Mid-West Paper Products Co.

National Labor Relations Board - Board Decisions

May 10, 1976

223 N.L.R.B. 1367 (N.L.R.B. 1976)

MID-WEST PAPER PRODUCTS CO. 1367
Mid-West Paper Products Co. and Mid -West Paper
Company Plant Protection Association . Case 7-
CA-11688
May 10, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On December 9, 1975, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings, and
conclusions 2 of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order except as modified below.
The Administrative Law Judge, inter alia, recom-
mended backpay for striking employees Harry Wam-
bach, Arthur Cottlidge, Carl Conway, Ora Dean
Meade, John Pankey, and Robert "James" Jackson
from the date of their discharge until the date of re-
ceipt of a valid offer of reinstatement, or to the date
of full reinstatement actually given if not preceded
The Respondent contends it is entitled under the Freedom of Informa-
tion Act to have access to all affidavits , exhibits, reports. correspondence.
memoranda , notes. records, and any and all data taken or compiled in
connection with , or in any way related to, the Agency investigation of the
instant case or the Agency decision to issue a complaint . On March 27.
1975, it requested the Regional Director to produce the material or in the
alternative requested the Administrative Law Judge to order it produced.
On April 2, the Regional Director denied its request . The Administrative
Law Judge also denied the request . Respondent contends that the failure to
produce this information deprived it of due process . The Board 's Rules and
Regulations, Series 8, as amended , Sec. 102.117, provide the procedure
whereby the requests for information are to be made . Under that section, in
the event of an adverse determination by the Regional Director, an appeal
to the General Counsel should be made . Here no appeal was made to the
General Counsel . Thus it appears that the Rules and Regulations have not
been followed in seeking the information requested . Northern Metal Compa-
ny, 221 NLRB 1028 (1975). Further, the Respondent has been given
access to all affidavits of witnesses who testified in behalf of the General
Counsel and was given a full month's continuance after the General
Counsel's case -in-chief was presented . Thus, even if such affidavits should
have been provided at an earlier stage there is no showing that Respondent
was prejudiced by the failure to do so. Case Concrete Co., Inc., 220 NLRB
1306 (1975): Gould, Inc., 221 NLRB 899 (1975).
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 ( 1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
by a valid offer. We disagree with his recommenda-
tion to commence the backpay period for these indi-
viduals from the date of their discharge. There is no
evidence they ever requested reinstatement. These
employees were on strike at the, time of their dis-
charge. As they had not abandoned the strike, and
applied for reinstatement, we can see no justification
for awarding them backpay while they were with-
holding their services irrespective of the fact that
they were discharged.' Inasmuch as it appears that
their eventual reinstatement was the result of em-
ployer action, we find that these employees are not
entitled to any backpay unless it is established at the
compliance stage that they unconditionally applied
for reinstatement prior to the January 24 meeting .4 In
that event, backpay shall be computed from the date
of any such application with interest at the rate of 6
percent per annum. We shall modify the Administra-
tive Law Judge's recommended Order accordingly.
As to Thomas, it appears that as of January 27,
1975, those employees who had been striking re-
turned to work so that as of that date the strike was
over. The only reason that Thomas did not also re-
turn was that he, unlike the others, was not offered
reinstatement. Thus, it appears clear that Respon-
dent had no intention of rescinding its discharge with
respect to Thomas and an offer to return would have
been futile. In these circumstances, it is clear, and we
find, that any loss of pay after that date was solely
attributable to the discharge and not the strike. We
therefore order that Thomas' backpay be computed
from January 27, 1975, to the date of the
Respondent's offer of reinstatement,' less interim
earnings together with interest at the rate of 6 percent
per annum.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Mid-
West Paper Products Co., Detroit, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
herein modified:
1. Substitute the following for paragraphs 2(a) and
(b):
' Valley Oil Co., 210 NLRB 370 (1974 ): Roosevelt Roofing and Sheet Metal
Works. Inc., 204 NLRB 671 (1973).
Sakrete of Northern California, Inc., 140 NLRB 765 (1963).
5 Evergreen Helicopters, Inc., 223 NLRB 317 (1976); Universal Services.
Inc., and Associates, 184 NLRB 381, 382 (1970); Sea View Industries, Inc.,
127 NLRB 1402 ( 1960): Buzza -Cardozo, 97 NLRB 1342, 1344 (1952). As
with the other six employees , if it is established that Thomas unconditional-
ly applied for reinstatement before January 27, 1975. backpay shall run
from that earlier date.
223 NLRB No. 207
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(a) Offer Harold Thomas full reinstatement to
his former job or, if that position no longer exists, to
a substantially equivalent job, without prejudice to
his seniority or other rights and privileges , and make
him whole for any loss of pay he may have suffered
by reason of his discharge by paying him, in the
manner set forth in the `Remedy' section of this
Decision , wages and benefits from January 27, 1975,
to the date a valid offer of reinstatement is made to
him or , in the event he unconditionally applied for
reinstatement prior to January 27, 1975, from the
earlier occasion.
"(b) Make whole Harry Wambach , Arthur Cott-
lidge , Carl Conway, Ora Dean Meade , John Pankey,
and Robert `James' Jackson , and each of them, for
any loss of pay they may have suffered by reason of
their discharges in the manner set forth in the section
of this Decision entitled 'Remedy."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER FANNING , concurring and dissenting in part:
I concur in the majority 's decision to the extent
that it affirms the findings and conclusions of the
Administrative Law Judge.
I dissent from the majority 's conclusion that in the
circumstances of this case the discharged employees
are not entitled to backpay until they request rein-
statement . As stated in -my dissenting opinion in Val-
ley Oil Co., Inc., 210 NLRB 370, 371, the fact that
employees are discharged by an employer during a
strike does not shift the burden to them from the
wrongdoer to establish that they are available for em-
ployment . It is at all times the obligation of an em-
ployer who has violated the Act by discharging his
employees to offer such employees full reinstate-
ment . If, in fact , the victims of the unfair labor prac-
tice are not available because they are striking or for
other reasons , that is a matter to be decided in the
compliance stage of these proceedings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Harold Thomas full reinstate-
ment to his former job or, if that job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and
privileges, and make him whole for any loss of
pay suffered by reason of his discharge with in-
terest at 6 percent per year; this loss to be com-
puted from January 27, 1975, or from the date
he unconditionally applied for reinstatement, if
earlier.
WE WILL make whole Harry Wambach, Art-
hur Cottlidge, Carl Conway, Ora Dean Meade,
John Pankey, and Robert "James" Jackson for
any loss of pay they may have suffered by rea-
son of their discharge from the date they uncon-
ditionally may have applied for reinstatement to
the date of their reinstatement, with interest at 6
percent per year.
WE WILL NOT condition reinstatement of strik-
ers on their signing releases abandoning pro-
ceedings pending before the National Labor Re-
lations Board.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for engaging in union
or other concerted activity protected by the Na-
tional Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any employee with re-
spect to his rights under the National Labor Re-
lations Act.
MID-WEST PAPER PRODUCTS CO.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN , Administrative Law Judge: This
case was heard before me on May 8-9 and June 16-18,
1975, at Detroit, Michigan. The charge, initially filed on
January 7, 1975, by Harold Thomas and Joe Barbour on
behalf of Mid-West Paper Company Plant Protection As-
sociation (sometimes called the Association herein), was
amended on January 23 and duly served upon Respon-
dent. Complaint issued on March 7. The primary issues are
whether Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (29 U.S.C.,
§ 151, et seq.), herein called the Act, by discharging Barbour
and Thomas, threatening another employee against associ-
ating with Barbour and Thomas, and discharging six other
employees because they joined in a strike and conditioning
their reinstatement on the execution of certain general re-
leases . Upon the entire record,' including my observation
'Respondent 's brief challenges the typewritten transcript "which con-
tains so many errors, so many inaccurate transcriptions , and misassigned
testimony and statements attributed to the wrong party, as to be unreliable.
Given this state of the record , it is impossible for Respondent to file a
Motion to correct the entire record . To do so would simply result in the
retrial of the case by Motion ." While I too deplore what I believe to be the
most poorly transcribed record I have ever seen , and agree that total recon-
struction is quite impossible, I do not share Respondent 's view that this
requires dismissal of the complaint . Despite the poor condition of the record
and the difficulties that might otherwise be presented by the fact that the
testimony of both sides abounds in inconsistencies and contradictions, no
serious credibility problems require resolution because the really salient
facts in terms of the legal issues I perceive are substantially undisputed or
MID-WEST PAPER PRODUCTS CO.
of the witnesses , and after due consideration of the brief
filed by Respondent,2 I make the following:
FINDINGS AND CONCLUSIONS
1. RESPONDENT'S BUSINESS
The complaint alleges , the answer admits, and I find that
Respondent, a Michigan corporation, maintains its princi-
pal place of business at 2250 East Grand Boulevard in De-
troit where it is engaged in the sale and distribution of
paper products, office furniture, and related products; that
in calendar 1974, a representative period, Respondent
bought goods valued at over $260,000, including more than
$50,000 worth for delivery directly from outside Michigan,
and sold products valued at over $1 million over $50,000
worth of which were shipped directly to points outside
Michigan; and that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
11. THE LABOR ORGANIZATION INVOLVED
As appears , infra, according to the uncontradicted testi-
mony , Respondent 's president agreed to meet with Barb-
our and Thomas to discuss working conditions upon their
presentation of a paper typed by Security Officer Muttoni
and headed "Mid-West Paper Products Co. Plant Protec-
tion Association," stating that Barbour and Thomas had
been chosen to represent the guards in negotiations with
management , and bearing the signatures of 12 guards. Re-
spondent did subsequently meet with Barbour and Thomas
for this purpose . I find the Association to be a labor orga-
nization within the meaning of Section 2(5) of the Act. Cf.
Mansion House Center Management Corporation and Cen-
tral Parking System of St. Louis, Inc., 195 NLRB 250, 256
(1972).
Ill. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Preliminary
Respondent's headquarters , where it maintains its of-
fices , a warehouse , and other facilities, fronts East Grand
Boulevard . It has a larger warehouse at Ferry Street, about
a mile and a half away , but most of the action here oc-
curred at Grand Boulevard.
The security guards operated on a rotating 3-shift, 8-
resolvable objectively . Moreover , I find , on the basis both of my own notes
and of commonsense , that the essentials come through with careful reading
of the record as a whole . If this were not so, the appropriate remedy would
not be dismissal but a new hearing for neither the Charging Party nor the
General Counsel is any more to blame than Respondent for this unfortu-
nate event . In this connection , Respondent 's limited motion to correct the
transcript , which is unopposed , is hereby granted , except that the second
correction on page 2 of the motion was obviously intended to refer to page
617 rather than page 618 of the transcript.
2 Notwithstanding the sorry state of the record , General Counsel did not
see fit to file a brief.
1369
hour basis, commencing at 7 a.m., 3 p.m., and 11 p.m., 7
days a week, generally three to a shift, one each at the main
gate at Grand Boulevard (post A) and at the employee
parking lot gate at Grand Boulevard (post B), and usually
one but sometimes two at Ferry Street (Post Q. The guards
rotated among the various posts. In the performance of
their duties the guards carried revolvers issued to them by
Respondent as they reported for their shifts.
2. The alleged promises on hire
On July 23, 1974, out of a field of 70-75 applicants,
Respondent hired 11 guards, believed by Muttoni, its se-
curity officer and supervisor who did the hiring, to be of
the "highest caliber." 3 Among the 11 were Thomas and
Barbour, both of whom filed the original charge herein.
According to Thomas, the starting rate was $3.15 an hour,
with a promise by Muttoni at the time of hire that upon the
expiration of the 90-day probationary period they would
get a "substantial" (but unspecified) increase and that after
a year they would be paid at least as much as anyone else
in the area engaged in comparable work. Also promised at
that time, according to Thomas, either by Muttoni himself
or together with his immediate superior, Stratton, the ware-
house manager, were certain fringe benefits including life,
accident, and broad medical (Blue Cross/Blue Shield) in-
surance and bonding by the Hartford Company. Barbour
testified that the guards were hired at $3 an hour with a
promise of a 15-cent raise after 60 days and a further 25-
cent raise at the end of 90 days. He also testified, however,
that the 25-cent raise was due January 1. Britton, the only
other employee witness at the hearing, and testifying for
the General Counsel, stated that Muttoni did not say that
the working conditions would change at the end of the
probationary period, and the only thing he said about the
future was that the men would have to prove themselves
and they could be earning as much as at other companies
in a year. Muttoni's testimony was that at the time of their
hire he told the guards that wage increases depended on
how well the security program pleased the company and
that he mentioned no specific amounts or time periods.
3. Barbour's promotion to sergeant
At a general guard meeting in November, a day after
discussing the matter with Barbour, Muttoni announced
the naming of Barbour as sergeant.4 Barbour and Thomas
testified in essence that, despite the new title and concomi-
tant 75-cent-an-hour raise, Barbour continued to wear the
same uniform and badge and, with one exception (infra), to
perform the same duties as before. However, although
Barbour testified further that, in the absence of Muttoni
and Stratton, the guard on post A was in charge, even
when Barbour was on duty, in respect to such matters as
break-ins or the failure of a guard to report, or a guard
reporting drunk, Thomas testified that if a problem arose
3 The number was thereafter increased to 14. Muttoni himself had been
hired at the end of June to recruit this force , Respondent theretofore having
contracted out the guard services.
° A reference in Muttoni's testimony to Barbour's not having yet become
sergeant by January 3 was mistaken.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Muttoni 's and Stratton 's absence and if they could not
otherwise be reached , he would call Barbour who "would
tell [him] what to do" Barbour testified additionally that, if
a guard contacted him about a problem or contacted the
guard at post A who in turn contacted him, he would refer
the questioner to Muttoni . 5 He testified finally , on direct,
that Muttoni told him he had been chosen for sergeant
because Muttoni wanted "someone who more or less could
control the people" and "keep down any kind of distur-
bances that might arise among the guard force ," and to
inform him if anyone started talking about a union or or-
ganizing . On cross , Barbour's testimony was that his only
duty as sergeant, at Muttoni's instructions , was to "keep an
eye on irregularities ," more specifically the actions of
Thomas and a guard named Carrow , because of "talk
going around they are trying to organize a union ." Barbour
admitted that he had a key to the security office where the
guns were housed , and that he was unaware that anyone
else had a key other than Muttoni and Stratton .6
Muttoni's testimony was that Barbour, as sergeant, had
authority to refuse to allow a guard to take his assigned
post if he reported unfit for duty, and to switch guards as
he deemed necessary or to warn or replace a guard in-
volved in misconduct at his post ; and that Barbour had
authority to adjust the "smaller gripes" of the guards. He
admitted that he had no written record that Barbour ever
exercised any such authority , but testified that Barbour
had orally advised him of such occasions .' He further testi-
fied that he and Barbour met from time to time to discuss
security problems, and he urged Barbour to go to the com-
pany that supplied the uniforms to have sergeant stripes
sewed on at no cost to him . 8 Muttoni denied ever soliciting
Barbour 's aid as an informer on union organization.
Respondent 's general guard orders require a guard to
stand his scheduled post "unless he has advance approval
to change from the Security Officer or the Guard Ser-
geant"; and prohibit a guard from leaving his post "unless
he had been relieved , or has authorization from the Securi-
ty Officer or the Guard Sergeant ." They further provide:
V. Notifying the Security Officer
Each guard has the personal number of the Security
Officer and the pager number. The Security Officer
can be contacted at all times during the day and night,
should an emergency occur . Many situations, using
common sense, can be taken care of by the individual
guard, the Guard Sergeant, or the guard standing Post
A. If you have any doubt in your mind as to whether
or not the Security Officer should be contacted, call
the Security Officer. It would be better to contact the
Security Officer when not needed, than to fail to con-
tact the Security Officer when it is needed.
5 At one point . Barbour testfied that in some situations he would contact
Muttoni after being called by a guard , but even his description of such a
situation ended with his referring the guard to Muttoni.
6 Muttoni testfied that no one else did.
7 The present sergeant . who was promoted to that job about a month
before Muttoni left Respondent 's employ (April 1975). exercised such au-
thority while Muttoni was still there.
s Barbour testified that all Muttoni said about stripes was that the compa-
ny disapproved to them.
When neither the Guard Sergeant nor the Security Of-
ficer is present, Post A should make the final determi-
nation as to contacting the Security Officer.
4. The employees' proposals
The wage rate became $3.25 at the end of the probation-
ary period, and at some point Blue Cross coverage was
provided, but not the broad coverage referred to by Thom-
as and Barbour. Nor, at least until December 17, were the
men informed of any of the other items mentioned by
Thomas and Barbour. On that date, however, Muttoni
handed all the guards "an information sheet" listing cer-
tain benefits "in response to questions asked [him] about
those benefits," including Blue Cross/Blue Shield 90 days
after hire, $5,000 life insurance 6 months after hire, sick
pay, paid birthday and holidays, and vacations.
The following day, according to Barbour, he went to
Muttoni's office to ask why the allegedly promised pay
raise had not come through. Muttoni said Respondent
could not afford it at that time. But he did say that the
employees had "full coverage" by Blue Cross and Hart-
ford? Barbour then went back and discussed the matter
personally with the guards he was able to find and tele-
phoned the remaining guards. The great majority of them
agreed that a proposal or petition should be prepared for
presentation to management concerning their working con-
ditions, and they selected Barbour and Thomas as their
spokesmen to represent Mid-West Paper Products Compa-
ny Plant Protection Association. That night Barbour and
Thomas drafted certain proposals in longhand from ideas
contributed by the guards to submit to Respondent cover-
ing substantial wage increases; cost-of-living allowance;
shift differentials; weekend, overtime, and call-in pay; sick,
personal, and vacation leave; insurance; paid breaks, safe-
ty (including two guards regularly at Ferry Street and a
"sargent/supervisor [sic]" on each shift), discipline, etc. An
alternative proposal involved working on a salary basis.
The next day (December 19), according to Barbour and
Thomas, they made copies of the proposals and gave one
each to Muttoni and Stratton who met with them in
Stratton's office. In a lengthy discussion of every item in
the proposals, Stratton said Respondent was "in the red,"
some of the demands were basically impossible and some
could not be granted because he and Muttoni were over
their budget, but that a cost-of-living allowance would be
paid January 23. The matter of insurance, other than the
Blue Cross that had already been provided, was left for
resolution by Respondent's president, Feinberg. Barbour
and Thomas also testified that the meeting concluded with
Stratton's statement that they should not let anyone know
about the meeting because if Feinberg ever learned of it
they would be "in trouble" or Feinberg would "shoot you
right and the door" and Respondent would be without se-
curity.
On the morning of December 20, Barbour and Thomas
handed a copy of the proposals to Willey, Respondent's
vice president at the Ferry Street warehouse, and then went
to the main facility on Grand Boulevard where, unable to
His reference to Hartford evidently concerned accident or supplemental
sickness insurance rather than bonding.
MID-WEST PAPER PRODUCTS CO. 1371
see President Feinberg, they left copies for him and Vice
President Bader with another executive, Snyder, who said
he would try to set up a meeting with Feinberg. Muttoni
later informed Barbour and Thomas that Feinberg would
meet with them at I I a.m . on January 23. They went to the
Boulevard complex on the morning of January 23 but were
kept waiting till about 2:30 p.m. at which time Feinberg
told them he would discuss nothing with them until they
could document their status as representatives of the
guards. Then they returned to Muttoni's office, where they
had waited until they could see Feinberg, and Muttoni
typed a paper as follows:
MID-WEST PAPER PRODUCTS CO. PLANT PROTECTION
ASSOCIATION
JOE BARBOUR and HAROLD THOMAS have been chosen
to represent the guards in any negotiations with the
management of Mid-West Paper Products Company
or Cook United Inc. of which Mid-West Paper Prod-
ucts is a division thereof.
HARRY WAMBACH
JOE CARROW
KARL POWERS
JAMES KING
ARBIE KIDD
ARTHUR COTTLIDGE
JOE BARBOUR
HAROLD THOMAS
CARL CONWAY
DAVID BRITTON
KENNETH FOSTER
ORA MEADE
JAMES JACKSON
JOHN PANKEY
Barbour and Thomas then took the paper around to the
various guards and got the signatures of all but Foster, who
had apparently been fired, and Jackson and Pankey. After
having photostatic copies made, they gave one of the cop-
ies to Feinberg who accepted it and said he would have
Muttoni notify them of the time and place for a meeting.
Muttoni later informed them that the meeting would be
held in the conference room at the Boulevard on December
26 at I I a.m.10
5. The December 26 meeting
Barbour and Thomas met with Respondent on Decem-
ber 26 as scheduled. Respondent's representatives included
Feinberg, Muttoni, Snyder, and a labor consultant, Lah-
ner.11 The meeting lasted some 2-3 hours. According to
10 Muttoni confirmed the fact of the December 19 meeting , although he
thought it occurred on December 23, but denied that any promises were
made about cost-of -living raises or that any warning was given against let-
ting Feinberg know about that meeting . He admitted his awareness of the
preparation of the paper designating Barbour and Thomas as representa-
tives of the guards but could not remember whether he typed it himself. He
gave no testimony as to the events of December 20 or 23 other than that
relating to the meeting with Stratton , Barbour, and Thomas, which I find
occurred on December 19. Neither Feinberg , Stratton , Willey. nor Snyder
testfied.
11 Lahner is a former business agent of Teamsters Local 337 with which
Respondent has had contractual relations for many years covering its ware-
house employees.
Barbour and Thomas, about the first half of the meeting
was consumed over Lahner's position that in the absence
of a state or city license or some government certification
the Association did not constitute a union capable of con-
tracting with Respondent, and that any agreement reached
could only be incorporated in the Company' s personnel
manual which they had never seen . They eventually got
around to discussing the various proposals, however, but
the meeting ended inconclusively with Feinberg designat-
ing Lahner to conduct the next meeting on January 3
when, it was felt, they would reach agreement. Thomas
testified that Feinberg cautioned against disclosing any of
the discussion until the matter was "finalized."
Respondent's evidence as to this meeting was given by
Lahner and Muttoni. Lahner testified that both Barbour
and Thomas sat down as the meeting started and that each
"simultaneously" put a pair of gold fleece work gloves on
the conference table. Muttoni's testimony was that when
they sat down Thomas reached down into his briefcase
beside his chair and produced two pair of gold gloves
which "he placed one in front of him and one in front of
Mr. Barbour." They agreed that Thomas next reached
down and took out a shoebox from which he removed a
clawhammer wrapped in terry cloth, and placed the ham-
mer in front of him) 2 According to Lahner, Thomas then
stated, "Okay, gentlemen, now let's get down to business."
Lahner inquired as to what the gloves and hammer signi-
fied, and Thomas replied that they could find out by call-
ing a number downtown. Lahner then asked what the num-
ber was, and Thomas said Lahner could get it from
anyone. After about 10-15 minutes of this, and Lahner's
refusal to discuss the demands until these items were re-
moved from the table, Thomas did remove them and the
substantive discussion proceeded. Lahner testified that he
regarded the placing of the items on the table as a threat
but admitted he neither walked out of the hearing room
nor called the police. He denied asking Barbour and
Thomas whether they had a license to be a union, but testi-
fied that he did not offer a contract and that although the
demands were discussed no commitments were made; but
that he "adjusted some conditions as they relate to job
promotions," and that the meeting "ended on a good
note ," with a further meeting set for January 3.
Barbour and Thomas denied all knowledge of the gloves
and hammer, as well as of any Black criminal organiza-
tion 13 which Lahner and Muttoni testified they had feared
might be involved.
6. Succeeding events up to the strike and picketing
Lahner and Muttoni met with Barbour and Thomas for
about an hour and a half on January 3. Although the
guards' proposals were discussed, no agreements were
reached or even counterproposals made by the Company,
according to Barbour and Thomas, because Lahner said he
1z According to the typewritten transcript. Lahner attributed this act to
Barbour. but my notes show that he testified it was Thomas. as is confirmed
by the fact that the conversation immediately ensuing. according to Lahner
as well as Muttoni, was between Lahner and Thomas.
13 Barbour and Thomas are black.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was awaiting replies to questionnaires he had sent to other
companies concerning their handling of such matters in the
area of plant security . Muttoni testified that agreement was
reached as to certain items relating to seniority , promotion,
and vacations . In any event , Lahner said they should re-
convene on January 13 by which time he expected to have
all the necessary information so that they could "finalize"
the matter or "make a final adjustment on the demands."
Barbour and Thomas threatened a strike if the matter were
not resolved by January 10.14
Following the meeting , however, Barbour and Thomas
talked with the other guards , and they agreed to wait until
January 13, and Muttoni was so advised.
But the situation changed on the morning of January 6.
Muttoni , apparently intending to post a truck list in the
various guard shacks , inadvertently had copies made of the
proposals or part of the proposals dealing with wage raises
and gave those out for posting instead . When the guards
soon learned that any indication this might have provided
of their getting raises was premature they complained 15
and, dissatisfied with Muttoni 's explanation , voted to
strike . They made picket signs complaining of their work-
ing conditions and alleged unfair labor practices , and com-
menced picketing about 3 : 30 p.m . at the main gate at the
Boulevard complex.16
Meanwhile , having been alerted to the imminence of the
strike , and upon instructions from Lahner, Muttoni con-
tacted World Investigations and Security Engineers (herein
called World) a Pinkerton-type agency that had handled
security for Respondent prior to July 1974, and arranged
for it to provide two men per post to perform guard service
that afternoon . " Muttoni wanted World to furnish armed
guards, but was told by World that that was not done un-
less absolutely necessary.18 World did decide, however, to
send investigators in addition to guards , the former being
better trained and of a higher caliber. The World personnel
arrived about 4:30. The picketing lasted an hour or two
longer.
7. Postpicketing events of January 6
After the picketing had ended , and the men were getting
14 According to Thomas, Lahner said. "If this is what you want to do, go
ahead and do it.- Barbour's version of Lahner's statement was, "If you want
to strike, strike, but I will be here and I will not be a labor negotiator." In
view of this discrepancy. I credit Lahner's denial that he made the statement
attributed to him by Barbour.
15
One said he had made some purchases on credit on the strength of the
publication. .
16 The testimony varies as to the indentity or exact number of pickets, but
it is clear that at least four guards and possibly nearly all (Muttoni estimat-
ed the number at eight) joined Barbour and Thomas in the picketing. Thom-
as had completed his shift for that day. and Barbour had not been sched-
uled to work that day.
17 Muttoni testfied he requested two guards for each post because he did
not know exactly what problems might arise . Pressed further on direct ex-
amination by Respondent 's attorney, he testified that he was concerned
about the possibility of a confrontation between the armed guards on strike
and the armed replacements . In fact , however, he collected the weapons of
the strikers himself when they walked out and commenced their picketing.
" Schmedlen . World's vice president and secretary-treasurer , testified
that normally World does not permit its guards to carry weapons, even
those supplied by the client whose own guards are armed.
ready to leave, Detroit police arrived, saying they had re-
ceived a call from management that it wanted the guards
off company property. About the same time , according to
Barbour and Thomas, Muttoni stated to the guards that
World would perform the guard duties and if they were
found on company property they would be shot on sight.
The men thereupon proceeded to the company parking lot
to get their cars. Barbour and Thomas took a different
route from the others and on the way encountered Mutto-
ni. According to Barbour and Thomas, Muttoni was alone
and came up behind them. Thomas testified that Muttoni
repeated the earlier warning about being shot on sight.
Barbour testified that Mu'ttoni's opening statement was
"You fellas really shot it in the ass now." Both Barbour
and Thomas testified that Barbour told Muttoni that he
created the possibility of a confrontation by calling the
replacements before allowing the striking guards to remove
their cars,19 and that Muttoni disclaimed responsibility by
replying in effect that the problem had started with the
calling of the strike. Barbour and Thomas then continued
on to the parking lot. Although Thomas initially testified
that he and Barbour were on their way to get their cars he
later testified that he did not get his car because he was
riding with employee Britton and that both he and Barbour
rode off in Britton 's car. Barbour testified on the other
hand that he drove Thomas home in his car, Thomas delib-
erately leaving his own car there in order to avoid a con-
frontation with the World guard who had started to close
the gate.20
Respondent's version of the above events was quite dif-
ferent, Muttoni and Schmedlen testifying in substance that
they were walking together from the parking lot toward the
main gate when they met Barbour and Thomas coming
from the opposite direction; Barbour stepped in front of
Muttoni and, with clenched fists, angrily said that any
"mother fucker" trying to cover his post would be "fucked
up" and "think he tangled with a monster," and that he
would "get" Muttoni too;21 and Thomas, appearing equal-
ly angry, was standing about 2 feet away from Barbour at
the time and did not attempt to disassociate himself from
Barbour's conduct. Muttoni denied making the statements
attributed to him by Barbour and Thomas. Following this
incident Muttoni testified he requested additional security
personnel, and Schmedlen testified he offered additional
personnel armed with carbines.22 The World personnel
were instructed to keep Barbour and Thomas off the prop-
erty. Their descriptions, as well as that of Barbour's car
19 In repeating this testimony on cross-examination , Barbour added that
he also said Muttoni would "have a monster on [his] hands."
20 Britton testified that, after getting his car he drove around the company
property with "several" others, but it is not clear whether the others were in
his car or in other cars.
21 On cross , Schmedlen conceded that in his affidavit to the Board investi-
gator he had said he was unaware whether it was Barbour or Thomas who
made the alleged threats, and that he had left a "blank" for "monster"
because of his inability to recall the latter word. He attributed the discrep-
ancies to the hasty taking of his affidavit and the large volume of matters he
handled.
22 Schmedlen testified that he deemed this "the most potentially violent
operation I have handled of this nature .... Because, we were dealing
with people who on a daily basis carried pistols and in encountering Mr.
Barbour and Mr. Thomas I felt they were irrational."
MID-WEST PAPER PRODUCTS CO. 1373
(described as a yellow Cougar with a black vinyl top),23
were given to the World employees. Muttoni testified fur-
ther that he notified the Detroit police of his concern, and
when he received a call later that night from guard Orr,
who was scheduled for the 11 p.m. shift, he told Orr it
would be better to stay home that night.
Muttoni and Schmedlen also testified, as did Churchill,
security supervisor for World, to numerous occasions on
the night of January 6 when Barbour and Thomas drove by
the Boulevard complex in Barbour's car.24 However, unlike
Muttoni's testimony describing the manner of operation of
the vehicle as consisting of "Sudden stops; sudden starts;
swerving around corners; squealing tires, things of this na-
ture," Churchill described the car simply as "operated at a
very slow speed," and Schmedlen testified it came "closer
to the gate than normal," but "not bear[ing] to the right as
quickly" as the curve of the road would normally require.
Thomas testified he was home the entire evening of Janu-
ary 6; Barbour testified he was no closer to company prop-
erty that night than 3/4 of a mile.
8. January 7 and Barbour's discharge
About 7:30 on the morning of January 7, according to
Muttoni, Respondent decided to discharge Barbour for the
alleged threats to Muttoni the previous evening on the way
to the parking lot. A decision was also reached to "replace"
the "six guards who failed to fill the posts." 25 They were
"permanently" replaced, however, unlike the company
guards who offered to work but.were temporarily replaced
on January 10 or 11 (infra). (One reference by Muttoni
lumping Reid and Orr with Meade as "permanently re-
placed" was apparently inadvertent.) A mailgram was dis-
patched by Muttoni to Barbour at 11:50 a.m. notifying him
of his termination "due to the following action communi-
cated threat of physical injury to company officer during
labor dispute 1-6-75." 26
Meanwhile, about 8 a.m., according to Muttoni, and
about 11 a.m., according to Barbour and Thomas,27 they
appeared at the main gate to the Boulevard complex. Mut-
toni, who was in his office, was called out pursuant to earli-
er instructions in the event of their appearance. According
to Thomas and Barbour, they inquired about reports that a
number of guards had been discharged, Muttoni said that
they were fired for walking off their posts to picket;28 they
said they were going to file unfair labor practice charges,
23 Muttoni's familiarity with the car rested in part on his regular observa-
tion of it on the company parking lot . His description of it was corroborated
by World Agent Whipple who linked it to Barbour's registered license
plates.
24 Churchill later qualified his testimony to say he was unable "to proper-
ly identify" the occupants . Still later in his cross-examination , however, he
said that he did recognize Thomas as the passenger when the dome light
came on.
25 Conway, Cottlidge. Jackson and Wambach, scheduled for the 3-11
shift ; and Meade and Pankey , who had been scheduled with Orr for the
night shift.
6 Muttoni testified that Barbour was also disabled from performing his
duties by his conduct of January 7 (infra) which rendered him untrustwor-
thy.
Thomas was scheduled off that day.
26 According to Thomas , Muttoni said "all" were fired , and that if they
were caught on company property they would be shot on sight.
and he told them to go ahead, which they did. While at the
Board's Regional Office, they picked up some official pam-
phlets which they brought back that afternoon for distribu-
tion to the guards. They testified they also gave one to
Muttoni and, according to Barbour, asked if he were going
to correct the situation, but he refused.
Muttoni's testimony was that he became engaged in a
discussion with Barbour that morning about his privilege
to "replace" the guards,29 culminating, in his expression of
approval of Barbour's announcement that they were going
to the Labor Board; meanwhile Thomas was involved in
an argument with guard Powers who jumped out of his
booth after Thomas, saying "Don't you threaten my fam-
ily"; Thomas started to reach under his coat but then drew
back when Muttoni did the same and Churchill pulled his
gun; Barbour yelled, "We are going to wipe all you mother
fuckers out"; and they then left.
Churchill testified that he was with Powers at the main
gate when Barbour and Thomas arrived and he was the
one who had Muttoni come out. All he recalled of
Muttoni's argument with Barbour, however, was that Barb-
our said, "I'll wipe all you mother fuckers out." As for the
conversation between Thomas and Powers, his testimony
was that Thomas told Powers he was a fool for working
there, that Powers said, "You don't pay my bills, you don't
keep my family, you don't tell me when and where I can
work," and that Thomas replied that something could hap-
pen to his family as well as to himself, whereupon Powers
jumped out after him, saying, "You mother fucker you,
don't threaten my family." As a result of this incident,
Churchill testified, "I decided that I would arm World per-
sonnel."
Barbour denied ever threatening Muttoni 3° He testified
that he got home around 4 or 5 p.m. to find the discharge
mailgram and Muttoni waiting on the phone to talk to
him; his wife had answered the phone and Muttoni told
him he had been holding the line for 15 or 20 minutes;
Muttoni asked him to return the mailgram because
Respondent's legal staff had revised its position, to so ad-
vise the other guards, and said that the situation would be
corrected; he returned to the Boulevard location about
5:30 or 5:45, gave Muttoni the mailgram, and in a very
friendly conversation Muttoni said he hoped everything
could be straightened out in a couple of days, and Barbour
joined in the hope and went directly home; and he did not
return to the gate that morning but stayed home because
his wife had the car, which he and Thomas described as an
all-green cougar.31
Muttoni denied making the alleged telephone call or re-
questing return of the mailgram. Instead, he testified that,
between 4 and 5 p.m., Barbour angrily approached the
29 He denied saying anything about firing the guards or that they were
wrong in picketing.
30 Indeed, he testified, "I never made a threat to anyone, I don't make
threats." However, he admitted giving Muttoni a written report in August
1974 that he had told a truckdriver, "I would play taps on him if he ever
again referred to me as a son of a bitch." While conceding that this report
was true, he testified that the epithet actually involved was "mother fuckin'
nigger." He testified further that the "play taps" expression was merely an
offer of a fist fight.
31 According to Barbour, this car was destroyed by fire in April and he
never owned or used a black-over-yellow car.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
main gate, threw a yellow piece of paper on the ground,
calling it "this piece of shit ," and invited Muttoni to step
out into the street and bring Stratton with him so that they
could "take care of this right now"; Muttoni refused, and
Barbour said, "You are fuckin with me" and "This is full
of shit" ; Barbour reached into his coat and Muttoni, ap-
prehensive, did the same , whereupon Barbour withdrew his
hand, exposed his empty palms and walked away; about 2
minutes later , Barbour returned with his hands behind his
back , and Muttoni , again fearful , readied his pistol for pos-
sible use; Barbour then brought out a pair of gold woolen
gloves like those at the December 26 meeting ,32 tossed
them on the counter of the guard shack, saying to Muttoni
"You know what this means , you're gonna get it," and
asking World Sergeant Linton , who was present, "Do you
want these also?" Linton said no , and Muttoni made no
reply; Barbour walked away again , and then drove off,
tires squealing , while Muttoni threw the gloves in the trash
can; 10 or 15 minutes later Barbour, who had driven back,
once again approached the shack (Muttoni unsnapping his
holster even though Barbour 's hands this time were in
plain view), grabbed the gloves which Muttoni had mean-
while retrieved from the trash can to look them over, and
said "We have not voted on it yet but when we do, you
have had it"; Barbour then said , "I am coming to work
tomorrow and any mother fucker that tries to stop me is
gonna get killed ," and walked away ; and Muttoni 's educa-
tional background in security had taught him that the
gloves constituted a death threat.
Linton's version of Barbour's first approach to gate A
between 4 and 5 p.m. on January 7 was that Barbour said
to Muttoni, "What are you doing and why are you doing
this to me?" and although they argued back and forth no
other statement or action by Barbour left an impression
until Barbour's parting statement , "I am going to whip
your asses, come out in the street and fight like men"; but
being apprehensive , he did not go , and Barbour returned to
his car. Upon Barbour's return still angry, according to
Linton, he went up to Muttoni and gave him a yellow
glove , saying, "This is for you, you know what it means."
Barbour returned yet again, Linton testified, taking back
the glove with the statement, "I cannot give this to you, it
has not been voted in yet. When they do vote, you know
how I will vote," and asking Linton if he wanted one too,
Linton declining. Linton mentioned no yellow paper or
Barbour 's reaching under his coat.
Muttoni further testified that about three or four times
later that evening he saw Barbour and Thomas driving by
in Barbour's car in the same manner as the previous
night-erratic stops and starts , squealing tires, and sudden
verring away from the gate. Kinser, who was World's back-
up for the security guard at Grand Boulevard on a 22-hour
tour of duty starting at 6 p.m., on January 7, testified he
saw the car go by four or five times on the night of January
7 "slowly." Churchill, who testified to getting a
call from Muttoni about 7:30 p.m. on January 7 asking if
he knew the significance of throwing a pair of gold gloves
at someone , to which he responded that it was either a
32 On cross, Muttoni was not sure if it was one or two gloves.
scare tactic or a gesture that a contract was put out to kill
him,33 went to the Boulevard premises at Muttoni's re-
quest, arriving about 8:30, and saw the black-over-yellow
Cougar three times that night, twice "just driving slowly on
the Boulevard" and once stopping and parking in front of
the hospital across the street.
Thomas testified that he spent the entire evening of Jan-
uary 7 at home.
9. Events of January 8
About I I a.m. on January 8, Barbour arrived at the main
guard shack to get his paycheck. Muttoni told him he
would first have to turn in his uniform since he had been
discharged. Barbour testified that he thereupon pointed his
finger at Muttoni and said, "I expected more out of you"
or "You know something? I expected about as much out of
you"; that guard Reid,34 who was present, pushed his hand
down, Thomas walked up, and he and Thomas walked
away. Thomas mentioned no finger-pointing in his ac-
count, but simply testified that when Muttoni told Barbour
that he would have to turn in his uniforms Barbour said,
"Okay, I'll bring in my uniforms." 35
Muttoni's testimony was that Thomas and Barbour
came down together from the company parking lot accom-
panied by Reid; he gave Thomas his check but, when he
told Barbour that in view of his termination he would have
to return his uniforms before he could be paid, Barbour
insisted that he wanted his money and stepped forward,
raising his arm or fist, whereupon Thomas grabbed his
right arm and Reid his left, and though he tried to move
closer to Muttoni he was restrained :3 Thomas and Reid
pulled Barbour down the sidewalk back toward the park-
ing lot, Thomas urging him to leave, while Barbour made
several unsuccessful attempts to break away before finally
leaving with Thomas. Schmedlen, who also was placed
there by Respondent' s witnesses ,37 varied from Muttoni in
one respect and added two new elements to Muttoni's ac-
count, testifying that Barbour "took a swing at Mr. Mutto-
ni with his right arm .... He swung perhaps 16 or 18
inches approximately before his arm was grabbed by Mr.
Reid";38 and as Barbour and Thomas left "Barbour said he
would be back and indicated if his pay was not there for
him he was going to provide violence." 39
After the departure of Barbour and Thomas, Reid told
Muttoni, according to the latter, that they might return
with a gun and kill him,. so Muttoni had Reid notify the
police who told him they would send cars if they were
called when Thomas and Barbour returned. They did re-
33 This response. Churchill testified, rested on his experience at Iowa State
Reformatory as a correction officer.
34 Reid is also a Detoit police officer.
35 Thomas had earlier testified that he did not see Muttoni after January
7.
36 This was essentially corroborated by World Agent Kinser who was in
post A at the time . However , his direct testimony to Barbour 's statement. "I
want my pay check." changed on cross to "White hunky. I want my pay
check.-
17 Both Thomas and Barbour testified they could not recall his presence.
38 He elaborated on cross to add . "The only thing that prevented him
from striking Mr. Muttoni was officer Reid grabbing his arm." His affidavit
during the investigation contained no mention of a swing by Barbour.
39 As to which. Schmedlen was unable to be more specific.
MID-WEST PAPER PRODUCTS CO.
turn with the uniforms, and the police were called and ap-
peared in force.40 They searched Barbour's car as well as
Barbour and Thomas personally. According to Muttoni, an
officer said that a 45-caliber bullet was found in the car.
Barbour denied that any bullets were found. According to
Thomas, the police gave no explanation for their action or
lodged any complaint against him or Barbour either on this
occasion or on the two or three occasions on January 8 and
10 when they were stopped by the police in the vicinity of
the Grand Boulevard complex, or approached by the po-
lice while they were stopped there.
10. Thomas' discharge
Muttoni testified that Thomas was discharged because
he had failed to disassociate himself from Barbour's threats
for which Barbour had allegedly been discharged; and the
only reason Thomas was not fired at the same time as
Barbour was that he did not know if he had legal grounds
for such action since Thomas had made no threats himself.
However, on January 9 at 3:22 p.m., Muttoni sent Thomas
a mailgram notifying him that he was discharged because
he had "remained absent from work without notification,"
and Thomas was never given any other reason 41 Muttoni
testified further that he did not know the whereabouts of
Respondent's copy of the mailgram sent to Thomas and
could not recall what it said; that the mailgram placed in
evidence by General Counsel "could" have been the one
Muttoni sent but that if it was it must have been "a mistake
on [his] part" resulting from lack of sleep and the fact that
Feinberg and Lahner had "made the decision and [he] did
not know anything about it until [he] sent the telegram."
On cross, however, Muttoni testified that he had partici-
pated with Feinberg and Lahner in the making of the deci-
sion.
Lahner testified that, following consultation with coun-
sel on January 8 and 9, he made the decision to discharge
Thomas, without Muttoni's participation, and the reason
was Thomas' failure to contradict Barbour's "aggressive"
actions or "try to restrain him" not only on the January 6
occasion but also the next day.
11. January 9-12
On the evening of January 9, after Britton had worked
his shift, he received a phone call threatening him with
bodily harm if he continued to work. He notified Muttoni,
asked to be relieved from further work for an indefinite
period, and Muttoni granted his request. That night, ac-
cording to Kisner, Barbour and Thomas drove by the
Grand Boulevard installation about four times "in a slow
manner."
According to Muttoni and Churchill, near midnight on
January 10, shortly after company guard Orr had reported
40 This was about 2 p.m., according to Muttoni. Kinser placed the time
about 5 p . m. Schmedlen fixed it at between 12 : 30 and I p.m.
41 Muttoni testified that Thomas was scheduled to work on January 8 but
called to say he would not be able to "because of illness or some other
reason"; and Muttoni said " Fine, then you will be in on the 9th." and
Thomas agreed but "did not come in the next couple of days."
1375
for work, he informed Muttoni that his pregnant wife had
been sufficiently frightened by a telephone threat to re-
quire the prescription of a tranquilizer, and asked to be
relieved. Churchill drove Orr home at Muttoni's request.
Churchill testified that after leaving Orr at his house he
proceeded about half a block when a black-over-red "T-
Bird" turned on its lights and started following him; he
engaged in various maneuvers to be sure he was being fol-
lowed, and the T-Bird stayed with him; he managed to
whirl his car around in an empty parking lot so as to throw
his light on the pursuing car which came to a stop, and he
noticed two male Blacks whom he did not recognize sitting
in front; the T-Bird then made a U-turn and departed.
Churchill testified further that as a result of "this particular
incident" he instructed the guards to start bringing in shot-
guns and carbines."
After receiving Churchill's report of this incident, Mut-
toni testified, he, together with Feinberg and Lahner, de-
cided to temporarily replace the remaining company
guards with World personnel for their own safety, and this
was accomplished by January 12.42
12. Reinstatement of company guards
On January 24 Muttoni called a meeting of all the com-
pany guards but Barbour and Thomas, said they should
"let bygones be bygones," and invited them to return to
work on January 27. Although the six who had allegedly
failed to fill their posts signed general releases at the time
(which also specifically covered the instant proceeding) at
Muttoni's request "in consideration of reinstatement and
payment" of $100, Lahner denied that the consideration
included reinstatement, testifying that it was Respondent's
intention to reinstate these guards even if they had not
executed the releases. Muttoni corroborated Lahner's testi-
mony as to the Company's intention.
13. Alleged coercion of Britton on February 15
On February 15, Muttoni called Britton into his office.
According to Britton, Muttoni said he had heard that Brit-
ton was trying to cause Muttoni to lose his job and if that
happened Britton would be fired. Britton testified further
that Muttoni also said that he had killed a couple of people
and gotten away with it, and that Thomas and Barbour
were misleading Britton and were "nothing but trouble-
makers" and "would be gone," and that if he "kept on
messin' around with Tom and Barbour my whole life
would be messed up."
Muttoni essentially denied the above. His version of the
event was that he called Britton in to talk to him about his
deteriorating performance and attitude in view of certain
infractions relating to dress and punctuality, and to warn
him against a continuation; and he told Britton that Barb-
our and Thomas had nothing to do with this, that that
"was a closed issue."
42 Muttoni testified that this decision was made on January 10 but it
would appear to have been physically impossible before January 11.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis
1. Preliminary
a. Production of documents
Both before and at the hearing Respondent unsuccess-
fully moved for the production, "pursuant to the Freedom
of Information Act," 43 of:
Any and all affidavits, exhibits, reports, correspon-
dence , memoranda , notes, records , and any and all
data taken or compiled in connection with , or in any
way related to, the Agency investigation of the instant
case or the Agency decision to issue the instant Com-
plaint.
Addressing itself neither to the authorities cited nor the
reasons given for the rejection of its motions , Respondent
now contends, ipse dixit, that "it has been denied due pro-
cess of law" by the Board's failure to supply the documents
which it "is obligated to disgorge under the Freedom of
Information Act."
The position lacks merit. First, it is self-evident that a
right deriving from the Freedom of Information Act and
theretofore unknown to the law, may not claim the under-
pinnings of due process. Second , the asserted right does not
even exist under the Freedom of Information Act because
the documents are privileged under the fifth and seventh
exemptions therefrom.44 Cf. N.L.R.B. v. Sears, Roebuck &
Co., 421 U.S. 132 (1975); Renegotiation Board v. Grumman
Aircraft Engineering Corp., 421 U.S. 168 (1975); J.H. Rutter
Rex Mfg. Co. v. N.L.R.B., 473 F.2d 223, 234 (C.A. 5,
(1973), cert. denied 414 U.S. 822; N.LR.B. v. Robert Scri-
vener, d/b/a AA Electric Company, 405 U.S. 117 (1972);
N. L R. B. v. Golden Age Beverage Company, 415 F.2d 26
(C.A. 5, 1969); Wirtz v. B.A.C. Steel Products, Inc., 312
F.2d 14 (C.A. 4); Hodgson v. Charles Martin Inspectors of
Petroleum, Inc., 459 F.2d 303 (C.A. 5); Wellman Industries,
Inc. v. N.LR.B., 490 F.2d 427 (C.A. 4), cert. denied 419
U.S 834; see also Williard Kaminer v . N. L. R. B., 90 LRRM
2269 (D.C. Miss., 1975). I believe Title Guarantee Co. v.
N.LR.B., 407 F.Supp. 498 (D.C.N.Y., 1975), to be essen-
tially contrary to the foregoing authorities and incorrectly
decided.
b. More definite statement
Respondent simultaneously moved for a more definite
statement of the allegations contained in paragraphs 8-12,
14, and 15 of the complaint, and a continuance of the hear-
ing for such purpose; and similarly urges-again, ipse dix-
it-that the denial of the relief sought deprived it of due
process. The allegations here are sufficient since they "ade-
quately advised Respondent of the nature of the violations
charged , the manner by which Respondent had engaged in
unfair labor practices ,45 and the approximate times and
places at which such acts had been committed." Walsh-
415 U.S.C. §552. as amended.
44 5 U.S.C. §552( bX5) and (7)(A), (C). and (D).
45 Including the identity of Respondent 's representatives involved.
Lumpkin Wholesale Drug Company, 129 NLRB 294, 295
(1960). The complaint is certainly not "so vague that [Res-
pondent was] unable to meet the General Counsel' s case."
North American Rockwell Corporation v. N.L.R.B., 389 F.2d
866, 871 (C.A. 10, 1968), and cases cited. In substance Re-
spondent demanded to know the identity of the General
Counsel's witnesses and the "specific[s]" of the General
Counsel's evidence, information to which it was not enti-
tled in advance of the hearing. In any event, there was in
fact a continuance here of over a month after the General
Counsel had virtually completed his case-in-chief, so that
Respondent suffered no possible prejudice. Any claim to
the contrary at this time is plainly frivolous in these cir-
cumstances.
2. The concerted nature of the employees' activity
As indicated above, there was a walkout by the guards
on the afternoon of January 6. Respondent's brief is some-
what elusive as to the concerted nature of the walkout. On
the one hand, it notes Respondent's "concern" at the time
about a possible confrontation "between two camps of
armed guards," and contends that the participants in the
walkout 46 had violated "a no-strike agreement signed by
each of the guards";"' yet, without suggesting any explana-
tion for the walkout, it apparently contends that the activi-
ty was not concerted because of an asserted lack of compe-
tent evidence that the guards voted to "go on strike."
However, the uncontradicted testimony of Thomas and
Barbour was that the guards had expressed dissatisfaction
over their working conditions and ultimately voted to
strike. Respondent sought to exclude such testimony as
hearsay, as it also did in respect to their testimony that they
had been designated to represent the guards as spokesmen
for the Association to present certain demands, and still
persists in these wholly untenable contentions, arguing in-
deed that I agreed with its position at the hearing, "allow-
ing the testimony only to show sequence, but not the truth
of the matter asserted."48 The difficulty with Respondent's
position resides in its confusion as to "the matter asserted."
Thomas and Barbour's testimony that the guards had com-
plained of mistreatment as a predicate for presenting a pe-
tition to the employer would be used testimonially and
constitute excludable hearsay only if offered to prove the
validity of their complaints. But if received, as here, to
show that the guards said they wanted their complaints-
valid or not-presented to the employer, the testimony of
what Thomas and Barbour heard is real, direct evidence
whose admissibility is governed solely by the question of
relevance, as to which no objection was or could legiti-
mately have been raised. See 6 Wigmore, Evidence § 1766
(3d ed.). Similarly competent was the evidence that the
guards had selected Barbour and Thomas as the Associa-
tion representatives on their behalf, both in the form of
oral testimony of Barbour and Thomas and through their
written designation signed by the guards. Their designation
'Which it had admittedly anticipated.
47 The Labor Management Relations Act, 1947, of which the National
Labor Relations Act constitutes Title I. defines "strike" in terms of "con-
certed" action by employees. Sec. 501(2).
48 See Tr. at 56-60.
MID-WEST PAPER PRODUCTS CO. 1377
was what Barbour and Thomas heard and, in the case of
the writing, saw, matters which they were fully as compe-
tent to report as those who made the designation 49 The
foregoing is of course equally applicable to the strike vote
which indeed is amply corroborated by the walkout itself.
Nor is there merit to Respondent's further contention
that the copy of the written designation of Barbour and
Thomas as spokesmen for the guards received at the hear-
ing was not the best evidence. In the first place, the writing
itself was only corroborative of their oral testimony which,
as already found, was quite competent to establish the fact.
Secondly, it was identical in every respect with the copy
furnished Feinberg which was run off at the same time on
the same duplicating machine and which Feinberg accept-
ed in satisfaction of his demand for corroboration. And
finally, it was received upon General Counsel's express as-
surance that he had made "every possible effort" to obtain
the original. Accordingly, and in view of the virtually in-
herent reliability of photostats whose recognized use is
continually growing, and Respondent's failure to challenge
the authenticity of the signatures on the basis of its own
payroll and other records, I conclude that the document
was properly received. See 4 Wigmore, Evidence § 1212
(Chadbourne Rev. 1972) at 487-488.
Respondent's attempt to attach " [s]ignifican[ce]" to the
fact that "Britton who was called by the General Counsel,
failed to testify in any of these areas" at once overlooks the
absence of any need for such additional testimony, which
would only have burdened the record, and emphasizes
Respondent's own proclivity, manifested throughout the
hearing, for mere cumulation. Moreover, insofar as this
point is directed to Britton's signature on the petition, Re-
spondent had an opportunity to raise the matter on
Britton 's cross-examination 50
49 The assertion in Respondent 's brief that there is "no testimony that
Barbour or Thomas witnessed the signing of the original by the other guards
to avoid the hearsay objections" is equivocal. If Respondent means that
neither Barbour nor Thomas testified to seeing the other guards sign , that is
a misstatement of the record ; if Respondent means that the absence of
testimony by the signers rules out as hearsay the testimony of Barbour and
Thomas as to what they saw , that is a misstatement of the law. One need
look no further than to the established practice of proving union authoriza-
tion cards through the. testimony of witnesses other than the signers.
50 The cases cited by Respondent in this connection not only fail to sup-
port its position but even tend to show the contrary . Thus, Dennis Maietta,
et aL, d/b/a Maietta Trucking Company, 194 NLRB 794 (1971), does not
hold that the testimony of other employees is needed to show the represen-
tative status of an individual 8(a)(3). The case was resolved strictly as a
credbility issue , the decision resting on a finding ( 1) that the 8(a)(3)'s testi-
mony corroborated Respondent's; and (2) that his testimony was at least so
equivocal as to warrant corroboration from the other employees who, no
longer in Respondent 's employ, were available to the General Counsel. In-
deed , the case destroys Respondent 's contention here that the testimony is
incompetent as hearsay . Nor does N. L.R.B. v . Ogle Protection Service, Inc.,
375 F.2d 497, 505-506 (C.A. 6 1967), hold the 8(a)(3)'s testimony incompe-
tent, as urged by Respondent . It holds only that such testimony is insuffi-
cient of itself to make a case in the face of unexplained contrary evidence.
There is no contrary evidence here on the question of representative status.
Respondent argues in effect that corroboration of an 8 (a)(3) is always re-
quired as a matter of law, a patent absurdity . In any event, there is corrobo-
ration in the form of the subsequent strike and picketing . Eggo Frozen
Foods, Division of Fearn International, Inc., A Subsidiary of Kellogg, 209
NLRB 647, is miscited as a discharge of five employees "for collectively
approaching the time clock ." The Board's holding that the conduct was not
protected rested precisely on the ground that the five had acted "separately"
rather than collectively or concertedly.
Upon all of the foregoing, I find that the guards acted in
concert in striking on January 6. I further find, despite
testimony by Respondent's witnesses that they saw no
picketing but only milling around the gate, that the guards
did establish and maintain a peaceful picket line that af-
ternoon.
3. The protected nature of the concerted activity
The prima facie protection attaching to the strike and
picketing in furtherance of the guards' concerted demands
for improved working conditions was not affected by the
absence of employer hostility or Respondent's fair eco-
nomic treatment of the employees, assuming that to have
been the case, as urged by Respondent,51 for "it has long
been settled that the reasonableness of workers' decisions
to engage in concerted activity is irrelevant" in this connec-
tion. N. L. R. B. v. Washington Aluminum Company, Inc., 370
U.S. 9, 16, citing N.L.R.B. v. Mackay Radio & Telegraph
Co., 304 U.S. 333, 344.
Nor, contrary to Respondent, was the protection lost
through "breach of a no-strike clause in a written agree-
ment." 52 The argument here is that upon hire each guard
executed a Security Employment Agreement which provid-
ed, inter alia, that he was subject to discharge without no-
tice for "any ... deliberate violation of the security guard
Manual"; that the manual provides, under the heading,
"Punctuality," that "A security guard will not leave his
post unless properly relieved," and under the heading "Or-
ders," that "A security guard will obey all orders promptly
and pass on to the relief all new orders issued" and "Will-
ful disregard of orders and instructions will be cause for
dismissal"; that the general guard orders require, under the
heading, "Attendance," that a guard stand his scheduled
post and not leave it unless properly relieved by the secur-
ity officer or guard sergeant; and that the guards who
failed to cover their posts on January 6 thereby engaged in
unprotected conduct; i.e., "violation of a no-strike agree-
ment.,,
Respondent has failed to cite any authority for this
astonishing contention, and I am aware of none. To equate
any or all of the materials relied on with a no-strike clause
in a collective agreement is entirely unwarranted. The so-
called employment agreements here were not bargained
out but were in effect plant rules unilaterally imposed on
each individual employee 53 But even ascribing to them the
stature of bargaining agreements, they contained no com-
mitment against striking. Even a collective agreement re-
quires a waiver of statutory rights to be conscious and un-
51 1 credit Muttoni's denial that he made any specific promises at the time
of hire. He was essentially corroborated by Britton and there are inconsis-
tencies in the testimony of. Barbour and Thomas in this respect.
52 The main thrust of this contention is particularly directed at Barbour
and Thomas, but it is advanced as well in respect to all the strikers based on
the same alleged "agreement."
53 Cf. Curtis Mathes Manufacturing Company, 145 NLRB 473 (1963), re-
lied on by Respondent in this connection, which actually points the other
way. For, while holding Sec. 502 of the Labor Management Relations Act
inapplicable on the facts to a clear no-strike clause in respect to the employ-
ees covered by the collective agreement, the Board held leadmen. who were
excluded from such coverage, free to strike despite a plant rule against
unauthorized absences which applied to all employees.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivocal. Cf. Mastro Plastics Corporation v. N.L.R.B., 350
U.S. 270 281-284 (1956); Gary-Hobart Water Corporation,
210 NLRB 742, 744-745 (1974). The language relied on
here by Respondent was far too general to be deemed to
have contemplated limitations beyond the normal variety
likely to occur in the daily routine, and hardly suggested,
without more, the surrender of rights peculiar to the future
occurrence of a labor dispute. If Respondent's view pre-
vailed, a parity of reasoning would read a commitment not
to strike into virtually every employment relationship. An
employee who leaves a machine to go on strike could well
cause greater damage to his employer than the walkout of
these guards, yet enjoys the right to strike despite his at
least implicit agreement not to leave his workplace until
properly relieved and to obey all orders on pain of dismiss-
al.
4. Discharge of Conway, Cottlidge, Jackson, Wambach,
Meade, and Pankey
Despite its contention that the strike was unprotected,
Respondent does not contend-or even admit-it dis-
charged the six guards named in the complaint other than
Barbour and Thomas. Instead, in conformity with
Muttoni's testimony, it claims only to have "permanently
replaced them" I do not credit Muttoni in this respect,
however, and find that this admittedly permanent separa-
tion was more than a mere replacement the right to which
is vouchsafed by the Act to an employer in the event of an
economic strike like the instant one. The picketing lasted
only 2-3 hours, and ceased on the evening of January 6.
There is no evidence whatever that by 8 o'clock the next
morning, when Muttoni says he made his decision, the jobs
in question had been filled by anyone other than the World
personnel who were there on a temporary basis only. On
the contrary, Respondent's own rules required armed
guards which World would not furnish on a permanent
basis. Hence, even without the testimony of Barbour and
Thomas to Muttoni's statements concerning the discharge
(supra), I find that Respondent did discharge Conway,
Cottlidge, Jackson, Wambach, Meade, and Pankey for
their participation in the protected strike,54 in violation of
Section 8(a)(l) and (3) of the Act.
5. Discharges of Barbour and Thomas
Notwithstanding Barbour and Thomas enjoyed the same
protection as the other six guards (apart from other factors
discussed infra), whom Muttoni denied discharging, Re-
spondent argues that Barbour and Thomas were "unpro-
tected from discharge" merely by their going on strike in
breach of their Security Employment Agreements. Howev-
er, it did not purport to discharge them therefor but for
other alleged reasons . Moreover , Respondent urges that
Barbour was a supervisor and hence not protected by Sec-
tion 7 in any event. We therefore turn to these matters.
54 1 note , in any event , my inability to comprehend Respondent 's asser-
tion, in respect to Muttoni's testimony that he replaced the guards, that "the
record is totally devoid of any competent evidence to the contrary"
a. Barbour
I agree with Respondent that Barbour, as guard ser-
geant, was a supervisor within the meaning of the Act. I do
not credit Barbour that the 23-percent wage increase he
received upon being named sergeant was solely in consid-
eration for becoming an informer concerning the guards'
organizing activities. The only evidence in the record of
any such activities consists of Barbour's own statement on
cross-examination that Muttoni had mentioned "talk going
around" to that effect. Moreover, Barbour's testimony on
this aspect of the case is internally contradictory as well as
inconsistent with the credible evidence of others, including
Thomas, and with the documentary evidence.
If Barbour's only function for the increased wage was to
maintain surveillance over the other guards' organizing ac-
tivities , presumably they were to know nothing about it.
But in that case Respondent could simply have given Barb-
our the money without the title and kept it a secret from
the guards. Once it was announced, however, if he did
nothing else in his capacity of sergeant, surely this would
have aroused the suspicions of the others. Hence he had to
concede that there were occasions for the other guards to
call him about problems that arose including such matters
as break-ins or a guard's failure to report or reporting unfit
for duty. But unlike Barbour's testimony that in Muttoni's
and Stratton's absence the guard at post A was to be called
ahead of him and that if he was ultimately called he only
referred the caller to Muttoni, Thomas testified that if
Muttoni and Stratton were unavailable he would call Barb-
our and that Barbour would tell him what to do. Indeed, if
the precondition to calling him was Muttoni's unavailabili-
ty, it would have made no sense whatever for Barbour to
refer the caller to Muttoni. Besides, Barbour was the only
guard to have a key to the security office, and he was the
only one other than Muttoni permitted by the general
guard orders to authorize a guard to change or leave his
post before being regularly relieved. He was also specifical-
ly given precedence over the guard at post A by article V of
the general guard orders. Finally, the supervisory status of
the sergeant was implicitly recognized in the list of de-
mands sought by the guards which included a "sergeant/
supervisor" on each shift instead of just Barbour.
Based on the foregoing, I credit Muttoni's testimony that
Barbour had authority to switch guards, to prevent a guard
from taking his assigned post if he reported unfit, and to
warn a guard for misconduct at his post. I find, according-
ly, that Barbour was a supervisor within the meaning of
Section 2(l 1) of the Act. It follows, as a matter of long-
settled law, that Respondent was privileged to discharge
Barbour for his involvement in the guards' concerted activ-
ity without regard to whether he engaged in the violent
conduct attributed to him and whether such conduct ex-
ceeded the protected bounds of that activity.55
ss The conjunction of Barbour's low-level supervisory status and his parti-
cipation in the organizing activity neither undermined the protected nature
of that activity as it affected the other employees nor impaired the
Association's status as a labor organization. Mansion House Center Manage-
ment Corporation and Central Parking System of St. Louis, Inc., 195 NLRB
250, 256 (1972).
MID-WEST PAPER PRODUCTS CO. 1379
b. Thomas
It is unnecessary to consider the extent of Thomas' parti-
cipation in any misconduct because Thomas was never
told he was discharged for misconduct and I find in fact
that he was not. The reason given Thomas for his discharge
in Muttoni's mailgram was that he had "remained absent
from work without notification." At the hearing, Muttoni
grudgingly admitted that that "could" have been his mail-
gram but, if so, it was a mistake due to exhaustion and the
fact that others had made the decision. However, he later
admitted that he had participated in making the decision.
Nevertheless, Respondent asserted for the first time at the
hearing that Thomas' discharge was for his failure to disas-
sociate himself from Barbour's alleged aggression or in
Lahner's words, "try to restrain him," both on January 6
and on January 7. But the mailgram did not go out until
late afternoon of January 9, and meanwhile, on January 8,
Thomas had restrained Barbour on one occasion, accord-
ing to Respondent's own evidence. And Muttoni's testimo-
ny of Thomas calling to say he would be unable to work on
January 8 "because of illness or some other reason" ig-
nores the fact that he actually was on the premises that
day.
These convolutions strongly suggest a somewhat less
than frank account. No reason would appear for Muttoni
to have selected absence as the cause of discharge unless it
was related to the real cause. After all, Respondent's testi-
mony was that Muttoni and Lahner were as disturbed
about Thomas' alleged nonfeasance as they were over
Barbour's alleged misfeasance, and that that very question
had been submitted for counsel's consideration, pending
the resolution of which Thomas' status was in abeyance. If
fatigue had resulted in a mistake, a far likelier mistake
would seem to have taken that direction rather than the
altogether unrelated matter of absence. Fatigue or no, Re-
spondent certainly was aware at some point after the event
that it had never given Thomas what it now urges to have
been the real reason, yet it offers no explanation for with-
holding this information.
I believe and find that Thomas' having "remained ab-
sent" was related to the real reason for his discharge, to
wit, his having allied himself with the other strikers, which
Respondent still asserts rendered Thomas "unprotected
from discharge." I believe Respondent's hesitance and de-
lay in effecting the discharge stemmed from its growing
conern that Thomas had neither walked off his job (having
completed his shift just before the walkout) nor voluntarily
failed to report thereafter (having been told on the evening
of January 6 that he was to stay off company property);56
and that his alleged participation in Barbour's misconduct
as a reason for discharge was a pure afterthought necessi-
tated by Respondent's ultimate realization that the as-
signed ground was legally untenable.
Respondent misconceives the case in arguing that the
mere delay in deciding to discharge Thomas does not ren-
der the discharge suspect, citing Berns Wholesale Sporting
16 it is, moreover , hardly consistent with Muttoni 's asserted expectation
for Thomas to report for work that he had decided that Thomas . like Barb-
our, "could not be trusted again" because of the alleged threats.
Goods Co., 188 NLRB 373 (1971). In Berns the employee
was discharged the morning following the incident, and on
the precise ground over which the employer had consulted
counsel. Here, on the other hand, Respondent not only
delayed from the morning of January 7 until the afternoon
of January 9, but then sent the discharge mailgram setting
forth a ground other than the one on which it now relies,
asserted for the first time at the hearing.
6. Unlawful condition to reinstatement of the six guards
I do not credit Respondent's denial that the reinstate-
ment of the six guards was conditioned on their execution
of the general releases which on their face included aban-
donment of the instant proceeding . Even laying aside the
parol evidence rule on the theory that enforcement of the
contracts is not here in issue , there is absolutely no evi-
dence that any intention to reinstate the guards even if they
failed to sign the releases was ever communicated to them.
Instead , Muttoni asked them to read the releases carefully
before signing , and a careful reading could only have re-
sulted in an understanding directly contrary to the asserted
intention . The imposition of such a condition violated Sec-
tion 8(a)(1). John C. Mandel Security Bureau Inc., 202
NLRB 117, 119 (1973).
7. The February 15 incident
Even crediting Britton's account of his February 15 visit
to Muttoni's office does not, in my view, establish a viola-
tion of the Act. Muttoni's alleged reference to Britton's
trying to cause him to lose his job is, without more, wholly
outside any labor relations context. As for the alleged ref-
erence to Barbour and Thomas as "troublemakers" whose
continued association with Britton might "mess up" his
life, I find this no more susceptible of the inference of a
threat of adverse action by Respondent than of a pre-
diction of the natural effect of associating with individuals
for whom Respondent had little respect, whatever the
cause of such low opinion.
It is of course not for me to pass upon any challenge to
my conduct at the hearing, although I must say it is unfor-
tunate that such a question should arise on a transcript of
testimony in as bad a state of disarray as the instant one.
Suffice it that whatever errors may be found, I will not
dignify the allegation of a "predisposition" with a denial. I
would add only that at the close of the hearing
Respondent's counsel approached me to shake my hand,
which appears to show either (1) that he was less sure of
my "predisposition" at that time;17 or (2) that he was sim-
ply being as "friendly" to me as he had professed to be to
Thomas after shaking the latter's hand on the witness stand
at the outset of his cross-examination 5s
Sr As he also appeared to be after the first 2 days of hearing, when, despite
the continuance of over a month, he neither requested a new Administrative
Law Judge nor registered a complaint looking toward disqualification.
58 Although that handshake was accompanied by the question as to
Thomas' height (6'4") and weight (240) for later comparison with Barbour
(6'3"-240) and Muttoni (5'6"-150), the handshake was scarcely essential to
eliciting the information.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Association is a labor organization within the
meaning of Section 2 (5) of the Act.
3. Respondent has violated Section 8 (a)(1) and (3) of the
Act by discharging Wambach, Cottlidge, Conway, Meade,
Pankey, Jackson , and Thomas , and has violated Section
8(a)(1) of the Act by conditioning reinstatement of Wam-
bach , Cottlidge, Conway, Meade , Pankey, and Jackson on
their execution of the general releases.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act by discharging
Barbour or by Muttoni 's conversation with Britton on Feb-
ruary 15.
REMEDY
In order to remedy the unfair labor practices found here-
in, my recommended Order will require Respondent to
cease and desist therefrom , and, in view of the serious na-
ture thereof, from violating the Act in any other manner.
In order to effectuate the policies of the Act, my recom-
mended Order will further require Respondent to offer
Harold Thomas full reinstatement. In accord with custom-
ary requirements, reinstatement shall be to his former job
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges. My recommended Order will also require
Respondent to make whole all the employees found to
have been discriminated against for any loss of earnings
they may have suffered as a result of such discrimination
by payment to each of them of a sum of money equal to
that which he would have earned from the date of his dis-
charge to the date of receipt of a valid offer of reinstate-
ment, or to the date of full reinstatement actually given if
not preceded by a valid offer, less net earnings during such
period, with interest, in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).59
I find no merit to Respondent 's contention that the al-
leged post-January 6 misconduct should in any event bar
Thomas' reinstatement, however meritorious I might have
found it in respect to Barbour. As found above, Thomas
was not discharged at least until the dispatch of the mail-
gram at 3:22 p.m. on January 9, and the discharge was not
attributable to any of the alleged misconduct prior there-
10.60 There is no evidence tying Thomas to any subsequent
misconduct.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein , and pursuant to Section
10(c) of the Act, I hereby recommend the following:
59 If, contrary to my conclusion , the Association were not a statutory
labor organization , so that the discharges herein found unlawful violated
Sec. 8(axl) only, my recommended remedy would be precisely the same.
60 Indeed , as noted supra, Respondent 's own evidence described Thomas
as restraining Barbour on January 8.
ORDER 61
Respondent, Mid-West Paper Products Co., Detroit,
Michigan, its officers , agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Conditioning reinstatement of strikers upon the exe-
cution of releases abandoning proceedings pending before
the National Labor Relations Board.
(b) Discharging or otherwise discriminating against any
of its employees for engaging in union or other protected
concerted activity.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Harold Thomas full reinstatement to his for-
mer job or to a substantially equivalent job without preju-
dice to his seniority or other rights and privileges.
(b) Make whole Harold Thomas, Harry Wambach, Ar-
thur Cottlidge, Carl Conway, Ora Dean Meade, John Pan-
key, and Robert "James" Jackson, and each of them, for
any loss of pay they may have suffered by reason of their
discharges in the manner set forth in the section of this
Decision entitled "Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, as well as all other records necessary
to analyze and compute the amount of backpay due here-
under.
(d) Post at each of its places of business in Detroit,
Michigan, copies of the attached notice marked "Appen-
dix."62 Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly signed by
an authorized representative of Respondent, shall be post-
ed by Respondent immediately upon receipt thereof, and
be maintained by it for 60 days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
61 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations . be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
63 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."