentel
t C w s t Inc.,
Feb-
ruar)
McR:aken
calletl
resigrled
turned
'B RI-versed F.2d
=' Aa:cording or Sentel.
G .ob
In
'' Si~nms
8(a)(l)
8(a)(l)
it."30
McRea-
*
8(a)(l). Funeral Inc.,
(1966).31
A1
fined.32
"
F.2d
"
truckdrivers,
RELATIONS BOARD DECISIONS OF NATIONAL
the letters sent by Respondent advising the
employees that they had been removed from the
and had been replaced is violative of the Act. Wesr
Casket Company, Inc., 192 NLRB 624 (197
Paragraph 9K of the complaint alleges that Super-
visor Ron Kelly told an employee that the employee had
her employment because the employee did not
cross the picket line.
record indicatesz7 that employee Brenda
out on strike along with the other employees on
2, 1979. On February 12, she received a call
from her superior, Don who told her that the
Company had hired new people at the plant, that her po-
sition in the lamination department had been filled, and
that she was no longer employed there and had been re-
placed. asked Grob if there would ever be a time
when she could come back to work at Mark Twain.
replied that all the positions in the plant had been
and that there were no jobs there. then re-
a letter to that effect for use in obtaining
yment compensation.

that day,
called the plant and spoke with
Personnel Manager Philip Pace, who confirmed what
she had been told by Grob; namely, that her position had
been filled, that she was no longer employed there, and
there was nothing else he could do about it. She
asked for a letter to the effect that she had been re-
placed and evidently was told that one would be pro-
Still later that day visited the plant to pick up
the letter which had been promised. Shortly after her ar-
rival, Production Manager Ron Kelly came out to the
guardhouse where she was waiting. She asked him how
he thought the Company could replace employees, take
jobs away when they had just gone out on strike.
Kelly replied that the Company was hiring new employ-
ees, that the old employees had a choice of whether to
to work or lose their jobs, and that they had
this from the beginning. Kelly then gave her a
letter identical to that which is the subject of paragraph
9J o the complaint.
I lind that the statements of Grob, Pace, and Kelly t o
that she had been replaced and no longer worked
for to be independent violations of Section
as was an unfair labor practice striker at
the me. West Casket Company, supra.
12. Paragraph 9L of the complaint alleges that on
14, 1979, Respondent's supervisor, Vern E. Simms,
told an employee that strikers did not have jobs any-
more,
With regard to this allegation, employee Susan
credibly testifiedz9 that when the strike was
she at first honored the picket line and continued
to do so for about a week and a half at which time she
from the Union. The day that McReaken re-
to work, Vice President of Manufacturing Vern
Simms stopped by the stockroom to talk with her. He
on the evidence 469 871 (9th Cir. 1972).
lo the credited testimony Brenda
is nor alleged in the complaint to be a supervisor. He also ap-
pears the record as Don Grub. He did not testify.
denied having this conversation. I credit McReaken.
told her that he was glad to see her back at work and
that he had feared that she was not going to come back.
She then asked Simms if there would be any repercus-
sions because of her returning to work. Simms assured
her that there would not. She then asked him why the
strikers were still out there. Simms replied that they no
longer had jobs at Mark Twain, that he did not know
why they were out there on strike, that they had been
replaced, and that they were no longer employed at
Mark Twain.
As with allegations 9J and 9K, I find Simms' statement
that the strikers had been replaced violative of Section
for the reasons stated in my discussion supra con-
cerning those allegations. West Coast Casket Company,
Inc., supra.
13. Paragraph 9M of the complaint alleges that some
time during the week beginning February 12, 1979, Re-
spondent's supervisor, Ron Kelly, told an employee that
he had tapped the employee's telephone and the tele-
phones of other employees. The General Counsel takes
the position that the statement allegedly made by Kelly
created the impression of surveillance in violation of Sec-
tion of the Act.
The record reveals, according to the testimony of
Susan McReaken, that a day or two after she returned to
work she had a conversation with Ron Kelly during
which he complained, "It took you a while to get back
to work." McReaken replied that she was afraid of
coming back to work because she had been threatened
over the phone. Kelly's rejoinder was, "Well, I never
heard anything about that. I had your phone tapped
along with several other people's phones and I never
heard a damn thing about
In the context of the above conversation, it appears
patently clear that Kelly's remark about having
ken's phone tapped was calculated to intentionally give
the impression that she and other employees were under
surveillance by the Employer. Such statements have
been found by the Board to have amounted to an unlaw-
ful creation of the impression of surveillance in violation
of Section Heights Homes, 159
NLRB 723
14. Paragraph 9N of the complaint alleges that at var-
ious dates and times after February 2, 1979, including on
or about February 9, 12, and 20, 1979, Respondent pro-
vided envelopes and postage to employees to send letters
by which these employees resigned from the Union.
Freye, an employee of Respondent and alleged
agent thereof testified that he had talked to people on
the phone and in person and told them that they should
resign from the Union before going through the picket
line and returning to work in order to keep from being
The phone calls that Freye made were both
from work and from his home. Freye denied that he
spoke to any member of management concerning the
This conversation appears as testified to by McReaken and Kelly.
Affirmed on this point 385 879. (5th Cir. 1967). modified as to
other matters.
In other parts of his testimony Freye testified that he talked to the
still later he testified to talking to one truckdriver, Joe
Turner.
l I05
ant1
literature33
Y a t e ~ , ~ ~
stated:
told
back
dribers
lettt:r
keel)
C'.
CI.
P. .
CI.
A,.
discuss in;^
Freye
i r ~
.~sked:
replied:
asked
Q .
Adella
f o ~
lich
them
Bcats"
-
33 COP) o f Relalions
a ~ ~ d
34
Westray,
Westray
Hasick,
Westray
Westray
Adella differ-
MARK TWAIN MARINE INDUSTRIES
contactirg of employees to discuss their coming back to
work testified that he made these contacts strictly on
his own after reading certain supplied by the
National Labor Relations Board. Subsequently, he testi-
fied that before contacting one truckdriver, Joe Turner,
he met with Richard transportation manager.
Freye
I him [Turner] we would like him to come
to work. We did not want to lose good truck
and truck drivers were being replaced, and
that the NLRB had stated that you should submit a
of resignation before you come back to work
after you receive your card. You send it certified
mai with a return receipt requested and that will
you from being fined.
S o what you told Mr. Turner was, "We want
you back, your're a good truck driver and we don't
war t to lose good truck drivers."
P.. That is correct.
Who is "we"?
I, myself, and Mr. Yates.
Richard Yates is?
H e was at that time transportation manager.
Thus, from Freye's own testimony it is clear that he
acted in concert with the transport manager, and after
the matter with him contacted Turner con-
cerning resigning from the Union and returning to work.
S o allied himself with management's campaign to
undermine the Union by urging its members to with-
draw. Clearly, Freye's activities cannot be looked at as
though a vacuum.
When
Q. Did you advise anyone else to resign from the
Union?
Freye
A. Anybody that asked me about coming back, I
them if they had resigned, yes, sir.
And did you say that they should resign first
and then come back?
A. Correct.
Freye also testified to telling employee Reese to
resign her own protection to keep from being fined.
These contacts between Freye and certain employees
during w he urged their resignation from the Union
was not the only role which Freye played in the under-
mining of the Union. Freye testified that he obtained be-
tween six and eight written resignations from employees,
placed in company envelopes marked "Mark
Twain and with Respondent's return address, and
then ran them through the company stamp machine.
Seven of these resignations were placed in the record.
All excep one was mailed certified at a cost to the Com-
pany of $1.50 per letter. Freye testified that there is no
policy at the Company with regard to employees using
A the National Labor Act and o f the Guide to
Basic Law Procedure.
Richard Yates testified but not o n this matter.
the Company's stamp machine for personal matters. He
stated that the Company mailed letters for "just about
everybody there." He also testified that there was no
policy concerning employees use of company stationery
and envelopes. When it came to specifics to support his
generalities concerning these matters, Freye named as
employees who used the Company's postage machine for
personal purposes only four individuals, all of whom
were supervisors, plus the receptionist who used the
postage meter as part of her job. Freye later stated that
all 12 or I5 office clerical employees had access to the
postage meter but did not say they used it for their own
personal purposes. As for himself, Freye said that he had
used the postage meter half a dozen times during the past
year for personal use, to mail a bill o r for similar pur-
poses, and never had to ask permission. He stated he
would not use the meter generally to mail personal let-
ters in large number because such overuse of the postage
meter would be taking advantage of the Company. When
questioned about reimbursing the Company for use of
the postage meter, Freye stated that he did not reimburse
the Company on these occasions. As far as using the
postage meter to mail the certified letters containing the
resignations, there is no specific evidence that Freye ob-
tained permission from management to use the meter for
this purpose.
Lucy who was the receptionist at the time
the resignations were mailed, testified that she addressed
the envelope containing the resignation of employee
Robert Cochran. She could not, however, remember
when it was that she addressed the envelope nor could
she remember the circumstances surrounding her deci-
sion to address the envelope containing Cochran's resig-
nation:
Q. How did you happen to address that enve-
lope? Tell me what happened that made you decide
to address an envelope like this?
A. I have no idea. I d o this every day.
Q. D o you recall when the person, Mr. Cochran,
came up to you and asked you to d o this?
A. No, I don't recall that at all.
testified that she had also addressed the enve-
lope which contained the resignation of Craig Larson
but had no recollection of having done so. Similarly, she
testified that she had addressed the envelope containing
the resignation of employee Brenda Flanagan but could
not remember the circumstances under which she did so.
When shown two additional envelopes in which were
contained the resignations of employees Richard Decker
and Myra the postage meter number appearing
on the face of the envelope was identified as the same
number which appeared on the face of the envelopes
which she had addressed by hand though these latter
two had been addressed by typewriter. next
identified the handwriting on the envelope containing the
resignation of employee Kathy Jones as her own, and the
postage meter number as the same as the one contained
on the other envelopes. Finally, denied that the
handwriting on the envelope containing the resignation
of Reese was her own. Clearly, it is quite
1 10t IR
o w ~ i .
Recse's
Tht,
i i
starnps
reqlired, Westray,
!5
fiec
While
habing Westray
uniJn
eml,loyees
Thl:
Westray,
an)one
a s k ~ d permis-
s i o ~ ~ , Westray prac-
tic€'"
d a ~ ." Westray testi-
With
Westray
teslified
7'hus,
wh3t
thelr
With Westray
ask:d:
Westray
+
mailman/messenger
15
35 of according
Westray, to ~estify.
DECISIONS OF NATIONAL LABC RELATIONS BOARD
ent from that which she had already identified as her
On the other hand, though this envelope is a plain
white envelope, it nevertheless bears the same postage
meter number as the other resignation letter envelopes.
resignation envelope, interestingly, has on its
fact: 95 cents in stamps plus 55 cents in meter postage.
total, of course, equates precisely to the $1.50 in
postage required to send a letter by certified mail. Thus,
it quite apparent that Reese placed the 95 cents in
on the envelope, not knowing what postage was
and was told later by Freye, o r some-
one else knowledgeable at the Company that an addition-
al cents postage was required to send the letter certi-
.
identifying the resignation letter envelopes as
been addressed in her own hand, similar-
ly identified a letter addressed to Jane Loss, a local
official, as one of many she had sent out to various
advising them that they had been replaced.
envelopes containing the notices of replacement also
bore the Company's postage meter number.
in her testimony denied, as did Freye, that
told her to send out resignation letters. When
why she had done so without obtaining
replied that "this had always been a
and that she had mailed letters for people every
Under cross-examination, however,

fiecl that Freye had asked her to send the letter out certi-

fiecl but had not told her why.

regard to the practice of employees using the
postage meter machine for their personal use,
confusedly as follows:
Q. How many pieces of mail would you estimate
you send out each day.
A. Anywhere from 150 to 400.
Q. Of that 150 to 400, how many of those have
been mail other than Mark Twain communications.
A. Maybe 30, 40, 50 pieces.
Q. Are you saying that is 30 or 40 pieces that is
personal mail?
A. Now, this might be a weekly basis, 30 or 40,
maybe not that many I have no way of knowing.
Q. Are you telling me that it was personal mail
for employees? Is that what you are saying?
A. Not all of it, no.
Q. Was any of it, to your knowledge, personal
mail that belongs to employees?
A. I have no way of knowing. When you have
that much mail to run through you don't pay atten-
tion to what it is.
from Westray's testimony it is not at all clear
if any employees used the Company's postage for
personal use.
regard to the letters of resignation, was
Q. Did you have a conversation about the money
that it was going to cost postage.
A. We did.
Q. Would you tell us, please, what you said to
him [Freye] and what he said to you about that.
A. I asked him what he was going to d o about it
and he said he would pay it back.
Q. T o your knowledge, did he pay i t hack.
A. Yes, he did.
Q. Did you see him pay i t hack?
A. No.
Q. How d o you know he paid it back?
A. Because he told me he did.
Thus, as the testimony stands Freye testified that he
did not pay back postage meter costs to the Company
whereas testified that he told her that he had.:'"
Personnel Manager Philip Pace and Director of Com-
munity and Labor Relations Zane Neely testified with
regard to the subject matter contained in paragraph 9N
of the complaint. Pace stated that the Company had no
written policy concerning the use of company stationery
and postage but had a traditional unwritten policy that
people could use company stationery and its postage
meter as long as they did not abuse the privilege. This
privilege, according to Pace, was never announced as
such but was informally exercised by "the people that
used the front office." Pace admitted that, if someone
tried to mail 15 or 20 letters by using the postage meter,
it would be questioned.
Neely testified that one of several informal benefits en-
joyed by Mark Twain employees was the mailing of let-
ters for them by the Company. He also stated that they
could use the postage meter if this privilege were not
abused. He admitted, however, that he had not gone
around and told everyone that he could use the postage
meter. Neely gave no specifics as to which employees
were entitled to use the postage meter, how often it was
used, o r what he considered to be an abuse of the privi-
lege.
Certain rank-and-file employees also testified concern-
ing the postage meter privilege. Jane Loss stated that she
had never been advised by any member of management
that employees could have their personal letters mailed
by the Company, and had never attempted to have a
letter mailed by giving it to the receptionist o r to a fore-
man. In fact Loss testified that she had never heard of
any bargaining unit employee taking advantage of this al-
leged privilege. No rank-and-file employee testified to
the accuracy of Respondent's position.
From the totality of all of the evidence on the subject
I find that occasionally an employee might use the post-
age meter to mail a personal letter o r bill but this privi-
lege was almost always restricted to supervisors, to the
receptionist who used the meter in her work, o r to
Freye, the who frequently came into
contact with the postage meter and with the receptionist
while performing his duties. I find further that all wit-
nesses were in agreement that this occasional use of the
postage meter was not to be abused and that Freye, him-
self, had used it only half a dozen times over the previ-
ous year. Thus, at cents per letter, Freye had obtained
only about 90 cents in value by utilizing this privilege
over the period of a year. Since Pace agreed that for
The person in charge receiving such payment was, to
Norma Cannon. Cannon was not called
TWAIN
15
never
personal
letters
Frt:ye Westray
I2tters
th2.t
Westray 10
expen!,e,
management
acled
8(a)(l).
S~lder
Par2graph 9(0)
a f k r
form;ition
Al 17reye
any
A1
is com-
mittve
draw-
Al
someth~ng defi-
nitel,,
havifig
benqits Board
gvt
w h e ~ e
and Lampley
18
Lampley
Lampley
Lampley
Lam-
ofticers.
pro- L
get-
program3B
Lampley
36 Slmms' II that institution a
MARK MARINE INDUSTRIES 1107
someone to mail o r 20 letters (at 15 cents each) at one
time would be questioned as an abuse, management
would condone an employee's using the meter for
his own purposes to the extent of mailing 7 certi-
fied at $1.50 each. This too would be considered
an abuse of the privilege. I d o not believe, therefore, that
either o r would have mailed the seven
certified at $1.50 each without first obtaining per-
mission from management to d o so, for they were well
aware such would have been considered an abuse.
Consequently, I am convinced that Freye, before getting
mail the resignations at considerable compa-
ny obtained the permission, if not direction, of
to take such an action. In so doing he, once
again, in concert with Respondent's management
in furtherance of management's plan to obtain the resig-
nation of the Union's membership thus further undermin-
ing the Union's position as the representative of Respon-
dent's employees. This is, under these particular circum-
stances, an interference with employees Section 7 rights
and a violation of Section Emerson Suder and
David d/b/a Suder Beverage Distributors, 240
NLRB 63 (1979).
15. of the complaint alleges that, some
time during mid-January 1979, Respondent's supervisor
Vern E. Simms, met with employees to plan the estab-
lishment of an employee committee to supplant the
Charging Party.
According to the testimony of employee Jean Lam-
pley, the strike began she circulated a petition
among the newly hired striker replacements concerning
the of an executive committee. As she ex-
plained it
set that up as usual. It was, basically
wou d be, like the union, only you wouldn't have to
pay dues for it and it would be everyone would
be ir volved in it. It would be like an in-shop union
where Freye would be the, more or less, the
president over it, and I would help him.
It w that we were forming a new executive
that would be the sole bargaining [agent] of
the working people there now to where they
wou dn't have to join the union or pay dues, every-
one would be involved in it. We would all
they could pick their own shop steward for each
department. If they had problems, grievances, what-
ever something didn't g o right, they could come to
Freye. H e would g o up front to the company o r
management, now it is, and try to get it straight-
ened out and if it was that they just
couldn't straighten out we would file a griev-
ance with the National Labor Relations Board. I ex-
plained to the people that instead of the union and
to pay the dues that we would get the same
from the National Labor Relations that
we from the union and it would be absolutely free
we couldn't be fired for nothing and so we
would still have the same-we would still have the
same benefits. [Emphasis supplied.]
Thus it is clear that the executive committee that
Freye was establishing which was organiz-
ing through the circulation of the petition was the direct
result of Blankenship's December speech in which he
had urged Respondent's employees to abandon the
Union and misled them into believing that the National
Labor Relations Board could substitute for the Union.
further testified that Freye had discussed the
establishment of the executive committee with Vice
President and General Manager Vern Simms who there-
after personally congratulated both and Freye
and stated that he thought the establishment of such a
committee "would be a real good idea," and he "was all
for it."
Susan McReaken, an employee who chose to return to
work during the strike, testified that the petition was cir-
culated by Jean shortly after she returned to
work. According to McReaken, the petition said that its
purpose was to get everybody organized, that the em-
ployees would elect officers from each department, that
they would be getting raises every 6 months, and that if
they had any problems they could take them to these of-
ficers. The day after being shown the petition by
pley, Vern Simms engaged McReaken in conversation.
McReaken testified that he initially asked her if she had
heard about the petition that was going around. He then
told her that the petition, more accurately the executive
committee which it established, would be good for the
Company and would be good for the employees as well
because it would protect them. He stated that employees
had had problems in the past with talking to their fore-
men but that under the system established by the petition
any such problems could be remedied by taking them to
the departmental Simms concluded the discus-
sion by stating that he thought that the new system
vided for by the petition "would be a very good thing
for the company, for the people; that we would be
ting closer."
Simms testified that on o r about February 8 he had a
meeting with Freye during which the institution of a
merit increase system was discussed. Freye told Simms
that many of the newer employees did not know how
the new incentive merit raise would operate
and asked if there were any way the Company could get
this information to the people. Simms replied that the
Company "had intended to put together an executive
committee that would monitor the merit system, in es-
sence, have a final say over it so that it was to be han-
dled extremely fair." Freye then "asked if he could
handle that" and Simms replied, "By all means." Thus, it
would appear that this discussion between Freye and
Simms gave rise eventually to the petition formulated by
Freye and circulated by which called for the
creation of an executive committee to represent the em-
ployees, handle their grievances, and at the same time
From testimony is clear the of such
system had been wmehow announced or proposed to the employees pre-
viously.
plrpose
Lnion
8(aX & 1 (1 973).37
9(p)
Respondent
i~ffirmatively
t t
periods,
imptrmissibly 8(a)(l)
&
$).
8(a)(3) ( I )
10A
early
Joyce
unicn
Ho~lpers
on
accor-
danze
10B
e m l , l ~ y e e s ~ ~
viola-
ti011 8(a)(l)
-
" F.2d
:" The hear~ng
wns discrimina-
repre-
wntative incom-
plet':. find-
lngs as this parl~cular
1,'cbruary
TWAIN IND.,
Board39 courts40
8(a)(3)
r e p l a ~ e d . ~ '
striker^'^
10C
10B com- '
3 v W C. McQuaide, Inc..
4 0 .V.L.R.B. v, In~erna~ional
4 1
anorher
tlme
notlce
concomitant
4 a infro,
4 3 W C. McQuoide. Ine. N.L.R.B. v. Inlernalional
supro.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
administer the proposed incentive merit system. Clearly,
the of the proposed committee was to replace
the and, just as clearly, Respondent was deeply
involved in its creation. By fostering the creation of an
executive committee to supplant the employees' lawful
bargaining representative, Respondent interfered with
the employees' Section 7 rights in violation of Section
1). Hertzka Knowles, 206 NLRB 19
16. Paragraph of the complaint alleges that at all
times material Respondent promulgated and maintained a
rule prohibiting "Soliciting on Company property."
in its answer does not deny the allegation
but pleads that the rule is a part of the
Company's work rules which was not enforced.
The rules list "Soliciting on Company property" as an
offense "considered sufficient cause for warning on the
first offense, suspension of two (2) days without pay for
the second offense, and dismissal for the third offense."
In the absence of any explanation to the employees as
to eir rights to discuss union matters during nonwork
distribute written materials on company proper-
ty away from work areas during nonwork periods, o r
otherwise engage in protected activity, the cited rule is
broad and violates Section of the
Act. Huttig Sash Door Company, 239 NLRB 571
(197
B. The Alleged and Violations
1. Paragraph of the complaint alleges that, in
December 1978, Respondent transferred employee
Hoppers from her position assembling windshields
to a position assembling cabin cruisers because of her
activities.
Respondent, in its answer, admits that it transferred
but denies that it did so because of her union
activities. The General Counsel argues that the timing of
Hoppers' transfer, occurring the day after Hoppers insist-
ed having a union representative present at a forth-
coming meeting, establishes a prima facie case of discrim-
ination which Respondent has failed to overcome.
The facts underlying the allegation are fully set out in
Sections 9A and 9B of this decision. I find, in
with Moore's testimony, that the transfer of Hop-
per!; was the result of Moore's attempt to separate Hop-
per:; from Dyas in order to alleviate their combined ef-
forts to hassle Mannis rather than as retaliation for Hop-
per;' insistence on union representation at the forthcom-
ing scheduled meeting. I recommend, therefore, that this
allegation be dismissed.
2. Paragraph of the complaint alleges that on or
about February 12, 1978, Respondent discharged certain
participating in the unfair labor practice
strike because of said employees' union activities in
of Section and (3).
Modified 503 625 (9th Cir. 1975).
complaint named 46 individuals. At the a stipulation
received wherein 139 individuals were named as known
t en The General Counsel urges that the individuals be considered
of a class of discriminatees inasmuch as records may be
I find merit in the General Counsel's position and apply my
to allegation to all employees who received the
12 letter whether included in the stipulation or not.
The record indicates that by letter dated February 12,
1979, Respondent mailed to at least 139 striking employ-
ees the following letter:
February 12, 1979
This is to notify you that your job has been filled
by a new employee while you have been on an
Economic Strike.
We are, therefore, informing you that you have
been removed from our payroll as an employee by
virtue of you being replaced.
MARK MARINE INC.
Vern E. Simms
V/P Mfg.
As of February 12, according to the Company's own
records, however, approximately 71 of the employees
who received the February 12 notice of replacement
were not actually replaced until sometime after that date.
The and the have held that it is a vio-
lation of Section and (1) of the Act for an em-
ployer to advise a striker that he has been replaced and
has been removed from the payroll when, in fact, at the
time, the employee has not been The effect
of such an announcement, it has been held, is the dis-
charge of the employee because he has engaged in a
strike, an activity protected by the Act. A further conse-
quence of such an act is to convert an otherwise eco-
nomic strike into an unfair labor practice strike and the
economic strikers into unfair labor practice
who are entitled to immediate reinstatement upon their
unconditional offer to return to I SO find in this
case.
3. Paragraph of the complaint alleges that since
on or about February 13, 1979, Respondent has failed
and refused to reinstate employees who have engaged in
the unfair labor practice strike, including but not limited
to the employees named in paragraph of the
plaint, notwithstanding that the Union, on February 13,
1979, and repeatedly thereafter, made unconditional
offers of reinstatement on behalf of all striking employ-
ees.
With regard to this allegation the record indicates that
there was a negotiating meeting held on February 13,
1979, at the Holiday Inn in Marion, Ohio. On this occa-
sion the Company was represented by its counsel, Ray
Blankenship, Vern Simms, and Herb Norris. Carl Moore,
among those representing the Union, stated that he was
237 NLRB 177 (1978).
Van Lines, 409 U.S. 48 (1972).
Respondent argues that the significant date is not the date of the
notice of replacement, but rather the date such notice was received. In
this particular case, five employees still had not been replaced as of the
time they received notice of having been replaced. Still half
dozen employees were not shown to have been replaced at the they
received of replacement. Whether one chooses the General Coun-
sel's theory or Respondent's theory as to the appropriate date, the record
supports a finding of a violation with the above-described
effects.
Since I will find, that the strike was an unfair labor practice
strike since its inception, this point of law is of limited application here.
supra: Van Lines.
to
nct
present,44
that
represenlatives
offi:red
again.45
;ontract
that
hat1
hiid
than
right there.46
t c ~
rclplied, 1'11
Union
150
-
" a ~ ~ d Neely absent.
'5 racts as testified Loss as supported
Fisher. Norris testified asked
agr:ed w ~ t h
testifed was this discus-
sion Lcss supported this Simms
htt asked Fisher she
program she she Simms
conversation Fisher. did testify.
thjlt proposal
~f same
this natter as supported Loss
Simms.
's witnesses
" was some testimony Blankenship
sta:ement sign
cont .act changes
clause. Simms such statement was was
h:lpothetical Norris testified, sign
say Simms,
security some
Fisher such
contrar:/ Norris. was
sign
injia
&
10D
was
decision
MARK TWAIN MARINE INDUSTRIES 1109
there to negotiate, to settle the strike, to get the people
out of the snow, and to end the problems. He suggested
a means to proceed toward this end and Blankenship re-
plied that it was "the Union's move." Moore stated that
he was authorized to sign the agreement that had been
agreed by both parties on January 31, and order the
people back to work the following day. Blankenship re-
plied that the Company's representatives were there to
listen, to negotiate that day because part of their ne-
gotiating committee could not be there. When asked
why the full committee was not Blankenship
replied "someone had to run the plant."

According to Jane Loss, Moore told the management

that the employees were ready to go
back to work and that the Union would take the con-
tract on January 31 back to the membership to
vote on It was at this time that Blankenship
stated that things had changed and that he would not
give the back to the Union to have the member-
ship votr on it again. In explanation, Blankenship stated
that the Union no longer had a majority status and that
he felt the Union no longer controlled the people.
Herb Norris added that there were only 20 or 25 people
left that could ratify the contract because the rest of
them been replaced. Moore replied that he would
stake his reputation on it and that he could get the con-
tract ratified. Blankenship rejoined that the Union no
longer a majority and that the Company would like
to have a Board election to determine the Union's status.
Moore stated that he was willing to sign the con-
tract then and Blankenship opined that,
since it had not been ratified the first time, there was no
reason believe that it would be ratified this time.
Moore "Give it to me, sign it right now."
Blankensliip refused, stating that a lot of things had
changed because the Company was no longer sure that
the had a majority since the Company had hired
approximately new people and another 90 to 100 em-
ployees had resigned from the Union, crossed the picket
line, and come back to The meeting concluded
Pace were
These
appear credibly to by by
Hert that Moore had to take back the con-
tract s on January 31, but an incentive program added.
Moore that the incentive proposal not a part of

and
Moore on matter. testified that at
one point if had known about the proposed merit
raise and that replied that did not. further testi-
fied that he could not recall whether o r not Moore said anything with
regard to the between himself and He
however, Moore agreed to take back the incentive to the
people the Company would offer the contract it had on January
21. On I credit Moore by and in part by
According to for both Respondent and the General Coun-
sel.
There concerning allegedly
making a to the effect that if the Company agreed to the
original there would have to be made in the union rec-
ognition testified that a made and
made in a manner. "We did agree to
the contract, I we, myself [and] Vern that if they would take
out the clause and of the arbitration, and some of the lan-
guage in the contract." denied that any offer w s made. I
find, to the testimony of that no concrete offer
made by Respondent to the contract with the noted changes and
with Respondent's representatives advising the Union's
committee that it would get back to them on the propos-
al the following day, after contacting the home office.
This, however, was the last negotiating meeting held.
In summary, I find that management's representatives
met with the union negotiating committee on February
13 without any intention to reach an agreement. This is
clear by virtue of the fact that the Union was advised
that the company representatives were not there to nego-
tiate because they did not have a full committee and that
"someone had to run the plant."
I further find that when Moore offered to sign the Jan-
uary 31 agreement, "to settle the strike, to get the people
out of the snow and end the problems," this was an un-
conditional offer to return to work. Since I will find
that the strike was an unfair labor practice strike
from its inception, Respondent was obligated to reinstate
all unfair labor practice strikers upon receipt of the
Union's unconditional offer. N.L. R.B. v. Mackay Radio
Telegraph Co., 304 U.S. 333 (1938). I find that Moore's
offer to end the strike and return the employees to work
was not conditional upon, nor dependent upon, Respon-
dent's execution of the January 31 contract, nor upon its
ratification by the Union's membership for, as more fully
explicated in later sections of this decision, both Respon-
dent and the Union had already agreed to the January 31
bargaining agreement and, but for the successful under-
mining of the Union's efforts by Respondent's commis-
sion of the unfair labor practices described herein, that
bargaining agreement would more than likely have been
ratified by the membership on February 1 and no strike
would have occurred in the first place. I find that Re-
spondent on February 13 was estopped from refusing to
execute the bargaining agreement to which it had previ-
ously committed itself on the grounds that the Union no
longer had the support of a majority of employees in the
unit when in fact any loss of support was clearly the
result of Respondent's patently overt and successful at-
tempt to undermine the Union as the exclusive collec-
tive-bargaining representative of its employees and to
subvert the fruits of bargaining. Thus, Respondent may
not argue here that the Union is barred from making an
unconditional offer to return its people to work because
the Union insists that Respondent execute and abide by
the contract to which it agreed and later successfully,
albeit unlawfully, caused to be rejected through the com-
mission of unfair labor practices. In short, I find the offer
of February 13 to return the striking employees to work
was an unconditional one which Respondent was obligat-
ed to honor even though it may have required the termi-
nation of replacements.
4. Paragraph of the complaint alleges that since
on or about February 27, 1979, Respondent discriminated
against striking employees by requiring replaced strikers
to complete new job application forms before being con-
sidered for reinstatement.
that, if it had in fact done so, there no obligation on the part of the
Union to accept the offer. Moreover, my herein would not be
affected thereby.
T1e
reql~ired
busi-
nesr
When
taken
wit11
per~nanently
~ l d
sho'lvn
thal
postion
wht:n
111asmuch
timc:,
thal
newf em-
p1o:tees
8(a)(3)
(1) Tec
( I 9-18).
10E
A n d e r ~ o n . ~ ~
T'he
*'
,iigned
The
and
ihall
! h ~ r offer.
co~~s ider
decnion lo
'" complaint 10.
three-
only
pro-
inciden~s
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Qrecord reveals that on February 27, 1979, Respon-
dent sent a telegram 8 t o Marge Fisher, business man-
ager, Laborers International Union, which in relevant
part stated:
You and all employees are welcome to return to
work for Mark Twain if your position has not been
filled by [a] permanent replacement . . . . If your
job has been filled by [a] permanent replacement,
you will be welcome to fill out a new application
for employment by the company and be considered
for re-employment as job openings become avail-
able.
The telegram was signed by Vern Simms, vice president
and general manager of Respondent.
Respondent, in its answer, took the position that it has
striking employees to complete new job applica-
tions in an effort to determine whether said employees
had or were working for other employers for purposes
of determining seniority at Respondent's place of
.
Simms was questioned about Respondent's posi-
tion with regard to the rights of strikers who had been
replaced, Simms initially testified that the Employer had
no position concerning this matter, at least not to
his knowledge. Later Simms testified that his position
regard to replaced strikers was that they had been
replaced and that only if their replacements
sho leave would their jobs be available again. When
a copy of his affidavit, Simms still later testified
he had stated therein that Respondent was taking no
on whether o r not replaced strikers who made
unconditional offers to return should have preference
openings occurred.
as I would find that the strikers were unfair
labor practice strikers and that they had made, through
their Union, an unconditional offer to return to work on
February 13, their right to reinstatement vested at that
even to the detriment of the workers that had re-
placed them. Consequently, inasmuch as it has been held
the right of strikers to reinstatement cannot be con-
ditional on the filing of applications for employment as
employees, Respondent's insistence that striking
file such applications as new employees further
pro longed the strike and also violated Section and
of the Act. Weather Corporation, 238 NLRB 1535
5 Paragraph of the complaint alleges that on or
about March 19, 1979, Respondent discharged striking
employee Andrew
record reveals that Andrew Anderson was first
employed by Respondent in April 1978. At the time the
This telegram was in reply to one sent on February 21 to Simms
and by Fisher:
members of Laborers' Local 87 herewith offer to return to work
without condition to accept the last offer given by Mark Twain
Marine Industries Incorporated. Laborers' Local 87 further advises i t
discontinue the strike against your company upon acceptance of
I this telegram. for reasons stated in the previous section of this
to be an unconditional offer to return work.
The was amended by telegram on April 1979.
strike began on February 2, 1979, he was a machine op-
erator. He was a member of the Union since June 1978
and his mother, Claudia Anderson, was its vice presi-
dent. When the strike began, he picketed along with 40
or 50 other employees and did so almost every day. A
number of employees, however, chose thereafter to g o
through the picket line to g o to work.
Respondent called a number of witnesses to testify
concerning Anderson's conduct on the picket line. Thus,
Vern Simms stated that at various times he observed An-
derson "shouting obscenities hollering at people, running
at cars, throwing snowballs, shaking picket signs at cars
as they went by, and carrying a two and a half to
foot piece of wood around like a club." In addition,
Simms testified that he had received complaints from
employees who had crossed the picket line that Ander-
son had shouted obscenities at them, had shaken his fist
at them, and had made obscene gestures at them. I con-
sider such testimony far too vague as to time and cir-
cumstance and credit it to the extent corroborated
by other more specific testimony.
Herb Norris testified that he observed Anderson carry-
ing a club around on the picket line, swinging signs, pre-
sumably picket signs at cars, throwing snowballs at cars,
and using profanity while on the picket line. He testified
that Anderson did these things 8 o r 10 times between
February 2 and the date of his termination. When con-
fronted with an affidavit which he supplied to the Board
on an earlier occasion, Norris admitted that he had men-
tioned nothing concerning Anderson waving a club, nor
could he find any reference to his personally hearing An-
derson use profanity o r foul language on the picket line.
In fact, Norris admitted, "I don't think there is too much
in here as far as Andy is concerned."
Fred Neibel, a security guard, was called by Respon-
dent and testified that he observed Anderson on the
picket lines0 throwing snowballs and using loud and .
fane language to workers as they came through the
picket line. Specifically he heard Anderson call one em-
ployee "a bitch" and others "sons of bitches." Neibel tes-
tified that he used field glasses to specifically identify
Anderson doing some of these things but also personally
heard him utter the above-described epithets. H e also
noted that he had seen Anderson raise his fist in the air
and "give the finger" to employees coming through the
line.
Neibel's affidavit was placed in evidence by the Gen-
eral Counsel for impeachment purposes. In Neibel's affi-
davit there appears the following statement:
Although, from inside the plant, I could not hear
what Anderson said while he was throwing snow-
balls and rocks or mud, I know that when I was
outside the plant on other occasions I heard him
call one female employee "a bitch" and a male em-
ployee "a son of a bitch."
Though Blankenship supplied a date, February 6, in drawing out
Neibel's testimony, his answer like Simms appeared to be rather general
in character, particularly as to time. He did, however, testify that these
had occurred in early February.
1 1
corrc:ctions.
Altl~ough,
wh2.t snow-
ball:i
a
non. ]
Anderson
spe,:ific
aftiditvit,
DiFilippo,
conlrol,
DiFilippo,
s
Michat:]
Respondent,
DiFilippo's oftice,
pi:ket
si1;ns.
yelling.51
against
pr
rcgard
several
thl: March,52
he
On
DiFilippo's
t h r o u g ~
5 ' estified
In <,tatemen1
se:ing
5 a la,er
Msrch
first
occurred
197953
DiFilip-
oftice
7:30
5 3
MARK TWAIN MARINE INDUSTRIES 1 1
In this affidavit there was a line drawn through certain
portions of this statement in order to correct it, with
Neibel's initials appearing in the margin so as to ratify
the As corrected, the statement appears as
follows:
from inside the plant, I could not hear
Anderson said while he was throwing
and rocks or mud, other people reported to me.
as guard, that Anderson used foul language towards
.strikers. [Emphasis supplied.
Thus, whereas Neibel testified on the stand to hearing
using foul language towards nonstrikers, he
took pains to remove that same statement from
his correcting it so as to indicate that it had
been reported to him by others. For this reason I will
not rely on any of Neibel's testimony concerning this
matter.
Bob vice president of purchasing and mate-
rials testified with regard to Anderson's conduct
on the p cket line. According to he observed
Anderson, on or about February 7 or 8 and thereafter,
throwing stones, rocks, and snow at cars and trucks;
kicking car; hitting a van with a picket sign; shaking
his fists; and yelling obscenities at people. He testified
that he observed such activity from his office window
every morning, but lost interest in what Anderson and
the other pickets were doing after about 2 weeks.
Biggs, assistant materials control manager for
testified that on or about February 8, while
in he observed Anderson hit a car
with a sign as it left the plant grounds, then throw
a snowball at it, and shake his fist and yell at other cars
as they passed by. Biggs testified that he had on other
occasions observed Anderson throwing snowballs,
making obscene gestures, shaking his fist, and waving
picket On one occasion, Biggs testified, he saw
Andersor waving a club in the air while
Following the above-alleged incidents and others in-
volving pickets other than Anderson Respondent filed a
charge the Union which was eventually settled
by the rties. N o one involved in the alleged incidents
which gave rise to the filing of the charge was terminat-
ed at that time.
With to more recent events and those directly
leading up to the discharge of Anderson, Respondent
called more witnesses. Thus, Clarence Wyatt, a
superviso- in Respondent's plant, testified that some time
during third week in at a little after 4 p.m.,
as he and his wife were leaving the plant, Anderson who
was on picket line called Wyatt's wife a "M.F.
scabie." another occasion, according to Clarence
Wyatt, he saw Anderson kick car as it came
in the picket line. He also testified that he saw
Biggs that when he saw Anderson waving the club and
yelling it was about 4 p.m. and there were four or five people standing
around. Under cross-examination Biggs admitted that he had personally
written a previously supplied by him to the Board, "I d o not
remember Andy Anderson waving a club."
At a point in his testimony Wyatt stated that the incident oc-
curred in but not necessarily in the third week, more likely in the
half of hlarch.
Anderson throw snowballs, pieces of wood, and "every-
thing else" at people's cars prior to the above-described
incident which during the third week of March
1979, but this apparently occurred long before and may
even have occurred in February.
Lucille Wyatt, Clarence's wife, called by Respondent
to testify with regard to the same incident testified to by
her husband, stated that, as she and her husband were
leaving the plant grounds about 4 p.m., Anderson was on
picket duty, and as they passed through the picket line
Anderson called her a "M.F. scabie" in a loud voice.
The incident occurred, according to Lucille Wyatt, not
too long after the strike started.
Leland Summers, maintenance manager at Respon-
dent's plant, testified that he observed Anderson on the
picket line during the third week in March at
which time he would approach cars, wave his hands,
scream, and "get this smirky look on his face." On one
occasion during that period, shortly after 4 p.m., as Sum-
mers and his wife were leaving the grounds of the plant,
Anderson screamed at Summers' wife in a voice which
Summers described as "lurid" and called her a scab.
Virginia Summers, Leland's wife, a rank-and-file unit
employee was also called to testify by and on behalf of
Respondent. She testified that one afternoon, during the
third week in March, as she and her husband were driv-
ing out of the plant grounds, Anderson reached out in
front of their car and yelled, "Hey, scabie." On other oc-
casions, Virginia Summers stated, Anderson would yell
"scabie" and raise his fist at cars passing by. During the
incident in question, Anderson did not use any vulgar
language according to Virginia Summers.
Herb Norris also testified concerning Anderson's activ-
ity on the picket line in late March. According to Norris,
on March 21 he saw Anderson on the picket line early in
the morning at the start of work. Norris was in
po's at the time and observed Anderson "holler-
ing," though he could not hear what was being said, and - .
gesturing by "giving the finger" to employees coming
through the picket line to work. T w o employees who
had been the recipients of Anderson's greeting com-
plained to Norris. Thereafter, Norris and Blankenship
went to the picket line to talk to Anderson.
It was about a.m., when Norris and Blankenship
arrived at the trailer on the picket line which served as
strike headquarters for the pickets. When Anderson came
to the door of the trailer, Blankenship advised him, ac-
cording to Norris, that because of his actions and vio-
lence on the picket line that morning he was being fired.
Blankenship then suggested to Anderson that probably
the best thing for him to d o would be for him to stay off
the picket line. Blankenship and Norris then left the
scene and returned to the plant. Norris confirmed that,
by the time of the confrontation with Anderson on
March 21, he had already become aware that there had
been a settlement agreement signed and agreed to by the
Union and Respondent concerning Anderson's previous
conduct o r alleged conduct on the picket line as well as
that of other individuals.
Blankenship supplied the time in his question
cc8unsel
vctlving
pi8:ket
orle."
c l . ~ b ,
ma~ntained
be-
ta.een 6:45 7:30
th-m
wagon
thl: accompa-
nic:d
sp8:ak
w l ~ o
firzd.
"k'ou
thiht
concern-
ink;
and
sai'i
cal
no\:
during part
cairied
prclbably
t h r ~ u g h ,
anc
an)
Res~ondent 's
Coronef
Inc. ,
March,s4 1
" s c a b
C. McQuaide, Inc.,
[Flinding
misconduct
corceming these were members of manage-
5 4 The disrepancy ktween the l&imony d Cbrence and Lucille
mellt, that none were rank-and-file employees, and that
forth
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anderson was called by General Counsel to answer
the allegations leveled at him which were used as the
basis for his termination. He was also cross-examined by
for Respondent. Concerning the allegations in-
his activity on the picket line in early February
he was asked if he had any "recollection of taking a
sign and trying to hit an automobile o r hitting
T o this Anderson replied that he had no such rec-
ollection. With regard to the allegation concerning his
throwing snowballs, Anderson testified, "I remember
throwing snowballs but they did not have objects in
them." He admitted carrying a stick, as opposed to a
and then only to poke down the wood in a barrel
in which the pickets a fire.
With regard to the late March incidents, Anderson tes-
tified that he arrived at the picket line about 6 on the
morning in question. When the employees arrived
and a.m. Anderson admits that he called
scabs and traitors. About this time Blankenship
drove through the picket line in the Company's station
and Anderson called him a traitor. When the em-
ployees had about all arrived, Anderson went back to
trailer. In about 15 minutes, Blankenship
by Norris came to the trailer door and asked to
to Anderson. When Anderson came to the door
and acknowledged who he was, Blankenship advised him
he was. Blankenship immediately stated that he was
When Anderson asked why, Blankenship replied,
are fired for your nasty mouth." Anderson denied
he had used any vulgar language and insisted that he
had only called employees going through the line "scab"
or "traitor." H e testified that people going through the
line both "cussed him out" and others "gave him the
finger." Blankenship, however, had made no comment,
Anderson admitted.
'With regard to other witnesses who testified
the events of the day that Anderson was fired, he
stated that on that morning he saw Leland Summers g o
to work with his wife in his car but that neither said any-
thing to him. Similarly, he testified that Clarence Wyatt
his wife went to work that morning and that neither
any thing to him. Anderson volunteered that he
called Mrs. Wyatt a scab, after which Wyatt stopped his
and started to say something which Anderson could
recall.
In summary, I find from the above testimony that
the early of the strike Anderson, while on
the line, a stick and threw snowballs as he
admitted, shouted at employees, sometimes obscenely,
ran at cars as they came through the line, kicked at a car
as it drove through, swung his picket sign toward and
struck two or more cars o r vans as they went
shook his fist, and made an obscene gesture on
ont: o r more occasions. I d o not believe that he threw
stoles, rocks, o r mud. I note that all of these things oc-
curred early in the strike, were the subject of settlement,
were far enough removed in time so as not to have
substantial weight in the decision to terminate him. I
note also that all of witnesses who testified
no witness was brought to claim that Anderson's
activities caused personal injury to anyone or property
damage to anything. Without condoning these activities,
I find them to be such as to fall under the heading of
minor incidents of misconduct and insufficient to warrant
a determination that Anderson, by such activity removed
himself from the protection of the Act. Casuals,
207 NLRB 304 (1973).
With regard to the incidents alleged by Respondent to
have been the immediate cause of Anderson's termina-
tion, those that occurred about the third week in
find the incidents to have occurred as the
Wyatts, the Summers, and Herb Norris testified. The pri-
mary difference between their testimony and that of An-
derson concerns whether o r not Anderson added an ex-
pletive modifying the word or "scabie" when he
addressed one of them. I find that he did so. Neverthe-
less, it was stated in W. supra:
that Respondent's discharge action was
prompted by the strikers' picketing excesses does
not necessarily operate to relieve Respondent of
unfair labor practice liability. Sections 7 and 13 of
the Act grant employees the right to strike, picket,
and engage in other concerted activity for their
mutual aid or protection. It is well established, how-
ever, that not all conduct which occurs in the
course of a labor dispute is within the purview of
Sections 7 and 13. A striking employee who en-
gages in serious acts of may lose the
protection of the Act and subject himself to dis-
charge. But, as has long been recognized by Board
and court decisions, undue strictures on the exercise
of Sections 7 and 13 rights could be imposed if
every act of impropriety committed by a striking
employee is deemed sufficient to place that employ-
ee outside the protection of the Act. In a situation
such as that here involved, the Board has therefore
evaluated the character of the improper acts com-
mitted by striking employees and has drawn certain .
distinctions. Thus, the Board has differentiated be-
tween those cases in which employees have argu-
ably exceeded the bounds of lawful conduct during
a strike in a "moment of animal exuberance" from
those cases in which the misconduct is so flagrant
o r egregious as to require subordination of the em-
ployee's protected rights in order to vindicate the
broader interests of society as a whole.
In the instant case it must be determined whether Ander-
son's activity on the picket line was sufficiently egre-
gious in character to strip him of his protection under
the Act. I find it was not. The conduct attributed to him
was certainly not such as to remove him from the Act's
protection. Though he committed certain indiscretions
and verbally abused particular individuals, neither his ac-
tions nor his language was accompanied by any physical
acts or gestures which would provide added emphasis o r
meaning to them which would suffice to warrant the
conclusion that he should not be reinstated to his job as
Wyatt as to the approximate date o f the incident described by them has
been considered.
Inc.,
3(a)(l)
W C. McQuaide,
Paraglaphs 10F 101
rep1;icements;
litriker
c'n
lill
unconc,itional
February
~facancies
i~ctivities.
LaidlawS6
was
was
Laidlaw
8(a)(5)
11A
imp1ementt:d
irnpasse
~ermissible
Ilowever,
implemented
ur~ion
agreed
oper-
-
5 5 W :Quaide, Inc..
'" Laic'law (1968), F.2d
I, cerl.
ation
8(a)(5)
J. Inc., (1968),
F.2d
11B
8(a)(5).
Inc.,
(1977).57
" F.2d (9th
1113 MARK TWAIN MARINE INDUSTRIES
of the date the Union made its offer unconditionally to
return the employees to Coronet Casuals,
supra. Consequently, I find Respondent acted in violation
of Section and (3) of the Act when it discharged
Anderson. Inc., supra.
6. through of the amended com-
plaint were added at the hearing on May 3, 1979, and
allege that on February 2, 1979, and at various times
thereafter, Respondent hired an unknown number of
striker that since on or about February 13,
1979, and at various times thereafter, an unknown
number of replacements left Respondent's employ;
that since or about February 13, 1979, and at all times
thereafter, Respondent has refused to recall striking em-
ployees to the vacancies thus created notwithstanding
the offer to return to work made by the
Union on 13, 1979; and that Respondent failed
to fill the thus created because of the employ-
ees' union
Patently, the General Counsel offered the amendment
for the purpose of protecting the rights of certain strikers
under the doctrine if I should determine that
this strike economic. Inasmuch as I have found that
the strike an unfair labor practice strike from its in-
ception, rather than an economic strike, is not
applicable, and to become involved in a discussion of its
precepts would be unproductive.
C. The Alleged Violations
1. Paragraph of the complaint alleges that on or
about February 2, 1979, Respondent unilaterally imple-
mented contract proposals effecting changes in wages
and other terms and conditions of employment for em-
ployees in the unit represented by the Union.
Respondent in its answer admitted having unilaterally
the contract proposals but denied that by
doing so it violated the Act. Respondent takes the posi-
tion that was reached on February 2 and it was
therefore for it to take the action it did. The
evidence, does not support Respondent's posi-
tion. Clearly, the terms of the contract were unilaterally
on the day the strike began not because im-
passe had been reached but in direct response to the
strike. Thus, Simms testified as follows:
Q. Did, in fact, the company, after February 2,
the morning of February 2, did the company decide
to d o anything about the proposed contract?
A. Yes.
Q. And what did you decide to d o concerning
the contract proposal?
A. I decided to put in the conditions and the
terms of the contract as we had bargained and
to with the bargaining committee, to put
them into full effect and to leave the plant in
C. M supra.
The Corporation, 171 NLRB 1366 enfd. 414 99
(7th Cir . 1969 denied 397 U.S. 920 (1970).
versus shutting it down. And to continue in
operation.
This evidence clearly establishes that Respondent im-
plemented the provisions of the contract in retaliation for
its employees' determination to exercise their right to
strike, a right which is explicitly guaranteed by the Act.
Since it has been held that a union's decision to strike
does not in itself amount to an impasse and does not re-
lieve a company of its duty to continue to bargain, Re-
spondent's unilateral implementation of the provisions of
the labor agreement had the effect of undermining the
bargaining process which it was obligated to continue
and likewise undermined the status of the Union as the
exclusive bargaining representative of its employees. The
unilateral implementation of the provisions of the con-
tract therefore violated Section and (I) of the
Act. H. Bonck Company, 170 NLRB 147 1

enfd. 424
634 (5th Cir. 1970).
2. Paragraph of the complaint alleges that on o r
about February 13, 1979, Respondent withdrew recogni-
tion from the Union and at all times thereafter has failed
and refused to recognize the Union as the exclusive col-
lective-bargaining representative of its employees. The
General Counsel contends that Respondent thereby vio-
lated Section In its answer Respondent admitted
having taken the action alleged but denied that it had
violated the Act by so doing. Respondent takes the posi-
tion that the Union, as of February 13, lost its majority
through no fault of Respondent and Respondent had no
obligation therefore to sign any collective-bargaining
agreement with it.
The record indicates that on February 13, 1979, Vern
Simms on behalf of Respondent sent a letter to the
Union which in relevant part stated:
Further, you are hereby notified that Mark Twain
Marine Industries, Inc. can no longer recognize
Local No. 87 of the Laborers' Union as being a ma-
jority representative of the company's employees.
Though this letter did not give any reason why Respon-
dent felt that the Union lost its majority status, it appears
from its brief that Respondent was relying on the
number of employees who reported for work during the
strike after resigning from the Union, and the number of
replacements hired during the strike plus the fact that a
decertification petition had been filed to come to the
conclusion that the Union no longer represented a major-
ity of employees in the unit.
The General Counsel argues that Respondent's with-
drawal of recognition from the Union on February 13,
1979, was itself an unfair labor practice under the cir-
cumstances of this case even aside from previous unfair
labor practices, citing Top Manufacturing Company,
230 NLRB 937 But that theory need not be
tested here, for as stated in the cited case, a respondent
who withdraws recognition from an established union
must d o so on the basis of a reasonably based doubt as to
the continued majority status of that union and to be able
Enfd. 594 223 Cir . 1979).
LAB( IR
c ~ n t e n d
based
eviclence ini-
tiatc:d
Inc., 1050
(19'10);58 Inc.,
111 8(a)(l),
(3),
Blanken-
ship,
ha*e
selt'cting
giv:n
Board;
pa)
wai
b e i ~ g
t h r ~ g h Re-
duc:
'avor
r
ant1 8(a)(l)
8(a)(l).
8(a)(l),
l'inally,
B(a)(l)
-
" Afirmed instant Rerail.
Wh8>lerale and Slore F.2d
380 (D.C.
collective-
strike5e
"[i]n
con-
duct."'s0
8(a)(5)
"
of
11C
" Mear 1400
so Electric Cwp, Inc.-Treating 197 (1972).
Oflcers' the
A.EL. H. BullSrmmship Co.] U.S. 17
s '
or
suficient Coca Borrling Inc..
Windham and Hatch Corpa-
F.2d W. Whir-
d/b/a Curren
DECISIONS OF NATIONAL 1114
to that it has the required good-faith doubt, two
prerequisites are necessary. First the asserted doubt must
be on objective considerations and second such
doubt must be raised in a context free of unfair labor
practices. In the instant case the record is replete with
of unfair labor practices which Respondent
and which had a direct bearing on the question of
majority status. Therefore, Respondent is precluded from
asserting any good-faith doubt as to the Union's majority
stat us. Coca Cola Bottling Works, 186 NLRB
Guerdon Industries, 218 NLRB 658 (1975).
the instant case I have found a number of
and (5) violations, some of which bear directly on
this specific allegation. Thus, I have found that at the
December 18 meeting Respondent's agent, Ray
advised the assembled employees that they would
more rights without a union than with one; that by
a union to represent them the employees had
their rights away; that by selecting the Union to
represent them they had somehow given up their rights
t o use the processes of the National Labor Relations
that without a union they would have more job
security than they had at the time and would not have to
union dues or initiation fees for it; that the Union
responsible, due to the contract, for the employees
forced to work overtime under threat of being
fired; that the union contract was meant to control the
employees; that they should rather control themselves;
that if the employees withdrew from the Union and
a concerted effort would bargain with the
spcndent it would be possible "to get even more than
what the Union asks for . . . in salary and fringe bene-
fits"; impliedly, that the Union was not bargaining in ear-
nest on their behalf; and that the low wages received by
the employees were not the Company's fault but rather
to the Union's negotiating them. I have found that
Respondent, by urging employees to abandon the Union
in of dealing "one on one," "person to person," or
in concerted fashion with Respondent and by implying
that it would grant increased benefits, wages, security,
other rights if they did so, violated Section of
the Act. Similarly, I have found that Respondent,
through the speeches of Blankenship, attempted to get its
employees to organize their own union and advised them
that by choosing the Charging Party to represent them
they had given up their right to utilization of Board pro-
cesses in violation of Section
I have also found that Blankenship on December 18
solicited grievances when he told employees to take their
problems to Vice President Simms and that this too was
in violation of Section as was his promise of
merit raises.
I have found that at a time when Respondent
should have been bargaining in good faith with the
Union as the exclusive bargaining agent of its employees,
i t issued a document, which repeated Blankenship's earli-
er statements and informed employees that:
as to issue, modified as to others sub nom.
Deparrmenr Union. AFL-CIO v. N.L.R.B.. 466
Cir. 1972).
RELATIONS BOARD
It's possible your wages, benefits and working hours
would be greater if the company had not been re-
quired to deal with the Union. You folks that de-
serve a merit pay raise know what I mean.
Thus, these and the other violations more specifically
discussed and analyzed above were not only violations in
and of themselves but so poisoned the minds of the em-
ployees against their collective-bargaining representative
that, when on February 1 the Union presented the mem-
bership with a new collective-bargaining agreement, the
membership did not believe that this package was all
they could obtain or that the Union had done its best on
their behalf. Respondent had sown within that
bargaining agreement, by its activity away from the bar-
gaining table, the seeds of the contract's own destruction
and thereby made a strike virtually inevitable. That
strike then was an unfair labor practice from its
inception for Respondent had striven to undermine the
Union by convincing its employees that they did not
need a union, that the Union was not doing its best on
their behalf, and that the employees would d o better by
dealing with Respondent on a "one on one" basis than
by dealing with it through its exclusive bargaining agent.
Thus, Respondent was totally successful in attempting to
undermine the relationship between the Union and the
people it represented. Since the apparent object of Re-
spondent's campaign was to destroy the confidence of
the employees in their Union, it cannot rely on its total
success in so doing to claim that it was within its rights
in refusing to bargain with the Union because the Union
had lost the support of the majority of employees in the
unit. For, the field of labor management relations
law no less than in other areas of jurisprudence 'a man is
held to intend the foreseeable consequences of his
It follows that Respondent violated Section
and (1) of the Act when it withdrew recognition
from the Union on February 13 because its withdrawal
of recognition was based on its contention that the Union
had lost the support of a majority the employees in
the unitst since if the Union had, in fact, lost the support
of a majority of employees that loss of support was the
direct result of Respondent's unfair labor practices. Re-
spondent is precluded from utilizing the fruits of its own
violations as a defense to the allegations herein con-
tained.
3. Paragraph of the complaint alleges that since
on or about February 13, 1979, and at all times subse-
quent thereto, Respondent has failed and refused to ex-
ecute an agreed-upon collective-bargaining agreement.
Respondent's answer to this allegation is that since the
Union lost its majority status on or about February 13
Tarlas Company, 239 NLRB (1979).
Texas Division, NLRB 10

citing The Radio
Union of Commercial Telegraphers Union.
[A. v. N.L.R.B.. 347 (1954).
I d o not, in any event, subscribe to Respondent's contention that the
Union had lost its majority status. On the contrary, neither the number of
employees crossing the picket line nor the number replacements hired
would be a basis for so finding. Cola Works
supra: Communiry Memorial Hospiral Hospiral
ration, 230 NLRB 1070 (1977). enfd. 577 805 (1978): James
field. Supermarker. 220 NLRB 507 (1975).
ARINE I l l 5
st:ttus
Responden),
grour~ds.
record
ag;reed
R~:presentative
1
1
re-
fusale2 collective-
8(a)(5 ).
sum~narize,
9E, 9F, 9G, 9H, 91, 9J, 9K, 9L, 9M, 9N, 9P,
IOB, IOC, IOD, IOE, IIA, IIB, 11C.
substr~ntive
9B, 9C, 9D, 10A.
substantiv.
IOF, IOG, ]OH, 101.
1. Respondent
2(6)
2(5)
8(a)(l)
Te:ling
IZmployer
Tel:
thtlm
Url:ing
(f) Dis::ributing
that
expense
membersl~ip,
--
executed
agnwnent.
(j)
(1)
8(a)(3) (1)
8(a)(5) (1)
9(a)
2(6)
MARK TWAIN M INDUSTRIES
then it would be a violation of the Act for it to sign any
collective-bargaining agreement with the Union. Since,
however, I have found that the Union did not lose its
majority because any loss of support it may have
suffered, if any, was due to the unfair labor practices of
Respondent is precluded from refusing to
sign the already agreed-upon bargaining agreement on
these
The reveals that on February 5, 1979, Respon-
dent, through Vern Simms, reiterated its offer to sign the
contract upon on January 31 in its letter to Inter-
national Henry Gauwitz. The record fur-
ther reveals that on February the Union agreed to ex-
ecute the agreement but that Respondent relying on its
"lack of ntajority" argument backed off and refused at
that time to sign the agreement. Since have found Re-
spondent's withdrawal of recognition to be based on a
tainted good-faith doubt of majority status, I find its
to execute the previously agreed-upon
bargaining agreement which is based on the same
grounds similarly tainted and therefore violative of Sec-
tion
T o I have found the substantive allegations
contained in the following paragraphs to be meritorious:
9A, 9 0 ,
and I have found
the allegations contained in the following
paragraphs to be without merit: and
Finally, I have determined that findings concerning the
allegations contained in the following para-
graphs art: unnecessary: and
is an employer engaged in commerce
and in an industry affecting commerce within the mean-
ing of Section and (7) of the Act.
2. The Charging Party is a labor organization within
the meaning of Section of the Act.
3. Respondent violated Section by the follow-
ing conduct:
(a) Indicating its displeasure with employees for going
to the Union with their complaints.
(b) employees that they would have more
benefits, wages, and rights without a union by dealing
with the on a "one to one" basis.
(c) ing employees that by selecting a union to rep-
resent they had given up their rights to the utiliza-
tion of National Labor Relations Board processes.
(d) employees to take their problems to man-
agement ::hereby unlawfully soliciting grievances.
(e) Promising merit increases to employees if they
should abandon the Union.
a circular in which Respondent advo-
cated employees abandon union representation to
save the of dues and to protect their rights.
(g) So iciting an employee to withdraw from union
abandon the strike, and return to work.
\
Respondent and the Union has since the collective-bar-
gaining
(h) Advising unfair labor practice strikers that they
have been removed from the payroll, have been re-
placed, and do not have jobs anymore.
(i) Creating the impression of surveillance by telling an
employee that the Company had had her phone tapped.
Providing envelopes and postage to employees for
the purpose of helping them to resign from the Union.
(k) Fostering the creation of an executive committee
to supplant the employees' lawful collective-bargaining
representative.
Maintaining and promulgating an unlawful no-so-
licitation rule.
4. Respondent violated Section and by the
following conduct:
(a) Discharging employees by informing strikers that
they have been removed from the payroll and replaced
at a time when, in fact, they had not been replaced.
(b) Failing and refusing to reinstate unfair labor prac-
tice strikers notwithstanding their having made an un-
conditional offer to return to work.
(c) Requiring replaced unfair labor practice strikers to
complete new job application forms before being consid-
ered for reinstatement.
(d) Discharging Andrew Anderson because of his ac-
tivities on behalf of the Union.
5. Respondent violated Section and by the
following conduct:
(a) Unilaterally implementing contract proposals ef-
fecting changes in wages and other terms and conditions
of employment of employees in the unit represented by
the Union.
(b) Withdrawing recognition from the Union and
thereafter failing and refusing to recognize the Union as
the exclusive collective-bargaining representative of the
employees in the unit represented by the Union.
(c) Refusing to execute the agreed-upon collective-bar-
gaining agreement.
6. All production and maintenance employees, includ-
ing truck drivers at the Company's West Frankfort, Illi-
nois, manufacturing plant and warehouses, excluding
office clerical, engineering, technical, quality control,
professional sales and salaried employees, timekeepers,
foremen, guards, inspectors and other supervisory em-
ployees as defined in the National Labor Relations Act,
as amended, constitute an appropriate unit.
7. At all times material herein, the Union has been the
exclusive collective-bargaining representative within the
meaning of Section of the Act for all of Respon-
dent's employees employed in the unit described above
in Conclusions of Law 6.
8. The strike which commenced on February 2, 1979,
was an unfair labor practice strike from its inception.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion and (7) of the Act.
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
11 10
affi.-mative
Having
Fetauary
upc~n
rec'lmmend
reinstate
made whole63
resl~lting
Re-
spcmndent's 8(a)(3)
unlair
which
Having
air-ady
shill1
ottier
e f f : ~ t i v e ~ ~ 1, 1 979.65
lJpon
law,
l a c )
The
West
and
(a)
~:b)
-
O 3 Backpay
E W. Wwlwrth (1950), Florida
Stet,/
necmity
backpay
o t h x uncondi-
tioral ratifica-
tior 1,
sutlered
s tr~ te, 1 .
no Sec.
finc conclus~ons,
!kc.
k o m e
sha be
~ d v i s i n ~
(j)
(1)
(0)
4
(s)
affirmative
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action designed to effectuate the policies of
the Act.
found that Respondent unlawfully refused on
13 to reinstate the unfair labor practice strikers
their unconditional offer to return to work, I shall
that Respondent be ordered to immediately
all unfair labor practice strikers and that they be
for any loss of wages and other benefits
from Respondent's failure to reinstate them, as
of February 13, 1979. I shall also recommend that upon
dernand all unlawfully required new job applications
filed by Respondent's employees be deleted from their
personnel files. Finally, with regard to remedying
violations, I shall recommend that
Andrew Anderson be reinstated along with the other
labor practice strikers as of February 13, 1979, and
be made whole in accordance with the formula applica-
ble to them which is noted above. I shall also recom-
mend that all references to his discharge be deleted from
his personnel file so that all seniority and other rights
he enjoyed prior to his discharge remain unaffect-
ed by Respondent's unlawful discharge of him.
found that Respondent unlawfully withdrew
recognition from the Union and refused to execute the
agreed-upon collective-bargaining agreement, I
recommend that it be ordered to recognize the
Union, upon request to bargain collectively with it with
respect to rates of pay, wages, hours of employment, and
terms and conditions of employment, and to ex-
ecute said agreed-upon collective-bargaining agreement
retroactively to February
the foregoing findings of fact, conclusions of
and upon the entire record, and pursuant to Section
of the Act, I hereby issue the following recom-
mended:
Respondent, Mark Twain Marine Industries, Inc.,
Frankfort, Illinois, its officers, agents, successors,
assigns, shall:
I . Cease and desist from:
Indicating displeasure with employees for going to
thi: Union with their complaints.
Telling employees that they would have more
benefits, wages, and rights without a union by dealing
with their Employer on a "one on one" basis.
with interest thereon is to be computed in the manner pre-
scribed in Company, 90 NLRB 289 and
Corporation, 231 NLRB 651 (1977).
The fact that Respondent has since executed the collective-bargain-
ing agreement which contains a recognition clause does not obviate the
of an appropriate order to remedy the unfair labor practices.
Though the unfair labor practice strikers are entitled to and
possible remuneration only as of the date they made their
offer to return to work, Respondent's interference with the
of the contract occurred on February and therefore any injury
by the Union or its membership, aside from losses due to the
should more appropriately be computed as of February 1979.
In the event no exceptions are filed as provided by 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
ings, and recommended Order herein shall, as provided
in 102.48 of the Rules and Regulations, be adopted by the Board and
its findings, conclusions, and Order, and all objections thereto
deemed waived for all purposes.
(c) Telling employees that by selecting a union to rep-
resent them they have given up their rights to the utiliza-
tion of National Labor Relations Board processes.
(d) Urging employees to take their problems to man-
agement thereby unlawfully soliciting grievances.
(e) Promising merit increases to employees if they
should abandon the Union.
(f) Distributing circulars in which it advocates that
employees abandon union representation to save the ex-
pense of dues and to protect their rights.
(g) Soliciting employees to withdraw from union mem-
bership, abandon their strike, and return to work.
(h) unfair labor practice strikers that they
have been removed from the payroll, and do not have
jobs anymore.
(i) Creating the impression of surveillance by telling
employees that it had their phone tapped.
Providing envelopes and postage to employees for
the purpose of helping them to resign from the Union.
(k) Fostering the creation of an executive committee
to supplant the employees' lawful collective-bargaining
representative.
Maintaining and promulgating an unlawful no-so-
licitation rule.
(m) Discharging employees by informing strikers that
they have been removed from the payroll and replaced
at a time when, in fact, they have not been replaced.
(n) Failing and refusing to reinstate unfair labor prac-
tice strikers notwithstanding their having made uncondi-
tional offers to return to work.
Requiring replaced unfair labor practice strikers to
complete new job application forms before being consid-
ered for reinstatement.
(p) Discharging employees because of their union ac-
tivities.
(q) Unilaterally implementing contract proposals ef-
fecting changes in wages and other terms and conditions
of employment of employees in the unit represented by
the Union.
(r) Withdrawing recognition from the Union and
thereafter failing and refusing to recognize the Union as
the exclusive collective-bargaining representative of the
employees in the unit described below.
Refusing to execute an agreed-upon collective-bar-
gaining agreement.
2. Take the following action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to all unfair labor practice strikers including
Andrew Anderson full and immediate reinstatement to
their former positions or, in the event that their former
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, any person hired
by Respondent on or after February 2, 1979, and make
them whole for any loss of pay which they may have
suffered by reason of Respondent's refusal to reinstate
them, in conformity with the formula described in the
section of this Decision entitled "The Remedy."
(b) Remove from the personnel files of all unfair labor
practice strikers all unlawfully required new job applica-
tions. I
TWAIN
(c)
87, backpay
AFL-CIO,
ing representative all employees in (f)
to of of the attached notice marked Copies of
e~nployment, of said on
employme~~t.
p-oduction
West
ex-
c ludi~~g
~imekeepers,
agreement
- - - -
(e) preserve and, upon request, make to the StatesCourt
Or for and
payroll social security
1117 MARK MARINE INDUSTRIES
Reccgnize and, upon request, bargain with Local
Union No. Laborers International Union of North
America, as the exclusive collective-bargain-
of the appropriate
unit described below with respect rates pay, wages,
hours of and other terms and conditions
The appropriate unit is:
All and maintenance employees, includ-
ing truck drivers at the Company's Frankfort,
Illino s, manufacturing plant and warehouses,
office clerical, engineering, technical, qual-
ity control, professional sales and salaried employ-
ees, foremen, guards, inspectors and
other supervisory employees as defined in the Na-
tional Labor Relations Act, as amended.
(d) Execute the collective-bargaining
agreed upon by Respondent and the Union on January
31., .1979..
its

records,
payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of due
under the terms of this Order.
Post at its plant in West Frankfort, Illinois, copies
notice, forms provided by the Regional Director
for Region 14, after being duly signed by Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof and maintained by it 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 cov-
ered by any other material.
(g) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
In the event this Order is enforced bv a Judnment of a United
of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."