Muncy Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1974

211 N.L.R.B. 263 (N.L.R.B. 1974)

MUNCY CORPORATION 263
Muncy Corporation and Local 682, International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW).
Cases 9-CA-7118, 9-CA-7356, and 9-CA-
7327-1, -2
June 10, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On January 9, 1974, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings,
findings ,2 and conclusions3 of the Administrative
Law Judge.4
1. Cease and desist from:
(a) Provoking violence or directing assaults upon
employees because they engage in activities on behalf
of Local 682, International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers
of America (UAW), or any other labor organization.
(b) Interfering with the posting of informational
picket signs by the above-named labor organization
or any other labor organization by tearing down and
removing said signs which are not attached to, or
appear on, its property.
(c) Promising employees economic benefits in
order to discourage membership in, sympathy for,
support of, or activity on behalf of the above-named
labor organization or any other labor organization.
(d) Telling employees that it will not sign a
collective-bargaining agreement with the above-
named labor organization.
(e) Instigating, preparing, or promulgating decerti-
fication petitions or employee resignation letters
from the above-named labor organization or any
other labor organization.
(f) Refusing to meet and/or bargain in good faith
with Local 682, International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), as the exclusive
certified representative of its employees in the
following appropriate unit:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Muncy Corporation, Enon, Ohio, its officers, agents,
successors , and assigns, shall:
i The General Counsel has moved to strike Respondent 's exceptions and
supporting brief on the grounds that Respondent generally failed to comply
with Sec . 102.46(c) of the Board 's Rules and Regulations, Serves 8, as
amended , which sets forth requirements pertaining to the contents of briefs
submitted to the Board . General Counsel asserts that Respondent
specifically failed to comply with the rule in that Respondent's brief is
replete with references to matters not contained in the record to support its
arguments . Although Respondent 's brief in support of its exceptions does
not fully comply with Sec. 102.46(c), we find that there has been substantial
compliance therewith , and, therefore , we deny General Counsel's motion
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
inc, 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings
Respondent also excepted to the Administrative Law Judge 's Decision,
inter ala, on the grounds that he was biased against Respondent and
prejudged the case in that he : (I) consistently resolved credibility questions
against Respondent 's witnesses , (2) refused to admit into evidence certain
documents offered by Respondent, (3) is admittedly a friend of another
Administrative Law Judge who had at one time issued a Decision and Order
adverse to Respondent, and (4) conducted the hearing in a prejudicial
manner by his "[frequently antagonistic ) demeanor towards all of
management's witnesses," and by continually "cross-examining" witnesses
We find nothing in the record which reveals that the Administrative Law
Judge's conduct of the hearing , rulings on evidence, and resolutions of
All production and maintenance employees in-
cluding janitors and truckdrivers employed at the
Respondent's plant located at 2601 Enon Road,
Enon, Ohio, but excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
credibility were the result of bias or prejudice . See, e g , United Aircraft
Corporation, 192 NLRB 382. Neither does the record show that he had
prejudged the case, or that his "friendship" with another Administrative
Law Judge in any way affected the conclusions he reached in this case. Nor
do we find anything in the record which suggests that the Administrative
Law Judge, by his questioning of witnesses , was doing anything other than
attempting to inquire fully into the facts. See Sec. 102 35, Board's Rules and
Regulations , and 5 U.S.C. §556(d) Accordingly, we find Respondent's
assertions of bias and prejudice to be wholly without merit.
3 We agree with Respondent that it is neither "coercive" nor an illegal
"inducement" for an employer to express the view, either in prose or in so-
called poetry, that his plant would be a happier place without a union.
However, since we agree with the Administrative Law Judge's findings that
Respondent was under a duty to bargain with the Union at the time it
caused the poem to be distributed, we find such distribution to have been
part and parcel of Respondent 's campaign to undercut the majority
representative, and thus unlawful solely for that reason
4 In the section of his Decision entitled "Conclusions" under subsection
4 thereof, the Administrative Law Judge inadvertently stated that strikers
Brenda Miller, Ruth (Smith) Wilson, Claudette Adams, Sally Vermillion,
and Ruth Smouse reported at the plant on September 22. The correct date
should read September 25
The Administrative Law Judge found various independent violations of
Sec 8(a)(1), but did not specifically include them in his recommended
Order. We agree with his conclusions and, accordingly, we shall issue an
Order modifying the recommended Order of the Administrative Law Judge
to remedy these violations.
211 NLRB No. 30
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Discharging or otherwise discriminating in
regard to the hire and tenure of employment and any
term or condition of employment of any of its
employees specifically including refusing to reinstate
the strikers because of their membership in or
activities on behalf of Local 682, International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), or any
other union of their choice.
(h) In any manner interfering with, restraining, or
coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join
or assist Local 682, International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request bargain collectively in good faith
with Local 682, International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), as the exclusive
representative of Respondent's employees in the
appropriate unit above found with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment and, if an under-
standing is reached, embody same in a written,
signed agreement.
(b) Offer to each of the following 14 unfair labor
practice strikers immediate and full reinstatement to
his former job with adequate protection against any
actions by its nonstriking employees or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, discharging, if need be, any employee
hired after June 19, 1972, and make each whole for
any loss of pay he may have suffered by reason of the
discrimination against him in the manner set forth in
the section of the Administrative Law Judge's
Decision entitled "The Remedy," with interest
thereon at 6 percent per annum:
Larry Hubbard Ruth Smouse
Richard Myers Barbara Page
Wayne Suttles Phyllis Prugh
Brenda Miller Dona Robinson
Ruth (Smith) Wilson Jan Wilson
Claudette Adams Martha Russell
Sally Vermillion Hilda Frey
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its plant in Enon, Ohio, copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
5 In the event that this 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively in
good faith with Local 682, International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), as the
exclusive representative of Respondent's employ-
ees in the appropriate unit set forth below with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment and, if an agreement is reached, we will
embody the same in a written, signed agreement.
The appropriate unit is as follows:
All production and maintenance employees
including janitors and truckdrivers em-
ployed at the Respondent's plant located at
2601 Enon Road, Enon, Ohio, but excluding
all office clerical employees, professional
employees, guards and supervisors as de-
fined in the Act.
WE WILL offer to the 14 unfair labor practice
strikers named below immediate reinstatement of
their former jobs with adequate protection against
any actions by our nonstriking employees or, if
those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
MUNCY CORPORATION 265
seniority or other rights and privileges, and WE
WILL pay them for any loss of pay they may
have suffered by reason of our discrimination
against them together with interest thereon at 6
percent annum. These unfair labor practice
strikers are: Larry Hubbard, Richard Myers,
Wayne Suttles, Brenda Miller, Ruth (Smith)
Wilson, Claudette Adams, Sally Vermillion, Ruth
Smouse , Barbara Page , Phyllis Prugh, Dona
Robinson, Jan Wilson, Martha Russell, and Hilda
Frey.
WE WILL NOT at any time engage in provoca-
tions of violence or assaults directed at persons
engaged in activities on behalf of Local 682,
International Union, United Automobile, Aeros-
pace and Agricultural Implement Workers of
America (UAW), or any other labor organization.
WE WILL NOT interfere with the posting of
informational picket signs by the above-named
labor organization or any other labor organiza-
tion by tearing down and removing said signs
which neither are attached to, or appear on, our
property.
WE WILL NOT promise employees economic
benefits in order to discourage membership in,
sympathy for, support of, or activity on behalf of
the above-named labor organization or any other
labor organization.
WE WILL NOT tell employees that we will not
sign a collective-bargaining agreement with the
above-named labor organization.
WE WILL NOT instigate , prepare, or promulgate
decertification petitions or employee resignation
letters from the above-named labor organization
or any other labor organization.
WE WILL NOT in any manner interfere with,
restrain , or coerce our employees in the exercise
of their right to self-organization, to form, join, or
assist Local 682, International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), or any other
labor organization of their choice, to bargain
collectively through a bargaining agent chosen by
our employees, to engage in concerted activities
for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any
such activities.
MUNCY CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge duly filed on June 20, 1972, by Local 682,
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW),
herein referred to as the Charging Party or the Union, the
General Counsel of the National Labor Relations Board,
herein referred to as the General Counsel' and the Board
respectively, the Regional Director for Region 9 (Cincin-
nati , Ohio), issued its complaint dated July 31, 1972, and
entitled "Complaint and Notice of Hearing" in Case
9-CA-7118 against Muncy Corporation, herein referred to
as the Respondent.
Upon a charge in Case 9-CA-7356 duly filed on October
18, 1972, and upon a charge in Case 9-CA-7327-1 duly
filed on October 5, 1972, and a charge in Case
9-CA-7327-2 duly filed on October 6, 1972, the said
General Counsel, over the signature of the Acting Regional
Director for Region 9, issued its complaint entitled
"Consolidated Complaint and Notice of Hearing" dated
December 15, 1972, against Respondent.
The "complaint" in Case 9-CA-7118 alleged that
Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and (5) and 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, herein
referred to as the Act.
The "consolidated complaint" alleged that Respondent
had engaged in, and was engaging in, unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and (3) and 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, herein referred to as the
Act.2
Respondent duly filed separate answers to the "com-
plaint" and to the "consolidated complaint" admitting
certain allegations of those documents but denying the
commission of any unfair labor practices. Paragraphs 5
and 6 of Respondent's answer in Case 9-CA-7118 read as
follows:
5. The Respondent further charges the truth to be
that the Regional Director acted arbitrarily and
capriciously in issueing [sic] the complaint because the
I This term specifically includes the attorneys appearing on behalf of the
General Counsel at the hearing
2 As I have written in a multitude of previous cases in this and other
regions in cases similar to these, it seems to me that convenience and good
practice requires that in the consolidation of numerous cases , such as the
instant one, a final consolidated complaint encompassing the allegations of
all the consolidated cases set for one hearing should be typed in a single
document.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent requested an investigation of his Region 9
in the following cases: Muncy Corp. (Stemun Mfg.
Co.,) Case Nos. 9-CA-3189, 9-CA-6815, 9-CB-2183,
9-CA-7118, 9-CA-7170; Recto Molded Products, Inc.
Case No. 9-CB-1824 and; [sic] Miami Cement
Products, Inc. Case Nos 9-CB-2165 and 9-CC-656
filed with the General Counsel in Washington, D.C.
6. The Respondent further charges that the Regional
Director is biased against Randall E. Muncy and
Harvey B. Rector because he was reversed in a charge
of fraud against the Stemun Mfg. Co., now Muncy
Corporation, by a three (3) Judge panel of the U.S.
Sixth Circuit Court No. 19438, Case No. 9-CA-3189
and 9-CA-6815.3
Pursuant to notice a hearing on the "complaint" and
"consolidated complaint" was held before me in Spring-
field , Ohio , on September 11-14, and 18 -20, 1973. All
parties appeared at the hearing , were represented by
counsel or by labor consultants , and were afforded full
opportunity to be heard , to produce and cross -examine
witnesses , and to introduce evidence material and pertinent
to the issues . At the conclusiu. of the hearing oral
argument was waived . Briefs were received from General
Counsel and Respondent on October 29, 1973.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The complaints alleged, the answers admitted, and I
therefore find that: Muncy Corporation is an Ohio
corporation engaged in the manufacture and sale of
pressed metal products from its plant at Enon, Ohio.
During the past 12 months, which is a representative
period, Respondent had a direct inflow of products in
interstate commerce valued in excess of $50,000 which it
purchased and caused to be shipped from points outside
the State of Ohio directly to its Enon, Ohio, location.
During the same period Respondent had a direct outflow
of products in interstate commerce, valued in excess of
$50,000 which it sold and caused to be shipped from its
Enon, Ohio location directly to points outside the State of
Ohio.
Accordingly, I find that Respondent is now, and has
been at all times material herein , an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 682, International Union, United Automobile,
3 At the commencement of the instant hearing Respondent objected to
the introduction of G.C. Exh. 1, the formal papers in the instant case, on the
grounds that said formal papers were "incomplete" in that they did not
contain certain documents which Respondent contended would prove the
allegations of paragraphs 5 and 6 of its above answer.
Among other such documents Respondent desired included the decision
of the Circuit Court of Appeals for the Sixth Circuit, 423 F.2d 737, April 2,
1970, in the Stemun Mfg. Co. case, which overturned in part two Board
decisions, 153 NLRB 1278 and 174 NLRB 288, holding, as had two
Aerospace and Agricultural Implement Workers of Ameri-
ca (UAW), is a labor organization admitting to member-
ship employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Refusal to bargain
Following an election in which the Union here was
selected by Respondent's employees in an appropriate unit
as their bargaining agent, Respondent and the Union
entered into a collective-bargaining agreement on June 21,
1971. This contract was an "open shop" contract, i.e.,
containing no union-security clause , of 1-year duration.
Thereafter some 35 of Respondent's 57 employees volun-
tarily signed union checkoff authorizations.
The above agreement had been negotiated for the Union
by its then Business Agent Troyer. In November 1972
Troyer was replaced by Ronald Mason as the union
official in charge of the union affairs at Respondent's
plant.
In November Mason attended his first grievance meeting
with Respondent at Respondent's plant. During this
meeting which on occasions grew heated, Respondent's
President Randall E. Muncy became profane towards
Mason and, in fact, impuned his ancestry. Mrs. Glenna
Muncy, the president's wife, even got into the act by
referring to Mason as a "g-d-liar." At the hearing the
Muncys attempted to justify their behavior at this meeting
on the grounds that Mason had remarked early in the
meeting that he was "going to try Muncy on for size." This
antisocial name calling was repeated at other similar
grievance meetings between these parties.
In fact Plant Superintendent Danny Palmer admitted to
having called Mason a "redhaired s.o.b." and challenging
Mason to go outside into neighboring Enon Park and
"settle it."
In all there were some 21 or 22 grievances handled after
Mason's arrival. Some even went to arbitration. On one
occasion Muncy refused to proceed with arbitration until
the arbitrator assured him that he intended to hear the
Union's case regardless. Respondent has refused to abide
by one arbitration award and has appealed that award to
the courts.
About February 2, 1972, Muncy objected to employee
Brenda Miller, a plant union committeewoman, that "You
know you don't have to sign grievances, any stupid
grievance you don't agree with" and added that all the
union representatives were "nothing but troublemakers
and all they did was to agitate trouble."
different Trial Examiners , that it had not been proved to be a fraudulent
document, but sustaining those Board decisions as to the discriminatory
discharge of three of the four employees involved.
At this time I indicated my skepticism that paragraphs 5 and 6 of
Respondent 's answer above constituted a defense in the instant case.
However at the conclusion of the hearing when General Counsel moved to
strike the above paragraphs from the answer , I denied the motion
exclusively on the grounds of the lateness thereof.
MUNCY CORPORATION 267
The relationship between Respondent's management
and Union Representative Mason was not congenial.4
In April 1972,5 a letter was typewritten which read as
follows:
April 5, 19726
Mr. Ron Mason
Tower Building
1240 E. Main Street
Springfield, Ohio 45503
Dear Mr . Mason:
Re: U.A.W. Local 682
I give notice immediately to withdraw from the
U.A.W. Local 682.
Catheline Mann (Dennison) (Kathy Mann) 7 testified
that she had this letter typed by a neighbor of hers. She did
not know the neighbor's name. She then took the typed
letter and had some 20 copies thereof xeroxed at a store in
town. Mann took these xeroxed resignation letters back to
the plant where she and employee Rena Bowman kept
them available for any union member who desired to
resign from union membership. After each "resigning"
member of the Union had signed two copies of this
document, Mann and Bowman retained the signed letters
for future use. As Mann frequently volunteered during her
testimony, all this work was done "on breaks or lunch-
time ." This was so due to the fact that Mann knew that
Respondent had a "no solicitation" rule in the plant.
Despite this volunteered information, Mann admitted that
employees came to her work bench for these letters or she
went to theirs for the signature. Other witnesses corrobo-
rated the fact that much of this activity occurred at the
workplace. One testified that Mann brought the letter to
her while she was "setting up her press." The truth of
Mann's volunteered time limitation is doubtful.
At some unknown time some 16 union employees
executed the above letters in duplicate. Mann and
Bowman retained these letters in their possession until
advised that it was the time to mail them.
On May 23, after giving due and proper notice to all
necessary federal and state agencies, the Union sent
Respondent its contract proposals for the next year's
contract and requested negotiations thereon. It was agreed
that the parties would hold their first negotiation meeting
on this proposal on June 9.
On June 6 "Head Mechanic"8 Frank Fisher notified
Kathy Mann that it was time to send off the letters of
resignation to the Union and to Muncy. Mann's daughter
thereupon addressed the envelopes to Mason and to
Respondent with the employees' return address thereon.
The dual letters were then posted, registered mail with
return receipt requested at a cost of $1.16 each.
Mann originally testified that Fisher supplied the stamps
for the postage. Then she testified that at the time the
letters were executed she collected $2 apiece from the
signers. Then, apparently acting upon the assumption that
the postage amounted only to $1.16 per employee, Mann
testified that she returned some money to the contributing
employee after posting. Finally, when it was pointed out to
her that the cost of postage for letters so mailed to the
Union and to Respondent would be $2.36 per employee,
Mann testified that she herself paid the 36 cents for each
employee. Mann had been a well-coached witness on the
no-solicitation clause but not on the mathematics of the
situation. Her testimony was not credible.
Indeed there is an indication that these letters of
resignation were typed in Respondent's office by Respon-
dent's secretary. The date "April 5, 1972" was typed at the
left margin at the top of the page. This is a rather unusual
place for the date on a letter. It is, however, the location of
the date on every letter typed in Respondent's office.
On June 9 Labor Consultant Harvey Rector with Plant
Manager Wagoner, Palmer and Comptroller Patton9 met
with Mason accompanied by the plant union committee
consisting of Brenda Miller, Ruth (Smith) Wilson and
William Pope. For 2 hours they discussed the Union's
proposal which had been submitted on May 23. The Union
had proposed a union security clause as Article II. Rector's
discussion of this consisted of one word: "No." Mason was
equally adamant but equally unsuccessful. Rector accepted
all the terms in the proposal which were identical with
those in the expiring contract but rejected all new terms.
No new agreement was reached except that the parties
would meet again on June 19.
Employee Rena Bowman knew that Respondent had no
intention of reaching a collective-bargaining agreement
with the Union because Muncy had informed her a
number of times that there would be no signed agreement
with the Union "come hell or high water." But under date
of June 13, 1972 the following handwritten letter was sent
by Respondent:
JUNE 13, 1972
Dear Sir:
A majority of the workers at the Muncy Corp. have
filed for an election with the N.L.R.B. because we don't
want the U.A.W. to represent us any longer.
We are asking you not to sign any contracts with
them.
4 This antagonism existed even as of the date of the instant hearing As
he walked past counsel table at which Mason sat at the conclusion of his
testimony in the instant hearing Plant Superintendent Palmer became
pugnacious, accused Mason of calling him "a har" and had to be ordered to
his seat
5 All dates hereinafter are in the year 1972 unless other specified
6 The typewritten date "April 5" shows with clarity on General Counsel's
Exhibit 29 J even through the superimposed handwritten inked date of
"June 6" The same typewritten date shows on the other Exhibits in the
General Counsel 's Exhibit 29 series except that the attempted erasure on
certain of them was better than on General Counsel's Exhibit 29 J
7 The transcript incorrectly spells her first name as "Kathaleen " She will
be referred to herein , as she was at the hearing, as "Kathy Mann"
8 Fisher testified that the only significance in this title was that he had
greater senionty than the other four mechanics in the department
9 Rector prevailed upon Muncy to absent himself from this meeting
because of his antagonism to Mason
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
COMMITTEE FOR ELECTION
/s/ RENA M. BOWMAN
/s/ ToMMY JOHNSON
/s/ FRANK M. FISHER
On or before June 13 either Muncy or Palmer handed
employee Rena Bowman in the plant a petition with the
typed heading reading as follows:
We, the undersigned, don't want Local 682 of the
UAW to represent us as our collective bargaining
agent . We request an election for decertification of the
UAW.
Rena Bowman spoke to the employees in the plant and
secured their signatures thereon, again "at lunch time and
on breaks," but according to her, not while they were
working. Thirty-four employees, including Bowman,
signed the petition.
At or about the same time Bowman was called to the
office where she signed an NLRB form petition for a
decertification election. This form was, with the exception
of Bowman's signature, typed and prepared for her in
Respondent's office before she executed it. The RD
petition and the employee's petition were placed in an
envelope addressed in typewriting to the Ninth Regional
Office by Respondent's secretary. It was then sealed and
handed to Bowman with instructions to mail the same.
This RD petition was received at the Regional Office on
June 16 and became Case 9-RD-564.
On that same day, June 16, 1972, Respondent over the
signature of H.B. Rector notified the Union by letter as
follows:
RE: MUNCY
CORPORATION
NEGOTIATIONS FOR NEW
CONTRACT
Dear Mr. Mason:
At the conclusion of our bargaining meeting, in your
office, June 9, 1972 we promised to submitt [sic] our
final offer on the economic issues June 19, 1972.
However, since that time we have recieved [sic] notice
that a majority of our employees have filed a petetion
[sic] with the NLRB for a decertification election thus
raising a legal question of representation. Therefore,
under the circumstances, we are not at liberty to sign
an agreement with your Union until the question of
representation is determined by the NLRB. If your
Union is not decertified we will be pleased to continue
negotiations and to sign a contract.
In view of the above we see no reason for the
meeting June 19th. 10
10 On the alleged legal point raised in the letter see Rogers Mfg. Co. v.
N. L. R. B.,486 F.2d 644 (C.A. 6, 1973).
11 The dismissal of Case 9-RD-564 was actually accomplished by letter
of the Regional Director dated June 29.
12 On this point Bowman may have been mistaken for the reason that no
such second signed petition was introduced in evidence by the General
Accordingly the scheduled meeting of June 19 was not
held despite unsuccessful telephone calls by Mason.
On the evening of Tuesday, June 20, about 25 members
of the Union attended a union meeting at which it was
voted to strike Respondent because of its refusal to
bargain. Pickets with picket signs announcing that the
Union was on strike appeared on the morning of June 21.
This picketing continued until September 22 when the
union members on strike voted to call off the strike and
return to work.
Also on June 20 the Union over the signature of Ronald
E. Mason, international representative, filed a charge
against Respondent alleging that "on or about June 16,
1972" Respondent had refused to bargain with the Union
in violation of Section 8(a)(1) and (5) of the Act. This
charge was filed with the Regional Office on that same
date and became Case 9-CA-7118.
On June 22 Rena Bowman was notified by telephone by
a field examiner of the Regional Office that it was the
Regional Director's intention to dismiss her petition in
9-RD-564 as being untimely filed.1'
Upon receipt of this information Rena Bowman con-
ferred with Muncy and inquired as to the next move.
Muncy answered that "we would have to file another
petition."
So the process gone through on or about June 13 was
repeated again in detail . Respondent's office typed out a
new RD petition for Bowman's signature. Respondent's
secretary also apparently typed out another petition for the
employees to sign similar to that attached to the previous
RD petition. According to Bowman , "I received that [the
already typed petition] in the Company office and I took it
around to the employees and got their signatures." 12 For a
second time the envelope enclosing the new RD petition
was typed in Respondent's office and handed to Bowman
for mailing after signing . The new RD petition indicated
that a strike was in progress.
This new RD petition was filed in the Regional Office on
June 26, 1972, and became Case 5-RD-565.
By letter dated June 29 the Regional Director notified
Rena Bowman that Case 9-RD-564 was dismissed as
prematurely filed. As was customary with all such
correspondence from the Regional Office to her, Bowman
took this letter into Respondent where it was discussed
with Muncy or Patton.
All was not altogether peaceful on the picket line. These
instances will be discussed hereinafter.
On July 6 Respondent and the Union met and discussed
certain pending grievances. There was no attempted
negotiation of the new contract at this meeting. It was on
this occasion Palmer referred to Mason as a "redheaded
s.o.b." and offered to go outside into neighboring Enon
Park and "settle it." 13 The challenge was ignored.
Under date of July 10 Harvey Rector for Respondent
sent the Union the following letter:
Counsel . However the first signed petition had been copied by the
Respondent's office so that a copy no doubt was submitted with the RD
petition if no second employee petition was signed . Bowman perhaps was
describing her activities with the first employee petition.
13 Mason is redhaired.
MUNCY CORPORATION 269
RE: MUNCY CORPORATION
LETTER DATED JUNE 16,
1972
UAW Local 682 because you no longer represent a
majority of the employees of the Muncy Corporation.
On August 29 Mason wrote Rector as follows:
SIGNED BY HARVEY E.
RECTOR
Dear Mr. Mason:
I have been informed that you considered my letter
to you , dated June 16, 1972, a refusal to bargain with
the UAW.
I can assure you that my intentions were to remain
nuetral [sic ] until the question of representation was
resolved. I did not and will not refuse to bargain with
your Union so long as it is the exclusive collective
bargaining agent for a majority of the employees of the
Muncy Corporation . Therefore, should you wish to
schedule other meetings , the Company committee will
be pleased to meet with you.
The purpose of the June 16 letter was to inform you
that I have been notified by a majority of the
employees that they no longer wanted you to represent
them and had filed a petition with the NLRB. I
assumed that the meeting scheduled for June 19th,
would not be in the best interest of either party.
However, after your Union struck the plant with a
minority group and I was informed that the NLRB had
refused to process their petition , I filed the RM petition
in behalf of the Company. I also filed an 8(b)(7XC)
charge against your Union . However, the NLRB has
now informed me that the RD petition is now in
process and I have withdrawn all charges against your
Union, including the RM petition.
I trust this clarifies the situation and paves the way
for a better relationship between all parties concerned.
The meeting requested by you July 3, 1972 may be
held at your convenience.
As a result a second negotiation meeting was scheduled
for July 18 in Springfield , Ohio . This meeting was attended
by Mason with a union committee and Respondent by the
two Rectors, Palmer, Wagoner, and Patton . Rector for the
Company offered the employees a I 2-1/2-percent wage
increase and stated that the Company would grant no
other concessions except those granted on June 9. That
statement constituted the whole of the negotiations at this
meeting . The meeting consumed 5 minutes.
On July 25 the Union sent Respondent a new contract
proposal which also included the union-security clause.
Thereafter the Union attempted to set up further
meetings for the negotiation of the new contract by
telephone and by letter. These efforts were universally
unsuccessful.
On August 22 Gregory Rector for Respondent wrote
Mason in pertinent part as follows:
In regard to contract negoitiations [sic], the Compa-
ny after careful consideration of all facts as to our
position, feels that we cannot legally bargain with
14 It is interesting to note that carbon copies of all of Respondent's
correspondence with Mason was sent to the Regional Director or field
In reply to your of August 22, 1972, I am trying hard
to understand just what your position is, as it relates to
working out a new agreement, because in one letter you
state you are ready and willing to meet, in the next
letter you aren't, then again you are. Now you say
"No" to a meeting.
During our telephone conversation on or about
August 22, 1972, you stated you were concerned about
our proposal for a union security clause so I am hereby
withdrawing the proposal for a union security clause
and propose we continue with the existing language.
Please let me know just as soon as possible when we
can meet on the other issues.
I will attempt to reach you by telephone today, but
in the event I am unable to do so I will appreciate an
early reply.
On September 18 Gregory Rector answered Mason as
follows:
In accordance with our telephone conversation of
Thursday, September 14, 1972; I am sending this
restatement of the position of the Muncy Corporation
as it regards the UAW.
The management is willing to meet on and, if,
necessary, arbitrate those grievances which arose
during the contract period just ended.
We are pleased to hear that those employees still
members of the Union have accepted the Company's
counterproposal as presented at our last meeting.
However, as I stated on the telephone, the Company
feels that it cannot, in good faith, sign a contract with
your union as it is now obvious to all that the UAW no
longer represents a majority of the employees at the
Muncy Corporation. We, therefore, will have to wait
until the National Labor Relations Board can deter-
mine the proper course of action for us to follow.
Please feel free to contact this office at any time.14
On Friday, September 22, the strikers attended a union
meeting and voted to call off the strike and to return to
work unconditionally. All the strikers returned to work at
7:30 on Monday, September 25. They were greeted by
Danny Palmer who instructed each to enter the office and
sign a paper there signifying their intention to return
unconditionally together with any new address or tele-
phone number they may have acquired in the meantime.
Nick Bishop instructed them that they would be notified
when they were to return to work.
No further negotiations took place between the parties.
No contract has been agreed upon. In fact no striker with
the exception of Jeffery Carter, who was proved to have
been on Respondent's payroll as a labor spy during his
period on the picket line, has ever been reinstated by
Respondent.
examiners of Region 9.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
The facts here, as the saying goes , are perfectly clear.
Negotiations between the certified Union and Respon-
dent began as early as May 25 when the Union submitted
its proposals for a new contract to succeed that expiring on
June 20, 1972. One negotiation meeting was held on June 9
at which Respondent agreed to accept all the terms in the
expiring contract but none of the terms in the new
proposal. The result was that the parties agreed to continue
their negotiations on June 19.
In the meantime, however, Respondent through Muncy
announced to employee Rena Bowman and other antiun-
ion employees that Respondent would not sign another
contract with the Union "come hell or high water."
Respondent was also working behind the scenes through
Kathy Mann and Rena Bowman and others getting
employees to sign "resignations" from the Union. In
addition it composed, typed, and prepared a decertification
petition together with employee petitions on behalf of the
same which it permitted Bowman and others to circulate in
and about the plant during worktime as well as on "breaks
and lunchtime" for the signatures of its then nonstriking
employees despite Respondent's "no solicitation" rule. On
June 13 Respondent called employee Bowman to the office
to execute this already typed decertification petition with
its typed envelope addressed to the Regional Office in
Cincinnati together with instructions that Bowman mail
the same. Also Respondent permitted the circulation of an
antiunion poem with copies placed near the timeclock for
its employees.15 Indeed Plant Superintendent Palmer
himself admittedly circulated this poem. Palmer's attempt-
ed explanation for this activity was that this poem did not
constitute solicitation. No intelligent human being could
have seriously believed this. Further on June 13 Respon-
dent had Bowman give Respondent a handwritten letter
requesting Respondent not to sign another contract with
the Union.t6
Thus reinforced, Management Consultant Harvey Rec-
tor on behalf of Respondent wrote on June 16 cancelling
the scheduled June 19 negotiation meeting on the grounds
that "a majority of our employees have filed a petetion [sic]
with NLRB for a decertification election thus raising a
legal question of representation" so that, according to
Rector, Respondent was "not at liberty to sign an
agreement" with the Union.
Upon receipt thereof the Union promptly filed a charge
against Respondent of refusing to-bargain.
15 This poem read:
When June arrives, let 's make it a date,/To throw out the union, which
causes hate ./Let's get rid of them once and for all./Make this a happy
place again and not so dull./They only cause^trouble wherever they god
They take your money, try to make a great show.
After a year, just what have they done?/ Besides reach out their hand
like,a bum. /it's a rotten organization in every way./Why on earth would
you want them to stay?/The reason for this, we are all aware/It's an
organization that doesn't care.
You needed work, when you came to apply,/So the word of your
superiors, you should reply,/They gave you work when you were in
need ./ So return the favor, and do a good deed./The U.A.W. is not
interested in you or me ,/Only what they get "Those Union Fee's".
This letter constitutes a clear-and blatant-refusal to
bargain by Respondent in violation of Section 8(a)(1) and
(5) of the Act.
In the very recent (October 24, 1973) case of Rogers Mfg.
Co. v. N.L.R.B., 486 F.2d 644, the Circuit Court of Appeals
for the Sixth Circuit had the following to say regarding a
very similar situation:
We turn to the issue arising out of the Company's
suspension of negotiations. This Court has recently
held that under some circumstances an employer may
be warranted in refusing to bargain with a union about
whose majority he has a good faith doubt, see N.L.R.B.
v. Dayton Motels, Inc., 474 F.2d 328, 331-32, 82 LRRM
2651 (Sixth Cir. 1973), but the mere filing of a
decertification petition is of itself insufficient justifica-
tion. Cf. Allied Industrial Workers, AFL-CIO Local
Union No. 289 v. N.L.R.B., 476 F.2d 868, 881, 82
LRRM 2225 (D.C. Cir. 1973). Rather, evidence
indicating that a good faith doubt was reasonably
grounded must be advanced. Contrary to the Compa-
ny's argument, however, the fact that certain employees
would not support the strike or that replacement
employees were hired is insufficient evidence that the
employees have repudiated the Union as its bargaining
representative. See Allied Industrial Workers, AFL-CIO
Local Union No. 282 v. N.L.R.B., supra. As a matter of
fact, a company's engagement in unfair labor practices
during the strike, such as are hereinafter discussed, the
demand for superseniority , casts a shadow on allega-
tions of good faith. We agree with the Board that the
Company has not met its burden in this respect.
Upon receipt of Respondent's letter cancelling the June
19 negotiation meeting on the aforementioned ground,
thus refusing to bargain, the Union voted to and did go on
strike beginning June 20 because of Respondent's unfair
labor practices. This was, of course, an unfair labor
practice strike.
Apparently recognizing the illegal position it had
assumed therein, Rector by letter dated July 10 wrote after
the dismissal of that decertification petition that the Union
had misunderstood Respondent's June 16 letter and agreed
to another negotiating meeting with the Union on July
18.17
Upon receipt of the information on June 22 by telephone
that Bowman's first decertification petition (9-CD-464)
would be dismissed on the grounds that it had been
So let's throw them out, and start again./Make apologies and make
amends ./So we all can be happy, lucky and friends/And smile at each
other once again.
OUT WITH THE U.A.W.
O.K.?
16 Bowman recognized from Muncy's "come hell and high water"
comments that this letter was nothing but window dressing.
17 Respondent contends in its brief that Respondent "continued
bargaining as early as July 6 in the form of an arbitration case" on a
previously filed grievance. On July 6 nothing was said about negotiations.
In fact the time there was consumed by Respondent refusing to participate
in the arbitration scheduled until the arbitrator stated that he would hear
the Union's case regardless of what Respondent did.
MUNCY CORPORATION
prematurely filed, Respondent again returned to working
behind the scenes with Muncy's instructions to Bowman
that "we will just file another decertification petition." So
Respondent had another NLRB form of decertification
petition typed up in its office and called Bowman into that
office to execute the same as she had done for Respondent
previously. This decertification petition was filed with the
Board on June 26 and became 9-RD-565 which was
ultimately dismissed by the Regional Office on December
21, 1972.
The meeting held on July 18 between Respondent and
the Union was short, 5 minutes, during which Respondent
offered a 2-1/2-percent wage increase but refused to even
discuss any of the new contract proposals. There was no
discussion. There was only this ultimatum from Respon-
dent. Such does not qualify as "negotiations" as defined in
the Act. Again Respondent refused to bargain in violation
of Section 8(aX5) of the Act.
Once again Respondent began working behind the
scenes with Rena Bowman. Twice the Regional Director
sent letters to Bowman explaining the Region's actions in
dismissing Case 9-RD-564. Twice Respondent typed out
responses to said Regional Director for Bowman's signa-
ture together with the signatures of other working
employees which Bowman solicited in the plant despite the
..no solicitation" rule. The first such Respondent-prepared
answer had 38-39 signatures thereon, all secured according
to the document on August 4. The second such answer to
the Regional Director dated August 23, 1972, contains 50
signatures, including Bowman's, all dated August 25.18
As though to confirm the above findings, Respondent by
letter dated August 22 announced to the Union that it
"cannot legally bargain with UAW Local 682 because you
no longer represent a majority of the employees of Muncy
Corporation."
Finally after the Union announced to Respondent on
September 18 its acceptance of Respondent's "final offer"
made on July 18, Respondent made its position crystal
clear in its letter of September 18:
The Company feels it cannot, in good faith, sign a
contract with your Union as it is obvious that to all that
the UAW no longer represents a majority of the
employees of the Muncy Corporation. We, therefore,
would have to wait until the National Labor Relations
Board can determine the proper course of action for us
to follow.
Thus did Respondent make good on Muncy's promise to
Bowman and other employees that Respondent would not
sign a contract with the Union "come hell or high water."
Respondent here defends its obvious refusals to bargain
on two grounds: (1) the filing of the two decertification
petitions by Bowman; and (2) an alleged "good faith
doubt" as to the Union's continuing majority status.
The first string to Respondent's bow is removed by the
decision in the Rogers Manufacturing Co., case quoted
supra. That same decision also holds, as to the second
string to Respondent's bow, "Rather, evidence indicating
is This long communication reads like Respondent's brief. If these 50
signatures were all solicited and secured during "breaks and lunchtime," it
271
that a good faith doubt was reasonably grounded must be
advanced" by the party claiming that doubt.
Here Respondent bases its alleged "good faith doubt"
upon the fact that 16 employees signed letters resigning
from the Union, that "70.2 percent" of its employees
remained at work during the strike and executed the
various and sundry petitions and correspondence prepared
by Respondent in favor of holding a decertification
election.
Under the circumstances proven to exist here I find that
none of the above-claimed evidence was "reasonably
grounded" here because of Respondent's own interference,
restraint, and coercion of its own employees in procuring
all the so-called evidence noted above. All of that so-called
"evidence" was instigated, prepared, promulgated, and
procured by Respondent acting either on its own or
through agents, overt or covert.
In the first place Muncy's own "come hell or high water"
statement to the employees regarding the possibility of
signing a union contract amounted to a violation of
Section 8(a)(1) as well as (5) by discouraging membership
in the Union through showing the utter futility of the
employees continuing their union representation. That
Muncy's statement was Respondent's policy was further
demonstrated by Palmer's distribution of the antiunion
poem to employees in the plant and permitting its presence
in the plant contrary to Respondent's "no solicitation"
rule, another violation of Section 8(a)(1).
The alleged resignations from the Union were also
prepared by Respondent and likewise not "well grounded"
despite Kathy Mann's attempt to prove that Respondent
had nothing to do with the instigation, preparation, or
distribution of these letters for the simple reason that again
Respondent permitted the solicitation of signatures thereto
in the plant contrary to its no-solicitation rule. Mann's
testimony in regard thereto, as noted heretofore, is so
confusing and conflicting as to be totally unbelievable.
Nor does the evidence permit Respondent to base its
"reasonable doubt" upon the "70.2 percent" of the
employees who signed the various and sundry petitions
and letters allegedly backing the decertification election.
This so-called evidence is subject to the same infirmities as
noted above. All these petitions and letters were instigated,
composed, typed, and prepared for mailing by Respon-
dent. In addition thereto the signatures thereon were once
again solicited and procured by its willing tool or agent,
Rena Bowman,19 with Respondent's acquiescence and
consent in violation of its own no-solicitation rule. Once
again this "proof" resulted from Respondent's unfair labor
practices in violation of Section 8(axl). The signatures
resulted from these unfair labor practices rather than as an
expression of the employees ' own free rejection of union
representation. Once again the strategy was devised and
executed by Respondent itself even though executed in
part in the person of Rena Bowman.
Rena Bowman was antiunion from the beginning. She
was still admittedly antiunion at the time she testified in
the instant matter. Like Mann, Bowman was sworn in as a
witness. Unlike Mann, Bowman took her oath seriously.
was an exceptionally well coordinated drive.
19 See Waigreen Co., 206 NLRB No. 15.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She testified to the truth and to nothing but the truth as she
knew it to be. If she did not testify to the "whole truth"
while a witness, it was only because the question was not
asked as she volunteered nothing while a witness. By so
doing Bowman definitely let the cat out of the bag.
Admittedly Bowman knew nothing about the law.
Admittedly, except by Muncy, she received a "lot of
advice" from all of Respondent's management including,
as will be shown infra, some very important advice from
Harvey Rector, Respondent's management consultant. The
strategy of these decertification petitions was devised by
Respondent. The necessary papers and letters were
composed, typed, and prepared by Respondent. And
Bowman , as Respondent's tool or agent, was told to sign
same and permitted to solicit and secure employees'
signatures in and about the plant with Respondent's
knowledge, consent, and instruction, again disregarding
the no-solicitation rule. Although unlike Jeff Carter,
Bowman was apparently not paid for this covert or overt
work she performed for Respondent, she was, in fact
throughout acting for and on behalf of Respondent under
Respondent's suggestion or instruction. Once again Res-
pondent violated Section 8 (a)(1) by so using employee
Bowman as its antiunion agent. Hence these signatures
from the "70.2 percent" of the employees is not the "well
grounded" evidence required of Respondent in order to
prove its alleged "good faith doubt." Accordingly, as in the
Rogers case, I must find that the Company had not met its
burden in this respect.
It is settled law that the asserted doubt of majority "must
not have been raised . . . in a context of antiunion activities,
or other conduct by the employer aimed at causing disaffec-
tion from the Union or indicating that in raising the
majority issue the employer was merely seeking to gain
some time in which to undermine the Union." 20
The cases also hold that "Section 8(a)(1) of the Act
makes it unlawful for an employer to instigate and
promote a decertification proceeding or induce employees
to sign any other form of union repudiating document,
particularly where the solicitation is strengthened by
express or implied threats of reprisal or promise of
economic benefit." N.L.R.B. v. Birmingham Publishing
Company, 262 F.2d 2, 7 (C.A. 5, 1958); accord: N.L.R.B. v.
Parma Water Lifter Co., 211 F.2d 258 (C.A. 9, 1954), cert.
denied, 348 U.S. 829; Hinson v. N.L.R.B., 428 F.2d 133,
(C.A. 8, 1970); Boren Clay Products v. N.L.R.B., 419 F.2d
385 (C.A. 4, 1970).
It is also well settled law that "petitioner [the employer]
cannot, as a justification for its refusal to bargain with the
Union, set up the defection of union members which it has
induced by unfair labor practices, even though the result
was that the Union no longer had the support of a
majority." 21
Hence since any loss here in the Union's majority status,
as Respondent well knew, was directly attributable to
Respondent's own unfair labor practices in instigating and
promoting the decertification issue as well as in its refusal
to bargain, the presumption of the Union's majority status
derived from the earlier certification was not overcome.
20 C & C Plywood Corp., 163 NLRB 1022 , 1023, enfd . 413 F.2d 112 (C.A.
9, 1969).
Franks Bros. v. N.L.R.B., 321 U.S. 703; Ingress-Plastene,
Inc., v. N.L.R.B., 430 F.2d 542 (C.A. 7, 1970); Sky Wolf
Sales, d/b/a Pacific Industries of San Jose, 189 NLRB 933.
Accordingly the facts require, and I hereby find, that at
least on and after June 16, 1972, Respondent has refused to
bargain in good faith with the Union as the representative
of Respondent's employees in an appropriate unit in
violation of Section 8(a)(5) and (1) of the Act.
I further find that the strike of June 21, 1972, was caused
and prolonged by Respondent's own unfair labor practice
in refusing to bargain with the Union and was, therefore,
an unfair labor practice strike.
2. Independent coercion
During the strike the strikers occasionally tacked their
picket signs to utility poles in front of Respondent's plant.
The undenied facts prove that on one occasion, at least,
Mrs. Muncy tore a couple of these signs down while
Muncy waved a shotgun around as though protecting his
wife from harm. Not infrequently foreman Nick Bishop
also removed and tore up similar picket signs over the
verbal objection of the pickets. These actions by Respon-
dent's personnel constituted violations of Section 8(a)(1) of
the Act.
Respondent's attempted defense to these actions was
that the signs were tacked upon poles owned by the utility
company. This might justify utility company action in
regard to the picket signs but hardly the Respondent's.
During the week of September 15 it is undenied that
Muncy told employees Hubbard, Myers, and Paul Davis
that "if it wasn't for the Union that there wouldn't be
anybody in the shop making $3 per hour and that, if the
Union was gotten out, [the employees] would get a raise
just like [they] were supposed." This can be interpreted
only as a financial inducement to the employees to see to it
that the Union was eliminated and as such violates Section
8(a)(1) of the Act. Florida Machine and Foundry Company,
174 NLRB 1156.
3. The picnic incident
Located adjacent to Respondent's plant property on
Enon Road is a rather large public park known as Enon
Park. Respondent's property is separated from Enon Park
by a link chain fence on Respondent's side on which is the
truck entrance to Respondent's plant. Enon Park itself
contains a number of picnic tables and three or four
shelters as well as the usual children's swings, etc.
Approximately 75 to 100 feet from Respondent's truck
entrance there is a narrow gravel roadway running from
Enon Road some 300-400 feet straight into the Park
parallel to the truck entrance into the plant. This road
leads apparently only to a Little League baseball diamond
inside the Park. It is dead end. Some picnic tables are
located between this road and Respondent's property.
On July 14 the strikers, their families and friends, held a
picnic in Enon Park which began about 3 p.m. This fact
was well known to Respondent' s management and supervi-
sors. In fact, Foreman Bishop had specifically noted the
21 N. L.. R.B. v. Parma Water Lifter Co., supra at 263.
MUNCY CORPORATION 273
dearth of men at the picnic before he left the plant about 5
p.m.
About . 8 p.m. that evenirlg Bishop , acting according to
him out of "curiosity," drove his automobile down the
narrow graveled road into the Park at a rather high rate of
speed, turned around at the end of the road, and returned
at high speed throwing gravel and nearly hitting a young
child who was pulled out of the way of the auto by Brenda
Miller . As he passed, Bishop shouted "bitch" at her.
Bishop then drove to the "19th Hole ," a bar, where he
consumed , according to him , a "maximum"' of two-three
beers during the 1 hour until Danny Palmer and his wife
joined him "by chance" there.22 After another admitted
beer with the Palmers , it was decided to go "see what was
going on at the picnic"-and toy see about the plant.
Bishop testified that he had heard "rumors-of destruction
of the plant." 23
So with Palmer driving his automobile, his wife in the
middle , and Bishop in the passenger 's seat, they drove to
the plant, found it unharmed and the picnic still going on
in Enon Park. They then returned to the car and drove into
the Park to the end of the road, turned around, and drove
back to Enon Road and then into the beginning of the
truck entrance to the plant where they parked and got out
of the car. After Palmer and Bishop had exchanged a few
insults with the strikers , Palmer said "Let's get out of here."
Palmer and Bishop then went around the fence and some
steps into Enon Park and rushed a group of picnickers
about 15 feet away with fists flying. According to Bishop,
then "all hell broke loose" with Bishop and Palmer
becoming the battered losers . The fracas was short.24
The facts make it clear that Bishop and Palmer were
determined to provoke an incident with the strikers, their
families and friends, at a peaceful picnic. Neither had any
business at the plant that evening which was well guarded
by two security guards, provided only a few minutes earlier
that evening for the first time with walkie-talkies by
Respondent . Bishop 's first speedy incursion into the Park
22 Bishop's memory as to his movements from the time he left the plant
until 8 o'clock was hazy at best . He "believed" he went home for dinner,
some 10-20 miles from the plant . He was not positive where he had dinner
The 19th Hole served sandwiches.
23 Respondent's management seems to have become almost paranoid
during the strike. There was Bishop 's "rumor" of "destruction to the plant."
First there was one guard at the plant . Then there were two security guards
at the plant . Then there was another security guard at the Muncy home. On
July 14 the security guards were supplied with walkie -talkies. Next the
security guards were supplied with policy dogs. Finally one of the security
officers dressed in a police-like uniform with a simulated police officer's
badge showing the number one on it testified at the hearing.
Actually in June Respondent's new building had been splashed with
paint by parties unknown despite the plant guards on duty and despite the
fact that Muncy allegedly had warned the guards about two alleged phone
calls received that night threatening "to hit" the building . Muncy and his
wife both identified the telephone caller as Mason although each admitted
to never before having heard Mason on the phone. To borrow a decisional
technique from the Board's recent Tale-Lord case, infra, "It strains credulity
to believe" that Mason, on the verge of "hitting" the plant, would advise the
Muncys of his plans in advance.
But more important in determining the facts , I found Mason credible but
not the Muncys largely on the basis of their demeanor , lack of
forthrightness on the stand and the substance of their testimony . I credit
Mason's denial of these phone calls.
It might also be of importance here that Muncy had been critical of the
brick work done on the building by the contractor and had had to have it
redone at least twice before it was painted.
where he obviously had no business unless he was trying to
create trouble with the strikers was intentionally provoca-
tive due to his speed which threw gravel and nearly hit a
child. Then, after a few beers at the 19th Hole, Palmer and
Bishop decided again to see "what was going on at the
picnic." This was followed by another motor intrusion on
the picnickers although less speedy than on Bishop's first
run through the Park. After that there was nothing to do
but to depart, except that Palmer and Bishop apparently
wanted to jeer and call names, another unnecessarily
provocative action. Then, according to Bishop, when
Palmer said "Let's get out of here," they both physically
invaded territory which they well knew was being used by
strikers for a peaceful picnic. They intentionally went
where they not only knew they were not invited or wanted
but they went with fists flying. Palmer and Bishop went in
not "to protect" themselves, which they easily could have
done by merely driving home as they should have, but in
order to obstruct and breakup a theretofore peaceful
gathering of strikers because they were strikers.
I find these provocative actions and assault by Bishop
and Palmer to have been for the purpose of discouraging
union membership and activities and thus a violation of
Section 8(a)(1) of the Act. Arson Studios, Inc., 74 NLRB
1158.
4. The discharges
As previously noted some 25 of Respondent's employees
went on strike on June 21 because of Respondent's refusal
to bargain. The strike lasted until September 22 when the
strikers met after 6 p.m. and voted to end the strike and
return to work unconditionally. Respondent was so
notified.
On Monday, September 25, about 7:30 a.m., each of the
strikers named below reported for work at Respondent's
plant. They were met by Superintendent Palmer who
instructed them to enter the office one by one and to sign
their names, addresses, and telephone numbers on a paper
During the period of the strike Muncy testified that because of the
"turmoil" caused thereby that he had to sleep on the floor with his shotgun
by his side and that his children out of the same fear slept on the floor in a
room with an exit toward the back of the house.
What the activities were by the strikers which caused this "fear" was not
explicated at the hearing except for one incident when allegedly four
unknown persons were seen walking in the back portion of Muncy's home
property. According to the guard on duty at their home at that time, he
would have captured these "invaders" and thus have been able to identify
them except that in the dark he fell over a bicycle so that the four
individuals got away and remained unidentified.
In fact Muncy even blamed the strikers for the traffic on Enon Road, or
Route 40, which passed in front of his home and bothered him during the
strike.
24 Bishop contended that he and Palmer went into the Park at this time
in order to "protect" himself because he had been hit in the center of his
back by a rock thrown from the Park . Originally Bishop located himself on
the passenger side of the car preparing to get in when he was hit . In that
location his back would not have been towards the Park. After drawing a
map of the locale , Bishop relocated himself when hit to the rear of the
automobile walking toward the passenger side, the only place where his
back would have been facing the Park . Later in his examination and at the
suggestion of Respondent's labor consultant, Bishop claimed to have been
"confused" when he originally located himself because the questions were
coming "so fast and furious that I didn't realize which way I was going
then ." I am convinced , and therefore find , that Bishop's rock was both a
figment of his imagination and an alibi for his provocative conduct
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which foreman Bishop gave to them. Bishop informed each
that the Respondent would notify them when to report for
work.
As will be developed, not one of the strikers, except labor
spy Carter, has been reinstated.
Larry Hubbard, Richard Myers, and Wayne
Suttles
On September 22 about 1:15 p.m., Larry Hubbard,
Richard Myers, and Wayne Suttles who had been working
during the strike left the plant together and joined the
strikers. Respondent promptly verified this fact.
These three attended the union meeting at which it was
voted to end the strike and to return to work. All three
reported with the rest of the strikers on September 25 and
signed their names, addresses, and telephone numbers as
requested. They were informed that they would be notified
when to report for work.
By identical letters dated September 29 Respondent
notified Hubbard, Myers, and Suttles that each had been
discharged for leaving the plant without permission on
September 22. Accordingly they never reported for work. It
was useless . None has been reinstated.
Respondent sent copies of its letters to the striking
employees to the Union. However the alleged copies sent
by Respondent to the Union regarding Hubbard, Myers,
and Suttles were letters ordering them to return to work on
October 3.
About October 6, upon discovering that these three had
not been reinstated, Mason by telephone inquired of Plant
Manager Wagoner why these men had not been-reinstated
in accordance with the copies of the letters which had been
received by the Union regarding these three. Wagoner
informed Mason that the letters received by the Union
regarding the three were sent to the Union by mistake as
the men had actually been discharged. Upon inquiry
Wagoner then informed Mason that Respondent had
terminated Hubbard, Myers, and Suttles "for leaving the
plant and joining the strikers on the picket line."25
It is fundamental law that an employer who terminates
employees for joining a lawful picket line is in violation of
Section 8(a)(1) and (3) of the Act. N.L.R.B. v. International
Van Lin :s, 409 U.S. 48 (1972).
Brenda Miller, Ruth (Smith) Wilson, Claudette
Adams, Sally Vermillion, and Ruth Smouse
At 7:30 a.m., September 22 all of the above named
reported at the plant and signed their names, addresses,
and telephone numbers as requested by Palmer and
Bishop.
By identical letters dated September 29 Respondent
notified Miller, Wilson, Adams, Vermillion and Smouse as
follows:
This is to inform you that your employment with the
Muncy Corporation has been terminated as of Septem-
ber 25, 1972 because of your participation in violence,
intimidation and/or threats against the Company
and/or its employees while on strike.
All of the above, except Smouse, were known by
Respondent to be union committeewomen before and
during the strike. They were also all active on the picket
line.
Respondent never notified any of them as to what
specific acts of "violence, intimidation and/or threats"
Respondent contended they were guilty of. In fact even
during the hearing Respondent gave no specifics as to what
activities it was referring to other than that the individuals
named had been on the picket line. Each of these
individuals denied that she had committed any acts of
violence or threatened anyone during the strike.
The only real case where Respondent attempted to
identify any of these individuals as engaging in "violence"
occurred on July 28 when foreman Nick Bishop, whose
propensity towards violent action was established at the
picnic incident of July 14 in Enon Park, was leaving the
employees' entrance to the plant in his automobile for
lunch. Miller and Adams were walking the picket line at
the time. Bishop testified that on this occasion Adams on
the left, or driver's side, of the automobile was carrying a
cardboard picket sign while Miller on the right, or
passenger, side of his car had a ball peen hammer in her
hand and that as he drove slowly out of the driveway,
Adams "attacked" the car beginning at the windshield with
her picket sign with a baseball like swing while he heard
Miller "banging" on the trunk of the car with her hammer.
Bishop did admit that after the incident he could find no
damage done to his car. That was Bishop's story.
The Miller and Adams testimony was different. Accord-
ing to them, they were walking picket when Bishop drove
out of the entrance onto Enon Road at a rather fast rate of
speed nearly hitting Adams as he did so and causing her to
let go of her picket sign in her efforts to jump backwards in
order to save herself from being hit. The picket sign may
have hit the auto. Miller denied striking the automobile
and denied having a hammer on this occasion.
There is a third story about this incident. Tommy
Johnson, promoted to foreman after the strike, happened
to see the incident, according to his testimony. However he
saw Miller and Adams located on the opposite sides of the
automobile from the testimony of Bishop and also striking
the car in different locations.
There is still a fourth-and still untold-story of this
incident. Admittedly Jeffery Carter, Respondent's paid
labor spy, was in the Bishop automobile at the time.
Respondent asked him no questions regarding the incident
thereby giving rise to the inference that his testimony
would have been unfavorable to Respondent's contention.
Even accepting the contradictory stories of Bishop and
Johnson at face value, this incident would be insufficient to
deny either Miller or Adams reinstatement.
However due to Bishop's demeanor while on the stand,
his known propensity for speedy driving, his known
propensity towards violence, and his undenied instruction
to truckdrivers to run down the pickets if in the way, as
25 This testimony by Mason was undenied as Wagoner was not called by
Respondent as a witness.
MUNCY CORPORATION 275
well as the conflicts with the Johnson testimony, I cannot
credit the Bishop or Johnson testimony regarding this
incident and find in accord with the Adams-Miller version
thereof. I believe the facts to be that Bishop drove out of
the entrance at a good rate of speed, nearly hit Adams,
thereby causing her to jump back and let go of the picket
sign which may have hit his automobile. I credit Miller's
testimony that she did not hit the automobile.26
The other picket in this group whom Respondent
identified in the evidence as engaging in "violence" was
Ruth Smouse who was accused by Rena Bowman as
having thrown a handful of gravel at Bowman's automo-
bile as she drove from the plant. Bowman was not even
sure that her car was hit and, like Bishop, was able to find
no damage to her car thereafter. Smouse denied the
incident. Even if true, the incident was so picayunish as not
to justify Respondent's refusal to reinstate Smouse. W.J.
Ruscoe Company, 166 NLRB 618, 620.
At the hearing Respondent also produced evidence that
during this long strike nails and glass had been swept up
from the two driveways into the plant. In fact Respondent
produced a large box containing several pounds of roofing
nails which it said had been swept from its driveways.
Evidence as to how this material got where it was supposed
to have been and as to who was responsible for putting this
material there was conspicuously missing . This is so even
though Muncy testified that on at least one occasion he
spent 1 /2 hour or so intently watching Mason sitting in his
auto parked near the truck entrance through binoculars
from 150-to 175-feet distance in the new office building
which Respondent was having constructed at that time.
Muncy thought he saw something shiney in Mason's hand
as it swung back and forth outside his car's open window.
Of course roofing nails were at that time being used in the
construction of Respondent's new building. It is also
noteworthy that nobody could recall a single tire punc-
tured in going in or out of either plant entrance during the
whole strike.
Another incident described by Muncy was equally
remarkable. On this occasion, according to Muncy, it took
him I and 1 /2 hours to get his car out of the employee
driveway while he was attempting to take the two Rectors,
Wagoner, Palmer, and Patton to lunch. On this occasion,
according to Muncy, even he was picking up nails from the
driveway.27 He testified that within seconds of the time he
would have the driveway cleared "completely" he would
look back again and discover more nails at his feet in the
driveway without having seen or heard anything even
though the then picket, Betty Haney, was standing within a
foot or two of him. This truly remarkable testimony,
supposed to be believed and given with all due solemnity,
caused me to have some questions as to Muncy's
credibility, especially as apparently none of his five
passengers standing around during the episode had any
explanation for this phenomenon of the rapidly reappear-
26 On appeal the Board of Review of the Ohio Bureau of Employment
Services decided in the cases of both Adams and Miller that "The evidence
does not establish that claimant committed an act or acts of violence during
the strike nor did she cause injury to an employee, damage the property of
the employee or damage the property of the Muncy Corporation."
It is interesting to note from the decision of the Ohio Bureau that Muncy
had informed the Bureau that Adams ' alleged act "was witnessed by Mr.
ing nails either. Even without a denial by Haney, I cannot
on this evidence find that she or the Union was responsible
for this alleged plethora of nails in driveways.
Ruth (Smith) Wilson was named by Muncy as being on
the picket line when the rear window of his GTO Pontiac
was smashed apparently on July 3 sometime. Respondent's
testimony regarding this incident-the only evidence in
regard to it besides Wilson's denial of knowing anything
about it-goes beyond the remarkable and verges on the
fantastic.
Muncy and his brother-in-law testified as to the incident.
So did William R. Royce, a security guard at Respondent's
plant. According to Muncy the rear window of his GTO
was shattered about 9-9:30 p.m. as he was driving at 5-10
miles per hour some 70-100 feet south on Enon Road after
leaving the employee entrance to the plant. According to
Royce he saw and heard the rear window shattered about
3-3:30 p.m. as Muncy's automobile was moving in the
employees' entrance road to a stop in front of the plant
office after having turned in from driving north on Enon
Road. According to Muncy, he thought the window had
been shattered by a shot gun fired by some unseen person.
According to Royce, just before the crash he saw an
unidentified man moving his arm while standing in the
center of Enon Road. According to Muncy, a deputy
sheriff found a steel ball 1-1/4 inch in diameter in the rear
of his automobile and gave it to Muncy. According to
Muncy, the pictures of the damaged automobile admitted
in evidence in the instant case were taken a day or two
after the incident. According to Royce, these pictures were
taken the same day as the incident.
It is admitted that although the sheriff arrived on the
scene "very quickly" after the incident, despite Muncy's
complaints made at the hearing that the sheriff "was not
doing his job" and "not cooperating or trying to maintain
law and order," no arrests were made at the time nor have
any been made thereafter regarding this incident. Nor has
Respondent's labor spy, Jeffery Carter, been able to locate
the culprit, if any, despite his $100 per week salary from
Respondent allegedly for that purpose, among others.
Hence this incident remains a mystery as to who, where,
when, how, and why.
However, in the very recent case of Local 918 Teamsters
(Tale-Lord Manufacturing Co., Inc.), 206 NLRB No. 102, a
case of egg throwing during a strike, the Board expounded
a rather novel theory of union liability by finding: "The
fact that the identity of some of the egg throwers28 was
unknown is of little importance, given the fact that the
nonstriker witnesses invariably identified the eggs thrown
as coming from the direction of the strikers." This no
doubt will be known as the "directional theory of
responsibility." But even this directional theory is inappli-
cable here for the simple reason that we actually cannot
say which way the automobile was facing when the
window was shattered nor where the picket line, if any, was
Dan Palmer, Mr. Tommy Johnson, Mr. Mike Schmidt and Mrs. Patricia
Alfred." Yet only Tommy Johnson was called by Respondent in the instant
case.
27 Usually it seemed that Muncy would telephone ahead to have the
entrance swept clear before he drove in or out of the plant.
29 Actually only two egg throwers were identified and only one of those
threw an egg from the picket line.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located at the time. Hence it is here necessary to use the
old-fashioned Anglo-Saxon legal theory of identifying the
person or persons responsible and the method used.
Hence using only these old-fashioned legal methods I
can only find on the evidence presented by Respondent
that the rear window of Muncy's automobile was in fact
shattered at some uncertain place at some unknown time
by some unknown method by some person or persons
unknown and for some unknown reason. Accordingly, I
must, and hereby do, exonerate Ruth (Smith) Wilson and
the Union from any and all responsibility therefor.
As for Sally Vermillion there was no evidence connecting
her in any way to any misconduct during the strike.
However at the Board of Review of the Ohio Bureau of
Employment Services hearing on her claim Respondent
did accuse Vermillion of threatening an employee by the
name of Ed Dolph. Vermillion admitted having a few
words with Dolph at the cashier's counter in a supermarket
where Vermillion objected to Dolph's chasing her all the
time trying to get her to marry him. Dolph was not called
as a witness by Respondent. Certainly words between two
persons who happen to be employees of Respondent in a
public place like a shopping center over a personal matter
like marriage cannot justify Respondent for refusing the
woman employee reinstatement to her job with her
employer.29
Accordingly I must, and hereby do, find that Respon-
dent has failed to establish that Brenda Miller, Ruth
(Smith) Wilson, Claudette Adams, Sally Vermillion and/or
Ruth Smouse, or any of them, participated "in violence,
intimidation, and/or threats against the Company and or
its employees while on strike." Hence there is no evidence
against any of the above sufficient to warrant their
discharge on September 29, 1972.
I also find that Respondent discharged each of the above
named because of their membership in and activities on
behalf of the Union and in order to rid the plant of
employees favoring union representation in violation of
Section 8(a)(1) and (3) of the Act.
Barbara Page , Phyllis Prugh, Dona Robinson, Jan
Wilson, Martha Russell , and Hilda Frey
Following their application for reinstatement on Septem-
ber 25, the Respondent by identical letters dated Septem-
ber 29 notified the above-named strikers as follows:
This is your notification of reinstatement to your
former position at the Muncy Corporation.
You are to report for work on Tuesday, October 3,
1972 at 7:30 a.m. Hours are the same as in the past.
On October 3 at 7:30 a.m. all the above named, except
Frey, reported for work, punched their timecards, and
received their job assignments. After working about 5
minutes the nonstriking employees began shutting off their
machines and gathering around the coffee machine. Soon
29 The Board of Review also found as follows:
The evidence does not establish that claimant (Vermillion) committed
an act or acts of violence during the strike nor that she caused injury to
an employee , damage to property of the employee or damage to the
property of the Muncy Corporation.
30 At the hearing Rector attempted to show that this antiunion group
the returnees were the only employees working. Palmer
appeared at the coffee machine and inquired why the
employees were not working. He testified that the
nonstriking employees told him that they would not work
with the returning strikers.
After the returnees had worked approximately 30
minutes, each of them was instructed to report to Palmer in
the office. Palmer told them that the other employees
refused to work with them because of their activities during
the strike without any specifics as to what the returnees
were supposed to have done. Palmer told them that he
would have to send them home. The returnees thereupon
left the plant followed by the nonstriking employees jeering
and calling them names.
Palmer was busy for the next hour or hour and a half
having each of the remaining employees sign a sheet of
paper at his desk headed "Refused to work with strikers."
"Head Mechanic" Frank Fisher was the first employee to
sign . After his name Palmer printed the words "Do not
trust & dont [sic] feel safe" as the reason Fisher would not
work with the returnees. As each succeeding employee
signed this list, ditto marks were inserted after the
signature for the same reason as that given by the signing
employee for not working with the returnees.
This demonstration may have appeared spontaneous to
the returnees. It was not. It had been carefully planned by
Harvey Rector and Respondent.
After it became known that the strikers would be
returning to work, Rena Bowman, Delores Jordan, and
Thomas Johnson were instructed by Respondent to report
to the office for a meeting . The meeting was attended by
Harvey Rector, Muncy, Palmer, and Patton for the
Company as well as the three named employees 30 Prompt-
ly after the meeting began, the question of what to do when
the strikers returned to work came up.
On this point Harvey Rector testified as follows:
Well, I was asked a question of, was it legal if the
employees refused to work with the striking employees
that had offered to work. Oh, I don't-the question
came up, they found out that they were going to be
coming back to the plant. And I said, "I cannot give
you any advice at all because I happen to represent the
Company.,,
Then I don't know how many questions were asked,
but there were, I think, several. And one of them said to
me, "Well, what would you do if we refused to work
with them?"
So I said, "The only thing I can say to you is, you
had better have a sufficient reason or you will be fired."
Bowman's testimony on this point was as follows:
A. We were-well, you couldn't call it advice31
Mr. Rector told us that he knew of a case where-it
didn't happen in this town, but it happened in some
other town-that if we could quit work when these
was a labor organization and that Rena Bowman was its chairman.
However Rena Bowman denied the existence of any such organization as
well as her alleged chairmanship thereof.
31 On cross-examination of Bowman , Rector had gotten Bowman to
testify that the Rectors had given her no "advice."
MUNCY CORPORATION
people walked back in wanting to come to work, that
we could quit, just walk off the job. He said-he did tell
us, though , I am not advising you or telling you to do
,.this: He said, - "I am. just relating that I know it
happened." He stated the town, but I can't remember
what town it was.
Respondent's witness Patton supplied the name of the
case in the following testimony on the point:
A. Okay. Mrs. Bowman stated that-there's a lot
of talk that employees refused to work with the
returning strikers. They heard that the strikers were
going to be coming back . They do not want to work
with them, and that they wanted to know how they
could get out of working with them . Mr. Rector was
present at this meeting . He says, "I cannot give you
advice . However I can cite you a case ," and I believe it
was the Superior Tool & Die in Akron, Ohio; one of
those similar-very similar situations where employees
refused to work with the returning strikers because of
acts of violence on the picket line, and a decision was
upheld in the Sixth Circuit Court, I believe.
Following this meeting Rena Bowman admittedly
circulated among the employees and gave them the
information which Rector had provided at the meeting.
Thus Respondent provided the nonstriking employees with
the strategy as well as the assurance that a "good reason"
would prevent their being discharged.
Once again Bowman carried Respondent's strategy to
the nonstrikers as Respondent 's agent.
With Palmer's permission Hilda Frey reported for work
on October 4. She was met by Palmer and instructed to
report to his office and wait for him . Shortly thereafter
Palmer returned to the office and informed Frey that she
"had no more friends than the other strikers had." When
Frey stated that she was there to operate a press and not
for friendship, Palmer informed her that she could not
operate all the machines and so he would have to send her
home.
By identical letters dated October 11 Respondent
informed Page , Prugh , Robinson , Wilson, Russell, and
Frey as follows:
Because of the activities on the picket line and the
acts of violence and intimidation that occurred and the
fear that acts of violence and intimidation will
continue , the employees of the Muncy Corporation
refuse to work with you. The Muncy Corporation has
no reasonable alternative but to terminate your
employment effective October 3, 1972.
Enclosed find a check for four (4) hours pay for
October 3, 1972 and all vacation pay accumulated prior
to the strike.
None of the above-named striking employees have since
been reinstated.
32 Daniel A. Donovan, etc. d/b/a New Fairfield Hall Convalescent Home,
206 NLRB No. 108 . Coronet Casuals, Inc., 207 NLRB No. 24. Seminole
Conclusions
277
The above-found facts require the finding here made,
that Respondent refused to reinstate upon unconditional
application and discharged Larry Hubbard, Richard
Myers, Wayne Suttles, Brenda Miller, Ruth (Smith)
Wilson, Claudette Adams, Sally Vermillion, Ruth Smouse,
Barbara Page, Phyllis Prugh, Dona Robinson, Jan Wilson,
Martha Russell, and Hilda Frey, all of whom had engaged
in the unfair labor practice strike, because of their
membership in and activities on behalf of the Union and in
order to discourage such membership and activities as well
as to eliminate all known prounion employees from the
plant in violation of Section 8(a)(3) and (1) of the Act.
As for Hubbard, Myers, and Suttles, Respondent claims
that they were discharged for leaving the plant without
permission on September 22. If this were a valid reason for
discharge, then any employee who went on strike would
likewise be subject to discharge. Here whether permission
to leave the plant was granted or not, Respondent well
knew that each of these employees had left the plant and
had joined the strikers on an unfair labor practice strike. In
fact Respondent discharged each of them for having joined
the strike and refused them, as unfair labor practice
strikers, reinstatement in violation of Section 8(a)(1) and
(3) of the Act.
As for Miller, Ruth Wilson, Adams, Vermillion, and
Smouse, Respondent claims that it refused these unfair
labor practice strikers reinstatement because of their
"participation in violence, intimidation and or threats
against the Company and/or its employees while on
strike." Respondent not only failed however to specify the
activities which each was supposed to have engaged in but
also failed to connect any of them in the evidence it
presented with any activities which would have justified
Respondent's refusal to reinstate them as unfair labor
practice strikers 32
The real reason Respondent discharged these individuals
was the fact that, except for Smouse, each was a union
committeewomen in the plant and all were active in the
Union and during the strike. Respondent's refusal for these
reasons to reinstate unfair labor practice strikers upon their
unconditional offer to return to work at the end of the
strike constitutes a violation of Section 8(a)(1) and (3) of
the Act.
As for Page, Prugh, Robinson, Jan Wilson, Russell, and
Frey Respondent contends that the nonstriking employees
refused to work with them because of the acts of violence
and intimidation that occurred during the strike and the
fear that these acts would continue so that Respondent had
"no reasonable alternative but to terminate" the returnees.
In its brief Respondent expands on that and contends that
this so-called "refusal" by the employees was "beyond
control of management."
The facts prove otherwise.
Actually the evidence not only of Bowman but also of
Rector and Patton prove that employees Rena Bowman,
Delores Jordan, and Tommy Johnson were called by
Respondent to a meeting in the office where consultant
Asphalt Refining, Inc., 207 NLRB No. 40.
278 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
Harvey Rector advised them that, if the nonstrikers refused
to work with the returnees, they would be discharged only
if they did have a "good reason" for so doing. Rector even
cited one of his own cases as authority therefor. These
three antiunion employees thereupon, as anticipated and
expected, passed this word on to the other nonstriking
employees. When the occasion arose, the nonstrikers, as
was also to be anticipated in view of Rector's advice,
refused to work with the returnees. Thereupon Plant
Superintendent Palmer himself provided the "good reason"
mentioned above so that the returnees were dismissed
rather than the nonstrikers. Thus, contrary to the brief, this
whole operation of refusing reinstatement to the strikers
from beginning to end was at all times under the control of
management and its labor consultant. The plan was
devised and carried out by Respondent with the aid and
assistance of its chosen agents, Bowman , Jordan, and
Johnson.
Refusing reinstatement of unfair labor practice strikers
on the grounds that the nonstriking antiunion employees
will not work with them particularly when that alleged
refusal to work with the returning strikers is devised,
encouraged, incited, and carried out by Respondent and its
agents , violated Section 8(a)(1) and (3) of the Act.33
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in Section III,
above, and occurring in connection with Respondent's
operation described in Section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in numerous
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that on and after June 19 , 1972, Respon-
dent has refused to bargain with the Union as the certified
and duly designated representative of its employees in the
appropriate unit by refusing to meet and/or refusing to
bargain in good faith, I will order that Respondent, upon
request , bargain with Local 682 , International Union,
United Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW) in good faith and, if an
agreement is reached , to embody that agreement in writing
and execute the same.
Having found that Respondent discriminated in regard
to the hire and tenure of employment on or about
33 See N.L.R.B. v. Weissman Co. where the Sixth Circuit Court of
Appeals held in 170 F.2d 952 ( 1948):
Weissman , the owner of the Company, doing business in its name,
was of course responsible for his own acts; and Dnmmer, the general
manager, was responsible to Weissman and the Company for his
conduct . Further, we think that respondents' employees might
reasonably have regarded its supervisors , whose conduct was chal-
lenged, as representative of the policy of respondents. It is clear enough
that the attitude of the anti-Union group of respondents' employees
September 25, 1972, of Larry Hubbard, Richard Myers,
Wayne Suttles, Brenda Miller, Ruth (Smith) Wilson,
Claudette Adams, Sally Vermillion, Ruth Smouse, Barbara
Page, Phyllis Prugh, Dona Robinson, Jan Wilson, Martha
Russell, and Hilda Frey because of their membership and
activities on behalf of Local 682, International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW) in violation of Section
8(a)(1) and (3) of the Act, I will order that Respondent
offer each of them full and immediate reinstatement to his
or her former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to their
seniority or other rights and privileges and make her whole
for any loss of pay she may have suffered by reason of said
discrimination against each by payment to each of a sum
of money equal to that which each would have earned
from the date of the discrimination to the date of
Respondent's offer of reinstatement with adequate protec-
tion in the plant less the net earnings of each during such
period in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest thereon
at 6 percent per annum.
Because of the type of unfair labor practices engaged in
by Respondent it is clear that Respondent has an
opposition to the policies of the Act in general and,
therefore, I deem it necessary to order Respondent to cease
and desist from in any manner interfering with the rights
guaranteed its employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record herein, I make the following:
Conclusions of Law
1. Local 682, International Union, Ur}ited Automobile,
Aerospace and Agricultural Implement Workers of Ameri-
ca (UAW), is a labor organization within the meaning of
Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of
employment of Larry Hubbard, Richard Myers, Wayne
Suttles, Brenda Miller, Ruth (Smith) Wilson, Claudette
Adams, Sally Vermillion, Ruth Smouse, Barbara Page,
Phyllis Prugh, Dona Robinson, Jan Wilson, Martha
Russell, and Hilda Frey by discharging and/or refusing
reinstatement to each of them on or about September 29,
1972, because of their membership and activities on behalf
of said Union and in order to discourage such membership
and activities, Respondent has engaged in and is engaging
in unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act.
3. All production and maintenance employees includ-
ing janitors and truckdnvers employed at Respondent's
plant located at 2601 Enon Road, Enon, Ohio, but
excluding all office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act
was encouraged , and tacitly, if not openly, approved by respondent
Weissman , and the defense that he was under no obligation to protect
his Union employees is without merit.
Fred P. Weissman Co, 71 NLRB 147 and 69 NLRB 1002 Brown Garment
Manufacturing Co, 62 NLRB 857. Riverside Manufacturing Co., 20 NLRB
394, Altamont Shirt Corporation, 131 NLRB 112 Actang, Inc., 193 NLRB 86.
The Superior Tool & Die Case, supra, is clearly inapposite under the facts
here.
MUNCY CORPORATION
constitute the appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4: At all times since September 10, 1970, Local 682,
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW) has
been, and still is, the exclusive representative of all
employees in the aforesaid appropriate unit within the
meaning of Section 9(a) of the Act.
5. By refusing on and after June 19, 1972, to meet
and/or bargain in good faith with the Union as such
exclusive certified representative of its employees in the
279
aforesaid appropriate unit , Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By the numerous acts of Respondent and its
supervisors above found Respondent has interfered with,
restrained, and coerced its employees in the rights
guaranteed them in Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]