The Cross Co.

National Labor Relations Board - Board Decisions

Jul 31, 1963

143 N.L.R.B. 1005 (N.L.R.B. 1963)

THE CROSS COMPANY 1005
CONCLUSIONS OF LAW
1. Respondent Employers are engaged in commerce within the meaning of the
Act.
2. Respondent Teamsters and the Operating Engineers are labor organizations
within the meaning of the Act.
3. Respondents have not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed.
The Cross Company and International Union, United Auto-
mobile , Aircraft and Agricultural Implement Workers of
America , UAW-AFL-CIO, and its Local Union No. 155, Inter-
national Union, United Automobile , Aircraft and Agricultural
Implement Workers of America , UAW-AFL-CIO. Cases Nos.
7-CA-.78?-1, 7-CA-.782-2, and 7-CA-3233. July 31, 1963
DECISION AND ORDER
On June 21, 1962, Trial Examiner Leo F. Lightner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take affirmative actiot _,
as set forth in the attached Intermediate Report. Thereafter, the
Respondent and the Charging Party filed exceptions to the Inter-
mediate Report, together with supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings, except as noted herein, are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief, and the
entire record herein, and finds merit in the Respondent's exceptions.
Accordingly, it adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
Background
In April 1957, International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, UAW-AFL-CIO,
and its Local Union No. 155, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, UAW-
AFL-CIO, herein together referred to as the Union, were jointly
certified as bargaining representative of the employees at the Fraser,
Michigan, plant of The Cross Company, herein referred to as Re-
spondent. A collective-bargaining agreement entered into between the
143 NLRB No. 88.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and Respondent on August 7, 1957, was terminated October 1,
1958. Decertification petitions, filed on September 12 and October 3,
1958, resulted, once again, in the certification of the Union, after Re-
spondent's objections to the decertification election based on the Un-
ion's alleged misrepresentations made to the employees on the
morning of the election were found to be without merit. Neverthe-
less, Respondent refused to bargain with the Union, thereby causing
the latter to file 8(a) (5) charges on August 4, 1959. That same day,
an unstated number of employees commenced a strike which con-
tinued until May 1960. In a decision issued on May 11, 1960, the
Board found that Respondent had violated Section 8(a) (5) of the
Act and that the striking employees were, therefore, unfair labor prac-
tice strikers entitled to reinstatement upon application.' Thereafter,
however, upon cross-petitions by Respondent to review and by the
Board to enforce, the Sixth Circuit vacated the certification and
denied enforcement of the Board's order.2 The Board did not seek
certiorari.
It is undisputed that immediately after the Board's decision in
May 1960, finding a violation of Section 8(a) (5), the strikers made
unconditional applications for reinstatement, and the Respondent
undertook to reemploy all of them, without exception. The questions
presented herein are whether the Respondent violated Section 8 (a) (1)
and (3) of the Act in the following respects: (1) by discriminating
against returning strikers by (a) discharge, (b) reduction in hours
worked, (c) assignment to more arduous work upon recall, (d) assign-
ment of some former strikers to less agreeable work in 1961, and (e)
failure to recall some former strikers in order of seniority after a lay-
off in 1961; and (2) by failing to fulfill its obligation to protect re-
turning strikers from the abuse and mistreatment of nonstrikers.
I. THE ALLEGATIONS OF DISCRIMINATORY DISCHARGES, WORK
ASSIGNMENTS, AND RECALLS
The Trial Examiner found as to 13 employees that the Respondent
had violated Section 8(a) (1) and (3) of the Act by discharging some
of the employees recalled, giving several of the employees recalled
more arduous and less agreeable tasks than those assigned the same
employees prior to the strike, reducing the hours of work of 1 return-
ing striker, and in 1961 recalling others without regard to their se-
niority. His findings with respect to these 13 employees are grounded
largely on his disbelief of the reasons the Respondent assigned in
justification of its actions.
1127 NLRB 691.
2 Cross Company v. N.L.R .B., 286 F . 2d 799 ( C.A. 6) (February 2, 1961).
THE CROSS COMPANY 1007
We do not agree with the Trial Examiner. There is no evidence,
apart from the alleged acts of discrimination, of any employer animus
toward the strikers merely because they had exercised their right to
strike. On the contrary, as we show below, the Respondent made a
serious and substantial effort to restore its employees to their jobs and
retain them in its employ without discriminating among them on the
basis of their status as strikers or nonstrikers. As we view the evidence,
the Respondent's sole interest after the strike was a return to normalcy.
We therefore conclude that the record will not sustain a finding that
the Respondent's actions against the 13 individuals were inspired
by its animus toward them as returning strikers.
We also disagree with the Trial Examiner in his rejection of the
defenses relied upon by the Respondent for its discharges, as well as
in his appraisal of the Respondent's policies in restoring the strikers
to their employment. The sending of a. telegram to Oravec, which
went unheeded, and the discharge of Novack, the nonstriker who had
been engaged in an altercation with Wagers (the discharged striker
who had admittedly picked up a drill, apparently as a weapon, during
his controversy with Novack), are strong evidence of the Respondent's
effort to maintain its neutrality and restore the strikers to their former
positions. With respect to painter Gauci, who the Trial Examiner
found was discriminatorily assigned the more arduous task of "snag-
ging," the record is clear that one other former striker and two non-
strikers, also classified as painters, did "snagging" regularly. Gauci's
assignment to such work would, therefore, in itself form little basis
for finding the Respondent's action discriminatory. And, in the case
of employee Horonzy, we are satisfied by the evidence, not only that
his work on a secondary assignment prior to the strike was inferior
and lackadaisical, but that his poststrike reduction in hours worked
was occasioned by an economic change of operations that virtually
eliminated his main prestrike job.
We also disagree with the Trial Examiner with respect to the four
returning strikers who he found had been given more arduous work
assignments.' The record shows that both strikers and nonstrikers
were assigned to the filter bed work and that some of the nonstrikers
so assigned were employees ordinarily employed in higher classifica-
tions 4 Moreover, there is insufficient record evidence to establish that
the filter bed work and other alleged discriminatory work assignments
were, in fact, more arduous than those performed by the returning
strikers prior to the strike. For these reasons, we cannot infer discrim-
inatory intent.
8 Employees Sassano, Fassbinder , Krist, and Holowan.
Karita, a painter , and Stanley , an electrician , did this work prior to the end of the
strike and continued to do the work intermittently after the return of the strikers.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, we do not agree with the Trial Examiner that the Respond-
ent discriminated against five employees by failing to recall four of
them in strict order of seniority following a layoff in 1961,5 and by
assigning the fifth to less agreeable work, also in 1961,6 some months
after the conclusion of the strike. All five of these employees had
been restored to their former status in June 1960. There is no claim
that the Respondent discriminated against them at that time in any
manner. The record reflects no logical reason why the Respondent
should have singled out these five employees for discriminatory action
months after the strike had ended. Moreover, with respect to Peter-
son, Bristol, Alexander, and Shook, we find the evidence insufficient
to sustain a finding that the Respondent continued the policy, con-
tained in the expired contract with the Union, of recalling employees
in accordance with strict seniority. Rather, we find that the Re-
spondent used seniority only as one factor along with other con-
siderations, such as ability to perform the work, in determining the
order of recall of laid-off employees.7
Therefore, in the light of the credible explanations given by the
Respondent for the actions taken with respect to these 13 employees,
the absence of any evidence of discriminatory intent, and the evidence
set forth below which evinces the Respondent's good faith in dealing
with its returning employees, we shall dismiss the complaint as to these
13 employees. Also, we shall affirm the Trial Examiner' s dismissal
of the complaint with respect to employees Peterson, Bristol, and
Papcun.
II. ALLEGATIONS OF CONSTRUCTIVE DISCHARGES AND EXCLUSIONS
During the period extending from May 20 to August 4, 1960, Re-
spondent offered work opportunities to all 74 strikers on behalf of
whom applications for reinstatement were filed. Nine of the former
strikers did not report and, of the 65 who reported, 15 did not continue
to work, allegedly because of some form of harassment by nonstrikers;
11 of these 15 employees left after having worked less than 11/2 days,
2 after less than 6 days, and 2 after 2 to 3 weeks of employment.
Fifteen other former strikers testified that on four occasions some of
them were excluded by the action of nonstrikers in blocking their at-
tempted entrance to the plant.
In support of their assertions, a number of former strikers testified
to certain abusive conduct directed toward them by the nonstrikers, as
5 Employees Peterson , Bristol , Alexander, and Shook.
9 Employee Lewandowski.
7 The Trial Examiner has in fact made a general finding, not limited to the employees
alleged to have been discriminated against , that the Respondent did not follow seniority in
its recalls from layoffs in 1961, and that in fact all those recalled from the layoff were
recalled out of order of seniority . ( See Intermediate Report, section III, J, 2.)
THE CROSS COMPANY 1009
described in the Intermediate Report.8 For the most part, this conduct
consisted of abusive and sometimes threatening 9 language uttered
during the period when the strikers were being recalled to work. It
occurred more particularly when former strikers entered the locker-
room to dress for work and also when they would recess for lunch. The
lunchtime incidents are described in the testimony as occasions when
a group of nonstrikers would gather around a few former strikers and
verbally abuse them. The lockerroom incidents appear to have in-
volved pushing and shoving by nonstrikers who filled the aisleways
and thus intimidated certain of the strikers seeking to enter the plant
to work.10 On several such occasions a guard or supervisor escorted a
former striker through the lockerroom gathering and into the plant.
It is uncontroverted that only nonstriker employees, and no super-
visors or guards or managerial employees, engaged in the abusive con-
duct described. The Trial Examiner has credited the General Coun-
sel's witnesses who testified (in several instances at variance with their
statements to Board agents during the investigation) that on various
occasions supervisors or guards were nearby at the time of the verbal
abuse or the asserted exclusions from the plant. Nevertheless, the
Trial Examiner has made no actual finding that any supervisor or
guard ever observed (a) any form of abusive conduct during worktime
or at a work station; or (b) anything other than verbal abuse during
nonworking time. The supervisors and guards testified that, pursuant
to instructions, they did not interfere with "peaceful" lunchtime, shift
change, and lockerroom gatherings of nonstrikers about former
strikers. They further testified that while they did hear derogatory
remarks directed at former strikers during nonworking time, they per-
mitted no gatherings or remarks which would interfere with employees
during working time. The Trial Examiner has not discredited this
testimony.
Further, although finding Respondent remiss in its duty to protect
the former strikers, the Trial Examiner has nevertheless credited Re-
spondent with having exercised the following measures to assist these
employees :
1. Three days after Oravec, the first returning striker, found non-
strikers gathered in his path in the lockerroom, the Respondent posted
on the bulletin board the following notice : "Violence or threats of
violence to any employee will not be tolerated! Any employee guilty
8 However, most of these employees did not find it necessary to leave their employment
but rather continued to work at Respondent 's plant.
9 These threats were in the nature of "I wonder if he'll last out the day," or "we'll
fix you " The record reveals , however, that none of these threats was implemented by
any form of physical violence
10 Other than crowding and elbowing there appears to have been little or not actual
physical violence on these occasions.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such misbehavior will be subject to disciplinary action. ( signed)
Milton Cross , Jr." This notice remained posted throughout the
entire period here involved.
2. Personnel Director Kent investigated the Oravec episode by
questioning a number of the nonstriker employees who had been
present at the time. These employees reported to Kent, and testified
before the Trial Examiner , that Oravec entered the lockerroom in a
belligerent manner and elbowed two nonstriker bystanders who were
standing in his path with their backs to him. According to the non-
strikers , it was not until this had occurred that a group of non-
strikers gathered around Oravec as though not to permit him to pass.
These employees stated, inter alia, that they did not see anyone kick
Oravec . Although the Trial Examiner describes this testimony as
"implausible ," he does not discredit the testimony of Respondent's
witnesses that this was in fact the version reported to Kent when
he investigated the matter.
3. The record discloses that on various occasions former strikers
made complaints of mistreatment to Personnel Director Kent, to some
of the supervisors , and to guards . The Union also formally protested
to the Respondent about the treatment accorded by other employees
to the former strikers . In most such instances , however, these former
strikers further stated that they either did not choose to identify
or did not know the nonstrikers who were alleged to have engaged in
the abusive conduct toward them. In the few instances where a specific
act of abuse was charged against a named nonstriker , Kent investi-
gated the charges . On these occasions the implicated nonstrikers and
the nonstriker witnesses denied the charges, and for this reason there
was no subsequent disciplinary action. Despite their denials, how-
ever, Kent frequently reprimanded the nonstrikers and warned them
against causing trouble by reminding them of the notice which had
been posted. In one case a credited complaining witness testified
that Kent said he would continue to investigate the complainant's
charge against a nonstriker even though the complainant had chosen
to withdraw the charge . In the course of these investigations, Kent
kept comprehensive notes, which were produced at the Board hearing,
on all complaints made during the May to August 1960 period.
4. In one instance a nonstriker employee, Novack , was identified
by several of his fellow employees as having thrown small firecrackers
under the bench of a former striker . Novack was immediately dis-
charged by Respondent for violating the provisions in the posted
notice.
5. During the period in question, Superintendent Riddell held three
separate meetings of supervisors (May 18, June 9, and July 1) at which
THE CROSS COMPANY 1011
he discussed the apparent poststrike bitterness prevalent within the
plant. He stated it was to be expected, in view of the nonstrikers'
own experiences during the strike, that they would harbor strong
feelings against the returning strikers and that the nonstrikers were
bound to "let off steam." However, Riddell added, he wanted the
former strikers protected. Accordingly, he instructed the supervisors
not to permit rowdiness at any time or the congregating of employees
during worktime. When questioned at the hearing as to his instruc-
tions concerning lunchtime gatherings, Riddell explained that "it was
impractical from my point of view to attempt to break them up nor
was there any necessity for it and I doubted that we had the right
to do so, as long as they were peaceful." Nevertheless, as he further
testified, he advised the supervisors to "keep a sharp lookout in view
of the situation and be ready to take immediate action if there was
any commotion or anything started or about to start." Riddell also
instructed the supervisors to make certain that at least one of them
was always present in the lunchroom during the lunch hour.
6. The Respondent's guards appear to have been ready to assist
the former strikers when their aid was sought. Thus, on four sep-
arate occasions supervisors or guards went into the lockerroom to
escort former strikers through the gatherings of nonstrikers to their
work stations. The 4 former strikers so aided were among the 15
who quit.
7. Numerous credited strikers testified they were welcomed like
"long lost brothers" and "with open arms" by supervisors who, like
Kent, advised them to be patient and "give the nonstrikers a little
time to get a few things off their chests."
8. Credited strikers also testified to many instances where they
personally observed Kent or supervisors either reprimand nonstrikers
whom the strikers had accused of abusive conduct, or order the non-
strikers away from the strikers' work stations. Several strikers testi-
fied that Kent or the supervisors helped to relieve or eliminate such
conduct. Yet these strikers quit their jobs. One of the fifteen men
who left his employment conceded that for 3 days before his departure
he was subjected to no abuse.
9. Kent and various supervisors pleaded with most of the 15 em-
ployees who did leave their employment to "remain and have pa-
tience," saying that they were among the "best men" Respondent had
and that they should "protect their seniority."
10. Most of the employees who were allegedly excluded from the
plant by nonstrikers on 4 different days testified that Kent of'^-red
to have them escorted back to their jobs, promising them pay from
starting time and protection on their jobs.
717-672-64-vol. 143-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found 8(a) (3) violations with respect to (a)
the employees who left work allegedly because of abuses within the
plant, (b) the employees he found to have been excluded by the non-
strikers, and (c) the nine who did not report at all although offered
reinstatement. The Trial Examiner rested his 8(a) (3) findings pri-
marily upon the premise that Respondent had failed to take sufficient
measures to comply with what he termed Respondent's duty to return
the striking employees to "normal working conditions." As for the
nine employees who did not report at all, the Trial Examiner found in
effect that they were justified in not attempting to return because they
had, learned of the conduct engaged in by nonstriking employees
within the plant.
Under the total circumstances of this case, we are not persuaded
that the nonstrikers' conduct was inspired or encouraged by Respond-
ent, let alone initiated or approved by it. Unlike the cases 12 relied upon
by the Trial Examiner, in which the Board imputed responsibility to
employers for abuses committed by nonunion employees against union
employees, the instant case discloses neither overt employer hostility
nor active opposition to the employee group imposed upon. Nor do
the circumstances in the case at bar, unlike those in the cited cases,
otherwise suggest employer cooperation with or incitement of the
antiunion forces. As the Trial Examiner himself acknowledges, the
nonstrikers' hostility toward the returning strikers was the aftermath
of a long strike which had given rise to considerable personal bitter-
ness between the two employee groups.13 Respondent could scarcely
be expected to eliminate by fiat the mutual ill feeling between the two
groups which the events of that strike had generated so as to restore
the former strikers to precisely the same climate that had existed in
11 The Trial Examiner also stated that "once normal conditions were restored (after
the obtaining of an ex parte injunction on August 9, 1960 ) Respondent was under an
obligation to communicate with the excluded employees and offer them reinstatement "
Since there is no allegation in the complaint to this effect , we do not pass on this point
12 Altamont Shirt Corporation , 131 NLRB 112 , 120; D. W. Newton, an individual, d/b/a
Newton Brothers Lumber Company , 103 NLRB 564 , 567; Majestic Metal Specialties, Inc ,
92 NLRB 1854 , 1863; Brown Garment Manufacturing Company, 62 NLRB 857; Riverside
Manufacturing Company, 20 NLRB 394; General Shoe Corporation, 5 NLRB 1005;
NLRB. v Hudson Motor Car Company, 128 F. 2d 528 (C A. 6).
i2 The Trial Examiner excluded almost all evidence relating to Respondent 's contention
that the former strikers engaged in misconduct during the strike Nevertheless, in his
Intermediate Report he states that it is "undisputed that the proteced concerted acivity
of the former strikers was the reason for the (nonstrikers ) conduct described " [Empha-
sis supplied I The exclusion of such strike misconduct evidence constituted error Wythe-
ville Knitting Mills, Inc., 78 NLRB 640, modified in 175 F. 2d 238 (C A 3) ; N L R.B v.
Superior Tool & Die Co ., 309 F. 2d 692 (C.A. 6). However, there is sufficient evidence in
the record to enable the Trial Examiner to acknowledge "the explosive potentialities that
might result when the strikers were recalled, by reason of bitterness engendered during a
10-month long strike, between the two groups of employees."
THE CROSS COMPANY 1013
the plant before the strike. It was, of course, Respondent's duty to
adopt reasonable measures to protect the former strikers. But on the
evidence before us we are unable to conclude that the Respondent
failed in good faith to take such measures. Indeed, it is noted that in
several of the cited cases relied upon by the Trial Examiner, the re-
spondent employers were held responsible precisely because they failed
to take some of the very precautions which, as the record shows, Re-
spondent in this case did take.
Bearing in mind the facts alluded to above-particularly, (a) the
notice posted and the Respondent's implementation of that notice by
its discharge of nonstriker Novack, (b) the thorough investigations
Respondent conducted of all incidents reported by former strikers,
(c) the instructions given to respondent's supervisors, as well as the
implementations of such instructions as demonstrated, for example,
by supervisors' escorting former strikers through gatherings of non-
strikers and the supervisors' frequent public reprimands of offending
nonstrikers, and (d) the efforts made by Respondent to persuade the
former strikers to remain at work-we do not find the Respondent to
be responsible for the conduct of the nonstriking employee group.
We note, moreover, that in the cases cited by the Trial Examiner the
mistreatment of the union employees was far more aggravated than it
was in the instant case. Here the brunt of the abuse was meted out in
the form of insulting language and vague and general threats never
consummated, of a kind which the Board in Trumball Asphalt Com-
pany of Delaware, 139 NLRB 1221, recently characterized as "minor
disorders." Further, the record, discloses that even these "minor dis-
orders" were not condoned by respondent and that the Respondent
sought to eradicate them whenever their existence was made known
to it. In addition, the totality of evidence fails to persuade us either
that the employees who left the plant made a genuine effort to remain,
or that those who failed, to report did so primarily because of the con-
duct actually engaged in by the nonstrikers.
It appears to us, in sum, that before the Respondent may be held
legally accountable for conduct not engaged in by its agents and not
shown to have been authorized, approved, inspired, or encouraged by
it, it was incumbent on the General Counsel to prove more than was
proved in the instant case. Accordingly, we shall dismiss the com-
plaint's allegations relating to constructive discharges and exclusions
from the plant.
[The Board dismissed the complaints.]
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TABLE OF CONTENTS
Page
Statement of the Case---------------------------------------------- 1014
Findings and Conclusions------------------------------------------- 1015
I. The business of the Respondent--------------------------------- 1015
II. The labor organizations involved-------------------------------- 1015
III. The alleged unfair labor practices------------------------------- 1015
A. Issues------------------------------------------------- 1015
B. Background------------------------------------------- 1016
1. Prior events------------------------------------- 1016
2. Description of plant and lockerroom, and location of
powerhouse and filtration beds------------------ 1017
3. Identification of supervisory personnel-------------- 1018
4. Identification, duties, and location of guard personnel-_-- 1018
C Alleged exclusions from plant, and alleged constructive dis-
charges of returning strikers Alleged discriminatory dis-
charge of Wagers. Events of May 20 to August 9, 1960,_ - 1020
D. Alleged assignments to "more arduous less agreeable fob
tasks." Alleged discriminatory discharge of Sassano------ 1081
E Alleged discriminatory reduction of hours of Joseph Hor-
onzy-June 1 to present------------------------------ 1086
F. Alleged constructive discharges of strikers who did not report- 1088
G Respondent's defenses---------------------------------- 1094
H. Credibility-------------------------------------------- 1094
I Concluding findings re 1960 events----------------------- 1095
1. Exclusions from plant---------------------------- 1098
2. Discriminatory discharge of Michael Oravec--------- 1099
3. Constructive discharges-------------------------- 1100
4. Severance pay applications and alleged resignations-- 1102
5. Discriminatory discharge of Robert Wagers--------- 1103
6. Assignment of more arduous and less agreeable job
tasks, Sam Sassano, Mykola Holowan, John Fass-
binder, and Jacob Krist------------------------ 1104
7. Constructive discharge of Sam Sassano------------- 1105
8. Discriminatory reduction in hours of Joseph Horonzy- 1105
J. Alleged discriminatory layoffs, terminations, and recalls in
1961------------------------------------------------ 1106
K. Alleged assignment of more arduous or less agreeable job tasks
to Anthony Lewandowski, commencing March 6, 1961---- 1113
L. Alleged discrimination in assignments of Saturday overtime,
Edward S. Papcun-May 13 to June 25, 1961 ----------- 1116
M. Concluding findings re 1961 events----------------------- 1117
IV. The effect of the unfair labor practices upon commerce------------- 1119
V. The remedy-------------------------------------------------- 1119
Conclusions of Law-------------------------------------------- 1121
a The alleged discharges all occurred prior to August 9, 1960. It is undisputed that the
alleged threats of violence, acts of violence, abuse, vilification, and harassment ceased upon
the issuance of an ex pane injunction on August 9, 1960.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Detroit,
Michigan, on various dates commencing May 16 and ending September 30, 1961,1 on
the amended complaint, as amended, and subsequent complaint 2 of the General
I However, the record was held open until October 6, 1961, awaiting receipt and dis-
position of a motion concerning admission or rejection of proposed additional exhibits
2 The charge in Case No 7-CA-2782 was filed June 16, 1960, and amended July 25,
1960, subsequently renumbered Case No. 7-CA-2782-1. The charge in Case No. 7-CA-
2782-2 was filed July 11, 1960, and amended October 10, 1960. A consolidated complaint
was issued February 27, 1961, and a consolidated amended complaint issued March 7,
1961. The complaint was further amended May 9 and 11 and June 1, 1961 The charge
in Case No. 7-CA-3233 was filed June 20, 1961, and complaint issued July 31, 1961. On
August 28, 1961, a motion to consolidate "for all purposes" was denied. However, the
Trial Examiner granted consolidation "for the purpose of hearing and disposition," since
THE CROSS COMPANY 1015
Counsel, and the answers, as amended, of The Cross Company, herein referred to
as the Respondent. The issues litigated are whether the Respondent engaged in unfair
labor practices and thereby violated Section 8(a) (3) and (1) of the Labor Manage-
ment Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The
parties waived oral argument. Briefs filed by the General Counsel, Charging Parties,
and Respondent have been carefully considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Michigan corporation maintaining its principal office and place
of business in Fraser, Michigan, engaging in the manufacture of special machine
tools. During the 12-month period ending December 31, 1959, Respondent pur-
chased raw materials valued in excess of $500,000, which were received by it in
Michigan directly from points outside the State of Michigan. During the same
period, Respondent manufactured, sold, and shipped finished products, valued in
excess of $500,000, in interstate commerce, from its plant in Michigan to points out-
side the State of Michigan. During the 12-month period ending December 31, 1960,
Respondent purchased raw materials valued in excess of $500,000, which were
received by it in Michigan directly from points outside the State of Michigan. During
the same period, Respondent manufactured, sold, and shipped finished products,
valued in excess of $500,000, in interstate commerce, from its plant in Michigan to
points outside the State of Michigan. Respondent admits, and I find, that it is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile , Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, and its Local Union No. 155, International
Union, United Automobile , Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, herein jointly called the Union , are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues raised by the pleadings and litigated at the hearing in Cases
Nos. 7-CA-2782-1 and 7-CA-2782-2, as amended, are whether Respondent, as
more fully set forth in the complaint, engaged in activity in contravention of the
provisions of Section 8(a) (3) and (1) of the Act by: (1) failing to take effective
measures to prevent or stop the conduct of nonstriking employees who allegedly
were engaging in acts of violence to, abuse of, threats of violence to, eviction of, and
vilification and harassment of returning former strikers, and whether Respondent
did permit, acquiesce in, encourage, and condone said conduct which resulted in (a)
the exclusion from the plant of named employees 3 on 1 or more workdays, and (b)
the constructive discharge, on various dates in the period of May 21 to August 8,
1960, of named employees; 4 (2) discriminatorily discharging Robert Wagers; (3)
the events alleged in the complaint in Case No 7-CA-3233 were subsequent events in-
volving the same sections of the Act. To the extent any of the incidents covered In the
consolidated complaint, as amended , in Cases Nos. 7-CA-2782-1 and 7-CA-2782-2 oc-
curred prior to the 6-month limitation period of Section 10(b) of the Act, which runs
from December 21, 1960, In Case No. 7-CA-3233, they are relied on in deciding the latter
case solely as background information to "shed light" on events within the period covered
by the charge in the latter case. Fitzgerald Mills Corporation, 133 NLRB 877, footnote 3.
3 Lewandowski, Derbin, Brown, Dogariu, Genest, Krist, Kidle, Muszynski, Filar, Bristol,
and Papcun were allegedly excluded on August 4, 1960 Bristol, Papcun, and Peterson
were allegedly excluded on July 1, 1960. Vorhoff was allegedly excluded on July 21, 1960.
filler and Moore were allegedly excluded on May 23, 1960 Bristol was also allegedly
excluded on "other days."
4 Employees who reported, or allegedly attempted to report to work, and are alleged
to have been constructively discharged are: Oravec, Cortis, Castle, Gauci, FIeyworth,
Enzmann, Christen, Karolak, Ferdinand, Gray, Pierson, Domilici, Parrino, Schumaker,
Caravas, and Janicki Employees who "did not report" but are also alleged to have been
constructively discharged are Marschke, Varriale, Martz, Melkus, Jacobs, Russner, Payne,
Jarosz, and Olms Stricken from paragraph 11 of the complaint, on motion of General
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commencing about June 1, 1960, and thereafter, discriminating against Sam Sassano,
Mykola Holowan, Jacob Krist, and John Fassbinder, by assigning them to more
arduous and less agreeable job tasks; (4) discriminatorily discharging Sam Sassano
on or about July 15, 1960; and (5) discriminating against Joseph Horonzy, com-
mencing on or about June 1, 1960, by providing him with less employment than he
normally would have received. Respondent generally denied the allegations set
forth. Respondent further plead, as an affirmative defense, that the misconduct of
the nonstriking employees against returning strikers, if such did occur, was the
result of antagonisms and animosities created during the period of the strike, i.e.,
August 4, 1959, to May 16, 1960.5
The principal issues raised by the pleadings and litigated at the hearing in Case No.
7-CA-3233 are whether Respondent, as more fully set forth in the complaint, engaged
in activity in contravention of the provisions of Section 8(a)(3) and (1) of the Act,
by: (1) discriminating with respect to hire and tenure and conditions of employment,
specifically in the matter of layoff and recall, relative to Theodore Peterson, Floyd
Bristol, Lorne Alexander, Raymond Shook, and Joseph Agosta; (2) discriminatorily
assigning Anthony Lewandowski, on or about March 6, 1961, and thereafter, to more
arduous and less agreeable job tasks; and (3) providing Edward Papcun with less
employment (overtime) than he normally would have received, commencing May 13,
1961. Respondent generally denied these allegations.
B. Background
1. Prior events
The Union, unsuccessful in three previous efforts to organize Respondent's separate
plants, was certified as the collective-bargaining representative of the employees in
the new combined plant in Fraser on April 26, 1957 6 A collective-bargaining agree-
ment entered into between the Union and Respondent, on August 7, 1957, was
terminated October 1, 1958, pursuant to notification of termination by Respondent on
July 28, 1958. Decertification petitions were filed on September 10 and October 3,
1958, and resulted in the certification of the International and the local as the des-
ignated collective-bargaining representative of the employees in the unit.? The peti-
tioner for decertification and the employer filed timely objections to the election which
the Board found to be without merit.
On August 4, 1959, the Union filed a charge of a violation of Section 8(a) (5) and
(1). The same day, an unstated number of employees ceased work, congregated
in front of the Respondent's plant, and commenced a strike which continued until
May 1960. The Board on May 11, 1960, found that Respondent had violated Sec-
tion 8(a)(5) and (I) of the Act by refusing to bargain with the Union. The Board
further found that the striking employees were unfair labor practice strikers.8
It is undisputed that on or about May 16, 1960, unconditional applications for rein-
statement were made by or on behalf of all the strikers with whom we are here
concerned, and that subsequently Respondent undertook to reemploy all of them,
without exception.
In the interim, Respondent unsuccessfully sought a petition for a writ of mandamus
directing the Board to set aside the decertification election and order a new election.
Cross Company v. Leedom, 271 F. 2d 247 (C.A. 6) (October 9, 1959). Thereafter,
Respondent filed a petition for review of, and the Board petitioned for enforcement
of, the order directing the employer to bargain. The court vacated the certification,
denied enforcement of the Board's order, and remanded the case to the Board
for further consideration. Cross Company v. N.L.R.B., 286 F. 2d 799 (C.A. 6)
(February 2, 1961) (rehearing denied April 15, 1961, 288 F 2d 188) No further
action by the Board has ensued.
Counsel, at the outset of the hearing, were Chateau, Rogowski, and Sassano. Stricken
from paragraph 11 of the complaint, with prejudice, during the hearing were Chapman,
Harvey, and Stover.
5 This asserted defense was rejected as neither material nor relevant.
8I have taken official notice of Case No 7-RC-1236, certification of results, April 4,
1951; Case No 7-RC-2125, certification of results, March 19, 1954, Case No 7-RC-2962,
certification of results, December 19, 1955; and Case No. 7-RC-3367, union certified,
April 26, 1957. Respondent moved into the Fraser plant in January 1957
71 have taken official notice of Cases Nos 7-RD-272 and 7-RD-275, reported in 123
NLRB 1503, June 4, 1959. The reported tally was 150 for, and 134 against, the Union,
and 5 challenged ballots.
8 I have taken official notice of Case No 7-CA-2468, reported in 127 NLRB 291.
THE CROSS COMPANY 1017
2. Description of plant and lockerroom, and location of powerhouse
and filtration beds
The office and plant of Respondent are located on the north side of Fourteen Mile
Road, with the southerly end of the building approximately 240 feet from the road.
A guard shack and entrance gate are set back approximately 75 to 85 feet from the
northerly side of the road, and are approximately 35 feet west of the westerly side
of the building. The offices of Respondent occupy approximately the first, or
southerly, 235 feet of the building in a south to north direction. The only office
of importance in the testimony is that of Personnel Director Kent. One row of offices
are adjacent to the plant proper. The second office from the easterly end of said row
is the personnel department waiting room. Kent's office is immediately west of that
waiting room, with another office indicated between his office and the plant proper.
Commencing at a height of approximately 3 feet, the offices adjacent to the plant
proper are separated from it by glass windows.
The main room of the plant, not separated by walls or partitions, as distinguished
from machinery, tool cribs, and stockracks, approximates 700 feet south to north
and 180 feet east to west. The length is divided into 17 sections: section 1 is ad-
jacent to the offices and has a south to north length of 60 feet, sections 2 through 17
are each 40 feet. The east to west width of this area is divided into bays identified as
bay E, bay D, and bay C, each having a width of 60 feet. Bay B, immediately
west of bay C, separated from the main plant room by walls and doors, extends from
section 2 through section 15 and is 30-feet wide .9
Section 1, adjacent to the offices, contains a receiving dock on its westerly end
and is used largely for storage of bar stock and steel fabrications and castings awaiting
machining.
The area from section 2 through section 8, both inclusive, is the machine depart-
ment. There is a 10-foot wide center aisle in each of three bays, with machinery on
both sides of each aisle. This area also contains a machine shop, tool crib, and a
washroom.
Bay B, separated from the main plant room by a wall, contains the following:
paint shop, sections 2 through 8, with a doorway at the northerly end; heat-treat
room, sections 9 and 10, with a doorway in section 9, storage room, for electrical
components and miscellaneous items, sections 11 and 12. The use of sections 13
through 15, in bay B, is obscure.
The assembly department, subassembly department, and assembly stockroom areas
occupy all of the main area of the plant from the cross aisle in section 9 to section 17,
the latter including the shipping area. Aisles E and C, in these sections, are adjacent
to the east and west walls, respectively. The subassembly area occupies most of sec-
tions 11 and 12 in bay E.
Racks containing assembly department stock are lined up along the cross aisle
in section 9, and extend into section 10, occupying a large portion of bay D, except
for a space approximately 15-feet wide immediately west of the assembly department
stockroom. This open space is not designated as an aisle, but it appears undisputed
that it is normally unblocked and customarily used as a passageway.
The lockerroom is an eastwardly extension , from the east wall, approximating the
width of sections 8 and 9, 80 feet, and a length of 100 feet.10 At the easterly end of
the lockerroom there is a south vestibule and a north vestibule, of equal dimensions,
through which ingress is gained to the lockerroom by the employees, including most of
the supervisory employees. Each vestibule has two glass outer doors, with metal
frames and with metal crossbars which can be used to release the door or to hold
it in a locked position. Each vestibule is 8-feet wide and approximately 261/2-feet
long to the inner doors. The inner doors are likewise double doors of metal frame
and glass. The distance between these two inner doors, and similarly the width of
the center of the lockerroom is 271/2 feet. Washbasins 54 inches in diameter are
alternated in this center section. The first washbasin, on the southerly side, is 8th
feet from the east wall, and on the northerly side 19 feet. Clearance, in the center
of the room, between the inner edges of these washbasins is 41/2 feet. Entrance to
the plant is through two doors in the west wall of the lockerroom.
During the early days of the strike two movable tables were placed in the locker-
room for the convenience of the nonstriking employees in eating their meals The
precise location of these tables figures significantly in the testimony set forth infra.
It is undisputed that one table was 10 feet, and the other 101/2 feet, in length and both
9 Appendix A is a diagram of the plant portion of the building, reflecting location of
bays, sections, aisles, stock and tool rooms, washrooms, lockerroom, and foremen's desks
10 Appendix B is a diagram of the lockerroom
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were 30-inches high. There were movable benches between rows of lockers for
employees to use in changing shoes, and similar benches alongside the tables.
Superintendent Riddell was in the lockerroom 10 or 12 times in the period from
May 20 to August 9, but never in the early morning before work hours. Riddell
placed the tables as being between the first (eastwardly) washbasin and the east wall
sometimes parallel and sometimes diagonal from southeast to northwest.ll I find,
however, from all of the varied evidence herein, that these tables were moved and
used to form both obstructions and aisleways on some mornings.
There are two mirrors on the east wall and one mirror on the west wall in the
center of the lockerroom.
The powerhouse, containing the heating and the air-conditioning units, is a separate
building 150 yards to the east of the plant. The filtration beds are near the power-
house.
3. Identification of supervisory personnel
It is undisputed that the following are supervisors within the meaning of the Act.
Milton 0. Cross, Jr., is president of Respondent. Thomas C. Kent is director of
personnel, having been employed, during the period of the strike, on August 10,
1959. He reports directly to Milton 0. Cross, Jr. He described his duties as assist-
ing in the labor relations function, and acting as staff adviser to management on
personnel matters relative to both the hourly and salaried group. Disciplining em-
ployees is not his function, but he does recommend discipline or discharge where
he considers it appropriate. His department does make investigations and recom-
mendations. The guard personnel in the plant are under his direct supervision.
Vernon E. Riddell is general superintendent. He is responsible for general super-
vision of all manufacturing activities, including manufacturing engineering, which
includes the functions of tool design and methods engineering, and all machining,
assembly, maintenance, and associated functions having to do with the manufacture
of Respondent's products All of the supervisory personnel named hereafter are
under his supervision. He has been employed by Respondent, in his present capacity,
since January 14, 1957.
Stanley Balchunas is light machinery foreman and has been for approximately 12
of the 13 years he has been employed. Edward Balchunas, brother of Stanley, has
been general foreman of the afternoon shift for 5 of the 13 years he has been em-
ployed. Burton J. Winke has been heavy and medium machinery foreman on the
day shift for 10 of the 13 years he has been employed.
David Hargreaves has been assembly department foreman for the last 3 of the
14 years he has been employed. George Sujuki is assistant assembly department
foreman, on the day shift, in charge of hydraulic and electrical work and has been
for 4 of the 17 years he has been employed. Harry F Ress is an assistant assembly
department foreman. He is in charge of subassembly and has been for 8 years ,having
been employed since 1944. Leonard Charbonneau was assembly department fore-
man on the afternoon shift for approximately all of the 3 years he had been em-
ployed, until July 18, 1960, when he was transferred to the day shift.
Burnice E. Thaxton is snagging and painting foreman and has been for 7 years
William P Reece has been employed as plant engineer since 1955 Charles W.
Balkwill has been material control manager for 6 or 7 years, and has been employed
since 1942, except for a period from 1948 to 1952. William B Donaghey is master
mechanic and has been so employed for approximately 4 years.
4. Identification, duties, and location of guard personnel
Questions relative to the use of guards in the powerhouse and the resultant alleged
effect on the reduction of hours of Joseph Horonzy are considered infra, section E.
Earl Scott has been employed by Respondent as a guard for 5 years. His shift is
from 1 to 9 a.m. His principal duty station was at the gate or guard shack at the
entrance to the grounds. Scott's undisputed testimony was that prior to the strike
there were two men on the gate, inferentially from 1 to 6 a m., one of whom would
remain at the gate and, alternately, the other one would make patrols around the
shop. Every other morning Scott would be in the lockerroom getting out laundry,
inferentially between 6 and 7 a.m., which is the time the employees were in the
lockerroom preparatory to going to work. Scott would then go to the personnel
office and remain until the office employees came in around 8 a.m. About the time
the strike began, in August 1959, a third guard was placed in the powerhouse from
10 p.m. to 6 a.m., and every other day, continuing to the present, Scott relieves him
11 Personnel Director Kent placed the tables as being "between rows of lockers," which
would be between washbasins. I do not credit his testimony
THE CROSS COMPANY 1019
in the powerhouse at 6 a.m., and remains until Scott's quitting time of 9 a m. Scott's
participation in activities at the gate on specific mornings between May 21 and
August 9, 1960, are related to the testimony of the particular event, infra.
Frank J. Babuska has been employed as a guard for more than 41/2 years. His
duty station, for the 3 years preceding his testimony, in September 1961 has been at
what is identified as the "manufacturing desk." This desk is located in section 8
against the east wall of the main room of the plant and immediately south of the
entrance doors from the lockerroom Babuska works every day except Friday.i2
Babuska's hours on Monday through Thursday are 6 a.m. to 2 p.m., on Saturday from
6 a.m to 3 p.m., and on Sunday from 8 a in. to 4 p.m. On Saturday when the plant
is not in operation and on Sundays Babuska is on duty at the gate. When an em-
ployee returns from a layoff, and in this case from a strike, the personnel department
sends his timecard to Babuska, assuming the employee is on the day shift. Babuska's
duties include giving these timecaids to returning employees.13
The lockerroom doors, adjacent to the manufacturing desk, were described as
being three-quarters steel and one-quarter window in height, with each window about
half the width. In the morning before starting time these doors stand in an open
position. Babuska acknowledged that one standing in the doorway could see the
far or east end of the lockerroom.
One of Babuska's duties in the morning before starting time, 7 a.m., is the dispensing
of laundry from the laundry room, which is at the east end of the lockerroom.14
The laundry room has a steel door which is kept locked except when Babuska is in
there; during the latter time the door is left open so the employees will know that
Babuska is in there to distribute laundry. This distribution takes place every day
except Friday, when Babuska is not there, and Sunday.15
While Babuska stated "our prime purpose" was plant protection and fire protection,
no specifics of any instructions given him prior to May 1960, relative to protection
of personnel, appears in his testimony. Respondent's evidence is to the effect that
Babuska was charged with the duty of seeing that what is alleged to have happened
did not happen, i.e., that strikers, attempting to respond to a summons from Re-
spondent to report for work, were not prevented from so doing by being blocked
by nonstriking employees gathered in the lockerroom.
Personnel Director Kent, supervisor of the guards, related that on the morning of
May 21, 1960, "and on many subsequent dates," shortly after his arrival at 8 o'clock,
he issued instructions to the guard personnel that they should keep their eyes open
in the lockerrooms "to make sure no one is prevented from coming to work at any
time; if you know of any incidents which violate any of Mr. Cross' memos placed
on the board stating disciplinary measures would be enforced if anyone made any
threats of violence or exercised violence toward any returning employee, they would
be disciplined, and I said I want you to be very sure that is observed to the letter." 16
2 Joseph Popovich, unrelated to Vladimir Popovich, replaces Babuska on Friday. Joseph
Popovich wall not called as a witness.
13 The timeclock for the machinery department employees and a bulletin board are
located on the south side, near the easterly end of the assembly department stockroom
and tool crib, in the cross aisle of section 9. The assembly department employees' time-
clock and bulletin board are affixed to the east wall of the main plant room in aisle E,
section 9, north of the cross aisle and east of the assembly department stockroom and
tool crib.
14 See Appendix B.
15 Babuska's testimony that he had been so distributing the laundry for the 3-year period
appears to be at variance with the testimony of Scott that Scutt distributed the laundry,
prior to the strike, on alternate mornings Babuska's own testimony relative to distribu-
tion of laundry during the period of the strike is conflicting
Q. -low long have you been doing that? [Distributing laundry 1
A As long as I have been on that post there, these 3 years
e s t • s » a
Q And have you been in the locker room during the strike as well with laundry in
the morning?
A During the strike, no. I had different orders during the strike.
This is not the sole inconsistency in the testimony of Babuska. Some of the other con-
flicts between Respondent's witnesses are noted below Personnel Director Kent's testi-
mony that laundry service was resumed about 3 months before the termination of the
strike would appear more accurate.
10 Immediately following this testimony, Kent related that the Cross notice referred to
was not placed on the board until Monday, May 23, but these were nevertheless his in-
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kent said these instructions were issued after the Oravec incident , see section C, 3,
infra. Kent related he specifically gave these instructions to Frank Babuska, who
admittedly , was the only guard in the area of the lockerroom , Fridays excepted. I
do not credit this testimony of Kent as to the date of this instruction.
Even were I to find this testimony of Kent credible , Respondent 's duty extends
beyond mere issuance of appropriate instructions . Babuska's performance becomes
germane. Babuska 's activity , or failure to act, is detailed infra. However , portions
of his testimony are enlightening at this point : ( 1) "My main job was to bring the
man into the shop and see that he got to work ," see section C, 34, infra : ( 2) "Every
time I noticed a man (ex-striker ) in there ( in the locker room ) I went in there and
got him", and ( 3) "Well if he ( ex-striker ) was blocked (by nonstrikers ) I couldn't
very well see him and I wouldn't be paying any attention to a group of men in there.
If I observed a man coming in, then I escorted him in. If he was blocked , I couldn't
see him. How could I escort him."
At or after 7 a.m., Babuska prepares a report for the personnel department of
absentees and those late in reporting . He is stationed at the desk all day taking care
of first aid , hospital runs, and other things that may come up.
C. Alleged exclusions from plant , and alleged constructive discharges of returning
strikers; alleged discriminatory discharge of Wagers ; events of May 20 to August 9,
1960
1. Supervisors ' meeting May 18, 1960
It is undisputed that Superintendent Riddell customarily held meetings with his
supervisory staff and these meetings were attended by Personnel Director Kent. The
meetings were primarily to discuss production and production problems. There is
substantial conflict, between foremen , whether events between strikers and non-
strikers were discussed at any of these meetings , and, if so, at how many 17
Superintendent Riddell related that on either May 18 or 19, 1960 . he held a meet-
ing of his supervisory force and repeated what he had been telling them individually
"that we still needed additional employees , and we had stopped hiring new ones
as former strikers had become available . . . and I told them that I certainly would
anticipate that there would be strong feelings on the part of the returning strikers
toward the people that had worked during the strike, and undoubtedly strong feelings
on the part of the people that had been working during the strike toward the return-
ing strikers , and that I would hold them responsible for maintaining order in their
departments " 18 Kent and other supervisors testified that no reference to lockerroom
gatherings before work or lunch time gatherings was made by Riddell at this meeting.
It appears , and I find, that the supervisors understood the recited instructions to be
related to worktime . Reasons for this conclusion appear in the facts set forth
hereafter.
2. Interviews of returning strikers , recall
Personnel Director Kent related that his background included 18 years in personnel
work, including teaching personnel administration at the University of Michigan in
1949 and 1950 Kent testified , from his experience , that many times where there
is an interruption of work of long duration , such as the 10-month strike herein, that
anywhere from 30 to 50 percent of the amployees will not return . It was for the
purpose of determining who among the striking employees was willing , able, and
structions on the 21st . It appears that Kent did not talk to Cross about this notice until
May 23 Actually the Cross notice was not posted until May 24. It is obvious that Kent
could not have made reference to a nonexistent memo
17 There are substantial variances in the testimony of Respondent ' s supervisors relative
to the number of supervisory meetings held between May and August 1960 ( including the
May 18 meeting ) at which complaints of striking employees , relative to the conduct of
nonstriking employees , were discussed , or instructions relative to such conduct were issued
by Riddell, and relative to what was said. Relative to the number of such meetings:
Edward Balchunas said there were six ; Hargreaves , Sujuki, and Stanley Balchunas said
there were to o ; Ress placed the number at two or three ; Charbonneau recalled the
May 18 meeting but was vague as to events relating to strikers at later meetings ; Thaxton
was uncertain about any such meeting ; Kent detailed discussions on May 18 , June 9, and
July 1 , which are considered infra
18 In view of the testimony of the foremen and Kent, to the contrary , I do not credit the
testimony of Riddell that, at this meeting, "I told them there was nothing we could do
about congregations before working hours or during lunch period provided they were peace-
ful congregations."
THE CROSS COMPANY 1021
ready to come back to work, that Respondent undertook to interview "all of the
men who notified us through the Union that they wished to be reinstated."
I have noted supra, section B, 1, that these unconditional applications for rein-
statement were filed on or about May 16, 1960 It is undisputed that the bulk of
the interviews were conducted by Kent, or his assistant, King, or both, on Friday,
May 20, Saturday, May 21, and Monday, May 23, 1960.19 Kent advised each ap-
plicant that he would be advised when he was needed I find that Respondent knew
on May 23, 1960, which employees were available, yet recalled them singly, or very
few at a time, during the period from May 20 to August 4, 1960.
Superintendent Riddell decided the order and time of recall of employees. Riddell
asserted that his deteimmation was without consultation with Pre" ,dent Cross and
was predicated upon the "job openings that needed to be filled." Riddell, about
May 20, requested Personnel Director Kent to recall Michael Oravec, Louis Cortis,
Nickolaus Miller, and Edward Moore; thereafter, he requested the others named
herein.
Undisputed, but without record documentation or verification, Superintendent
Riddell recited approximate variances in the total factory work force of Respondent
as: 300 at the beginning of 1957; apparently reduced gradually to 60 in the middle
of 1958; increased 200 at the end of 1958; reduced to approximately 150 at the time
of the strike in August 1959; approximately 180 at the time of the beginning of the
recall of ex-strikers about May 20, 1960; and increasing to about 215 prior to a
December 1960 layoff.
3. Michael Oravec-May 21 to 27
It is undisputed that Oravec was interviewed by Kent on Friday, May 20, and
at that time Kent requested Oravec to report for work the following morning, Satur-
day, May 21. Starting time was 7 a.m.
Oravec was initially employed by Respondent on January 10, 1951. At the time
of the strike, August 1959, he was a union committeeman for Respondent's employees.
His classification was storekeeper and his work station had been the assembly depart-
ment stockroom and tool crib.
It is alleged Oravec was constructively discharged.
Louis Cortis was the first returning striker to appear at the plant on May 21 He
saw a large group of nonstrikers in the lockerroom and a dummy hanging from the
ceiling. Cortis returned to the plant gate. These events are covered in section C, 4.
Oravec approached the plant gate about 6:50 a.m. and saw Cortis standing there.
Cortis entered Oravec's car and they drove to the parking lot. They proceeded,
through the vestibule doors, into the vestibule leading to the lockerroom. Oravec
entered the lockerroom, Cortis was still in the vestibule. Oravec saw a dummy hang-
ing from the ceiling.20
Guard Babuska saw the dummy hanging "just before 7 o'clock." He estimated
there were 50 to 80 employees in the lockerroom The dummy was hanging from
one of the heat vents. He made no inquiry as to who put the dummy up. Foreman
Stanley Balchunas saw the dummy hanging in the lockerroom. He did not order
it taken down. Foreman Winke saw the dummy. He did not inquire what it was
doing there, who put it there, or order it taken down. He had "a very good idea
why it was there-to remind the strikers of some of the activities they had displayed
out front "
A large gathering of nonstriking employees, estimated at 50 to 100, were gathered
in the lockerroom to greet returning strikers, including Oravec.21
19 Absent any allegation that statements made by Kent during these interviews were in
derogation of the provisions of the Act, they are not considered
20 The dummy, a figure made of clothing stuffed with newspapers, was made by Jernej
First First was initially employed November 18, 1959, during the strike First, accom-
panied by Vladimir Popovich, Edwaid Zelinsky, and Richard Behrends, brought the dummy
to the plant about 6 45 a in. First and Behrends hung the dummy immediately
While 50 to 100 employees were in the lockerroom when Oravec entered moments later,
all who testified, except First, incredibly denied knowing who had hung the dummy.
Popovich was one who denied such knowledge In contrast, First asserted that "every-
body" was "teasing" him about the dummy when Oravec entered
First sought to establish knowledge of prior dummies being hung at Respondent's plant
when the Union lost an election, then admitted he was not in the plant prior to 1957
The last such union defeat was 1955 First then sought refuge in a recitation that he and
his partners had engaged in the "same type" joke in a business they owned, sometime prior.
21 Kent, when investigating subsequently, was advised the group "waited" for returning
strikers. Czekis, a nonstriker, had seen timecards for Oravec and Cortis on Guard
Babuska's desk Czekis' denial that he told other employees of his discovery is not credited
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What happened when Oravec came into the lockerroom upon this situation is a
matter of dispute, but it resulted in his leaving the plant without further attempt to
return to work that day. The sum of Oravec's testimony was that he was assaulted
and put in fear of serious injury. Specifically he testified that as he stepped into the
room an outburst of "screaming, cussing and yelling" broke out and he was sur-
rounded. He was pushed and shoved against the wall at the east end of the locker-
room, kicked in the knee by an unknown assailant, and as he sought to fend off
the blow was kicked in the groin by Popovich. The door was pushed open and
Oravec was advised to "get the hell out." Whereupon he left. Oravec's testimony is
corroborated by that of Cortis, who fled when Oravec was pushed to the wall.
In essence, Respondent's version of the May 21 lockerroom events is: Oravec
walked in; someone shouted "look who is here"; Oravec, without a word spoken,
walked up behind Harold Wilson and Jernej First, who were talking; Oravec elbowed
Wilson in the ribs, causing him to fall against a washbasin and drop his lunch box;
Oravec then elbowed First in the ribs pushing him off balance; a group of 20 or
25 nonstrikers formed in front of Oravec; Ralph Baker stood in front of the group
with extended arms, held them back; Oravec stood a moment or two, said nothing,
turned, and walked out.
It would serve no purpose to enumerate all of the variances in the testimony of
Respondent's witnesses. The following are merely illustrative.
First related he had been walking around "joking" about the dummy for 12 or
13 minutes before Oravec entered, and was "joking" with Wilson when struck by
Oravec Wilson related that he was talking to First "about wiring my house . . .
about putting in a three-way switch." Wilson said he did not talk to First about
anything else
Charles Wesch was standing at the west wall of the lockerroom "up close to
Frank (Babuska) the guard," when Oravec entered. Wesch then asserted he did
not see the guard but was standing against the wall at the point where the guards'
desk is, on the opposite side. Wesch related Jernej First, Popovich, and Zelinsky
were with him when Oravec entered and "there were two fellows standing there talk-
ing and he (Oravec) came in, elbowed his way in right through them and knocked
them right apart." Wesch was specific about not knowing the names of the two
men. It was after this event that First and Popovich left him and walked toward
Oravec.
James C. Allen saw Oravec walk in, saw him 10 or 12 feet from Wilson, did not
know First, "then I stood there for a few minutes to see what was going to happen,
if anything." Allen related, "I can 't recall that anything too much happened. There
were a few words exchanged, but what they were I couldn't say, I was too far away
to hear them."
There are numerous conflicts as to whether the group which formed in front of
Oravec advanced or stood still. Luft related that 15 to 20 employees were at the
south vestibule door when Oravec left. There are conflicts as to: whether Oravec
was asked about events on the picket line, or only if he came back to cause trouble;
and whether Oravec sought to elbow his way through the crowd or stood still, then,
without saying anything, walked out.
There can be no doubt that the lengthy strike left a residue of bitter feeling be-
tween strikers, on the one hand, and nonstrikers and employees hired during the
strike, on the other hand, of which the dummy was reflective. The hostile character
of the atmosphere in the lockerroom on the morning of May 21 is evident as well
from the statements given to Kent, by employees, on May 24 and 25 as related in
footnote 23, infra. I deem it implausible that Oravec, unquestionably aware of this
feeling, would have strode into the provocative situation in the lockerroom in the
truculent and abusive manner described by the Respondent's witnesses. In the
circumstances such an attitude would have been so foolhardy as to border on the
reckless. Oravec did not impress me as one so contemptuous of his own well-being.
I, accordingly, consider the testimony of Respondent's witnesses as to this incident
implausible. Moreover, Oravec's hostile reception finds corroboration in the treat-
ment accorded other returning strikers, hereinafter enumerated. In addition, Re-
spondent's witnesses relative to the Oravec incident did not impress me favorably
either by their testimony or their demeanor. Their testimony reflects substantial
inconsistencies between their respective versions, variances with statements given
to Board investigators, and variances, by Jernej First, with prior sworn testimony in
other proceedings. In view of these factors and my evaluation of their credibility
based upon observation and demeanor, I credit the testimony of Oravec and Cortis
relative to the events which took place in the lockerroom on the morning of May 21.
The testimony of Respondent's witnesses to the extent it conflicts with that of Oravec
and Cortis, is specifically discredited.
THE CROSS COMPANY 1023
Oravec went to his car and drove to the guard shack at the front gate. On
the way he picked up Cortis, who had meanwhile fled down the outside of the
building. Oravec advised Guard Scott that he had been kicked in the groin, and re-
quested Scott to call the police.22 Scott refused use of the company telephone.
Oravec went to the union trailer, parked across the road and used during the strike,
and called Police Chief Jacobs, who later took Oravec to the hospital. Kent acknowl-
edged that Police Chief Jacobs advised him about 8 a.m., when Kent arrived at the
plant, that Oravec had reported that he had been kicked by an employee named
Popovich. Jacobs asked Kent what was happening at the plant. Kent responded
he did not know but would question Popovich and let Jacobs know as soon as he
could 23
On May 21, about 9 a in., Kent talked to Leach, then president of the Union, and
advised Leach that five strikers had been requested to report that morning and re-
quested that Leach tell any that he saw to report to Kent's office. Kent advised Leach,
"If Oravec was all right to ask him to come to my office and I would see he would be
taken to work and would be safe, personal escort." The others scheduled to return
on May 21, according to Kent, were Louis Cortis, Edward Moore, Edward Castle, and
Nickolaus Miller. Actually, Kent knew that Moore, Castle, and Miller did not plan
to report until May 23.
Pursuant to a telephone conversation with Kent on Monday, May 23, Oravec went
to the clinic for a physical examination by Respondent's doctor. An abrasion near the
right knee is the only injury reported.
2' Scott, acknowledging that Oravec requested permission to use the telephone to call
police, denied having been advised by Oravec of the reason he wanted to use the telephone.
I do not credit the denial of Scott, particularly in view of the testimony of Personnel
Director Kent "shortly after 7 o'clock the guard (Scott) told me Michael Oravec told him
lie was kicked and wanted to notify the police, use the telephone, and when I came to the
plant some 40 minutes later [Police] Chief Jacobs repeated the same story and stated he
was taking Oravec to the hospital "
23 Kent interviewed Czekis, Popovich, Farkas, and Ferguson on May 24 and Joe Rein
and Guard Babuska on May 25, relative to the events which occurred in the Iockerroom
on May 21. Czekis, according to Kent, said at that time he and a large group of em-
ployees waited In the lockerroom to talk to any of the returning strikers who might
appear; when Oravec entered many of the men began to shout at him, questioning him
concerning acts of violence performed by the Union during the early days of the strike ;
that Oravec tried to bluster his way into the crowd, elbowing first one and then the
other ; the crowd closed in on Oravec and there was pushing by both Oravec and others
but no blows struck ; then Oravec retreated and left. Farkas advised Kent that a large
group were waiting to talk to returning strikers, that he was angry about violence during
the early days of the strike and participated in pushing and catcalling when Oravec tried
to elbow his way through the crowd, advising that he struck back when elbowed by Oravec.
George Ferguson advised Kent that a large group of employees gathered around Oravec
and there was a general melee as Oravec tried to elbow his way through the crowd and
they pushed in return and would not permit Oravec to enter ; finally Oravec turned and
left, shouting that he had been hurt. Vladimir Popovich advised Kent that he and a
number of others gathered in the lockerroom expecting returning strikers ; that when
Oravec entered Popovich and others gathered around him shouting questions "asking how
he dared to have the nerve to try to come back to work" ; Oravec tried to elbow 'his way
through the crowd and was pushed in return and Popovich was among those who pushed
Oravec, but Popovich denied striking or kneeing Oravec. Joe Rein advised Kent of an
incident involving Oravec and Cortis preceding Oravec's entry into the lockerroom. Guard
Babuska advised Kent that he was in the laundry room, in the lockerroom, at the time of
the Oravec Incident Kent did not talk to other employees because, he said, "I didn't
know who was there." It thus appears reasonable to infer that the employees Interviewed
did not apprise Kent that Oravec, upon entering, elbowed Wilson and First as now claimed
Czekis and Popovich in testifying herein, denied telling Kent that a large group waited
in the lockerroom to talk to any returning strikers. These denials are not credited.
Kent undertook to interview all those whose names had been called to his attention as
being involved in the episode, other than Oravec. Kent's reason for interviewing those
named was that he had been advised by Police Chief Jacobs that a criminal complaint had
been filed by Oravec and Cortis. His reason for not interviewing other nonsupervisory
employees was "I didn't know who was there." Kent recorded the recited reports I do
not credit Kent's later testimony that he interviewed Popovich on May 21 Popovich re-
called that Kent, in this interview, mentioned Milton Cross' order relative to violence ;
this order was not issued until May 24 and was not discussed with Cross , by Kent, until
May 23.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 23, the Union, by telegram, protested the "tacit approval" of Respondent
to the threats and acts of violence against Oravec and Cortis, by reason of the failure
of the plant guards to take appropriate action. The Union insisted and demanded that
threats and acts of violence be stopped at once and that strikers returning "under
the provisions of the National Labor Relations Board directive be afforded safe and
decent treatment while on the premises of the Company and while at work." 24
On May 24, Kent telegraphed Oravec, "Medical report confirms that you are able
to work. You are requested to return to work at 7 a.m. Wed. May 25."
It is undisputed that on May 24, 1960, Respondent posted the following notice on its
bulletin boards:
Violence or threats of violence to any employee will not be tolerated'
Any employee guilty of such misbehavior will be subject to disciplinary action.
(Signed) M. O. CROSS, JR.
On Wednesday, May 25, the union committee headed by George Merrelli,
coregional director of the International, and including Oravec, met with Personnel
Director Kent, Superintendent Riddell, and Attorney Donnelly representing the Re-
spondent. Among other things, the Union objected to the nonstrikers abusing the
returning strikers when they went into the plant and particular reference was made
to the incident involving Oravec.
It is undisputed that Oravec did not report to work on May 25, as Respondent
requested, or on May 26. Oravec did accompany Edward Moore and Arthur Derbin
into the plant on Friday, May 27, went to the guard, Joseph Popovich, and was advised
that the guard did not have a timecard for him. Oravec went to the union trailer,
opposite the company gate, waited for Kent to arrive, called Kent, and was advised
by him, "I am sorry Mike, but you are considered as an automatic quit." It is undis-
puted that the Company published a handbook, Respondent's Exhibit No. 2, a number
of years before the advent of the Union in the plant, containing certain company
rules. On page 16 the following appears:
If you are absent for 3 working days and haven't notified us, we'll treat your
absence as a voluntary resignation.
The application of the 3-day rule to the circumstances presented is not explained.
Since the telegram of May 24 requested Oravec to report May 25, it may be inferred
that Respondent recognized that Oravec was unable to report on May 21, and that
he went to the clinic on May 23. It was not until May 24 that Respondent obained
advice relative to Oravec's physical condition. A new 3-day period for reporting
would appear normal, if this rule was ever intended to cover a situation such as
presented here. If so, the period commenced May 25 and did not expire until May 27,
the day Kent advised Oravec it had already expired. Accordingly, I find, that the
cited 3-day rule has no application, that reference to it was a pretext, and it was
not the reason for Oravec's discharge.
Subsequently, in April 1961, Oravec requested that he be allowed to draw his sup-
plemental benefits, otherwise known as supplemental unemployment benefits, or
SUB, as provided in said plan. It is undisputed that Kent told Oravec that he would
have to sign a resignation in order to obtain supplemental benefits Oravec, accord-
ingly, signed a resignation effective April 21, 1961. The effect of this resignation on
any relief to which Oravec may be entitled is considered in section I, 4, infra.
4. Louis Cortis-May 21 to 24
Cortis was interviewed by Kent on Friday, May 20, and at that time requested
to report for work the following morning, Saturday, May 21.
24 Meanwhile, President Milton O. Cross, Jr., on May 21, 1960, advised Personnel Director
Kent, by memorandum, that at 9.30 that morning he talked to a group of men in the
assembly department and warned their not to be drawn into scuffles -with returning strikers,
reminding them that a picket had pulled a guard to the ground in such a way as to make
it appear as though the guard had attacked and knocked the picket to the ground The
memo stated, "I told these employees the safest precaution they could take would be to
keep at least 6 or 7 feet clear of any returning striker until the workers were confident of
not being attacked by any returning striker " During the lunch hour Cross talked to an
additional group of 12 to 15 shop employees, at 3:15 p in. he talked to another group of
S or 10, and at 4.15 p in he talked to a group of 9 or 10 in the inspection department,
at each meeting repeating what he had said earlier.
THE CROSS COMPANY 1025
Cortis was initially employed by Respondent on July 15, 1947. At the time of
the strike, August 1959, his classification was painter, and he had been working in
the paint shop.
It is alleged that Cortis was constructively discharged.
Cortis went to the plant on May 21 to report for work, entered the vestibule, saw
the dummy hanging in the lockerroom, and saw 50 to 60 nonstriking employees.
Cortis returned to the gate and told Guard Scott the nonstriking employees would
not let him in.25 Guard Scott did not respond.
While Cortis was still at the gate, Oravec arrived. Cortis accompanied him to
the lockerroom vestibule and saw the nonstriking employees surround Oravec and
push him back to the east wall. Cortis left and ran toward the gate. Cortis was
present when Oravec, later, told Guard Scott that he had been kicked in the groin
and wanted to use the telephone to call police, and Scott refused. He was also
present when Police Chief Jacobs left with Oravec, en route to a hospital.
On Monday, May 23, Cortis made another unsuccessful effort to return to work.
Cortis accompanied Edward Moore and Nickolaus Miller, returning strikers, through
the plant gate. He and Moore went into the lockerroom, followed by Miller. The
two tables were so placed as to leave only a narrow aisleway which was blocked by
a group of nonstrikers, including Farkas, Paul Czekis, William Karbula, and Jess
Ratliff.26 There was yelling and profanity, including, "You S-O-B's get out of
here." Foreman Winke, admittedly present and changing clothes, did nothing. (See
section C, 5, infra.) Moore told Cortis and Miller, "Let's go back. They ain't going
to let us go in." All three left the plant.
It will suffice here to note Guard Babuska was obviously not carrying out Kent's
alleged instructions to prevent returning strikers from being blocked in the locker-
room, and ingress thus prevented.
On Tuesday, May 24, Cortis again went to the plant to report for work. He met
Moore and Miller and accompanied them into the lockerroom. Near the doors into
the plant, at the west end of the lockerroom, Cortis saw Milton O. Cross, Jr., president
of Respondent. Cortis related that he walked up to Cross and inquired, "What's the
matter, Mr Cross?" to which Cross responded, "Well, you can come back to work,
go back to work." 27
Cross acknowledged being in the lockerroom before 7 a m. on May 24. He
related, "There had been some rather alarming accounts in the newspaper of alleged
incidents in our locker room," so he went to the lockerroom to see if things were
at variance with what "we" knew to be the truth Respondent did not introduce
these newspaper reports, but such reports were introduced by General Counsel and
are discussed infra. At starting time Cross walked into the plant and remained in
the plant for 15 or 20 minutes. He stated his conclusion as "Everybody seemed
to be working harmoniously-and there wasn't anything to indicate or support any
of these newspaper reports, so I went to my office and undertook my day's duties."
Since Cross' inspection tour was at the beginning of work on May 24, it must be
assumed that his notice relative to "violence or threats of violence" was posted later
that day. Cross was equivocal as to the extent newspaper reports, as differentiated
from reports from Kent, caused his issuance of the warning relative to violence. It
would appear incongruous that such a notice would have been required if condi-
tions were as "harmonious" as Cross related. I so find.
The experience of Cortis, during these same "15 to 20" minutes, stands in sharp
contrast to the conclusions reached by Cross. Cortis reported to Foreman Thaxton
in the paint shop. Thaxton assigned him to the washing of a machine, preparatory
to painting. The machine was in bay C, sections 11 and 12. Thaxton accompanied
Cortis to the machine, then sent him back to the paint shop for the necessary equip-
ment. Cortis' effort to get to the paint shop stockroom was blocked by janitor
sweeper, Charles Wesch, who kept pushing a broom in every direction Cortis tried
to move. Cortis reported to Thaxton that Wesch would not let him get to the stock-
room. Cortis credibly testified that Thaxton's response was that his car windshield
was broken and tire damaged during the strike, and he had no love for returning
^.G I have excluded from consideration, throughout, all alleged misconduct by individual
nonstrikers which was not reported Cortis' trip into the plant, by himself, was coi robo-
rated by Scott, and his appearance at the vestibule door was corroborated by several other
of Respondent ' s witnesses
20 Farkas, Karbula , and Ratliff were not called as witnesses
r While General Counsel sought to establish animus on the part of Cross, as an in-
dividual , as reflected in his lack of friendliness toward returning strikers , I draw no such
Inference The violations of Section 8(a) (1) alleged are derivative No independent
allegations of such a violation have been plead.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers.28 Cortis' second effort was unsuccessful for the same reason. Cortis then
went to Guard Babuska and advised Babuska that Wesch was preventing him from
working. Babuska accompanied Cortis back to the paint shop. Wesch started swear-
ing at Cortis and asked him if he wanted to fight. Wesch is 33 years of age and
Cortis is 62.29 Babuska advised Wesch that Cortis had as much right to work as
Wesch, and told Wesch to leave Cortis alone. Babuska testified that his reason for
not stopping Wesch from swearing was, "The way I feel about it words never hurt
anybody."
Cortis told Babuska he felt too sick to work. Babuska and Cortis went to Thaxton
and Cortis told Thaxton he was sick and wanted to go home. Thaxton issued a "sick"
pass and Cortis left the plant, and has not returned to work. Thaxton admitted
that he was present and heard Cortis complaining to Babuska about Wesch cursing
him I find, upon consideration of all the evidence relating to this incident, that
Thaxton knew that Cortis' request for a pass was directly related to and resulted
from the events recited herein 30
Kent related that Babuska reported that Cortis had told him that Wesch would not
let Cortis work, also that Wesch swore at Cortis in the presence of Babuska, and
that Babuska told Wesch not to molest or try to keep Cortis from his work Kent
later talked to Wesch, but no disciplinary action ensued.
Cortis' timecard reflects that he punched out at 7 and 38/100 or 7:23. It is thus
patent, and I find, that most of these events transpired during the 20 minutes President
Cross found everyone working "harmoniously."
It is undisputed that on May 25, Respondent was advised Cortis was ill. On
June 2, Respondent advised Cortis that unless he furnished proof of illness or re-
turned to work by June 6, he would be considered a voluntary quit. Respondent was
advised, by letter of Dr. Audretsch, dated June 3, that Curtis was under treatment
for hypertension and acute anxiety, and had been since May 25, and was unable to
return to work. On June 13, Respondent advised Cortis there was no reasonable
cause for apprehension, and requested him to report the same morning . Respondent
was advised, by letter of Dr. Audretsch, dated June 16, that Cortis was still under
treatment, unable to return to work, and was going to a clinic for a physical ex-
amination. Thereafter, Respondent was advised, by letter of Dr. Birkelo of the
clinic, dated July 5, that Cortis was being treated for hypertension, a repair of a
hernia was anticipated, coupled with a recommendation that Cortis refrain from
"any strenuous physical activity." Subsequently, the hernia was not repaired.
Cortis credibly testified that he was advised, by Dr. Audretsch, in July 1960, that
he could return to work, and that the hernia repair could be deferred. He did not
report for work because he knew what was happening to others who did return to
the plant.
Respondent contends the real reason for Cortis' failure to return was his medical
disability. This record is devoid of evidence that Cortis had ever previously suffered
from, or been treated for, acute anxiety or any impairment of the nervous system.
Nor is there any evidence that Cortis had a disability after July 1960. This asserted
defense must be rejected.
That Cortis, having been employed since 1947, sought unsuccesfully to return to
work on May 21 and 23 is clearly established, as is the reason for his exclusion from
the plant. With that background, Cortis returned on May 24 to find he was pre-
vented from working by an employee hired during the strike, who used abusive
language and sought to provoke a fight with a man twice his age . Cortis' appeal to
his foreman for assistance was fruitless. The intercession of a guard who admittedly
saw no harm in abusive and derogatory language afforded no surcease. Cortis, un-
able to cope with the abnormal condition, advised Thaxton of his illness, resultant
therefrom, and left after only 20 minutes at work. Respondent unquestionably was
aware of the reason for Cortis' departure. Cortis credibly testified his sole reason
28 I do not credit Thaxton's denial of this statement or his statement that he told Cortis
"to pay no attention to that (Welsch), go get his drop cloth and come back." The testi-
mony of Wesch, that Cortis walked into him, is incredible
29 Babuska corroborated Cortis' story that Wesch was swearing , but distinguished the
object of the swearing, "Well, Chuck (Wesch) let loose with a verbal barrage, he really
let loose, and called me (Babuska) everything under the sun." Babuska later testified
that Wesch was not cursing him but cursing Cortis. Babuska then denied that Wesch
offered to fight I do not credit this denial . The testimony of Wesch relative to this
incident is not credited
"While Thaxton sought to tread a thin line between what was actually said to him,
as distinguished from what was said in his presence and matters of which he had
knowledge, his testimony relative to this incident borders on evasiveness . Where conflict
appears, I credit Cortis.
THE CROSS COMPANY 1027
for not returning to the plant in July was his knowledge of the conditions existing at
that time. Based on the demeanor of the witnesses who testified relative to these
events, and on the record as a whole, I find Cortis' assertion wholly plausible.
5. Edward Moore-May 23 to July 14
Moore was interviewed by Kent on Friday, May 20. Kent inquired if Moore could
report for work on Saturday, May 21, and Moore advised that he was working else-
where and would report on Monday, May 23.
Moore had been employed by Respondent for approximately 15 years. At the
time of the strike, August 1959, he was a union committeeman for Respondent's
employees. His classification was drill press operator. He worked under Foreman
Winke. His work station was in bay C, section 3.
It is alleged in the complaint that Moore was improperly excluded from the plant
and forced to remain away from his job on May 23, 1960.
Moore went to Respondent's plant to report for work on May 23. Moore credibly
testified that he, Louis Cortis, and Nickolaus Miller met at the trailer and proceeded
into the plant together. As he walked into the lockerroom he noticed tables and
benches so arranged that there was only one aisle that would permit ingress into the
plant. There were a lot of nonstrikers standing at this opening and he walked up as
close as he could to them, but they refused to back up or permit passage. There was
hollering and swearing including "you s-o-b's get out of here." Moore estimated
that there were about 60 nonstrikers in the lockerroom. Moore related, "I was
scared and I couldn't tell you exactly but I heard some words I didn't like very much."
When Moore had entered the lockerroom he saw his foreman, Burton Winke, changing
clothes Winke did not intervene.
Winke acknowledged that he was in the lockerroom changing shoes when he saw
Moore enter. Winke heard shouts of "go home," slapping on lockers, "possibly"
some name calling, but Moore was not in his line of vision so he did not know to
whom the name calling was directed. Czekis and Baker admitted questioning Moore
at this time, but denied his ingress was blocked. I do not credit these denials.
Convinced they could not get through the congregation of nonstrikers, recognizing
the explosive potentialities, and with trepidation, Moore, Cortis, and Miller left the
plant. Kent was advised the same day, by Guard Babuska, that Moore was dis-
couraged from reporting by hoots and catcalls. Why Kent did not censure Babuska
for dereliction and disregard of Kent's alleged instructions of May 21 is not ex-
plained. The obvious conclusion must be that Kent did not, in fact, issue the in-
structions set forth supra, section B, 4, on May 21.
It must be concluded, and I find, that Respondent was aware of the exclusion of
Moore on May 23, and the circumstances surrounding and cause of Moore's in-
ab lity to report for work. Respondent's responsibility is considered infra, section I, 1.
The conditions with which Moore and other returning strikers were confronted in
the plant, after they returned to work, provide a composite picture of the degree of
effectiveness or ineffectiveness of Respondent's efforts to exercise restraint upon
those nonstriking employees intent upon a vendetta. The experiences of Moore and
others, infra, are illustrative.
On Tuesday, May 24, Moore returned to the plant with Miller and Cortis. The
benches and tables had been moved back. There was beating on tables and lockers
and name calling, but no effort was made to prevent them from entering.
The same morning, Moore absented himself from his work station for a few
moments and upon returning found his toolbox filled with cutting oil. He reported
this to Foreman Winke and requested him to find out who did it. Winke responded
he would not know where to start and walked away.31 Moore cleaned the toolbox
and went outside for lunch. Upon his return he was surrounded by 20 to 25 non-
strikers at the timeclock, and they insisted he take his union button off.32 Moore
proceeded to his work station and found a drawer of his toolbox filled with blue
lay-out-dye. He reported this incident to Babuska, who reported it to Kent. Kent
examined the toolbox and asked Moore if he could clean it up. Winke obtained the
necessary thinner.
Kent related that he talked to Foreman Winke to find out what he knew about the
facts "and he contributed very little." Kent asked Winke if he had checked with
11 Winke related that he inquired of Moore If Moore knew who put the oil in the tool-
box and Moore responded no. Winke's inferential denial of the statement attributed to
him by Moore is not credited.
11 Moore Identified Baker, Czekis, Ferguson , Karbula, and Kinsch as those closest to him.
The denials of Baker and Kinsch relative to this event are not credited
717-672-64-vol. 143-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in the neighborhood, those at nearby machines, and Winke advised
Kent that he had and that these employees had denied knowledge of the incident.
Kent related that he then personally checked those in the neighborhood, Roland
Kennedy, Robert Woods, Ralph Saia, and several others. Kent described it as "a
difficult and kind of hopeless inquiry." This record does not reveal any further action
by Respondent relative to these incidents.
Moore and a number of witnesses for General Counsel, as well as a number of
witnesses for the Respondent, saw one of the mirrors on the east wall of the locker-
room covered with Bon Ami and containing an inscription, "Go home you strikers."
Testimony is varied as to the date or dates when this happened. However, that it
happened appears undisputed. Moore saw it one afternoon in June, and it was still
there when he came to work the following morning.
It is undisputed that Moore's last day of actual work was July 14, 1960. Moore
did not report by reason of illness, or for other reasons, on 17 of the the intervening
workdays and left early by reason of illness, or for other reasons, on 8 of the days
he did work. It is undisputed that Moore, by reason of illness, resigned from
Respondent's employment on July 25, 1960, and the same day applied for his supple-
mental employment benefits. Moore received the supplemental employment benefits
the same day, having had a conversation with Kent relative to this on the day im-
mediately preceding.
6. Nickolaus Miller-May 23 to August 9
Miller was interviewed by Kent on Thursday, May 19, and at that time Kent re-
quested Miller to report for work the following morning, Friday, May 20. Miller
was elsewhere employed and requested that he be permitted to report on Monday,
May 23.
Miller, a burr hand on the light burr bench, was initially employed by Respondent
in 1952 and was still employed when he testified. Miller worked under Foreman
Stanley Balchunas, his work station was in bay D, section 8. When required he also
did buffing in the heat-treat room.
It is alleged in the complaint that Miller was improperly excluded from the plant
and forced to remain away from his job on May 23, 1960.
On Monday, May 23, Miller went to the plant to report for work. He met
Edward Moore and Louis Cortis, see supra, section C, 4 and 5, and drove into the
parking lot after them. Miller took his toolbox and followed the other two into the
lockerroom. When he arrived he noted that the lockerroom was partially blocked
by tables and a mass of 50 or 60 nonstriking employees. He described the latter as
acting very wild and he heard Cortis and Moore being told "get out, you s-o-b's, get
out, you union hoodlums, this is not a union shop" and other profanity. Miller
also heard "you had better get out or we will skin you alive." I have set forth in the
preceding section the presence and inactivity of Foreman Winke at this time. Miller
left with Moore and Cortis. Miller credibly testified that his reason for leaving
was fear of getting hurt.
Thereafter, about 8 a.m., Miller called Kent and advised Kent the nonstrikers
would not let him in that morning. Kent acknowledged this report from Miller.
Kent requested Miller to come to his office and advised Miller that he (Kent)
would take Miller to his foreman. Miller responded that the attitude of the non-
strikers that morning caused him to believe it would be too "risky" for him to report.
Miller also advised Kent that Moore and Cortis were with him, that they refused to
return to the plant that day, and that he was "afraid" to go in alone. Miller advised
Kent he would report the following day. Kent's assertion that Miller refused to pro-
vide him with specific names of the nonstrikers who blocked him appears to be of
little significance in view of the fact that Foreman Winke was admittedly in the locker-
room at the time of the incident.
It is clear from what has been set forth under section C, 4 and 5, supra, and
herein, that Miller was in fact prevented from reporting for work on May 23 and
Respondent was aware of this exclusion. Respondent's responsibility therefor is
considered infra, section I, 1.
I turn next to the experiences of Miller in the plant after he returned to work.
On Tuesday, May 24, Miller returned to the plant and reported to work. Miller
opened his toolbox, left his place of work for from 2 to 5 minutes, and returned
to find the toolbox filled with oil. He immediately reported this incident to Foreman
Stanley Balchunas. Balchunas inquired as to whether he knew who did it. Stanley
Balchunas acknowledged that Miller made the report but could not recall if he made
any investigation to ascertain who had put the oil in Miller's toolbox Kent acknowl-
edged that this incident was reported to him by the supervisor, that he inspected
the toolbox, and that the felt lining was sticky with oil and Kent expressed his opinion
THE CROSS COMPANY 1029
that "it was a pretty rotten trick." Kent advised Miller that he would try to find out
who was responsible. Miller at the same time advised Kent that employees were
calling him names and Kent advised Miller "not to pay any attention, to stick it out
and 1 (Kent) thought it would be all right, that some of the nonstrikers felt pretty
strongly about them [the strikers) coming back to work but they had every right to
work and he should stick it out and stay on the job." The individual responsible
for the toolbox incident was never identified.
While Miller was cleaning his toolbox on the 24th during worktime, Vladimir
Popovich, whose work station was in the assembly department, came to Miller's
workbench and questioned him relative to why Miller had returned to work. Miller
left and reported the incident to Stanley Balchunas. Three days later Miller was
working in the heat-treat room, buffing, when Popovich, Charles Wesch, and others
gathered behind Miller and started discussing what Miller was doing there, why he
did not leave since no one liked him, he would have been better off if he had not
come to this country (Miller was an immigrant), etc. Miller left and reported to
Balchunas that he was being interfered with in his work On another occasion,
near Miller's work station, when Wesch threatened Miller with violence, Miller im-
mediately reported this event to Balchunas. Within the first 2 weeks after Miller's
return, he was hit in the hand and injured by a screw thrown by Earl Rausch while
working in the heat-treat room. He reported this incident to Stanley Balchunas
and observed Balchunas talking to Rausch later. At the time of each of these
reports, Balchunas advised Miller that he would report the particular matter
to Kent. Kent talked to Miller about the reports he had made to Balchunas and
subsequently, according to Miller, Wesch and Rausch did not bother him further 33
Miller credibly testified that he was assigned to "buffing" in the heat-treat room for
10 days during the first 2 weeks after his return. Buffing was one phase of the work
of those in Miller's classification. However, it was a category of work the burr
hands did not relish. Prior to the strike Miller spent only 2 or 3 days each month, or
every other month, doing buffing, which was rotated among eight employees The
other seven were working in the plant during the 10 days in question. General Coun-
sel contends this assignment reflects the Respondent's attitude of animus toward the
returning strikers.34
On Wednesday, May 25, Miller while eating lunch was surrounded by eight or nine
nonstrikers, including Popovich, DeSantis, and some who were hired during the strike
and whose names he did not know. Miller retreated to the area of Winke's desk,
bay C, section 6, so Winke would observe whatever happened. There were later
gatherings around Miller during lunch. Each time he would seek refuge in a toilet.
I do not credit the testimony of Balchunas, Kent, Riddell, or other Respondent wit-
nesses, to the extent it is at variance with testimony of Miller which is set forth
herein. The reasons for these credibility resolutions appear infra, section H.
7. Edward Castle-May 23 to 27
Castle was interviewed by Kent on Friday, May 20. Kent requested Castle to
report for work on Saturday, May 21, but Castle advised Kent he was working
elsewhere and would report on Monday, May 23.
Castle was initially employed by Respondent on March 28, 1950. His classification,
at all times pertinent herein, was electrician, and he worked in the assembly depart-
ment under Foremen Hargreaves and Sujuki.
It is alleged that Castle was constructively discharged.
It is undisputed that Castle returned to the plant and reported for work on
Monday, May 23, left at noon, returned on May 24, and did not work thereafter.
Respondent contends Castle voluntarily quit.
On May 23, Castle entered the lockerroom and found that benches and tables lined
up so that he had to go through the center of the aisle between the washbasins. There
^ Stanley Balchunas acknowledged that the screw - throwing incident was reported to
him but denied that Miller reported being harassed while in the heat -treat room
Balchunas further testified that Miller reported that Wesch and Rittenhouse were annoy-
ing him but he did not specify in what manner, and Balchunas so advised Kent. Kent
acknowledged talking to Miller about these complaints but could not recall if Miller
identified the employees involved.
i4 During the hearing , General Counsel requested , and was afforded , an opportunity to
amend the complaint , with an admonition that Respondent would not be expected to liti-
gate any matter not plead Absent any allegation that Respondent ' s assignment of Miller
to buffing , shortly after his return to work, was discriminatorily motivated , evidence re-
lating to that assignment is not further considered.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were about 30 men in the lockerroom who said nothing to him and he went directly
into the plant, obtained his timecard from the guard, and proceeded to the assembly
department foreman's desk. Neither foreman was there at the time. Castle was the
first one in the assembly department that morning. It may thus be inferred that Castle
arrived before Cortis, Moore, and Miller and a number of the nonstriking employees.
When Sujuki, the electrical foreman, arrived he advised Castle that there was no
electrical work available for him at that time and that he would be turned over to
Hargreaves, the assembly department foreman. Sujuki asserted he had not been noti-
fied that Castle was being recalled.35 Hargreaves advised Castle he would have to
do whatever they had available in the way of work.
While Castle was talking to the two foreman he saw a group comprised of George
Ferguson, William Karbula, Ralph Baker, Paul Czekis, Roy Boza, Vladimir Popovich,
Harold Martins, and other nonstrikers approaching him. As the group approached
Ferguson hollered, "There is that s-o-b" and the group gathered around him. Martins
said, "Shall we bash his head in, or do it later," and there were other threats, spitting,
and vulgar names directed at Castle. Castle noted that Sujuki and Hargreaves had
moved away and were near the assembly department stockroom and tool crib. See
Appendix A. When the whistle for the start of work sounded the group dispersed and
the foremen returned.
Hargreaves acknowledged seeing the group around Castle, estimated the size of the
group as 12 to 15, but asserted that this occurred as he was on his way in and
that lust at that time the starting whistle blew and everyone left. Hargreaves acknowl-
edged telling Castle that since the strike the employees worked where they were
needed, such as machine builders doing electricians' work if they were not too busy
or vice versa. Hargreaves "did not recall" if he recognized anyone in the group around
Castle. Hargreaves related that Castle inquired if he had heard the names that he
(Castle) had been called and Hargreaves denied hearing them. Sujuki acknowledged
having a conversation with Castle, leaving his desk to look for work for Castle, and
noting a group of men around Castle while he was away from his desk. Sujuki ad-
vised Hargreaves that he had no electrical work for Castle.36
Castle, at the suggestion of Hargreaves, went to his car, obtained his toolbox,
and placed it on a bench indicated by Hargreaves. Hargreaves advised Castle he
would have to take masking tape off a freshly painted machine. Later that morning,
when Castle was assigned to a different job, he discovered that his toolbox had dis-
appeared and reported it to Hargreaves. Hargreaves went to Jernej First who ac-
companied Hargreaves to the place behind the assembly department washroom where
the toolbox had been placed. Hargreaves asserted he asked First who had moved the
toolbox and First did not respond, nor did First explain how he happened to know
where the toolbox was. Hargreaves did not report this incident to Kent. This event
was shortly before lunch time.
Earlier, when Hargreaves told Castle that his work would be removing the masking
tape, Castle complained that he was a qualified electrician and the removing of
masking tape was not his class of work. Hargreaves responded that "they" would
decide what kind of work Castle would do.
The machine to which Castle was assigned was located in bay C, section 11.
The foremen's desk in bay C, section 12, was approximately 30 feet away. There
were no obstructions between the place where Castle was working and the foremen's
desks. Both foremen were at their desks when groups of 5, 6, and as many as 10 came
up to Castle and called him names, such as "a yellow union bastard ," and spit in his
direction. He identified Charles Wesch, Harold Martins, and an unidentified painter
as being in the first group, which gathered about 7:15 or 7:20 and remained 10 or
15 minutes. After this group left Castle complained to Hargreaves and told him
that he had come back to work and did not intend to be needled or take this sort
of treatment. Hargreaves responded that he should go back to work and "pay no
attention to it ." About 10 : 30 Castle requested Hargreaves to accompany him to
Kent's office 37
35 This testimony is in direct conflict with the testimony of Superintendent Riddell that
the strikers were called back "as needed" after conferences with the particular foreman
involved . That Castle was an electrician in the assembly department , and that Sujuki
was the foreman in charge of electrical work , is not disputed
86Popovich denied seeing anyone near Castle that morning except the two foremen.
Karbula, Boza , and Martins did not appear as witnesses To the extent the testimony of
Respondent' s witnesses conflicts with that of Castle as to these events, I credit Castle.
37 Testimony of threats and violence by an an individual employee against Castle, ad-
mittedly not reported and objected to by Respondent, was stricken Respondent now
urges , in its brief , that this stricken testimony be considered in evaluating credibility.
THE CROSS COMPANY 1031
Hargreaves ' version was that Castle complained that the other employees were
bothering him. Hargreaves inquired if they had "hurt " Castle in any way and Castle
responded that it was just name calling that bothered him. Hargreaves told Castle
to keep on doing his job and not to pay any attention to them. A little while later
Castle again complained and said he had been pushed, but did not know the em-
ployee's name . Hargreaves then accompanied Castle to Kent's office.
Castle complained to Kent, in the presence of Hargreaves , about the name calling
and spitting . He told Kent that he expected to be doing electrical work and men-
tioned that employees in other classifications were doing electrical work. Castle
told Kent he saw tool crib men, hydraulic men, and heat-treat men doing electrical
work ( Joseph Consiglio , in the last category , was identified by Castle.) Kent
responded that all the law required him to do is to put him back to work and that he
would have to do whatever work was available . Respondent 's contention that no
electrical work was available is rejected.
Kent did not ask for the identity of the employees involved in the incidents, did
not ask Castle for a written statement , and advised Castle that he ( Kent ) would give
Castle all the protection that he would need. Kent acknowledged , at this time, he
told Castle "the boys took a lot on the picket line, but we will protect you." Castle
inquired what would happen if he just walked out and Kent responded that he would
be "an automatic quit." 38
Castle returned to the machine, on which he had been working, about 11.15.
This machine was being assembled in sections and extended from section 10 to
section 15. At this time, Castle was working on the portion of the machine in
section 13 or 14, but in clear sight of the foremen 's desk, and Foreman Sujuki was
at his desk . Five or six employees , including Popovich and Richard Behrends,
the others being employees who were hired during the strike , gathered around
Castle and advised him that they heard he did not like his job and inquired who
he thought did that type of work before he came back . The group remained 10
or 15 minutes . It is undisputed that Behrends and Popovich were assigned to work
on the same machine.39
At 11 : 50 a.m ., Castle advised Hargreaves that he was upset and did not feel he
could work that afternoon and requested a sick pass , which Hargreaves provided.
Castle explained to Hargreaves that he could not take the treatment he was receiving,
that he was going to leave the plant, and that to be protected he wanted a sick pass
rather than just walk out of the plant 40
The following morning, May 24, Castle returned to the plant . He met Moore,
Miller, and Cortis at the trailer and each drove his own car to the parking lot.
Castle corroborated the testimony of the others that as they went through the locker-
room there was screaming , hollering, name calling, and banging.
Shortly after Castle started to work Foreman Sujuki told him he was needed on
electrical work and assigned him to aiding in the dismantling of a machine for
shipment?' About 7:10 or 7:15 a.m. five or six employees , including Popovich,
88 Kent' s testimony relative to a portion of this meeting is self-contradictory Kent
first stated that Castle' s complaint relative to Wesch related to bad language , and that
he (Kent) later talked to Weseb. Kent later denied that Castle had complained about
Wesch
39 Popovich's assertion that he worked only 1 hour on the morning of May 23 and then
was absent from the plant until after lunch is not credited The record contains Respond-
ent's absentee records, kept on an annual basis , of certain employees , not including that
of Popovich.
w I-iaigreaves ' denial that Castle gave him the stated reason for the sick pass is not
credited
41 Respondent contends that as a matter of fact Sujuki was not at work on May 24 In
support , Respondent Introduced Sujuki's timecard which reflects that Sujuki did not
punch in or punch out on that date . Sujuki appeared as a witness and was not inter-
rogated relative to 'his presence in, or absence from, the plant on May 24 Respondent
maintains an "absentee record" on a yearly basis for each employee , and did introduce a
number of such records in this case These records reflect each day of absence and the
reason for the absence, and on the reverse side tardiness or early departures and the reason
therefor The absentee record for Sujuki is not in evidence. There is other evidence in
this record that on occasion employees neglected to punch in or punch out on a timecard
and the error was corrected by a separate memorandum The timecard has little meaning
of evidentiary value in the present state of the record Under the circumstances, I find
that the timecard does not constitute substantial or credible evidence that Sujuki was not
present in the plant on May 24.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Behrends, and Frank Seltrecht, gathered where Castle was working, asked him a
number of questions, and made such comments as "What is that stink I can't stand
it." Castle saw the foremen at their desks. Hargreaves came to the place where
Castle was working and Castle informed him that he did not believe that he should
be taking that sort of treatment, that it disturbed him quite a bit. Hargreaves
responded that he should just keep to his work, that he (Hargreaves) realized it was
tough but Castle should stick it out, and that the nonstrikers resented Castle's coming
into the plant. Hargreaves did not at that time say anything to the other employees.
Thereafter, the name calling continued. About 2 that afternoon Castle observed
Kent talking to Popovich and some of the others who had been engaging in the
name calling. Thereafter the name calling was discontinued. About 3:30 that
afternoon Kent came to Castle and inquired whether he was having trouble and
Castle advised that the working conditions were much better. Kent advised Castle
to "stick it out."
Castle did not report on May 25 or 26. Castle testified that he was afraid to go
in again . On May 26, Castle returned to work at the Krueger Company, where he
had been working immediately preceding his return to Respondent's plant 42
On Friday, May 27, Castle telephoned Kent and requested a leave of absence.
Later that day, Castle went to Kent's office and advised Kent he could not take
the pressure of working in the plant. Castle had previously experienced a nervous
breakdown and did not wish a repetition. Kent refused to grant a leave of absence,
unless Castle would produce medical evidence of necessity. Thereupon Castle signed
a "quit" slip and an application for his supplemental employment benefits (SUB).
Castle denied that he resigned in order to get the SUB pay asserting, "I had ten
years seniority in there, and I didn't want to give that up." 43
Respondent contends that Castle was not discharged, and in fact voluntarily quit.
I do not agree.
It is undisputed that Castle applied for reinstatement, and, when interviewed by
Kent on May 20, advised Kent he was elsewhere employed. He quit the job at
Krueger Company to return to Respondent's plant to protect his seniority. When
he returned to work, he was confronted with a situation sufficiently upsetting to cause
him to request a sick pass in order to leave the plant at midday. This was only after
his recognition of the futility of complaining about the abusive treatment to which
he was being subjected. He returned to work the following day and was confronted
with more harassment and swearing, and was the butt of insults . Castle unhesitatingly
acknowledged that Kent's intervention brought about a cessation of the harassment
and insults of other employees on the afternoon of the second day. Thus, Castle
had ample reason for the qualms he experienced. Still desirous of protecting his
seniority, and returning to work at a later time, he sought a leave of absence. That
this request was refused is not disputed. To find under these circumstances that
Castle quit voluntarily would require a complete disregard of the facts herein. I
find accordingly.
The effect of Castle's application for SUB, and resignation on any relief to which
he may be entitled, is considered infra, section I, 4.
8. May 25 meeting of Union and Respondent
The Union, obviously perturbed about the situation confronting the returning
strikers, requested and obtained a meeting with Respondent's representatives. A
meeting was held on May 25, attended by Harry Caton, Federal mediator. Walter
Mahler, State mediator, George Merelli, coregional director of the International,
Russell Leach, president of the local, Gordon Buchanan, an International representa-
tive, and Paul Stemlin, Edward Moore, and Michael Oravec of the plant committee.
Representing the Respondent were Attorney Donnelly, Superintendent Riddell, and
Personnel Director Kent. The Union objected to the abuse of returning strikers by
the nonstriking employees. Particular emphasis was placed on the manhandling of
Oravec on May 21 and reports that the nonstrikers were making claims of "getting
all of the strikers as they returned." The Union requested that the employees be
recalled in the order of seniority and that the men be recalled in groups and not a
few at a time. The response of the Respondent was that they had some internal
^ Respondent urges Castle could not have contemplated working at Respondent's plant,
as he testified, if he worked at the Krueger Company that day This record does not re-
veal either the distance between these plants or the time Castle reported at the Krueger
Company
43 Kent denied that Castle gave as a reason for his request for a leave of absence the fact
that be could not work under conditions existing in the plant I do not credit Kent.
THE CROSS COMPANY 1033
problems to work out and they would look into the request. Attorney Donnelly
attributed the problems to feeling engendered during the period of the strike.
9. Arthur Derbin-May 26 to August 9
Derbin was first employed by Respondent on September 15, 1950. He is a radial
drill operator and his work station was on the westerly side of aisle E, at the junction
of Sections 7 and 8. His supervisor was Stanley Balchunas.
Derbin was recalled after the strike and reported on May 26. He was still employed
when he testified.
It is alleged in the complaint that Derbin was improperly excluded from the
plant and forced to remain away from his job on August 4, 1960. The events relative
thereto are considered infra, section C, 45.
The conditions with which Derbin was confronted in the plant after he returned
to work are next considered.
On Saturday, May 28, shortly after he started to work, Derbin found his toolbox
filled with oil. It is undisputed that he promptly reported it to his foreman, Stanley
Balchunas, and Balchunas reported it to Kent. About 10:30 the same morning, ball
bearings and pipe plugs were thrown at Derbin. He picked them up and took them
to Balchunas. Balchunas inquired if he knew where they came from and he re-
sponded that they were coming from behind him. About 20 minutes later more
ball bearings and pipe plugs were thrown at him and he again picked them up and
reported the event to Balchunas. Balchunas advised him that he would have a talk with
the men and later advised Derbin that he had told them "I want that G- D-
throwing stopped." At 1:30 that afternoon more ball bearings and pipe plugs were
thrown and Derbin again picked them up and reported the event to Balchunas.
Stanley Balchunas acknowledged that these reports were made by Derbin and testified
that he tried to catch the nonstrikers who were throwing the bearings, talked to
different foremen, and "it just diminished." Kent acknowledged that the throwing
of the ball bearings was reported to him by Balchunas.
The same afternoon, May 28, between 3 and 3:30, a half pint cream bottle filled
with oil hit Derbin in the shoulder, bounced off, and hit his machine throwing glass
and oil all over. Derbin turned and saw Raymond Marah, a nonstriker, about 30
feet away, "in the position like he had thrown it." Derbin followed Marah to his
machine, then went to Stanley Balchunas, took Balchunas to his machine, and
showed him the broken glass. Balchunas and Derbin then went to Marah's machine
where Derbin advised Balchunas that Marah was responsible. Balchunas advised
Kent of the incident. Derbin and Marah were called to Kent's office, where Marah
denied throwing the bottle. Subsequently, after they had left the plant, Marah met
Derbin and persuaded Derbin to return to the plant and advise Kent that he might
have been mistaken as to who threw the bottle, that he did not wish to press the
charges against Marah. Kent responded that he intended to investigate the matter
in any event. Kent's evident confusion as to what happened on May 28, as distin-
guished from the following Saturday, June 4, appears unimportant The record is
silent relative to any further action being taken by Respondent in connection with
this incident.
Derbin saw the sign "strikers go home" on the lockerroom mirror. He placed the
time as being on several occasions during the month of June.
On Tuesday, May 31, the first workday after the incidents of May 28, Derbin
found his toolbox locks jammed with a substance that would harden. He reported
this incident to Balchunas. Kent acknowledged that this incident was reported
Derbin related that while he and other strikers who had returned were eating lunch,
a group of nonstrikers approximating 20 in number, surrounded them. They were
sworn at and accused of various acts of violence which happened during the strike.
He estimated the period of time this group remained around them as being approxi-
mately 15 minutes, in a total lunch period of a half hour. It is undisputed that the
lunch period in the plant is from 12 to 12.30. Derbin identified the returning strikers
who ate with him the first time this happened as Joe Brown, Robert Burgess, Eugene
Stec, and Michael Fedenis; only Stec and Joe Brown ate with him the following 2
days.44 Derbin identified some of those who gathered around the strikers during
the lunch periods as Paul Czekis, Vladimir Popovich, Ralph Baker, Eddie Costa,
John Farkas, Arthur Sierota, Phil Luft, and James Hernan. On each occasion Derbin
" Since Burgess and Fedenis did not return from the strike until Monday, June 6, it is
obvious that Derbin was in error in stating the dates of these occurrences as being
June 3, 6, and 7. In addition, Derbin's absentee record indicates that lie left the plant
before noon on June 3 Accordingly, I find the date of these events were in fact
June 6, 7, and 8.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complained to Stanley Balchunas that they were being subjected to harassment
during the lunch hour. Derbin requested Balchunas to put a stop to it, stating that
he could not stand it. In response Balchunas merely shook his head. Derbin was
not disturbed during the lunch period after the third day.45
In the first or second week of June, while Derbin was working, Robert Woods came
to h.s machine and pushed the button to shut it off and told Derbin to "get the hell
out of here . you are a good for nothing S.O.B. why don't you go home. You
union men are all alike " Derbin immediately reported the incident to Balchunas
who said he would watch them. About 15 minutes later, Woods returned and con-
tinued the harassment and profane language. Derbin again complained to Bal-
chunas. When Woods returned the third time Balchunas told him to get out of the
department and told Woods' foreman, Winke, to keep Woods out of the department
if he did not have any business there. Balchunas acknowledged his conversation with
Woods and Winke but denied that Derbin had complained to him about Woods.
Balchunas then qualified the denial by being unable to "recall" if Derbin complained
about Woods turning his machine off.
10. Bruno Muszynski-May 27 to August 9
Muszynski was interviewed by Kent, and was requested to report for work on
Friday, May 27.
Muszynski, a machine assembler, was initially employed by Respondent in Sep-
tember 1952 and was still employed when he testified. He worked in subassembly
under Foreman Ress.
It is alleged in the complaint that Muszynski was improperly excluded from the
plant and forced to remain away from his job on August 4, 1960. The events of
August 4 are considered infra, section C, 45.
The events which occurred in the plant during the period of May 27 to August 9,
as related by Muszynski, are next considered.
Muszynski went to the plant to report for work on May 27. When he entered the
lockerroom there was continuous booing by nonstriking employees. Muszynski cred-
ibly testified that "booing" continued each morning until the injunction was obtained
on August 9.
The lunch hour in the plant is from 12 noon to 12:30. About 12:15 the first
day, and on 25 or 30 occasions thereafter, until the injunction was obtained, a group
estimated as 20 to 30 nonstriking employees would form around the strikers eating
in the subassembly department.46 The group would form about 12:15 and remain
until the end of the lunch period. Muszynski described the activity of the non-
strikers as including hammering on benches and the use of profanity directed at the
returned strikers. Muszynski related that there were so many things said that it was
difficult to remember them all, but he did recall the following: "God damn it, why
don't you go to a union shop instead of working here"; "Us guys here don't want no
union and get the hell out of here " "S O.B." was among the common epithets. Fer-
guson and Karbula were in these groups and Muszynski recognized others but did
not know their names; some were new men who were hired during the strike.
Foreman Ress, during the first month, ate his lunch within 15 feet of this gathering
and never intervened. Ress described the nonstrikers first as "a few men from the
machine shop who would wander through and gather around," he then acknowledged
that a group of 10 or 15 would gather around the returned strikers. Ress identified
Behrends and Popovich, assembly department employees, as being in these gatherings
occasionally. Others in the gatherings were from the machine shop and Ress did
not know their names. Ress first testified he did not hear any threats, then acknowl-
edged that he did not hear what was said Ress admittedly did not investigate what
was going on, explaining that he figured that as long as it was lunch hour there was
not much he could say about it Ress summarized the scene with the observation
"I wouldn't say they [nonstrikers] were in love with them [strikers]," and acknowl-
9i Balchunas admitted he saw a group around Derhin at lunch time. His testimony that
Derhin only complained to him once about the lunch-time gatherings, that the complaint
was that Luft had knocked a magazine out of his hand, is not credited In view of sub-
sequent events. infra, Balchunas' assertion that he told Luft to cut out the lunch-time
gatherings around the returning strikers was at best ignored Sierota, a nonstriker, saw
10 such lunch-time gatherings in the machine department between May and August.
Several of Respondent's witnesses admitted questioning Derbin during the lunch period
but denied using profanity. These denials are not credited
48 Muszynski was the first of the group who ate in subassembly identified herein to be
recalled. Others, and their date of recall, included Lewandowski, June 3; Bristol, June 6;
and Genest, June 21. Others are noted below
THE CROSS COMPANY 1035
edged that the existence of strong feelings was a "possibility ." Ress related, "It
looked to me like they were mad, just mad from something, and were glaring at
them ." Ress summarized his failure to intervene as follows, "I made a point in my
mind, in my own mind , that as far as I was concerned that as long as I could see no-
body being bothered I assumed the men were under rather stress that they were out
there, having their cars tipped over, and maybe was waiting to get something off
their chest only on the lunch hour." Ress acknowledged he made no effort to pre-
vent the nonstrikers from grouping around the strikers during the lunch period.
Foreman Hargreaves acknowledged seeing some of the strikers eating lunch in
the subassembly department, and "sometimes" some of the nonstrikers would gather
around them . Hargreaves acknowledged that in the period of May to August 1960
he sometimes ate at his desk, sometimes in the lockerroom , and sometimes in his
car. Hargreaves described the lunch gatherings as "just having discussions and there
was no violence," then acknowledged that these gatherings would last as long as 10
minutes, that there would be as many as 20 nonstrikers in the group and he was too
far away to hear what was being said. Hargreaves never went over to the group to
hear what was being said. Hargreaves identified Zelinsky, Behrends, Ferguson,
Czekis, and Popovich as some of the nonstrikers who gathered around the strikers.
Hargreaves' testimony was these gatherings lasted only "for probably a week or 10
days" in June , but admitted that there were lunch-time gatherings occasionally there-
after until August.
In spite of complaints relative to these gatherings , set forth in detail infra, Har-
greaves never went over to the gatherings to hear what was being said.
Muszynski identified Leonard Charbonneau as another foreman who ate in the
plant and was present when these lunch -time gatherings occurred . Charbonneau
did not work on the day shift until July 18, therefore Muszynski's testimony must
relate to the period from that date forward or be considered erroneous. Charbon-
neau acknowledged seeing lunch-time gatherings of nonstrikers around strikers "on
occasions." While Charbonneau witnessed the gatherings in the subassembly depart-
ment, the record is silent as to his making any investigation relative to what was
happening at these times.
There is considerable testimony relative to events at these lunch -time gatherings
in the subassembly department and elsewhere in the plant. They weighed heavily
in the determination of some returned strikers to abandon work at Respondent's
plant, set forth in detail infra. It is patent that the supervisors in the assembly
department took no steps to investigate or discourage such gatherings.
One morning, about June 15, while in the lockerroom, Muszynski was hit by one
of a half dozen raw eggs which were thrown. Some of the egg went into his shirt
pocket. Muszynski reported the incident, and displayed his dirty shirt to Foreman
Ress, advising Ress that someone might get hit in the eye and be hurt. Ress' re-
sponse was, "Gee, there isn't much I can do about it." Ress advised Kent who
talked to Muszynski shortly thereafter. Kent advised Muszynski that they were
trying to correct conditions, but when they could not "pin them down; how are
you going to stop it."
Lewandowski was hit by an egg, and Peterson was hit by a piece of steel, in
the lockerroom the same morning Guard Babuska was in the laundry room, in
the lockerroom, see Appendix B, at the time. Both reported these events to
Babuska, who reported them to Kent. Lewandowski reported he saw Ralph Baker
throw an egg; 47 Kent subsequently interviewed Baker, who knew eggs had been
thrown but denied he threw one at Muszynski.48
11. Peter Gauci-May 27 to June 16
Gauci had been regularly employed by the Respondent since March 29, 1950,
having worked part time previous to that. His classification was painter. He was
recalled after the strike and reported for work on May 27.
44 The testimony of Kent was confused and contradictory relative to these events. Kent
first stated:
Q. And Lewandowski on that day ( June 15) said that he saw Ralph Baker throw
eggs, Its that correct?
A. Yes.
Later he stated, "Lewandowski was unable personally to identify him, but I think Mr
Muszynski identified Baker as having thrown the eggs, " and thereafter , "Neither ( Muszyn-
ski nor Peterson ) was able to identify who threw it (egg and piece of steel) at them "
4a Kent testified he told Baker that if he found out Beaker threw the egg, or who did
throw it , the man would be severely disciplined , quite possibly discharged Baker was
never disciplined . The record does not reveal any further investigation by Kent.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is alleged that Gauci was constructively discharged.
On May 27 Gauci reported for work. During the first 3 days he was assigned
to washing down a machine preparatory to painting, glazing, and sanding. About
June 1 Gauci was assigned to "snagging," and the dispute herein relates to this
assignment.
However, the experiences of Gauci, upon his return, are first considered. On
one occasion during these first 3 days, while Gauci was glazing, an employee who
had been hired during the strike, not identified by name, placed an air hose under
his arm and released the pressure in such a manner as to cause it to be directed
into the face of Gauci. Gauci immediately reported the event to Foreman Thaxton,
and told Thaxton that he was the boss and was supposed to protect Gauci. Thaxton
responded that the personnel office was right there and that he (Thaxton) "ain't
going to keep everything going your way" because he (Thaxton) did not want to
get his "head split in two." Gauci then went to Kent and advised him what had
happened, advising Kent that while he did not know the employee's name he had
blond hair and was helping Bob Brown. Kent did not seek further identification.
About June 14 or 15, a tall blond sweeper whose name Gauci did not know, who
I find to be Charles Wesch, and the individual who previously had directed the
air pressure into Gauci's face, told Gauci that one of these days they were going
to take his clothes off and put him in a pit and beat him up. Gauci immediately
reported this threat to Kent. Kent advised Gauci not to pay any attention, that
they were trying to scare him, and that it was not going to be like that all of the
time. On June 15, while Gauci was in the lockerroom, three raw eggs were thrown
at him but did not hit him. He reported this incident to Kent who merely re-
sponded, "Oh, gee." 49
On June 1, Gauci was placed on a job known as "snagging." Gauci credibly
testified that he had not done any snagging in 8 years preceding the strike. Gauci
advised Thaxton that snagging was not his job. Thaxton responded that he had
an order to give Gauci a lob and that was the job. Gauci then told Thaxton he
wanted to see Kent, and Thaxton responded that they were not going to tell him
what work to give his employees. Kent was not in his office and Gauci talked
to King, his assistant. Gauci told King that he was a "painter" and not a "snagger."
King responded that men were being switched around on work assignments right
at that time, that he should take it easy. Gauci then explained that the work was
too heavy for him. Snagging is described as removing rough spots from castings.
Gauci returned to snagging. On June 4, while snagging, Gauci injured his back
and Guard Babuska took him to the clinic. Gauci remained on sick leave through
Monday, June 13, returned to work on Tuesday, June 14, and left work just after
12 30 on June 16, because his back was bothering him Gauci went to the clinic
on June 19, and was advised by the doctor that he would call Kent to see if
Gauci could be given a lighter job. Kent advised that no other work was available
for Gauci. Gauci did not return to work thereafter
Superintendent Riddel asserted that every painter that has been employed by
Respondent has had to "spend much of his time" on sanding 50 and snagging work
and that every snagger spends sometime on sanding, washing, and taping work
"which is for the most part a part of the painter's job " Painters and snaggers were
used interchangeably. Riddell identified employees who were classified as "painters"
and others who were classified as "snaggers " It is thus patent that there were
two separate classifications. Foreman Thaxton acknowledged that when Gauci was
put on "snagging" he complained that that was not his work. Thaxton advised
him that was the work Thaxton needed him on and if he was not satisfied he
should go to personnel. Thaxton testified, at variance with the testimony of
Superintendent Riddell, that before the strike Gauci did whatever work there was
in the department "other than the time the Union was there." Thaxton asserted
that during the period of the union contract "they mostly stuck to painting but
there is times they would ease in and do other things . . even asking to do certain
things that they were afraid they might get in trouble if they did " Kent related
that Gauci complained to him about the job assignment stating that he was
usually assigned to painting. Kent related that he talked to Thaxton and that
Thaxton advised him that the jobs of "snagger" and "painter" were interchangeable
49 Kent and Thaxton denied that Gauci had made any complaint about the air hose
incident, and Thaxton denied advising Gauci that he would not help him because he did
not want to get his head split open. I do not credit these denials Kent acknowledged
being advised by Gauci, about June 15, that eggs had been thrown at him in the locker-
room This was apparently the same morning eggs were thrown at others as noted in
section C, 10 14. and 22. Wesch denied threatening Gauci His denial is not credited
501t is undisputed that "sanding" is done by painters
THE CROSS COMPANY 1037
as the workload changed 51 I do not credit Respondent's witnesses to the extent
their testimony is at variance with that of Gauci.
Respondent urges that the real reason that Gauci failed to return to work was
because of his back injury; at the same time Respondent urges that Gauci was told
by the doctor in June that he was able to go back to work but refused to do so.
Gauci is an individual of slight build, being 5 feet 3 inches in height and weighing
120 pounds at the time of these incidents. He credibly testified that snagging work
was too heavy for him and he had not done it in 8 years. He injured his back while
doing the snagging work. He appropriately complained to Thaxton and King that
snagging was not a painter's work, and it is not disputed that he made such com-
plaints. While Respondent's witnesses Riddell and Kent asserted that the em-
ployees in the "painter" classification were interchangeable with the employees in
the "snagger" classification at all times, it is clear from the testimony of Foreman
Thaxton that this condition was not true during the period of the union contract
and up to the time of the strike. The assertion of King to Gauci that men were
being "switched around," in the light of other evidence herein, clearly meant that
classifications were being ignored, and in some instances such as Gauci, Sassano,
and others, the returned strikers were being assigned to more arduous and more
onerous duties. I have noted supra, section C, 7, that Castle was assigned to non-
electrical work while other employees who were not electricians were assigned to
electrical work. Accordingly, I credit the testimony of Gauci that he did no
snagging for a period of 8 years prior to the strike, and that "snagging" was not work
within his classification.
The attitude of Respondent, of utter disregard of the returning strikers natural
expectation that they would be provided work within their respective classifications,
becomes more apparent and meaningful in the consideration of other events infra.
Gauci's refusal to return to the plant in June was due to Respondent's refusal to
provide him with work in his own classification. I find accordingly.
Respondent urges Gauci acknowledged, in testifying, that illness was the reason
he failed to return. At the urging of the Union, Gauci sent a telegram on August
30, 1960, advising Respondent he was ready to return, for reasons stated therein.
There was no response. Gauci explained sending the telegram was "against my
heart," because he still felt "sick" about the treatment inflicted upon him by non-
strikers Nothing in addition can reasonably be concluded from his testimony.
I so find
12 Raymond Shook-June 1 to August 9
Shook, classified as a timekeeper, was recalled and reported on the night shift
on June 1, 1960. Shook was initially employed by Respondent July 21, 1953, and
was in layoff status at the time he testified.
No allegation concerning Shook appears in the consolidated amended complaint;
however, it is alleged that Respondent engaged in discriminatory conduct relative to
Shook in 1961. This allegation is considered infra, section J, 4. The charge in the
latter case was filed on June 20, 1961, after Shook testified.
Events which occurred in the plant, after Shook returned to work on June 1, 1960,
are next considered. When Shook arrived at the lockerroom, he found at least 50
nonstriking employees there. He was greeted with boos and such epithets as "scab"
and "SOB." He reported to his foreman, Edward Balchunas. Later that evening
he left his chair to go to the restroom and when he returned found the seat covered
with oil. He again left, later, and, when he returned, found that someone had
stuck gum on the back of the chair which stuck to the back of his shirt. Both these
incidents were reported to Foreman Balchunas who assured Shook that it would not
happen any more Balchunas corroborated the testimony of Shook relative to these
events and the reports. Balchunas was unable to determine who was responsible.
Shook's duties as timekeeper included keeping records of the amount of time
each employee spent on a particular job. This is discussed more fully below; how-
ever, when an employee finished a particular assignment he would bring the job card
to the timekeeper and have the timekeeper clock him out. Thus, there was repetitious
contact between Shook and nonstriking employees. A nonstriker, Charles Crump,
called Shook an "SOB" and said, "Why don't you go home and get out here where
you belong." Shook reported this event to Balchunas, who advised Shook, "Ray,
there isn't much we can do about it, you know. You fellows were out there for
about 10 months while these boys were walking through a picket line. You can see
how they feel toward you." Balchunas acknowledged the report and related that
51 King was not called as a witness. I credit Gauci's testimony that he talked to King,
and not Kent, about the "snagging" assignment
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was certain that Crump had sworn at Shook. He advised Crump that when he
was checking out a job there is no need for swearing or harassing.
On June 6 Shook was transferred to the assembly department as day-shift time-
keeper. That morning when he arrived in the lockerroom there were approxi-
mately 50 nonstriking employees. Shook was subjected to profanity and asked,
"Why don't you go to work in a union shop," among other things. These occur-
rences continued each morning until Shook was again transferred to the night shift.
Shook was with Muszynski on June 15 when the eggs were thrown in the locker-
room. There were about six eggs thrown. He reported the egg throwing to Fore-
man Hargreaves. Shook quoted Hargreaves as saying, "This is terrible. I don't
know how long it's going to keep up. I'll see what I can do about it to stop them."
Thereafter, Hargreaves never mentioned the egg-throwing incident to Shook.
During the week of June 6-13, Charles Wesch called Shook abusive names and made
the threat, "I'll knock you across the room and beat you up. You open your mouth
to me and I'll knock you across the room." Shook reported to Kent that Wesch
was calling him abusive names. The name calling stopped for a few days. Kent
had only a "vague" memory relative to Shook's complaint, and stated that Shook
did not know the employee's name. Kent related that he told Shook that there was
a good deal of resentment against the fellows coming back and he should not pay
too much attention to it, that it would quiet down and he should stick it out. Wesch
acknowledeged making the threat, but alleged he lost his temper because Shook
told him if he were a union sweeper he would be making better wages. I credit
Kent and Wesch only to the extent that their testimony is consistent with that of
Shook.
While Shook was on the day shift in June, he ate lunch in the subassembly depart-
ment with Muszynski, Bristol, Lewandowski, and Peterson. About 12.15 Paul
Czekis would whistle and a group of nonstrikers, from various places in the plant,
would gather in the subassembly section. Shook estimated the group as approxi-
mating 30 in number Shook related that the nonstrikers engaged in razzing and
name calling , and the strikers were asked why they wanted to come back to work
and why they permitted certain violence on the picket line Shook identified Czekis.
Ferguson, and Karbula as among those in these lunch-time gatherings
13. Charles Heyworth-June 2 to 6
Heyworth, an electrician , was interviewed by Kent on May 20 Heyworth was
initially employed in January 1953. He worked in the assembly department under
Foremen Hargreaves and Sujuki.
It is alleged that Heyworth was constructively discharged.
It is undisputed that Heyworth returned to the plant and reported for work on
Thursday, June 2. Heyworth left before noon of the same day and did not work
thereafter. Respondent contends Heyworth voluntarily quit.
When Heyworth arrived at the lockerroom on June 2, shortly before 7 o'clock,
there were 30 or 40 nonstriking employees and only 2 or 3 of the returned strikers.
He was greeted with "here comes another scab; he has a lot of nerve coming back
to work," he was also called a "bastard," and other vile and profane language was
used. He proceeded to the guard's desk to obtain his timecard. Guard Babuska
was in the lockerroom distributing laundry at the time Heyworth walked through.
Heyworth returned to the lockerroom and requested his timecard from Guard
Babuska. As they returned to the guard's desk, the invectives continued and the
guard took no action relative to them 52
Heyworth proceeded to Foreman Sujuki's desk. During this period, there was
pounding on tables with hammers, a repetition of the same kind of language, and
the question was asked, "Do you think you will last until 5 30." Hargreaves and
Sujuki were within 60 feet of where this name calling was going on He accom-
panied Sujuki to the north end of the plant , and during this period there was addi-
tional name calling and the remark was made, "I wonder if he will be carried out
of here." Sujuki did not intervene relative to the comments 53 About 10 o'clock
Hevworth found his toolbox covered with "pipe dope " He showed the toolbox
to Sujuki. The pipe dope was described as a sealer, a red lacquer, which becomes
very hard when it dries. wh;ch penetrated all the threads of Heyworth's tools
Sujuki advised him to clean the tools but did not ask any questions Hargreaves
acknowledged seeing the pipe dope on the tools Hargreaves, unsuccessfully, tried
62 The denial of Babuska, that he saw Heyworth in the lockerroom, is not credited
ss Hargreaves and Sujuki denied they heard pounding and name calling when Heyworth
reported. To the extent this testimony implies that these events did not occur it is not
credited
THE CROSS COMPANY 1039
to find out who did it, he talked to two or three employees whose names he could
not remember, and explained that that sort of activity was expensive for the
Company.
Heyworth decided to go home and asked Foreman Hargreaves for a sick pass
and a package pass so he could take his tools with him, explaining to Hargreaves
that he was fearful of leaving his tools there as they might be damaged 54 Heyworth
proceeded to the union trailer across the road from the Respondent' s entrance gate,
where he was advised by the gate guard to return to Kent's office. Heyworth
related that Kent told him that he (Kent) had heard about the trouble that Heyworth
had in the shop, that he was very sorry, and that they were doing everything that
they could to prevent these occurrences. Kent called Heyworth's attention to the
notice relative to threats which was posted on the bulletin board. Heyworth advised
Kent that he was too "frightened," that he was going home, and that he did not
think he would be back until conditions were safer in the shop. Kent reminded
Heyworth of the 3-day absence rule, after which he would be considered a voluntary
quit. Heyworth advised Kent about the name calling and threats in the shop.
Kent acknowledged that Heyworth reported that he was "scared sick," because of
threats by the nonstrikers. Kent quoted Heyworth as saying, "I feel ill, I can't work,
I don't want to work." Kent thereupon urged him to return to work.
At the request of the Respondent, Heyworth was examined by Dr. Sanborn on
June 6. The doctor found no physical impairment, but noted Heyworth's state-
ment of "apprehension" and "anxiety" relative to measures to prevent his return to
work. Later that week, Heyworth called King, Kent's assistant, and advised him
that he was not returning because of his fears, and requested that his check be
mailed to him.
The credible evidence herein establishes the threats and vituperations heaped
upon Heyworth, by the nonstrikers, as the reason for his departure from the plant.
Not only were these events within the hearing and knowledge of Foreman Hargreaves
and Sujuki, they were admittedly reported to Kent by Heyworth and were his reason
for leaving . It is repetitious to note the inaction of Respondent's supervisory
personnel.
In sum , the testimony of Hargreaves and Sujuki would require a finding that
nothing occurred to Heyworth other than the placing of pipe dope in his toolbox
If so, it is odd that Hargreaves would have inquired if Heyworth was quitting when
he asked for the pass, and Hargreaves testified he did ask that question. It must
be inferred that Hargreaves immediately alerted Kent relative to Heyworth's depar-
ture. There is no other explanation of Kent's testimony that he called the guard,
hoping to intercept Heyworth before he passed the gate, having knowledge of the
trouble Heyworth had experienced. It is undisputed that Heyworth explained to
Kent that he had become sick as a result of treatment he received during his short
stay in the plant. In this and other instances, Respondent urges the lack of iden-
tification of the nonstrikers engaging in these activities by the strikers. Since su-
pervisory personnel were present when the events took place, I regard this conten-
tion as having no merit. It is obvious that Respondent did not take effective means
of terminating the unsavoury conditions existing in its plant . Rather it elected to
invoke its so-called 3-day rule and terminate the returning strikers, who, finding
unbearable conditions, left the plant. I find, accordingly, that the 3-day rule had
no application to Heyworth and was not the reason for his separation.
14. Anthony Lewandowski-June 3 to August 9
Lewandowski was interviewed by Kent and King in May. Subsequently, Lewan-
dowski reported on the day shift on June 3. Immediately preceding the strike,
Lewandowski had been working on the night shift. Lewandowski was initially em-
ployed by Respondent in August 1952, and was classified as a storekeeper com-
mencing January 1958. He was still employed when he was testified.
There are two separate allegations relative to Lewandowski. It is alleged, in
the consolidated amended complaint, that he was improperly excluded from the
plant and forced to remain away from his job on August 4, 1960, the events relative
thereto are considered infra, section C, 45. It is alleged, in Case No 7-CA-3233,
that Respondent assigned Lewandowski to more arduous and less agreeable job tasks;
the events relative thereto are considered infra, section K.
The conditions with which Lewandowski was confronted in the plant, after he
returned to work, are next considered.
"The immediate cause of Heyworth's decision to leave was a threat by an individual
which was not reported and therefore is not considered. This threat was, however, merely
the culmination.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewandowski went to the plant to report for work on the morning of June 3.
As he entered the lockerroom, Lewandowski was greeted by yells, screams, and
insults from the nonstrikers present, whom he estimated to be between 15 and 30
in number. Lewandowski was told to go home, that he did not have a job, that
his job was taken by somebody else and he should get out, and that his place
was on the picket line. He was called a "nigger" and a "scaby rat" (he is not a
member of the colored race). His timecard was not at the guard's desk. The
guard told him that he would have to wait because the guard had not been notified
that he was reporting.
Lewandowski's work station, prior to the strike, had been the subassembly stock-
room and tool crib. His "leader" at that time had been Oravec Lewandowski's
foreman was Charles Balkwill, material control manager. Murray Osborn ad-
vised Lewandowski that he (Osborn) would assign Lewandowski his work for that
day. Osborn continued to give Lewandowski his job assignments over a period of
2 or 3 weeks until Lewandowski was transferred to another department. Balkwill,
however, gave him additional assignments. General Counsel contends that Osborn
is a supervisor within the meaning of the Act. Respondent contends that Osborn
is a leader and not a supervisor. Determination of this issue is of importance for
one purpose only. Lewandowski testified that he experienced certain misconduct
on the part of nonstrikers and that he reported these events to Osborn. The result-
ant question is whether Respondent can be said to have had knowledge of these
events under these circumstances. Only if Osborn was a supervisor would Re-
spondent be chargeable with knowledge.
Osborn did not appear as a witness. Lewandowski related that on June 3 Osborn
took him to the storage room, located in sections 11 and 12, bay B, where electric
wiring is kept and Lewandowski was assigned the job of unloading some cases of
wiring and placing them in the appropriate bins. That afternoon Lewandowski
was assigned to uncrating electric motors and placing them on skids. The only
other testimony of Lewandowski, relative to Osborn, was that he assigned him
to various places to stack different items. Balkwill testified that he is in charge
of shipping and receiving, that Osborn was an expediter whose duties were to get
necessary material to the various foremen when it is needed, and to see that it
gets to the stockroom and is properly recorded. Baldwill acknowledged that he
could not give each individual man an assignment that would last him all day,
accordingly, it was his practice to give Osborn the work assignments and have him
reassign certain phases of that work to the storeroom employees. Balkwill's testi-
mony that Osborn did not have the power to hire and fire or to effectively recom-
mend hiring and firing is undisputed. Accordingly, I find there is no evidence
that Osborn either had or exercised supervisory authority. It follows that Respond-
ent is not chargeable with knowledge of events reported by Lewandowski to Osborn
I have noted supra, section C, 10, that Lewandowski was one of a group of
strikers who ate lunch in the subassembly department. Lewandowski described these
lunch-time events as follows: About 12:15 a group of nonstrikers would gather
around the strikers eating in subassembly and would remain until near the end of
the lunch period, at 12:30. These gatherings continued from the time Lewandowski
returned to work until approximately the time an injunction was obtained on Au-
gust 9. Threats were made, such as Lewandowski being told that the plant would be
an unhealthy place for him from then on. Lewandowski provided no specifics in stat-
ing that the strikers were insulated . Lewandowski was obviously in error in stating
that Foremen Charbonneau and Hargreaves ate at their desks during the first 2
weeks after he returned. Charbonneau was in fact on the night shift at that time.
Lewandowski placed the size of these luncheon meetings as varying from 20 to 50
nonstrikers . On the basis of the record as a whole, the latter figure appears to be
an exaggeration . I consider it for what it was intended to be, as an estimate, which
was inaccurate.
On June 15 Lewandowski was in the lockerroom when eggs were thrown, one of
which hit Muszynski, see supra , section C, 10. Lewandowski saw Ralph Baker
standing in a position that would indicate that he had just released an egg from
his hand; the egg hit a washbasin and splattered over Lewandowski's pants. The
same morning Lewandowski saw Ted Peterson hit on the arm with a piece of steel.
Lewandowski reported the egg throwing to Guard Babuska and requested that he
make a report, which Babuska did.55
55 Absent any corroborative testimony in the record, I do not credit Lewandowski's
testimony that tomatoes were thrown on June 15. I also find that Lewandowski's testi-
mony, that the egg-throwing incident took place on June 8, was erroneous as to the date
of the event.
THE CROSS COMPANY 1041
Kent acknowledged that Guard Babuska reported to him on June 15 that Lewan-
dowski, Muszynski, and Gauci were targets for the raw eggs, that Peterson's arm
was injured by a metal object and had a black and blue mark on it. Babuska
reported to Kent that he was in the laundry room at the time, but saw eggs splattered
all over the lockerroom floor. Kent also acknowledged that the guard had reported
on June 13 that Lewandowski had claimed that Behrends had hit him with an egg.
This incident was during worktime. The confusion of Kent relative to his investi-
gation of these incidents and his subsequent inaction are noted supra, footnotes 47
and 48.
15. Joseph Brown-June 3 to August 9
Brown was recalled after the strike and reported on June 3 or 4. Brown was
initially employed by Respondent in October 1951. He is a millhand and his super-
visor is Stanley Balchunas. He was still employed at the time he testified
It is alleged in the complaint that Brown was improperly excluded from the plant
and forced to remain away from his job on August 4, 1960. The events relative
thereto are considered infra, section C, 45.
The conditions with which Brown was confronted in the plant after he returned
to work are next considered.
The first few days, three or four of the returned strikers ate lunch together in
the machine department. Brown identified the others as Derbin, Fedenis, and
Burgess, the latter two returning to work on June 6. Brown related that 25 to 35
nonstrikers surrounded this group and made a lot of noise and said things which
he could not recall precisely, "maybe cursing or something like that." He identified
Rittenhouse as one who asked him to step outside and fight. Brown identified Zelin-
sky and Karbula as other nonstrikers in the group The returned strikers then decided
that if they ate separately they might not be bothered further. Brown has continued
to eat by himself ever since.
Foreman Balchunas acknowledged that Brown complained that the group gather-
ing around him at lunch time made him nervous. Balchunas acknowledged seeing
the group on one occasion. Balchunas reported the incident and complaint to Kent.
It does not appear that anything further was done.56
Kent acknowledged that on June 15, Foreman Stanley Balchunas advised him that
Brown's toolbox had been thrown in a spirit vat. Kent questioned several people
but did not ascertain who was responsible. Kent acknowledged that when Bal-
chunas showed him Brown's toolbox "it was really a mess."
16. Floyd Bristol-June 6 to August 9
Bristol, a machine assembler, was interviewed by Kent in May and was requested
to report on June 6. He was initially employed by Respondent in June 1952. He
was still employed when he testified.
There are four separate allegations relative to Bristol. It is alleged, in the con-
solidated amended complaint, that he was improperly excluded from the plant and
forced to remain away from his job: (1) On July 1, 1960; (2) on August 4, 1960;
and (3) on "other days." The events relative to July 1 and August 4 are considered
infra, section C, 31 and 45. It is alleged in Case No 7-CA-3233 that Respondent
engaged in discriminatory conduct in the layoff and recall of Bristol in 1961. These
events are considered infra, section J, 2.
The conditions with which Bristol was confronted in the plant after he returned
to work, and the clam-i he was excluded from the plant on "other days," are next
considered.
When Bristol arrived in the lockerroom on June 6, he was greeted with yelling,
hammering, pounding, and razzing. He was told to go home, that he did not belong
there "Nigger" was among the epithets (he is not a member of the colored race).
Similar treatment was experienced on subsequent days.
Bristol gave conflicting testimony as to the next events. He reported to Foreman
Hargreaves and was assigned to work on a machine in bay D, section 15. Bristol
first testified that a lot of fellows came around "one and two and three at a time,
the first hour threatening me. I mean threatening by saying they want to fight."
Immediately thereafter, Bristol stated that the first group was comprised of anywhere
from 30 to 40 men from all over the shop. He described the group as "surrounding"
him, and accusing him of certain events which allegedly took place during the strike.
He identified Charles Wesch and William Rittenhouse as two who threatened to beat
6n Zeltnsky's denial that he was present in the group that surrounded Brown at lunch
time is not credited. Karbula and Rittenhouse did not appear as witnesses
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him. Bristol identified Popovich , Behrends , and Czekis as among those who ap-
proached him while he was working , but did not relate the nature of any activity
on the part of these three employees . Bristol placed Hargreaves as being within 20
feet of him when the group came down the aisle and surrounded him, and Bristol
saw Hargreaves turn and walk toward the front of the building. Bristol placed
Master Mechanic Donaghey as being in bay E, section 15, at this time. Foreman
Hargreaves acknowledged that Bristol complained "more than one time" that other
employees were bothering him, calling him names , and making him very nervous.
In view of the inconsistencies in the testimony of Bristol , I credit this portion of his
testimony only to the extent it was corroborated by Hargreaves.
At lunch time, the first day, Bristol ate with several other returned strikers in
the subassembly department. He described the condition as "we were surrounded
by just about every nonstriker in the plant." This is an obvious exaggeration. He
described the scene as including hammering on the tables, smoke blown at them,
a burning rag thrown under him, accusations relative to events on the picket line,
name calling (while set forth in the record, I find no purpose in setting forth foul
and repulsive language ), and the strikers were advised that they had no right to be
there. Hargreaves corroborated the fact that Bristol was in a group of returned
strikers who were surrounded by nonstrikers. Hargreaves related that Bristol com-
plained to him that this and following gatherings at lunch time made him nervous.
Bristol related that cigarette smoke was blown in the faces of the strikers. This
was corroborated by Genest. Absent corroboration I do not credit Bristol's testi-
mony about a lighted rag being thrown under him. However, it is amply estab-
lished herein that these lunch-time gatherings were used by the nonstrikers for the
purpose of threatening and insulting the returnees. Hargreaves acknowledged that
Bristol complained specifically that the strikers were being called names and that
vulgarities and obscenities were being hurled at them during the lunch-time gather-
ings. Hargreaves asserted that Bristol was the only one who made such a complaint
to him. Hargreaves acknowledged that he made no effort to go into the lunch-time
groupings to find out what was being said, either when Bristol complained or later.
Bristol testified that in the first few weeks after his return he left early on quite
a few days and missed a few days because of being scared and being nervous. He
was unable to identify which dates he left early because of particular conditions or
on which dates he failed to report, but asserted these events were all in the first
2 or 3 weeks after he returned. Bristol did not know how many partial days he
missed and thought he was absent on 3 or 4 days. Bristol related that Hargreaves
told him that if he did not discontinue going home early he would have to replace
him. It was Bristol's testimony that while the plant was on a 10-hour schedule
he worked 8 hours some days and left at noon on other days, because he was
nervous. Hargreaves acknowledged that he called Bristol's attention to the fact
that he would have to improve his attendance record. Hargreaves asserted that
from that time on Bristol did not miss any more time. Hargreaves acknowledged
that Bristol advised him that the reason for Bristol leaving early was that he
was nervous and "shook up."
Bristol's absentee record reflects that he was absent, for reasons unknown to the
Respondent, on June 7, 10, 11, and 22, July 1 and 2, and August 4. Mykola
Holowan, a returned striker, see section D, 2, infra, testified that on June 10 at
10 a.m., he attended a meeting at the union hall and saw some 37 people, uniden-
tified, in attendance 57 Bristol's record indicates that he left work at 4 p.m on
June 9, by reason of illness; just before noon on June 18, for personal reasons;
and just after lunch on June 21. by reason of illness.
Bristol was unable to identify which 3 or 4 days, of the total of 7 when he failed
to report, he was unable to report because of conditions in the plant. I will treat
below with the particular conditions on July 1 and August 4 which involved Bristol,
among others. Since Bristol reported on June 6, it appears unbelievable that he
could not relate why he failed to report the following day on June 7, if in fact
his failure to report on that date was related to the events which occurred on
the first day of his return. Under the circumstances, particularly in view of
Bristol's inability to relate his absence to particular events, it would require specula-
tion and surmise to determine which day or days his absence was due to events in
the plant, of which Respondent had knowledge. His early departures on June 9
and 21 clearly indicate illness as the stated cause. However, there is not a scintilla
of evidence of the events, if any, which preceded or were the causation. Findings
e7 Respondent Introduced absentee records to reflect that other of the returned strikers
did not work on June 10 and 11 The absentee records of Lewandowskl Fassbiner,
Muszynski, Holowan, Burgess, Shook, Brown, Fedenis, and Derbin indicate that nIi of
these ex -strikers were absent for reasons unknown to the Company on June 10 and 11
THE CROSS COMPANY 1043
must be based on facts, not speculation. There is no evidence in this record which
establishes the reason Bristol failed to report on June 7, 10, 11, and 22 and July 2,
or the reason for Bristol's illness on June 9 and 21. I so find.
17. Robert T. Burgess-June 6 to August 9
Burgess was recalled after the strike and reported for work on June 6. Burgess
was initially employed in January 1956. He was a machine operator and worked
under Foreman Wmke. He was still employed at the time he testified.
There is no allegation in the complaint relative to Burgess.
The conditions with which Burgess was confronted in the plant after he returned
to work are next considered.
Burgess went to the plant to report for work on June 6. When he entered the
lockerroom he saw tables occupying most of the width of the center of the locker-
room, about a third of the way down from the entrance , with a narrow aisle on
each side . Burgess described vulgar and obscene language directed at him as he
walked through the lockerroom on this and later occasions . I find it unnecessary to
set forth this repulsive language.
Burgess reported to Foreman Winke and was assigned to a radial drill located in
bay C, section 4. William Rittenhouse , a nonstriker , had been working on this
machine prior to the recall of Burgess . About a half hour later, Rittenhouse
started to shoulder Burgess, telling him to "get off this job this is my job," and
pushing him approximately 9 feet. Burgess immediately reported the incident to
Winke, inquiring if Winke wished him to continue on the machne . Winke there-
upon talked to Rittenhouse . Later that day, Rittenhouse threw two blocks of wood,
described as 4 by 4's, about 2 feet long, and two large iron hooks, described as 18
inches long and weighing 30 to 40 pounds each, in the direction of Burgess who
sidestepped.
On June 7, while he was working , Burgess was hit in the side with a threaded
bolt, three -quarters inch in diameter and about 2 inches long . Later, that day,
Charles Wesch advised Burgess, "We are all set to get you tonight . You will
have steel in your when you go out tonight ." At this time Burgess reported
this threat and the items thrown at him to Winke . Winke sent Burgess to Kent's
office for the purpose of making a report . Burgess acknowledged that he did not
see who had thrown the bolt.
On June 8 Wesch again threatened Burgess, advising him they were all set to
get him that night. The same day three eggs were thrown at Burgess during work-
time , one of which splattered against the side of his machine . Burgess did not report
this to Winke until a couple of days thereafter . Burgess related that he was more
interested in getting things quieted down, if possible , and acknowledged telling
Winke that he did not wish to make an issue of the egg throwing Burgess related
that Winke told him that in view of the violence on the picket line, they could not
expect things to go smoothly , without repercussions , but it was the policy of the
Company not to permit violence.
Winke acknowledged that Burgess reported that a bolt was thrown at him and
on another occasion that "something" had been thrown at him. However, Winke
testified Burgess did not want to make anything of it as he wanted to try to get
along on his job. Winke acknowledged that at another time Burgess reported an
egg had been thrown at him. Kent acknowledged that Burgess reported the threats
made by Wesch. Kent was also advised by Winke that Burgess had been pushed
away from his work by Rittenhouse . Kent also received a report from Burgess
that a piece of steel and an egg had been thrown at him. Burgess also advised
Kent of the foul language used in the lockerroom . These reports were all before
June 9. Kent related that he talked to Rittenhouse and told him he would be
disciplined if he interfered with anyone's right to work, and that he did not want
Rittenhouse using any abusive language "while on the job." Kent acknowledged
that Burgess identified Rittenhouse as the one who threw a piece of metal at him
Burgess also complained that Frank Kinsch had called him obscene names. Kent
related that he talked to Wesch who denied making any threats to Burgess Kent
then warned Wesch if he was responsible "we would find out about it later, and we
would take disciplinary action against him." He told Wesch if he was guilty to
stop it at once and leave Burgess alone . No disciplinary action followed.
18. Michael Fedenis-June 6 to August 9
Fedenis was interviewed by Kent and subsequently recalled on June 6. Fedenis
was initially employed by Respondent in 1951. He is a radial drill operator under
717-672-64-vol 143-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the supervision of Foreman Stanley Balchunas. He was still employed when he
testified.
There are no allegations in the complaint relative to Fedenis.
The conditions with which Fedenis was confronted in the plant after he returned
to work are next considered.
When Fedenis arrived at work on the morning of June 7, his second day, he found
his toolbox soaked with oil. He immediately called it to the attention of Stanley
Balchunas. He quoted Balchunas as advising him "it won't hurt the tools" and
advising him to clean them.
During the first 3 days after his return, Fedenis ate lunch with Derbin and Brown.
He corroborated the testimony of the other two that a group of nonstrikers, which
he estimated to be in the number of 30 or 40, surrounded them while they were
eating. Fedenis described some of the swearing engaged in by the nonstrikers.
Thereafter Fedenis ate alone and was not further bothered during lunch.
Balchunas acknowledged that Fedenis reported the oil in his toolbox. Balchunas
testified that he reported such incidents to Kent, and related that at random he would
tell employees that if anyone was caught putting oil in toolboxes disciplinary action
would be taken. Balchunas also acknowledged that Fedenis complained about the
gathering of nonstrikers around him at lunch time because it made him nervous.58
19. Stephen Ashmore-June 7 to August 9
Ashmore was recalled after the strike and reported on the night shift on June 7.
Ashmore was initially employed by Respondent in 1953. He is a mill operator and
was under the supervision of Foreman Edward Balchunas. His work station was
in bay E, section 3. Ashmore was still employed at the time he testified.
There is no allegation in the complaint relative to Ashmore
The conditions with which Ashmore was confronted in the plant after he returned
to work are next considered.
Shortly after Ashmore reported for work on June 8, he went to the tool crib
and when he returned to his work station he found blue layout dye in his toolbox.
He reported this to Edward Balchunas. Balchunas advised Ashmore to keep his
eyes open and stated that he (Balchunas) would attempt to find the culprit.
On June 9, when Ashmore went into the lockerroom, he found the lock on his
locker twisted so he was unable to lock it. He reported this to Edward Balchunas
and requested him to have the lock fixed. At quitting time Ashmore went to his
locker and found his street clothes had been saturated with oil. He had Edward
Balchunas view the condition of his clothing. Balchunas expressed disgust and
requested that he leave the clothes there.
Edward Balchunas corroborated the above testimony of Ashmore. He acknowl-
edged the report by Ashmore that layout dye had been put in his toolbox, and his
own reaction of disgust. Balchunas reported the incident to both Kent and Riddell.
Balchunas acknowledged that he went with Ashmore to his locker and observed that
someone had thrown oil all over the clothing and in Ashmore's shoes. Balchunas
suggested Ashmore leave the clothing so that he (Balchunas) could show them to
Kent. Kent also acknowledged that the clothing incident was reported. The record
is silent as to any further action by Respondent relative to these incidents.
When Ashmore reported on June 8 he was surrounded by 20 to 30 nonstrikers in
the plant. They swore at him and suggested he step outside, inferentially to fight.
20. Supervisor's meeting June 9, 1960
I have set forth, supra, section C, 1, the fact that at the supervisors' meeting on
May 18 Superintendent Riddell indicated to the foremen that he anticipated strong
feelings would exist between the nonstrikers and returning strikers and that they
would be responsible for maintaining order in their departments. I have found that
this instruction related to worktime, as distinguished from episodes in the lockerroom,
before worktime, and at lunch time.
The first meeting of the supervisors after the strikers started to return was held
June 9. There are substantial variances in the testimony of Respondent's super-
visors as to what, if anything, Riddell said at this meeting relative to the incidents
in the lockerroom, before work gatherings, the lunch-time gatherings, and interference
during worktime, and whether specific incidents which had been reported were or
were not discussed.
51 Balchunas erroneously related that Fedenis requested a sick pass to leave early dur-
ing the first week after Fedenis had returned. Fedenis' absentee record does not reflect
an early departure until June 20. Then it was for "personal" reasons, not "illness."
THE CROSS COMPANY 1045
Superintendent Riddell related that he reiterated to the foremen that it was their
responsibility to maintain order in their departments, that he still felt that there
would be strong feelings on the part of and between the two groups of employees,
and that the supervisors should maintain close surveillance and break up any con-
gregations of employees that might occur. He asserted, he advised the foremen,
"that we were paying the employees to work and not to congregate and talk, and
therefore we had a right to break up such gatherings." Riddell left no doubt that
he was referring to plant departments, not the lockerroom. He asserted, "I have
never had occasion to mention the lockerroom to the foremen. At this meeting
I was referring to the foremen's obligation to keep order in their departments and
11that they should investigate any gathering of people during working hours. . . .
The testimony of Personnel Director Kent was conflicting and self-contradictory.
Kent asserted that Riddell made no reference to what was alleged to have been
happening in the lockerroom at the June 9 meeting, but confined himself to telling the
foremen to break up any groups gathering together which seemed to be stopping
work and to make sure that the work was being carried on. Thereafter, Kent testi-
fied, it was at this meeting on June 9 that Riddell said, "I want you to keep your
eyes open in the locker rooms; I want you (to keep) eyes open when the men are
working; make sure that no untoward incidents are happening that may prevent any
of these men from coming to work."
Riddell identified Hargreaves as the one who asked a question at this meeting
about the practice of employees congregating in small groups during the lunch period
and before work in the morning, and inquiring whether the foreman should do any-
thing to interfere. Riddell stated his advice was that it was impractical to attempt
to break them up, that he doubted that they had a right to do so as long as they
were peaceful.
Kent asserted that a supervisor (apparently Hargreaves) said there were some-
times groups in his department who gathered together around some of the strikers.
Kent quoted Riddell as saying that it was not Respondent's problem to interfere with
people who want to meet together at noon, as long as they are not disturbing the
peace or disturbing any of the men. Kent acknowledged that some of the language
used in the lockerroom and during the lunch gatherings had come to his attention
prior to June 9. Kent then qualified his answer by stating that he did not think what
was being said by nonstrikers to ex-strikers was "spelled out" prior to June 9.
The testimony of the foremen was similarity confused and contradictory relative
to what was said at this meeting. Edward Balchunas related that each foreman
would report the complaints which had been made by the various employees, and
there would be a discussion of the complaints. He recalled Oravec being discussed.
Hargreaves related that the only discussion was not permitting any violence or harass-
ment, and to keep peace in the plant. The subject of luncheon gatherings was brought
up, but not by him, and Oravec was not discussed. Sujuki's memory was confined
to the fact that violence would not be tolerated in the shop. Foreman Ress sum-
marized what was discussed as merely "to go on as usual" and keep order in the plant.
Stanley Balchunas recalled being advised by Riddell, at the foremen's meeting, that
if there was violence and profanity "it was our job to stop it." Foreman Charbon-
neau first could not recall anything being brought up at the foremen's meetings
relative to lunch-time gatherings in the plant, then testified that it was quite possible
that it was brought up. Charbonneau could not recall anything relative to the
lockerroom being discussed. Foreman Thaxton recalled individually receiving in-
structions from Riddell when the strikers started to return, nothing else.
The confused and conflicting state of this testimony leaves in serious doubt that
nature of the instructions issued. It does appear, however, and I find, that the
supervisors were not instructed on June 9 relative to any action they should have
taken, or should thereafter take, in connection with the incidents which occurred
in the lockerroom. The only instructions relative to lunch-time gatherings would
appear to be confined to intervention only in the event that they actually witnessed
violence. It is quite evident from the record as a whole that none of the supervisors
investigated to ascertain first hand what was actually transpiring during these lunch-
time gatherings. Neither did they seek to confirm what was reported to them.
that the supervisors witnessed numerous of these lunchtime, lockerroom, and
before-work gatherings does not appear disputed.
21. Jacob Krist-June 10 to August 9
Krist was recalled after the strike and reported on June 10. Krist was initially
employed by Respondent in June 1954 as a janitor-sweeper. His foreman is Plant
Engineer William P. Reece. He was still employed at the time he testified.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are two separate allegations relative to Krist. It is alleged he was im-
properly excluded from the plant and forced to remain away from his job on
August 4, 1960, the events relative to which are considered infra, section C, 45. It
is also alleged that Respondent engaged in discriminatory conduct in assigning Krist
to more arduous or less agreeable job tasks. The events relative thereto are con-
sidered infra, section D, 4.
The conditions with which Krist was confronted in the plant when he returned
to work are next considered.
On June 10, Krist went to the plant and entered the lockerroom. He was greeted
by a group he estimated to be between 50 and 60 strikers, some of whom were
hollering "out of here. We don't need you here. Go to the Union. This is not
a union shop any more." While he was sitting near his locker, a paper cup con-
taining cigarette butts and ashes was thrown over the top of the lockers and fell
on him.
When Engineer Reece arrived, Krist advised him that he wanted a pass so he
could go home. Reece did not inquire as to the reason for the pass. Krist left
at approximately 7:18 that morning. There was a repetition of the greeting Krist
received the first morning on subsequent mornings.
22. Theodore Peterson-June 13 to August 9
Peterson was recalled after the strike and reported on June 13. Peterson was
initially employed on May 19, 1953. He is a hydraulic pipefitter and works in
the assembly department. He was still employed at the time he testified.
It is alleged that Peterson was improperly excluded from the plant and forced to
remain away from his job on July 1, 1960. The events relative thereto are con-
sidered infra, section C, 31. It is alleged in Case No. 7-CA-3233 that Respond-
ent engaged in discriminatory conduct in the layoff and recall of Peterson in 1961.
These events are considered infra, section J, 1.
The conditions with which Peterson was confronted in the plant after he returned
to work are next considered.
When Peterson arrived at the plant lockerroom on June 13, he estimated that there
were 60 to 70 nonstriking employees present and he was called "everything under
the sun." He went to his workbench and, while assembling his tools, was hit on
the shoulder with an egg. He reported this incident to Foreman Hargreaves and
Sujuki, who advised him to wash the egg off.
Peterson ate lunch in the subassembly section with Bristol, Lewandowski, and
Muszynski. Commencing about 10 minutes after 12, some 30 to 40 nonstrikers
crowded around these returned strikers and directed profanity toward them Peter-
son specified among the things said was, "Get out of here, you SOB." This group
remained around the strikers until the end of the lunch period. Peterson identified
Foreman Charbonneau and Hargreaves as eating at their desks, with no obstruction
to vision between them and the group.59
It appears undisputed that the foremen did not approach the group and could
not hear what was being said. Peterson identified Czekis, Karbula, Woods, Baker,
and Behrends as among the nonstrikers in the group. Peterson complained to
Hargreaves and Sujuki about the lunch-time gathering.60
On June 15, as Peterson was walking through the lockerroom, he was hit on the
arm by a piece of steel. This was the same morning that eggs were thrown in the
lockerroom at Muszynski, Lewandowski, and Gauci as set forth supra, section C, 10,
11, and 14. Peterson immediately reported this incident to Guard Babuska, then
reported it to Hargreaves. The incident was reported to Kent, to whom Peterson
exhibited his arm which was turning black and blue. Peterson obtained a sick pass
and left the plant. There is no evidence that anything further was done relative
to this incident.
59 Charbonneau was unquestionably working on the night shift when Peterson first re-
turned It would appear that Peterson confused the names of Charbonneau and Sujuki,
since the latter admittedly ate with Hargreaves at the time in question I consider this
error unimportant
90 Hargreaves acknowledged that Peterson complained that some of the nonstrikers were
asking him questions and others were calling him names Hargreaves acknowledged see-
ing the group eat in the subassembly area and acknowledged that he saw 15 to 20 non-
strikers gathering around them 'I have noted supra, section C, 10, that Hargreaves testified
that he could not hear what was being said and did not investigate these lunch-time
gatherings. Sujuki related that Peterson did not complain but "laughingly" asked him if
he saw the people around him. Sujuki asked Peterson what the group did and Petemon
allegedly responded that they just gathered around him . I do not credit Sujuki.
THE CROSS COMPANY 1047
Peterson described the condition in the lockerroom each morning as including
banging on lockers and yelling, until the obtaining of the injunction on August 9.
The luncheon gatherings were similarly continued until August 9.
Kent and Guard Babuska acknowledged seeing the black and blue mark on
Peterson's arm on June 15. Hargreaves acknowledged seeing the egg on Peterson
on June 13, but was uncertain, although he had a "faint recollection," about the
piece of steel being thrown. Hargreaves did not make any investigation of either
incident. Sujuki acknowledged seeing the egg on Peterson.
23. Robert Wagers-June 20 and 21
It is undisputed that Wagers, a grinder hand, was interviewed by Kent. He re-
ported on the night shift on June 20. His foreman was Edward Balchunas. He had
been employed by Respondent since January 9, 1946.
It is alleged that Wagers was discharged because he defended himself from non-
striker violence and that said discharge was discriminatorily motivated. Respondent
contends that Wagers was discharged for cause.
On June 20, at 5:30, the so-called "night shift" started work and the day shift
finished work. There was a washup bell at 5:25 to allow the day-shift employees
a 5-minute period before their shift ended for the purpose of washing up. The
events relative to Wagers took place largely within this 5-minute period.
On June 20, Wagers arrived at the parking lot adjacent to Respondent's plant
about 5:10 p.m. where he met Donald Suiter. Suiter, a grinder hand, had been
requested to report at the same time. The events relative to Suiter, not outlined
herein, are considered in the next section. Wagers and Suiter had worked at adja-
cent machines prior to the strike. When Wagers arrived in the plant he learned
that he was to continue working at the machine he had worked at previously,
located in bay E, section 7, but that Suiter was being assigned to a machine on
the opposite side of the machine department in bay C, section 7. As Suiter pro-
ceeded across the plant, Wagers observed Frank Kinsch spit and heard him swear
at Suiter.si Wagers credibly testified that a group of nonstrikers gathered near the
timeclock and Wagers noticed William Langlois, Frank Kinsch, and others talking
and motioning toward Suiter, who had meanwhile sat down on a casting near where
he was to work.
A large group of nonstrikers then gathered around Suiter. Wagers heard some
firecrackers explode in the area where Suiter was sitting. He also noticed Foremen
Winke and Rodgers within 10 feet of the group. Wagers related that he knew that
Suiter had had a stroke a few years previously and he went over toward Suiter to
try to lend him support. As Wagers walked up behind Suiter he saw a nonstriker
place a 3-inch firecracker under Suiter's buttock. The employee involved was hired
during the strike and was later identified as Novack. Wagers kicked the firecracker
out from under Suiter and advised Novack "that is enough," using a vulgar term.
Wagers was immediately grabbed by two nonstriking employees and someone said,
"Here's that no good s.o.b. that was throwing the nails in the driveway." At the
same time Paul Czekis kicked Wagers in the groin with his shoe and Robert Woods
swung at him, but missed. Wagers broke away, saw a drill, about 15 inches long
and 11/4 inches in diameter, weighing between 3 and 4 pounds, which he grabbed.
Someone immediately twisted it out of his hand. Wagers related he had the wrong
end, the sharp end, of the drill in his hand. Wagers recrossed the shop to an aisle
where Stanley and Edward Balchunas were in sight. A group estimated at 10 to 15,
including Czekis, followed him. Edward Balchunas asked Czekis and the others
what they were doing there. He told them they were supposed to be out of the shop
and told them to leave.
Edward Balchunas corroborated Wagers' testimony. He and his brother, Stanley
Balchunas, were standing near the south end of aisle E when Wagers came into his
sight. He saw a group of 10 to 15 men following Wagers, including Paul Czekis,
Art Sierota, and Frank Kinsch. Balchunas related that Wagers mentioned someone
throwing firecrackers and picking on Don Suiter, and Czekis said something about
Wagers attempting to hit someone. In view of Superintendent Riddell's warning
"Wagers' statement that Rinsch spat "in Suiter' s face" appears inaccurate However,
Suitor ' s testimony that this event occurred the following evening, when Wagers was not
there, appears to be erroneous . A careful study of the record leads me to the conclusion
that Suiter was in error in testifying that he did not meet Wagers in the parking lot
and that he and Wagers did not go into the plant together . Wagers ' knowledge of the
events relative to Suiter immediately after 'their arrival in the plant causes me to find
Wagers' memory of these events more reliable.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about groups of men gathering together, knowing that Wagers was one of the return-
ing workers, Balchunas advised the group, who were dayworkers, to leave the plant.
Balchunas first described the group as merely walking casually toward him, then
acknowledged that he discovered that they were excited, since Czekis and Wagers
were both trying to talk to him about the same time.
Stanley Balchunas first noticed Wagers as he was coming from bay C near the tool
crib, "walking at a fast pace" with a group of employees in back of him, some shout-
ing. He estimated the group following Wagers as being 25 nonstrikers. He identi-
fied Paul Czekis and William Langlois as being in the group.62
Edward Balchunas advised Wagers that this sort of thing happened the first 2 or
3 days, then the nonstrikers leave the returnee alone. He told Wagers he should pay
no attention to them.
The investigation of this incident by Kent and Respondent's evidence relative to
the decision to discharge Wagers are next considered.
Wagers credibly testified that about 6 p.m. Kent came to Wagers' machine and
advised Wagers that Czekis had been in his office. Kent advised Wagers that Czekis
had said that Wagers tried to hit him in the head with a drill and in defending him-
self he had to kick Wagers in the groin.63 Kent, in relating what Wagers told him
in the main, confirmed the testimony of Wagers herein. There were two significant
departures. Kent quoted Wagers as telling him that when Wagers' kicked the fire-
cracker away, Novack flew at him and Wagers, to protect himself, picked up the
drill and "swung" it at Novack. There is no other testimony that Wagers "swung"
the drill at Novack. Kent then related Wagers said Czekis grabbed hold of his
throat and kicked him in the groin.64 I do not credit Kent.
Kent testified, "I told him that he was a pretty controversial figure, and the men
felt pretty strongly about him because of his picket line activities, and we would do
our best to protect him, but that he had to stay at his machine and not go wander-
ing 200 feet across the plant." Kent admitted that the event described took place
prior to the 5:30 starting time.
Kent queried Edward Balchunas, who advised that Czekis, Langlois, and Robert
Woods were in the group that followed Wagers.
Kent talked to Woods, Langlois, Novack, and Foremen Winke and Rodgers on
June 21.65
52 The testimony of Respondent's witnesses relative to this incident is conflicting and
contradictory
Foreman Winke was at his desk, 50 feet from Suiter, with Foreman Rodgers. He saw
the group of 15 or more, including Czekis, Robert Woods, and Frank Kinsch form around
Suiter He heard a firecracker explode. Shortly after, he saw Wagers trying to break
away from Woods, who was holding him by both arms. Wagers left, and four or five
others followed him. Winke made no effort to intervene.
Woods related that he saw Wagers pick up a drill. Woods grabbed Wagers' hand, told
Wagers to put the drill down, which he did. Then Wagers left.
Other Respondent witnesses testified it was Czekis who grabbed Wagers and forced him
to drop the drill, then Wagers left. Czekis related he grabbed Wagers by the throat and
arm and caused him to drop the drill. Then Czekis walked away and Wagers followed
him Luft corroborated Czekis' statement that Wagers followed Czekis. However, Rinsch
and Hernan saw Wagers leave when he dropped the drill. Harold Wilson said the group
had dispersed before Wagers dropped the drill. Foremen Edward and Stanley Balchunas
saw the group, including Czekis, following Wagers.
The testimony of these witnesses is credited only to the extent it is consistent with the
testimony of Wagers.
63 Kent related that Wagers showed Kent a smear on his clothing where he had been
kicked Kent described it as being in the upper third of the left leg between the groin and
the knee, about a foot long and less than a half inch wide. Suiter was also shown the
shoe print by Wagers. He credibly testified it was "on the crotch of the pants "
54 How Czekis could have one hand on Wagers' throat and simultaneously kick him in
the groin with his foot was not further explained by Kent
65 Kent related that Wagers picked up a drill twice, attributing this report to Woods,
who did not so testify herein. Kent related that Novack and Wagers started to wrestle,
and Wagers picked up the drill and tried to hit Novack. Kent attributed this report to
Langlois, who was not called as a witness. Kent attributed to Novack a report that
Wagers pushed and grappled with Novack. Novack did not appear as a witness. Kent
related that Foremen Winke and Rodgers told him they were not eyewitnesses. I do not
credit this testimony.
The testimony of Kent causes doubt as to whether Novack was a day-shift or night-shift
employee. He quoted Novack as relating the events happened as Novack was "on his way
THE CROSS COMPANY 1049
Kent the same morning reported these facts to Superintendent Riddell. Later
in the morning, Riddell came to Kent's office and told Kent to discharge Novack
and Wagers, "to call them up and tell them they are finished." Kent stated that the
reason he gave Wagers for the discharges was that Wagers and Novack were
guilty of "provoking an assault."
Riddell related that after hearing the report of Kent, "I thought it over overnight
and I made the decision to discharge Mr. Novack and to discharge Mr. Wagers." 66
They were discharged, according to Riddell, because "in both cases they admitted
they had engaged in acts of violence." In the case of Novack, this was the admis-
sion he had lighted a firecracker and threw it, in the case of Wagers it was be-
cause he admitted picking up a drill to hit someone with it. Czekis was not dis-
charged, or reprimanded, even though he admitted there was a scuffle, because it
was in the course of taking the drill away from Wagers.
Wagers credibly testified that Kent advised him by telephone, "I am sorry but
you have been discharged for starting a riot."
The credible evidence herein establishes that Wagers did grab a drill to defend
himself and was immediately disarmed, no other "scuffle" took place, there was no
"riot," and Respondent believed that Wagers was a controversial character because
of his picket line activity.
Determination of the adequacy of the reason advanced for a discharge is not
the function of the Board. The sole question is whether the reason advanced was,
in fact, a mere pretext for discharge, the real reason being within the proscrip-
tions of the Act. Consideration of the entire record is requisite to a conclusion.
See infra, section I, 5.
In October 1960, Wagers made inquiry about his supplemental benefits, and Kent
advised Wagers that he could get the money much sooner if the form was changed
to show Wagers had "quit" rather than that he was "fired." Wagers advised Kent
he needed the money but not that bad "so we'll leave it like it is."
24. Donald Suiter-June 20 to August 9
Suiter was recalled and reported on the night shift on June 20. Suiter was in-
itially employed by Respondent in November 1948. His classification was grinder
hand and his supervisor was Rodgers. He was still employed at the time he
testified.
There are no allegations in the complaint relative to Suiter.
The conditions with which Suiter was confronted in the plant after he returned
to work are partially set forth in the preceding section. He was sitting on a casting
in bay C, section 7, when the quitting whistle blew at 5:25 on June 20. Thirty or
more of the nonstriking employees gathered around him. They accused him of
events which occurred on the picket line, which he denied He then heard six or
eight firecrackers explode behind him. Foreman Winke and Rodgers were at their
desks, approximately 60 feet away, with an unobstructed view, and did not intervene.
There was a similar gathering around Suiter at the same time, on June 22, at which
time they also asked him questions relative to picket line activities.67
After the group left on June 20, Rodgers did not ask Suiter any questions about
what had occurred.
25. Hermann Enzmann-June 20 to 25
Enzmann was first employed by Respondent about May 1942. His classification
was assembler and he worked in the assembly department under Foreman Har-
greaves. It is undisputed that he was recalled and reported for work on June 20.
It is alleged that Enzmann was constructively discharged.
It is undisputed that in a conference with Kent, shortly after the termination of
the strike, Enzmann advised Kent that he was working elsewhere and wished to
defer his return for 2 or 3 weeks. Enzmann described the conditions with which
he was confronted in the plant on June 20 and on succeeding days.
He met about eight former strikers outside the plant and they proceeded into the
lockerroom together. Enzmann described 40 or 45 nonstriking employees as be-
home" the prior day. Kent then said he could not reach Novack at home on the 21st, and
waited until he arrived at the plant that afternoon , to tell him he was discharged.
66How Riddell took overnight to think it over is not further described. Kent's comple-
tion of investigation , report, and the discharges were all on June 21.
611 do not credit Suiter's testimony that no vile names were used by anyone in these
gatherings . In view of the entire record, and Suiter's admission that he heard vile names
directed at others in the lockerroom , I find this assertion incredible.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing in the lockerroom, beating, pounding, and screaming "like a bunch of maniacs"
and using foul language. A similar condition existed on succeeding mornings.
Enzmann ate lunch in subassembly section with Shook, Muszynski, and Lewan-
dowski. About 12:15 p.m., approximately 25 nonstrikers surrounded the returned
strikers, beating the benches with hammers and using such epithets as "yellow
bellies," "now whose the scab," and "dirty s.o.b." The following day, during lunch
time while a similar group was present, a firecracker was exploded under Enzmann's
bench. Enzmann complained to Hargreaves on June 21 about the luncheon gather-
ings. Hargreaves advised Enzmann that he did not like it, that he did not think it
would last long, that there was nothing he could do, and told Enzmann to stick
it out.68
On Wednesday, June 22, Genest first reported. Enzmann credibly testified that
at lunch time a group of nonstrikers gathered and Wesch started swearing and invited
Genest to come out and fight. This incident is considered in the next section, infra.
Enzmann asserted that Hargreaves and Sujuki were at their desks approximately
60 feet away, and Harry Ress was only 8 or 10 feet away, when these events oc-
curred at lunch time on June 20, 21, and 22.
On Thursday, June 23, the plant worked 12 hours starting at 5 a.m. Enzmann
reported late. He related that the conditions in the plant got on his nerves, he
thought everyone was "stir crazy," and he did not want to become a part of it.
That afternoon he obtained a pass from Hargreaves, stating he had personal busi-
ness. He did not work thereafter.
On Saturday, June 25, Enzmann returned for the purpose of getting his toolbox.
At that time he told Hargreaves he could not stand the harassing during lunch
time. Hargreaves asked Enzmann why he was quitting and Enzmann responded,
according to Hargreaves, "Well, I just don't like the attitude and the atmosphere
around here anymore. I just can't take this kind of stuff. I don't feel as though
I deserve this kind of treatment from the fellows in here "
Enzmann then went to Kent's office and advised Kent that he was leaving, because
he could not work "when management allows these things to happen." Enzmann
credibly testified that Kent advised him that he was not aware of anything going on,
that if supervision knew they would. correct it. Enzmann responded that supervision
did know because Hargreaves and Sujuki were within 60 feet, and Ress only 8 or
10 feet away, when these events happened. Hargreaves and Kent both advised
Enzmann that they hated to see him go. Enzmann responded to Kent by telling
him "when he gets this mess straightened up and gets rid of all the scabs I'd come
back and work for him."
Kent quoted Enzmann as telling him, on June 25, "I don't have to take this kind
of talk and this kind of treatment from people I work with." Kent acknowledged
he advised Enzmann that the nonstrikers were annoyed at what happened on the
picket line, then stated, "I know this kind of talk, this kind of language, and this
kind of verbal abuse is going to stop after a while. It will die down, and I suggest
that you return to work and stay with us. We don't want to lose you." I credit
Kent only to the extent that his testimony is consistent with that of Enzmann.
Respondent sought to establish that Enzmann quit in order to return to the job
he held during the strike. Enzmann credibly testified he did not return to that job.
I so find. Respondent sought to establish that the reason Enzmann quit was that
the factory went on a 12-hour day. While Enzmann acknowledged that he did not
understand why the plant would go on 12 hours while a number of strikers had not
been recalled, he asserted this was not his reason for leaving. I credit Enzmann.
The credible evidence herein establishes that Enzmann left the employment of
Respondent because of the harassment he experienced in the plant, and the refusal
of supervision, when requested, to take any action to cause its cessation. I find
accordingly. Respondent's responsibility is considered infra, section I, 3.
On Saturday, June 25, Enzmann inquired about his supplemental employment
benefits. Enzmann was advised by Kent that in order to obtain these benefits it was
necessary for him to sign a resignation . Enzmann signed the resignation on June 25.
The effect of this resignation on any relief to which Enzmann may be entitled is
considered infra, section I, 4.
88 Hargreaves acknowledged that Enzmann had talked to him "a couple of times about
the name calling." Enzmann advised Hargreaves that he was very nervous and this treat-
ment worried him. He did not understand why he was treated that way since he was not
one of the ones on the picket line who gave the nonstrikers a hard time. Hargreaves testi-
fied that he told Enzmann to ignore it and the nonstrikers would forget it and leave him
alone, and things would be back to normal again Hargreaves ' inferential denial that
Enzmann complained about the lunch -time gatherings is not credited.
THE CROSS COMPANY 1051
26. Philip L. Genest-June 22 to August 9
Genest was recalled and reported on June 22. He had been employed by Re-
spondent for 71/2 years. Genest was a storekeeper and worked in the assembly
department stockroom and tool crib under Charles W. Balkwill, material control
manager. He was still employed when he testified.
Genest was recording secretary for The Cross Company unit of Local 155 from
May 159 to May 1960.
The only allegation in the complaint relative to Genest is that he was improperly
excluded from the plant and forced to remain away from his job on August 4, 1960.
The events relative thereto are considered infra, section C, 45.
The conditions with which Genest was confronted in the plant after he returned
to work are next considered.
When Genest entered the lockerroom on June 22, he was greeted by 35 to 40
nonstriking employees. There was pounding on benches and tables and Genest
was greeted with "get back out of here, you corpse, go back and die outside." He
was called "S.O.B.," and other profane language was used. He entered the plant
and the guard was not at his desk. The guard later came from the lockerroom,
apparently having been in the laundry room.
Genest reported to the stockroom and obtained his work assignment from Osborn.
Osborn assigned Genest to piling broken lumber at the north end of the building.
Genest testified that this is not storekeeper work. In view of the evidence related
supra, section C, 14, and my findings therein, I find that Balkwill directed the assign-
ment of this work.
At lunch time the same day, Genest ate in subassembly. About 12:10 p.m., 25
or 30 nonstrikers came to the subassembly area and 6 or 7 surrounded Genest.
Charles Wesch wedged himself on one side and Rittenhouse on the other. Both
wanted to "take him on." Genest was told, "You'd better have your eyes in your
, Buster, because we're going to get you sometime." Cigarette smoke was blown
in Genest's face, and he was called names and told how brave he was on the picket
line, though at the moment in question when he was alone he was not so brave.
Enzmann, who had been sitting next to Genest, described Wesch as putting his face
close to that of Genest and calling him everything under the sun, and inviting
Genest to come out and fight. The foul language used by Wesch is set forth in the
record, and no purpose would be served by repeating it. Genest acknowledged that
after the third day after his return, the group left him alone. However, the luncheon
meetings continued until the court injunction was obtained; the nonstrikers would
annoy each new man as he reported.69
Genest testified that he did not see supervisors eating in the plant during these
lunch-time gatherings. It appears from the entire recrod, and I find, that on occa-
sions during the latter part of June and the month of July, Hargreaves, Sujuki, Ress,
and Charbonneau, the latter after July 18, during good weather, would occasionally
leave the plant and eat their lunch elsewhere or eat in their automobiles.
27. Edward S. Papcun-June 27 to August 9
Papcun , surface grinder , was recalled and reported on the day shift on June 27.
His foreman was Winke and his work station was in bay C at the junction of sections
6 and 7. He had been employed by Respondent since November 1951. Papcun
was still employed when he testified.
There are three separate allegations relative to Papcun. It is alleged , in the con-
solidated amended complaint , that he was improperly excluded from the plant and
forced to remain away from his job: ( 1) on July 1, 1960; and ( 2) on August 4, 1960.
The events relative to July 1 and August 4 are considered infra, sections C, 31 and
45. It is alleged in Case No. 7-CA-3233 that Respondent engaged in discriminatory
conduct in that commencing on or about May 13, 1961 , Respondent provided Papcun
with less employment ( overtime ) than he normally would have received . The evi-
dence relative to this allegation is considered infra, section L.
The conditions with which Papcun was confronted in the plant after he returned
to work are next considered.
When Papcun entered the lockerroom on June 27, he observed 30 to 40 non-
striking employees . There was noise and banging and shouts of "striker go home."
w Wesch acknowledged talking to Genest but related that he merely asked Genest how
he felt about the strike and Genest told 'him to mind his own business. I do not credit
Wesch To the extent that the testimony of Ferguson, Rausch, and other Respondent wit-
nesses actually or impliedly denies the events recited, it is not credited The denial of
Kinsch that he swore at Genest in the lockerroom, when Genest returned, is not credited.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Papcun credibly testified, as did many of General Counsel's witnesses, that the
lockerroom shouting, noise, and profanity continued each morning until the injunc-
tion was obtained August 9.
Papcun went to his work station where Robert Woods and Rolland Kennedy ap-
proached him. Woods asked him if he was a unionman and he responded in the
affirmative. Woods thereupon told him that he had better pack up his toolbox
and leave if he did not want any trouble. That evening as he was leaving he
sought to go to his locker to change his shoes and was bumped and pushed by a
number of nonstrikers, including McMains.70 Papcun was advised to "stay out of
here don't come back." He made no further effort to go to the locker or to obtain
his shoes until after August 9.
Papcun was among those who saw the lockerroom mirrors covered with soap, and
the inscription "strikers go home" imprinted. This occurred several times in the
month of July.
28. June 28 meeting of Union and Respondent
On June 16, 1960, George Merelli, coregional director, and Russell Leach, presi-
dent of the local, by letter advised Respondent that at the meeting on May 25
Respondent had advised the Union that Respondent had posted a notice advising
employees that acts of intimidation and threats of violence would be disciplined.
The letter noted that returning strikers had repeatedly complained to supervisors
relative to overt acts committed against them, some of which were observed by
supervisors, and that no disciplinary action had ensued. The Union requested a
meeting which was held on June 28.
The union representatives were the same as those who attended the May 25
meeting, supra, section C, 8, and the incoming president of the local, Robert J. Mills.
The same mediators were in attendance. The company representatives were Riddell,
Kent, and Attorney Donnelly.
The Union protested the discharge of Wagers asserting that he was merely defend-
ing himself and that what happened did not constitute a fight. The Union protested
the abuses being inflicted upon the other returning strikers. Merelli credibly testified
that the Company denied knowledge of the Union's claims and requested definite
proof. Thereupon Merelli gave Attorney Donnelly statements from four or five of
the returned strikers, outlining what had occurred to them. Donnelly advised Merelli
that Respondent would check into the complaints.
Mills corroborated the testimony of Merelli and identified three of the state-
ments given to Respondent as those of Wagers, Moore, and Lewandowski. Mills
related that the Company asserted that there had been a fight, and that it was for this
reason that the Company discharged Wagers and Novack. The Union objected to
the placing of oil and other substances in toolboxes. The Company responded
that they were paying each employee for the time necessary to clean his toolbox.
The Union was never further advised relative to these complaints and there were no
further meetings between the Union and Respondent.71
2°. David Kidle-June 30 to August 9
Kidle was recalled and reported on the day shift on June 30. Kidle was initially
employed in October 1952. When he was recalled, his classification was machine
builder in the assembly department under Foreman Hargreaves. He was still em-
ployed when he testified.
It is alleged in the complaint that Kidle was improperly excluded from the plant
and forced to remain away from his job on August 4, 1960. The events relative
thereto are considered infra, section C, 45.
The conditions with which Kidle was confronted in the plant after he returned to
work are next considered.
7° Neither Kennedy nor MeMains appeared as witnesses. Woods' version of this con-
versation is not credited
7' Kent recalled only one employee's statement being turned over to Donnelly at this
meeting. He first evaded a direct answer as to whether the Company had said they had no
knowledge of the accusations being made, responding that there was a general discussion
of the accusations Kent then thought that there was something said to the effect that
some incidents had been reported and investigations had been made Kent then denied the
assertion that Donnelly had denied any knowledge about the incidents. Kent's contra-
dictions, and on occasion evasions, throughout this record cause me to credit his testi-
mony only to the extent indicated herein. I credit Merelli and Mills.
THE CROSS COMPANY 1053
On June 30, Kidle entered the lockerroom with a lunchbox in one hand and a
toolbox in the other. As he entered he heard someone shout "Here he comes:'
There was a great deal of hollering and banging on lockers and he observed 30 toa
50 nonstriking employees in the lockerroom. Some 20 of these employees gathered
around him and hemmed him in along the lockers so that he was unable to go^
further. They advised him to "get the hell" out of there, that he was not welcomed
back, that someone else had his job, and that he was not going to be working there
very much longer. He was so detained approximately 10 minutes until starting
time at 7 o'clock.
When Kidle entered the lockerroom, and noted the group closing in, he stopped
and put his toolbox down. At this time Popovich backed into him and accused
Kidle of running into him. Later that day, Kent advised Kidle, relative to this
event, that he could be discharged for violence.72
Kidle reported to Hargreaves, his brother-in-law, who advised him that this was
a nonunion shop and that everybody did everybody else's work.73
Kidle ate lunch in the subassembly section with Muszynski, Peterson, Genest,
and Lewandowski. About 12:15, on June 30 and on other days, he heard a whistle
in the machine shop. A group of nonstrikers, approximating 30, would come up
and gather around the group. They would start needling the newest striker who
had returned. Vile and profane language was used by the nonstrikers, who accused
the returned strikers of acts of violence during the period of the strike. Kidle
identified Wesch and Rittenhouse as two who were particularly abusive in their selec-
tion of language. Kidle related that similar language was used each day in the
lockerroom. Reference to the record leaves no doubt that the language used was
not intended to serve its normal purpose, as a means of communication, rather the
particular language used could only be intended as a means of provoking an alter-
cation. I so find.
Kidle credibly testified that these lunch-time gatherings would continue every-
day. However, when a new striker would eat in some other section of the plant
the group would go there and bother him.
30. Rolland Christen-June 30 to July 18
Christen, machine builder, was recalled and reported for work on the night shift
on June 30. He was initially employed by Respondent in June 1952. At the time
he reported, Charbonneau was the foreman on the night shift in the assembly
department.
It is alleged that Christen was constructively discharged.
The conditions with which Christen was confronted in the plant after he returned
to work are next considered.
During worktime, on the night of June 30, Christen was heckled on several
occasions by groups of two to six nonstriking employees, who made such threats
as "he will never make it home tonight," "he will never bet back in," and "you are
going to have an accident on the way home." Christen reported this heckling to
Charbonneau, telling Charbonneau he did not appreciate working under these con-
ditions. Charbonneau responded that he had not seen it and would not permit it.
Christen advised Charbonneau they were employees he did not know from the ma-
chine department. Christen at that time was working in bay D, sections 13 and 14,
doing final assembly work. Charbonneau corroborated the fact that Christen had
complained that two men had walked by him two or three times and sworn at
him and threatened him 74
On July 1, just prior to 5:30 p.m., a group of 30 to 40 nonstrikers, inferentially
day-shift workers, gathered around Christen's bench, shoved a toolbox into his back,
blew smoke in his face, and repeated a lot of vulgar names. Christen identified
711 do not credit Popovich's testimony that Kidle pushed him.
73 Hargreaves related that he told Kidle the 'same as he had been telling the others "The
way we move the men around on different jobs and there would be no more reading maga-
zines and newspapers in the toilets." Hargreaves' denial that he told Kidle that this was
a nonunion shop is not credited.
74 Charbonneau related that he went to Edward Balchunas, who had no knowledge of
anyone leaving the machine department. Balchunas advised Charbonneau that if any of
the machine shop employees were in the assembly department and "weren't there on busi-
ness," that Charbonneau should report to Balchunas and it would be taken care of
Charbonneau told Christen if it happened again he would try to find out immediately who
the individuals were and report to the personnel department.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMains, Behrends, Zito, and Czekis as being in this group 75 Hargreaves and
Charbonneau were within 50 to 60 feet, with no obstruction to their view, and did
not intervene. Two days later, on July 3, Christen went directly to Charbonneau's
desk and a group of 20 to 30 started gathering around him. At this time Charbon-
neau asked Christen to move away from his desk. Christen left and walked to his
workbench which was on casters, and sat on it. One of the nonstrikers unlocked
the brake and Christen was given a "little ride" while the name calling and accusa-
tions continued.
Charbonneau acknowledged seeing groups of employees around Christen "be-
tween shifts," which is the period between 5:25 and 5:30 p.m. Charbonneau de-
scribed these gatherings as being during the first few days. He estimated the group
as 15 to 20. All he observed them doing was talking. Charbonneau acknowledged
that Christen complained to him about these groups, then related that Christen had
complained only one time, and that was relative to a subsequent event.
Christen related that these shift-change gatherings continued during the second,
third, and fourth days after his return, then intermittently they would discontinue,
then were resumed two or three times in the following week. During the week end-
ing July 9, Christen was transferred to subassembly. On July 15 the same group
gathered around Christen, one employee braced himself against the drill head on
the bench in front of Christen, in an aisle approximately 21/2 feet wide, and pushed
back against Christen forcing his back against a vise on a bench behind him. While
he was thus pinned, McMains asked Christen to read a piece of paper that he had
in his hand. As Christen turned his head, McMains slapped him in the face with
the paper. At the same time the employee who had him pinned against the vise hit
him in the stomach with his elbow. Christen could identify the individual only as
a machine department employee, other than supplying a physical description. Some-
one said "that's enough for him tonight" and they left. Christen reported this in-
cident to Charbonneau and requested permission to leave because his stomach was
hurting. He was given a pass by Charbonneau.
Charbonneau acknowledged that Christen complained about being punched in the
stomach, but related that the report was made about an hour after the event.
Charbonneau acknowledged giving Christen a sick pass. Charbonneau stated he
was advised by the day foreman (Hargreaves) who told him that Christen had
reported the event. Hargreaves, on the other hand, testified that he did not observe
any incidents involving Christen. To the extent Hargreaves' and Charbonneau's
testimony is at variance with that of Christen, I credit Christen, except as noted
hereafter.
July 15 was a Friday. Christen worked the following day. On Monday, July 18,
Christen worked 5 hours and then left, having obtained a pass. On July 26, Christen
sent a telegram to Respondent which read: "Due to the unjust treatment that I
received upon returning to work at The Cross Company I do not intend to return
to work until the labor dispute is settled." Personnel Director Kent acknowledged
receipt of this telegram.
Respondent questions the credibility of Christen on the basis that his timecard
reflects that he actually worked approximately 1 hour on Friday, July 15, whereas
he testified that he reported the event to Charbonneau as soon as the group left. The
testimony of Christen is clearly susceptible to an interpretation that he immediately
asked for permission to leave the plant because his stomach was hurting. Assuming
erroneous testimony on the part of Christen as to the time of his leaving, it does
not follow that Christen's testimony relative to the circumstances causing his depar-
ture were likewise erroneous. I find to the contrary. Respondent incorrectly asserts
that virtually every witness called by General Counsel failed to describe large gather-
ings during working hours. Accordingly, Christen should not be credited absent
corroboration. The fact is there is other evidence in the record relative to "before
work time" gatherings and "shift change" gatherings . The gatherings recited by
Christen fell in the latter category.
I have found above that Christen was harassed on a number of occasions as he
sought to report for work, culminating in the incident related relative to July 15.
I have also found a complete failure on the part of Hargreaves and Charbonneau
to intervene or make any inquiry as to what was occurring. This failure was sub-
sequent to the complaint of Christen, which Charbonneau acknowledged. The rea-
son for Christen's failure to return to work after July 18 was stated in his telegram
of July 26. This cannot be termed a voluntary quitting of employment. I find
accordingly. Respondent's responsibility for the conditions which caused Christen
to leave and not return is considered infra, section I, 3.
va MeMains, Behrends, and Zito were not called as witnesses.
THE CROSS COMPANY 1055
31. July 1 exclusion of Peterson, Bristol, and Papcun
It is alleged that Peterson, Bristol, and Papcun were improperly excluded from
the plant and forced to remain away from their respective jobs on July 1, 1960.
I have noted supra, section C, 16, 22, and 27, that all three were still employed
when they testified.
Peterson credibly testified that on July 1 he went to the plant with Bristol and
Papcun. They were met in the lockerroom by about 30 nonstriking employees who
blocked the way with their bodies and would not allow him to go forward. It was
Peterson's testimony that he did not know the names of the nonstrikers who blocked
his way. He had entered the lockerroom on other mornings with Bristol and had
been temporarily blocked. However, on this particular morning the nonstrikers
refused to move and let them through.
Bristol related that he and Peterson entered the lockerroom. There was a table
in the middle of the room and about a 10-foot aisle on each side. Bristol started
to the right of the table and Peterson to the left. Mike Zito and William Ritten-
house blocked Bristol's passage and bumped him back and forth with their bodies.
Bristol turned to leave and saw Peterson coming over to where he was. They then
left the lockerroom.76
Papcun testified that as he was entering the lockerroom on July 1 he was advised
by Peterson and Bristol that the nonstrikers would not let them in. He met them
at the inner vestibule door to the lockerroom. Papcun stated that about eight non-
strikers stood in front of him and blocked him. Charles Wesch stood on his foot
so he could not move. He identified William Rittenhouse as another nonstriker
who blocked their progress. He was called a "damn striker," "S.O.B.," and other
names, and told to get out. The three then left.
They proceeded to the guard shack at the gate and advised the guard that they
had been thrown out. The guard called Kent at home and advised them that Kent
would see them when he arrived at 8 o'clock.
Shortly after 8 a.m., the three went to Kent's office and advised him that they
had been blocked from entering the plant by the nonstrikers. Kent advised them
to go back into the plant. They advised him that they were too nervous and "shook
up" to work and would report the following day. They denied that Kent offered
to personally walk back into the plant with them.77
Kent acknowledged that on July 1 he was advised by Bristol, Papcun, and Peter-
son that they had been unable to report to work because a group of nonstrikers
would not let them in. Kent incorrectly identified Peterson as having said that
Mike Zito and Charles Wesch had pushed him with their shoulders and bumped
them back and forth. Kent acknowledged being advised by Moore that Fedenis
and Derbin had been pushed and bumped in the lockerroom on the same day. Kent's
statement that he offered to take Bristol, Peterson, and Papcun directly to their
jobs is not credited.
Respondent urges in its brief that other returned strikers were not excluded on
July 1, and that these three worked on days before and after that date. How these
facts modify the events of July 1, set forth, is not apparent. Respondent urges that
there was a variance in the testimony of these three as to what occurred during the
interview with Kent. That the fact of exclusion was reported is not disputed. The
errors of the memory of these witnesses on the details of what happened in Kent's
office, I find, are unimportant.
Accordingly, I find that Peterson, Bristol, and Papcun were blocked in the locker-
room and prevented from getting through to the plant by a group of nonstrikers
on July 1. No activity by Guard Popovich, who was on duty that morning, is
reflected in this record. These exclusions were promptly reported to the guard at
the front gate, who in turn promptly reported them to Personnel Director Kent.
Responsibility of the Respondent for these exclusions is considered infra, section I, 1.
32. Supervisors' meeting July 1, 1960-(related matters)
Kent related that at a meeting of the supervisory staff on July 1, Riddell mentioned
that there were meetings at lunch, that he did not expect the supervisors to break
them up, but he did expect the supervisors to be certain that nothing takes place
i6 Bristol was obviously confused as to the date of this event, stating first that it was
July 11 and later that it was in the early or middle part of June. Papcun did not report
until June 27.
77 I find it unnecessary to pass upon the alleged activity of nonstrikers outside Kent's
office during this interview.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
` of the nature which would incite any difficulty or violence in the plant ." Riddell
wanted them to keep their eyes on what went on as long as they were in the plant,
and report any incidents to Kent or to him. In view of the testimony of Riddell
and the supervisors relative to these supervisory meetings , and my findings supra,
section C, 1 and 20, I do not credit this testimony.
Riddell testified that a couple of weeks after the meeting of June 9, see section
C, 20, he asked Hargreaves if he had any further observation regarding the meet-
ings between the employees during the lunch period . Hargreaves responded that
there seemed to be a growing practice of returning strikers gathering in the sub-
assembly department and eating lunch together . There also appeared to be a grow-
ing practice of employees from other areas in the shop congregating in subassembly
near the returned strikers . Hargreaves , according to Riddell, said there was con-
versation back and forth and that the groups were separated by several feet. He
estimated the nonstrikers as being 8 or 10 in number, "and there would be some leaving
and some coming all during the lunch period ," but the group never seemed to grow
beyond that size. Hargreaves advised Riddell that he could not overhear what was
being said because he was 70 to 75 feet away. Riddell , in answer to an inquiry
whether Hargreaves should do anything , advised "as long as they are peaceful I
don't think it is wise to do anything about it. Let them blow off steam. But if
there is any indication of any commotion in these gatherings get over there and
break it up , let me know immediately , and we will decide what action to take in
the future."
Riddell had a conversation with Foreman Ress about the middle of July. Ress
mentioned to Riddell that it had been the foremen's custom to eat lunch outside
during the warm weather and inquired if it was all right for them to do so , "or did
they have to stay inside to keep surveillance over the activities of the employees."
Riddell asserted that he told Ress that he did not want to interfere with their per-
sonal desires "any more than necessary ," but he would appreciate it if they would
arrange among themselves for at least one of them to stay in each lunch period to
keep a watch out as to the individual employees.
Riddell , immediately after his conversation with Ress , talked to Guard Babuska.
He advised Babuska of his conversation with Ress and told Babuska he would ap-
preciate it if Babuska would stroll down during the lunch period to keep surveillance
on the situation in the subassembly department. Riddell related that Babuska
responded that he had observed that there was a lot of talk and some laughing "but
nobody bothers anybody."
I have set forth , supra, the instances where returned strikers complained to Har-
greaves and Stanley Balchunas about the harassing during these lunch- time gather-
ings. I have found these events a substantial factor in the departure of some returned
strikers , after ineffective complaints to Hargreaves , Kent , and other supervisors. The
effort of Riddell to infer ignorance of the nature of these gatherings is incredible.
Riddell 's assumptions stand in sharp contrast with the observations of Ress, section
C, 10, "it looked to me like they (nonstrikers) were mad, just mad from something,
and were glaring at them (strikers)." The effort of Riddell to imply that he did not
know what was happening , because supervisors did not apprise him, I find implausi-
ble. Riddell 's acknowledged concern that a foreman remain in the plant, or the guard
keep alert , belies his assertion of ignorance . I find accordingly.
33. Arthur J. Ferdinand-July 11
Ferdinand was recalled and reported on July 11. His classification was hydraulic
Eipefitter and his foremen were Hargreaves and Sujuki . He was initially employed
by Respondent in January 1946.
It is alleged that Ferdinand was constructively discharged . Respondent contends
that Ferdinand voluntarily quit.
The conditions with which Ferdinand was confronted in the plant after he re-
turned to work are next considered.
Ferdinand went to the plant to report for work on July 11 . 78 He was accompanied
by Peterson , Moore, and Lewandowski . Ferdinand credibly testified that some 30
or 40 nonstrikers surrounded him in the lockerroom and prevented him from enter-
ing the plant. There was banging on the lockers, Ferdinand was called obscene
names, and was told to leave the plant , told that he was not wanted there, and
told he should "get the hell" out of there. He was body checked. This situation
continued for 3 or 4 minutes before Guard Babuska appeared and made a way
'78 While Ferdinand testified he reported July 10, the parties stipulated that Ferdinand
returned to work on July 11.
THE CROSS COMPANY 1057
for him to go into the plant. The guard was present when Ferdinand was told to
leave the plant, that this was a nonunion shop. Ferdinand identified Karbula, Ed
Zelinsky, Czekis, and Dick Behrends in the group around him.79 Arthur Derbin
had entered the plant just ahead of Ferdinand; when he saw Ferdinand surrounded
he noticed Frank Babuska coming through the lockerroom behind him. Derbin
called Babuska's attention to the group around Ferdinand, which Babuska ignored.
Babuska proceeded into the plant. Babuska's assertion that this conversation was
at his desk is not credited. Babuska acknowledged that Derbin was the one who
advised him that Ferdinand was stopped in the lockerroom. It is undisputed that
Babuska later did go into the lockerroom and told the group to let Ferdinand through.
Bristol and Kidle meanwhile had reported the fact of Ferdinand's being blocked in
the lockerroom to Hargreaves.
The testimony of Kent relative to Ferdinand being stopped in the lockerroom is
self-contradictory. He first testified that Ferdinand did not make a complaint to
him, but acknowledged that Babuska and Hargreaves did advise him of the incident.
Kent later stated that he did not receive any report. Hargreaves acknowledged that
he was advised that Ferdinand was blocked. Hargreaves called Babuska who re-
sponded, "He's all right now, he's coming in; he will be right in." Hargreaves
related he then asked Ferdinand what the trouble was. Ferdinand responded,
"Well, they blocked my way and wouldn't let me in." Babuska testified he told
the group, "Sorry, fellows, I am taking this man to work. You can't hold him back
here." Babuska then testified, "That was always my way of saying it, except one
guy I didn't say that to and that was Karolak." Czekis' assertion that Ferdinand was
not blocked is discredited.
About 12:10, while Ferdinand was having his lunch at his workbench in bay D,
section 12, 30 to 40 nonstrikers surrounded him. Ferdinand was told he had better
leave, then Czekis put a package on his lap and said, "Now pick that up I want to see
what you look like with a brick in your hand." Hacksaw blades were pushed in
Ferdinand's back pocket, and, from behind, a lighted cigarette was pushed under
him. Ferdinand noted that Hargreaves was not eating lunch at his desk. The
group remained until the end of the lunch period.80 Immediately following the
luncn period Ferdinand went to Hargreaves and Sujuki and requested a sick pass
which he was given. I find unimportant Ferdinand's error in identifying Hargreaves
as the one from whom he requested the pass. He later corrected this testimony
by stating that both Sujuki and Hargreaves were present during this conversation.
Sujuki acknowledged that Ferdinand told him he wanted the pass because he felt sick.
Ferdinand acknowledged that he had been working elsewhere during the strike.
When he left The Cross Company he went back to the plant where he had been
working prior to his return to Respondent's employment.
Respondent urges the lockerroom incident was a "minor incident" exaggerated
far out of proportion, and that Respondent's conduct did not indicate either con-
donation or animus. Respondent contends, in essence, that Derbin complained to
the guard, who did nothing, but Derbin did nothing further and did not report it
to any supervisor. When Hargreaves was apprised to the situation he immediately
called the guard, who then went into the lockerroom and accompanied Ferdinand
into the plant. Respondent urges that Ferdinand did not advise either supervisor,
Hargreaves or Sujuki, about the lunch-time gathering and the events which took
place. Respondent urges that Ferdinand's whole testimony is consistent only with
the proposition that he had no genuine intention of remaining at work at Respondent's
plant when he returned. I do not agree.
It is clear from this record that Ferdinand left the employment which he had
during the strike to return to Respondent's employment. Ferdinand had been
employed by Respondent since January 1946. It may be inferred that Ferdinand
was interested in protecting his seniority and returned to work to do so. Ferdinand
determined to leave Respondent's employment by reason of the events which took
place during the short span of time he was at Respondent's plant. The reception
accorded Ferdinand in the lockerroom and at lunch are well established. I have
"To the extent the testimony of Czekis directly conflicts, and that of Zelinsky inferen-
tially conflicts, with the testimony of Ferdinand, they are not credited. Karbula and
Behrends did not appear as witnesses.
"Ferdinand testified threats were made earlier that morning by Popovich, Zelinsky, and
Wesch. He asserted that Hargreaves was within 15 feet of him while Zelinsky, who works
in the machine shop, was making threats. Since these events were not reported they are
not considered. I find it unnecessary to engage in speculation as to whether Hargreaves
overheard what Zelinsky was saying. I do not credit Hargreaves' testimony that he saw
Ferdinand eating in subassembly with the group that ate there.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted above, in some detail, the nature of the lunch-time gatherings around newly
returned strikers. That supervision saw fit to ignore these lockerroom and lunch-
time gatherings is patent. Accordingly, I find, that the reason Ferdinand left Re-
spondent's employment was the treatment he received from the nonstriking em-
ployees, and the failure of Respondent's supervisors to intervene. The responsi-
bility of the Respondent is considered infra, section I, 3.
34. Walter Karolak-July 11 to 30
Karolak was recalled and reported on July 11. He was chief fireman and worked
in the powerhouse under William P. Reece, plant engineer. He has been employed
by Respondent since August 1956.
It is alleged that Karolak was constructively discharged. Respondent contends
Karolak voluntarily quit.
Karolak went to the plant on July 11. As he walked into the lockerroom he was
greeted with banging on lockers and name calling. He credibly testified there were
50 to 60 nonstrikers in the lockerroom, that one nonstriker would push another non-
striker into him, that there was swearing, and that he was held up in the locker-
room until approximately 6:58. Karolak identified Frank Kinsch, Popovich, and
Eddy Stanley as among those who swore at him.81 Kent acknowledged that on
July 12, Karolak complained about being pushed while in the lockerroom.
Later the same day as Karolak was working in the plant proper in the machine
department, there was banging and swearing at him. His work required 5 or 10
minutes, and as he was ready to leave aisle D at cross aisle 9 he noted Milton Cross
and Plant Engineer Reece standing between sections 9 and 10 in aisle C. I find
this testimony of Karolak too vague to support a finding that either Cross or Reece
had overheard any of the swearing.82
Karolak asserted that each morning as he went into the lockerroom there would
be some pushing around, shoving, and stopping, and he would be threatened. He
identified those making the threats as Rittenhouse, Popovich, and Stanley. Karolak
reported these events to Kent.
On July 27 as Karolak was entering the lockerroom Rittenhouse passed him,
bumped Karolak with his shoulder, then Rittenhouse dropped to the floor. Other
nonstrikers jumped in, surrounded Karolak, and accused him of knocking Ritten-
house to the floor. Later, Karolak went to Kent's office and told him what had
occurred. Kent advised Karolak that Rittenhouse had already reported the incident.
Kent then asked Karolak if he had ever played football and knew how to block.
Kent told Karolak he did a good job on Rittenhouse.
Kent was self-contradictory as to the date of this event. He placed it as July 27,
also as a day or two after Karolak returned. Kent advised Karolak that Ritten-
house had reported that Karolak had bumped into him and knocked him down.
Kent acknowledged telling Karolak he did a pretty good job of blocking Rittenhouse.
Karolak denied that he had bumped Rittenhouse, and asserted Rittenhouse bumped
him, then fell down. Kent asserted he advised both employees that he did not know
who was responsible, but that it had better be stopped at once "because actually
this thing was certainly going to lead to a fight or some very real difficulty in the
plant that might lead to both of them being discharged."
Karolak credibly testified that one day be was prevented from entering the plant
to punch in, being blocked by the nonstrikers. His timecard reflects that he did not
punch in on July 28. Foreman Reece approved the essential "authorization" for
this omission.
Babuska acknowledged that on one occasion, date not specified, Derbin called his
attention to the fact that Karolak was blocked in the lockerroom. Babuska related
that there were about five men around Karolak and he walked up and said to them,
"I don't like this guy anymore than you do but I've got a job to do." He then
escorted Karolak into the plant
On July 29, Karolak was again surrounded and held in the lockerroom. There
was banging on lockers, hitting on pans, hollering, screaming, and cursing. He
was called "a dirty bastard," "s.o.b.," "no good union bastard," and other unprintable
names.
61 Stanley was not called as a witness. The assertion of Popovich that he never saw
anyone blocked in the lockerroom, other than Oravec, is not credited. The denial of
Kinsch that he was in the group that swore at Karolak is not credited
Si The incident relative to Kinsch having spit and sworn at Karolak on July 11 does
not appear to have been reported and accordingly is not considered. The incident between
Kinsch and Karolak on July 14 was similarly not reported and is not considered
THE CROSS COMPANY 1059
July 30 was the last day that Karolak worked. On August 2 Karolak sent a tele-
gram to Respondent reading "unable to report for work due to dangerous conditions
at the plant. Will return when conditions are normal." Karolak received no
response.
Respondent inaccurately contends, in its brief, that Karolak left work on July 30
without telling anyone he would not be back and was not further heard from until
November 9.
Respondent contends that the events of July 11 were not corroborated by Derbin
and others, who were the witnesses to the incident relative to Ferdinand which
occurred the same morning. Respondent urges on this basis that the events testified
to by Karolak did not occur. In view of Kent's admission relative to Karolak's com-
plaint on July 12, this contention is rejected. Respondent urges that Karolak was
able to identify only four of the employees involved in these incidents. Karolak
was a powerhouse employee and would not have the same knowledge of names as
others who worked in the plant. In addition, it is clear from this record that a
number of the nonstriking employees who were engaged in these events were em-
ployees hired during the strike. This fact appears repetitiously and credibly in the
testimony of a number of General Counsel witnesses. Respondent urges that
Karolak's testimony reflects an exaggeration of incidents which allegedly occurred
and further reflects a total failure to advise the Company in order that anything
might be done concerning the alleged incidents. I have specifically not considered
some of the events related by Karolak, either because they were not reported or
where lack of corroboration caused doubt as to accuracy. It does not follow that
all of his testimony must be rejected.
The record establishes, and I find, that Karolak was subjected to harassment and
insult when he first appeared in the lockerroom on July 11. He complained to Kent
relative to this event the following day. The harassments and insults did not abate
but were continued, the episode with Rittenhouse being but one manifestation
Thus, it appears: on July 27 the Rittenhouse episode occurred; on July 28 Karolak
was prevented from punching the timeclock; on July 29 he was further harassed;
he worked July 30, a Saturday; then dispatched the quoted telegram.
The reason for Karolak's leaving is stated in the telegram as "dangerous condi-
tions at the plant" and unquestionably related to the harassments and recognized
potential of an altercation. In fact, even Kent recognized this potential. I find
accordingly. I do not base these findings on the demeanor of Karolak. Rather I
find there is sufficient corroboration in the record, coupled with the extrinsic evi-
dence of similar events in the same period, to support the limited findings I have
made relative to his testimony. Respondent's responsibility for the departure of
Karolak and consequent loss of employment is considered infra, section I, 3.
In November, Karolak called Kent relative to his supplemental benefits (SUB).
Kent advised him there would be a 6-month waiting period. Karolak then inquired
if there was any way he could get it sooner in a shorter time. Kent responded this
could be done if he would backdate a quit slip to the day he quit. On November 29,
1960, Karolak went to Kent's office and signed an application for his supplemental
benefits, and on the same day signed a resignation which was backdated to August
4, 1960. He received the benefits 3 weeks later. Kent acknowledged that the resigna-
tion was predated in order to aid Karolak to receive his supplemental benefits as
soon as possible. The effect of this resignation on any relief to which Karolak may
be entitled is considered infra, section I, 4.
35. Roy A. Gray-July 12 to 13
Gray was recalled and reported on the day shift on July 12. He was a radial drill
operator and worked in bay D, section 7. His foreman was Stanley Balchunas.
He was initially employed by Respondent in July 1953.
It is alleged that Gray was constructively discharged. Respondent contends that
Gray voluntarily quit.
I next consider the events which occurred in the plant after Gray returned to work
On July 12, Gray reported 1 hour after the usual starting time. He reported to
Stanley Balchunas who welcomed him "like a long lost brother." Shortly after he
started to work three or four nonstriking employees, at a time, would come up,
call him names, make accusations, and threaten him with violence. He described
some of the names as "union bastard" and "S.O.B." He was told he had better go
back where he came from because he would not be healthy around there. He
identified Robert Woods, who worked directly across aisle D from him, Frank
Kinsch, whose work station was in aisle E, section 8, and Earl Rausch and Ralph
717-672-64--vol. 143-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker as among those who called him names and made threats. He also gave a
physical description of a sweeper, whom I find to be Charles Wesch, who invited
him to go outside and fight and swore at him. Gray related that Stanley Balchunas
made at least four trips during the morning to chase these employees away, telling
them to get back to work and to leave Gray alone. He identified Woods, Rausch,
Kinsch, and Baker as being chased away at least twice by Balchunas. On the second
or third occasion Balchunas advised Gray not to pay too much attention to the non-
strikers, that within a few days it would all stop and they would pick on someone
else. About 10:30 or 11 o'clock that morning, Gray told Balchunas that he wanted
a pass so he could leave at noon. Balchunas advised Gray not to leave on account
of the names people were calling him. Gray advised Balchunas he was leaving be-
cause he had an engagement and that he would be back the following morning.
When Gray entered the lockerroom on July 13, he was met by a group of 15 to 20
nonstrikers who swore at him, threatened to take him outside and beat him up, and
told him he had better leave while he was still healthy. The group blocked his
passage. Gray saw Babuska standing in the doorway to the plant, turn, and leave.
Derbin, who was in the lockerroom at the same time, went into the plant and advised
Stanley Balchunas that Gray was blocked in the lockerroom. Balchunas then went
into the lockerroom and told Gray to come in to work. This incident was cor-
roborated by Balchunas. Gray identified Walter Karita, William Karbula, Mike
Zito, Ed Zelinsky, Earl Rausch, Ralph Baker, and Robert Woods as being in the group
that blocked him. Gray credibly testified that he had a one-sided conversation with
Balchunas relative to this incident. He asked Balchunas if he did not have any con-
trol over what was going on, and if he sanctioned that kind of thing. Gray told
Balchunas that if he expected "us" to come to work he had to give "us" some kind
of protection. Balchunas responded that it would pass over in a few days, that they
(nonstrikers) were just having some fun. Balchunas related that he reported this
incident to Kent "and that was the extent of that." Kent did not ask him to identify
who the employees were who blocked Gray in the lockerroom.83
At lunch time the same day Gray was surrounded by a group of nonstrikers.84
Gray described the group as being approximately 10, with an additional 10 or 15 com-
ing, leaving , and being replaced. Present were Zito, Karbula, McMains, Boza, Woods,
Rausch, Kinsch, and Richmond. Gray described Wesch as having his elbow on
Gray's lunch bucket so that he could not get his lunch out. Gray was offered a brick
to try to fight his way out. The group remained through the lunch period. Gray
credibly testified that before he sat down to eat lunch he walked down to the end of
his machine and observed Balchunas sitting at his desk where he usually eats lunch.85
That afternoon Gray went to the tool crib to get some tools and the tool crib at-
tendant made it impossible for him to get tools. He stalled, "hemmed and hawed,"
and took care of everyone else. Every time someone came up there was a conversa-
tion about Gray. The tool crib attendant was George Ferguson, a nonstriking em-
ployee. The conversations included, "This is one of those goons, this is one of the
guys looking for our jobs, want our families to go hungry," and there was profanity
directed to Gray. Gray was told, "Get the hell out of here. We don't need you.
Somebody else had got your job. You are only working because he is on vacation."
Gray identified Woods and Rausch as among those who carried on this conversation
with Ferguson, and with him.85
88 Guard Babuska first denied seeing Gray surrounded , then recalled that Balchunas
went into the lockerroom and brought Gray out. Balchunas told Babuska that he had to
do the guard's work.
84 Gray related events which occurred during the morning of July 13: individuals came
to his machine, made threats, and called him names. It does not appear that these events
were reported ; accordingly, I have not considered them.
86 Respondent made quite an issue of whether Gray could see Balchunas from his ma-
chine. Riddell testified that Gray's machine could be observed from a point 10 feet east
of Balchunas' desk. The machine shop tool crib is between Balchunas' desk and Gray's
machine, and has solid sides. Gray's testimony was not that he was at his machine when
he saw Balchunas, but rather "I had to walk around the rear of the machine to see Mr.
Balchunas ' desk." It cannot be concluded that Gray could not see Balchunas from the
point indicated . The principal issue is whether Respondent knew of these lunch-time
gatherings where returnees were harassed . The experience of Gray was not an isolated
incident.
81 Wesch denied that he ever "sat" on anyone's lunch box. To the extent this constitutes
a denial of the testimony of Gray, it is not credited Ferguson's denial of the toolroom
incident is not credited . Ferguson acknowledged being in the Lunch-time gathering around
Gray, but misstated the date as the first day Gray returned . Woods, Rausch, and Kinsch
THE CROSS COMPANY 1061
About 2:30 p.m., on July 13, Gray went to Balchunas and told him he had taken
enough and wanted a pass to leave. Thereupon Balchunas inquired whether he
would be back in the morning . Gray responded that he did not know, he was going
to think it over. Gray told Balchunas he could not work under " these conditions"
very long. Balchunas tried to talk Gray into staying saying the job was important,
Balchunas needed it, and Gray could do it. Balchunas gave Gray the requested pass.
Gray did not return thereafter.
On July 17, Gray sent a telegram to the Respondent which read:
Regarding my recent recall and return to employment by your Company I am
making this telegram my notice to the Cross Company that I will not be able
to report to work any longer unless the Cross Company is able to guarantee
beyond any shadow of a doubt that I will not be intimidated any further by
other men on the Company premises and all differences between the Cross Com-
pany and Local 155, UAW AFL-CIO, are resolved.
Gray received no communication in response to the telegram.
Respondent urges that , at the time Gray left, a substantial number of reinstated
employees were working in the plant and continue to do so, that even by his own
testimony Gray had no reasonable basis for fear for his personal safety or well-being.
This record clearly establishes that other returnees continued to work in the plant,
and the conditions they endured after they returned . It is true , Gray was not as-
saulted. Respondent also urges that Gray made no effort to name the individuals
involved or advise Balchunas of the details of what had occurred . In view of my
findings herein , and supra , this contention is rejected . Respondent 's contention that
Gray made no genuine effort to return to work and remain at work must likewise
be rejected.
The facts which I have found are ample to indicate the reason why Gray elected
not to remain at work in the plant . He was unquestionably confronted with harass-
ment, abuse, and insult , which he elected not to endure . He advised Balchunas,
when he requested the pass, the reason he was leaving. I find accordingly. The
Respondent 's responsibility for the events which occurred relative to Gray is con-
sidered infra , section I, 3.
Thereafter, in September 1960, Gray called Kent relative to his supplemental bene-
fits. Kent advised him there was a 2-quarter waiting period , and since the quarter
ended the end of September he should come in promptly . He went to Kent's office
and advised Kent he would appreciate it if he would rush the matter through. While
there is no evidence that he was requested to sign a resignation , as were others, his
application for supplemental benefits does indicate that he "quit " on July 19, 1960.
The effect of this application on any relief to which Gray may be entitled is con-
sidered infra, section I, 4.
36. Chester R. Pierson-July 12
Pierson, hydraulic pipefitter, was recalled and reported on July 12. He was ini-
tially employed March 3, 1952. His foremen were Hargreaves and Sujaki.
It is alleged that Pierson was constructively discharged. Respondent contends
that he voluntarily quit.
The conditions with which Pierson was confronted in the plant when he sought
to report for work are next considered.
When Pierson arrived in the lockerroom on July 12, he heard Mike Zito say,
"Here he is. Let's give it to him." A group of nonstrikers converged upon him as
he was trying to move through to the plant. He was jostled, pushed up against the
locker, and subjected to foul and vile name calling. The name calling is specified
in the record and, in part, is unprintable.
Pierson proceeded into the plant to the timeclock. While there he was called
additional unprintable names. Edward Zelinsky pushed up against Pierson, with a
hand on either side of Pierson's face, and said, "You s o.b. This is going to be a
long 10 hours for you, and before the day is over you're going to...:. Zelinsky made
a perverted suggestion. He estimated the group around him at the timeclock as
anywhere from 25 to 40.
When the 7 o'clock whistle sounded the nonstrikers went to their machines, and
the guard came over from his desk to inquire what Pierson wanted. Pierson advised
him that he was to report that morning. The guard responded he did not know
anything about it and had no record of it. The guard advised him that he would
acknowledged talking to Gray during worktime. Zelinsky and Luft acknowledged talking
to him during lunch. To the extent the testimony of those named, and Baker, is at vari-
ance with the testimony of Gray, I credit Gray.
1 062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
call Kent at home. The guard then advised Pierson that he was to wait until 8 or
8:30 in Kent's office for Kent to arrive. Pierson credibly testified that he was so
upset by the treatment he had received that he advised the guard to tell Kent that he
had many more important things to do than wait for him, that he had come to work
and had no timecard. Pierson then left the plant. Pierson identified others in the
group who had surrounded him in the lockerroom that morning as Joe Rein, Karbula,
Frank Kinsch, and Vladimir Popovich.87
Pierson credibly testified that Kent called him at home later that day. Kent advised
Pierson that apparently there had been a mixup because there was a new guard on
the property. Pierson responded that he did not see a new guard, either at the gate
or inside the plant, the man inside having been there at least 2 years. Kent advised
Pierson if he would return that Kent would promise him protection in and out of
the plant. Pierson responded that he was amazed and stunned by the treatment he
had received from men he had been working with for years. Pierson then told Kent
that he did not want Kent to get the idea that he was quitting, but that he could not
stand that kind of treatment, that when Kent got rid of the "scum" in his plant that
Pierson would return. Pierson quoted Kent as responding, "After all, you can't
blame those men there. They got pretty rough treatment on the strike line." Pierson
responded that he had nothing to do with any of them on the strike line, never in-
sulted them, and was involved in no fracas.
Kent related that shortly after he arrived at work Pierson called and berated him
because there was no timecard in the rack, and advised him of the type of name
calling to which he had been subjected. Kent erroneously placed the date of this
event as July 21. The telegram of Respondent to Pierson, regretting the failure to
admit him to work and referring to Kent's telephone conversation, is dated July 12.
Kent acknowledged that Pierson advised him that be would not be subjected to that
kind of language again . Babuska confirmed the fact that there was no timecard,
that he called Kent, and that he then advised Pierson of Kent's request to await his
arrival.
Respondent contends that at the time Pierson returned, July 12, other returning
strikers were already working in the plant, that he refused to wait for the ai rival of
Kent, and refused later to return to the plant even though assured that he would
be protected. Respondent contends that Pierson's testimony was not corroborated,
and that the events testified to were "trivial." Respondent further urges that the
events to which Pierson testified did not occur in the presence of any foreman or
supervisor, and that Pierson's decision to quit was a decision based either on anger
or on lack of any serious intention of returning to work. These alleged defenses
are rejected as having no merit.
In essence Pierson refused to be subjected to the foul and abusive language and
insults heaped upon him, which included a perverted and degrading suggestion by
Zelinsky. He arrived at the plant pursuant to the request of Respondent to report
for work and found that the guard, charged with the duty of providing him with
a timecard, had no knowledge that he was due to report. The fact is that Pierson
felt a sense of outrage sufficient to cause him not only to leave the plant, but to refuse
to return until existing conditions were corrected. In view of what has been set forth
supra, any claim that Respondent did not have knowledge of the existence of the
conditions existing before worktime in the morning, as late as July 12, must be
rejected. I find accordingly. Respondent's responsibility is considered infra, section
1, 3.
Subsequently, Pierson went to Respondent's plant and talked to Riddell relative
to his severance pay. Riddell advised him that he would have to sign a "quit slip"
in order to get the severance pay. Pierson talked to Kent on April 25, 1961, and
at that time signed an application for his supplemental benefits and resigned as of
.that date. The form indicates that he quit on July 14, 1960. The effect of this action
on any relief to which Pierson may be entitled is considered infra, section I, 4.
37. Frank Domilici-July 14 to 22
Domilici reported on the day shift on July 14. He was initially employed by Re-
spondent in June 1952 as a machine builder. He worked in the assembly department
and his foreman was Hargreaves.
It is alleged that Domilici was constructively discharged. Respondent contends
that Domilici voluntarily quit.
I next consider the incidents which occurred in the plant during the period
following Domilici's return.
e'' Joe Rein, Karbala , and Mike Zito did not appear as witnesses . The denials of
Zelinsky, Popovich , and Rinsch relative to the events testified b' Pierson are not credited
THE CROSS COMPANY 1063
Domilici went to the plant on the morning of July 14 and reported in immediately
after starting time. His timecard indicates that he punched in at 7:03 a.m. At
lunch time, he ate in subassembly with Kidle, Peterson, Muszynski, and Genest.
About 12:10 some 50 to 60 nonstrikers congregated around the group and called
Domilici an "S.O.B." and other insulting names. They said, "What the hell you want
to come back here for, we don't want you here" and "We are happy, we are satisfied
with a nonunion shop. Why did you come back to a nonunion shop." They also
called him a "dago." One nonstriker sat about 2 inches away and blew smoke in
Domilici's face. Domilici had noticed Foreman Ress pick up his lunch bucket and
leave just after the lunch whistle had blown. Domilici identified Mike Zito, Karbula,
Zelinsky, and Baker as some of the nonstriking employees he recognized, others
were from the machine shop and he did not know their names. (It is again noted
that the machine shop and the assembly department were in two different plants
until early 1957.) The group remained until the end of the lunch period.88 Domilici
credibly testified that a similar group gathered around him at lunch time on the second
and third day he worked, but did not bother him thereafter.89
During the morning and in the afternoon on July 14, Domilici was subjected to
uncomplimentary remarks by Richard Behrends and Vladimir Popovich. He was told
he was not wanted there, that he had better quit, and he had no business coming
back. When Domilici went into the lockerroom at the end of work that day he
was unable to use the washroom to wash up. The nonstrikers were making so much
noise, yelling at him and whistling, that he immediately left and went home.
The next day Domilici went to work was July 18. He heard Mike Zito say,
"Here he is, here is another one," as he entered the lockerroom. A group of non-
strikers barred him from going any further. They yelled at him, cursed him, and
asked him why he came back to work. He testified that there were 30 to 40 non-
strikers or more in the lockerroom and that this conduct continued until the whistle
blew. His timecard indicates that he punched in at 6 98/100, or less than 1 minute
before 7 that morning. Other than the lunch-period gathering, nothing occurred
that day except he was called a few names. He was given a similar greeting in the
lockerroom the following morning, and during the lunch period on the third day he
worked. Domilici testified that nothing occurred to him during the last 3 days that
he worked except he was cursed when he went to the toolroom one morning to get
some tools. The last day Domilici worked was Friday, July 22.
On July 26 he sent a telegram to Respondent which read: "Due to verbal abuse
and harassment I will not return until situation is permanently cleared." Kent
acknowledged receipt of this telegram. Subsequenty, Domilici and Gus Caravas went
to the plant to get their tools. Domilici was advised by Foreman Charbonneau that
Kent wanted to see them.90
Domilici acknowledged he did not report the events set forth above until his con-
ference with Kent and Caravas. At that time, when Kent asked Domilici why he
did not want to work, Domilici reported what had occurred while he was working.
Kent did not dispute this testimony Domilici related Kent said he (Kent) did not
feel there was any reason why Domilici should leave, that they (Respondent) were
doing all they could, but it was something they could not control or would not
control or something beyond their control. Kent also advised Domilici that he was
endangering his seniority . Caravas at the same time told Kent why he was leaving,
see infra, section C, 41. Domilici summarized his feelings with the statement,
"It wasn 't an atmosphere that was conductive to good working conditions ." Domilici
stated that he had always given Respondent a good day's work and felt under these
89 Zelinsky acknowledged being in the group which went to the subassembly department
the first day Domilict returned He estimated the group as 8 to 10 and denied that any-
one used violent or obscene names or called Domilici a "dago " These denials are not
credited . The denials of Baker relative to these events are similarly not credited Zito
and Karbula did not testify.
89 Domilici , while admittedly uncertain of the exact days he worked , testified that he
worked 6 days in all after his return. He expressed the belief that he worked the day
following the day he reported. Timecards reflect the 6 days he worked were Thursday,
July 14, and Monday through Friday, July 18 to 22
90 The record is confused as to whether Caravas and Domilici went to the plant together
or separately . I find this point unimportant The record is also confused as to the precise
date of a conference between Kent, Caravas, and Domilici Domilici testified that he went
to the plant a day or two after his telegram of July 26, Caravas testified he went to the
plant about 3 days after his telegram of July 27. Kent placed the date of the conference
as July 27 . Thus, the conference was on a date between July 27 and 30.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions that he could not give them a good day's work and this was his reason for
leaving. Kent admitted that in this conference he advised Domilici that the
insults would eventually die down. Kent asserted that he also urged him to remain
at work. Domilici had been elsewhere employed during the strike and quit that
job in order to return to Respondent's plant. He acknowledged that he had returned
to the other plant.
Respondent, in its brief, contends that Domilici left the plant without a single
complaint to any foreman or supervisor, and without indicating he would not report
back the following morning. Respondent also contends that Domilici was not
intimidated. Domilici did make a timely complaint to Kent. I so find.
Respondent also contends that nothing occurred to Domilici during the last
3 days he worked which would justify his decision to quit. Domilici was closely ques-
tioned on this particular point. Domilici was specific as to his reason for leaving, "I
felt it was not a very congenial place for me to be working. It wasn't an atmosphere
that was conducive to good working conditions. I felt that the time I had worked at
The Cross Company I had given them a good day's work everyday that I was there,
and I felt that I wasn't-under those conditions and circumstances that I wouldn't
be able to give them a good day's work."
Domilici's demeanor impressed me. A careful review of his testimony reflects
he readily admitted that nothing occurred to him personally during the last 3 days
he worked. It cannot be assumed from that statement that nothing occurred anywhere
else in the plant since this record indicates quite the contrary. It is well known
that human begins do not all react with the same degree of rapidity. While some of
the employees, as this record clearly indicates, requested a pass and left forthwith, it
appears that Domilici fell into the category sometimes referred to as "doing a slow
burn." The fact that he was more deliberate and less precipitate does not require
rejection of his credible testimony. Respondent's responsibility for the events
culminating in Domilici's departure is considered infra, section I, 3.
38. Philip Parrino-July 15 to 16
Parrino reported for work on the day shift on July 15. His classification was hy-
draulic pipefitter and his foremen were Hargreaves and Sujuki. He was initially
employed by Respondent in May 1953.
It is alleged that Parrino was constructively discharged. Respondent contends
that Parrino voluntarily quit.
I turn next to the events which occurred in the plant after Parrino returned.
Parrino went to the plant at approximately starting time on Friday, July 15. He
reported to Hargreaves. Hargeaves advised him, "We don't allow you to talk too
much. I want you to stick to your job and stay there." Hargreaves turned him over to
Foreman Sujuki who advised Parrino that he would be protected while he was on the
floor, but that when he was not on the floor they could not do anything about it 91
During the day, on at least two occasions, Ratliff, Popovich, and Wesch swore at him
and called him indecent names, which he described as "the dirtiest names a man ever
devised." Some of these names are specified in the record and need not be set forth
here.
At lunch time he ate in the subassembly section. About 12.10 he heard a loud
whistle, then 60 to 70 nonstrikers gathered around him. He identified Popovich and
Zelinsky as being in this group. Parrino related that he was called the same dirty
names as before.
Parrino returned to the plant on Saturday, July 16. When he entered the locker-
room he was surrounded by nonstrikers. He estimated the size of the group as ap-
proximating 15. He related that he was stopped dead, backed up against the wall, and
stayed there. He was told there were no more jobs available for him, that they had
already taken over his job, and that he might as well go home. Parrino was again
called all kinds of dirty names, told his wife was a whore, and that his child was il-
legitimate. He was detained in the lockerroom until 7 o'clock starting time. Parrino
was unable to recall the names of anyone in the group that had surrounded him in
the lockerroom.
At lunch time, on July 16, he was again surrounded by a large group of nonstrikers.
He identified Karbula as telling the others to give him a brick and see how he looks
with a brick in his hand. He was again called insulting and filthy names. This
group stayed until the end of the lunch period. Parrino credibly testified that while
this was going on he saw a guard, whose name he did not know 1-t u'ho e firq+ -me
he identified as John , standing against a wall approximately 75 feet away with an
91 The denial of this statement by Sujuki is not credited
THE CROSS COMPANY 1065
unobstructed view. Parrino saw the guard "laughing his head off " 92 Parrino saw
Milton Cross , Jr., president of Respondent , and Superintendent Riddell near Fore-
man Hargreaves ' desk before he heard the whistle and the group converged on him.
It was his testimony that Cross and Riddell remained there until the lunch period
was over. They did nothing but just kept on talking . 93 Parrino identified Karbula,
Popovich and Zelinsky as being in the group around him at lunch time on July 16.94
When Parrino went into the lockerroom at the end of the workday , there was a lot
of noise, banging on lockers , yelling, screaming , and whistling . He was told that he
had better not come back . Parrino did not return to work thereafter.
On July 19 Parrino called Kent and told him he would not return to work under
the prevailing conditions or "until a man can be treated with respect on his job."
Kent advised Parrino he did not know anything about the conditions to which Par-
rino was referring and did not know what was happening in the shop . Thereupon,
Kent advised Parrino that if he stayed away and did not report within 3 days he would
lose his seniority . 95 On July 20 Parrino sent a telegram to Respondent which read:
I, Philip Parrino , as of July 18 refuse to work under the conditions existing in
the plant. I further state, I have not quit my job . I am staying out until a man
can work with dignity and respect, and without threats to his person and
property.
After an injunction was obtained August 9, 1960 , see section C, 46, infra, Parrino,
on August 23 sent a further telegram to Respondent . The telegram read:
I Philip Parrino hereby am applying for my job again since law and order has
been established in the plant.
About 10 days after he had sent this telegram Parrino went to Kent's office. Kent ad-
vised Parrino that as far as Respondent was concerned he had quit . Parrino re-
sponded that he had not signed a quit slip, that the reason he stayed out was the
reason stated in the telegram , that he wanted to be treated like a human being and
not like dirt . Kent responded that so far as Respondent was concerned, Parrino was
all through.
Respondent contends that Parrino did not complain to any supervisor about the mis-
treatment which occurred in the plant until he had left the plant . It is clear that
Parrino worked on Friday and Saturday , did not return on Monday and, on Tuesday,
called Kent and told him of the threats and insults to which he had been subjected.
At the same time Parrino , in spite of Kent's urgings that he return in order to protect
his seniority, advised Kent that he would not return under the prevailing conditions.
Respondent contends that the principal incidents about which Parrino complained
were corroborated only by Schumaker , who was present in the courtroom when
92 Guard Babuska , whose first name is Frank , denied seeing Parrino ever surrounded
in the lockerroom or during the lunch hour. To the extent the testimony of Babuska is
in conflict with the testimony of Parrino , I credit Parrino.
92 Riddell denied that he ever had occasion subsequent to May 1960 to talk to Cross in the
subassembly department during the lunch hour . Riddell also denied seeing Parrino sur-
rounded by a group of men during the lunch hour Milton O. Cross , Jr, denied that he
was in the plant on July 16, 1960, asserting that he had a "sustained interest in yachting
activities" and was in Port Huron that day. There are a number of incidents in the
record which I did not deem sufficiently Important to reflect in this report where various
witnesses for General Counsel asserted that Cross was In the plant and witnessed certain
events and did not intervene in any manner . My failure to unduly extend this report,
needlessly , should not be misconstrued as reflecting acceptance of the testimony of Cross.
To the extent the testimony of Riddell and Cross conflicts with that of Parrino , I credit
Parrino . Parrino also testified that Ralph Cross , Jr., son of the vice president of Re-
spondent , was present during this gathering While it appears that Ralph Cross, Jr,
was a stockholder , there Is no evidence that he was a supervisory employee . Accordingly,
whether he was or was not present is of no consequence.
"The denials of Zelinsky and Popovich relative to the testimony of Parrino are not
credited Karbula did not testify.
95 Kent acknowledged a conversation with Parrino but variously fixed the date as being
July 9 , which would be prior to the date Parrino reported, and as July 19 and 23. Kent
acknowledged that Parrino described the names he had been called as being "pretty vile
names, " but stated he did not particularize. To the extent that Kent 's testimony is at
variance with that of Parrino , I credit Parrino. Kent acknowledged that Parrino stated
that he had been subjected to insults and threats and did not feel he had to put up with
it and was not going to put up with it.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parrino testified. It will suffice to note the extrinsic evidence of many similar events
preceding July 16, relative to which Respondent took no action.
It is clear from this record, and I find, that Parrino left Respondent's employment
because he felt a sense of outrage at the threats and insults to which he had been
subjected. Respondent's responsibility for these events is considered infra, sec-
tion I, 3.
39. George Schumaker-July 16
Schumaker reported on the day shift on July 16, 1960. His classification was hy-
draulic pipefitter and his foremen were Hargreaves and Sujuki. He was initially em-
ployed by Respondent May 19, 1954.
It is alleged that Schumaker was constructively discharged. Respondent contends
that he voluntarily quit
Next considered are the conditions with which Schumaker was confronted in the
plant when he return on July 16.
Schumaker credibly testified as he went through the lockerroom there were 20 or
30 nonstrikers who started stomping their feet, saying that another striker was back.
He proceeded through the lockerroom and reported to Hargreaves.
Schumaker described obscene and profane language which was directed at him,
by others working near him, and related that nuts and bolts were thrown in his
direction three or four times, that he was hit once or twice. Absent any testimony
that these events were reported or were known by anyone in supervision, they are
not considered.
At lunch time Schumaker ate in subassembly with Parrino, see supra, section C, 38,
and Peterson. About 12:10 p.m. a group estimated at approximately 50 nonstrikers
gathered around, starting calling him names, and accusing him of violence during
the period of the strike. Schumaker described banging on the tables behind him,
with what seemed to be an iron bar. Schumaker was told he had better get out
while he still had a chance, and that he would have been better off if he had not
come in the first place, because he was not wanted. He identified Jess Ratliff,
Richard Behrends, Scotty Ferguson, Vladimir Popovich, and Ralph Cross, Jr., as
among those he recognized in the group.96
Approximately 15 or 20 minutes after the end of the lunch period Schumaker went
to Foreman Hargreaves and advised him that he was not feeling well and wanted
to go home, also that he wanted a pass to take his toolbox. Hargreaves credibly
testified that Schumaker did not make any complaint to him. Hargreaves acknowl-
edged that there might have been a group around Schumaker at the lunch hour. I
have found supra, section C, 10, that Hargreaves was aware of these lunch-time
gatherings as early as May or early June. In spite of many complaints Hargreaves
never went over to investigate what was happening, even though Enzmann, see sec-
tion C, 25, and other employees complained about the insults and threats heaped
upon the returnees, and even though some of them requested a "sick" pass immedi-
ately after these lunch-time gatherings and did not thereafter return to work. The
experience of Schumaker does not stand isolated.
Schumaker related that as he was leaving, during working hours, there was a loud
commotion and hollering. He heard, "There goes another one, we got rid of him
and good riddance."
Respondent contends that Schumaker does not claim that anyone touched or
assaulted him. Respondent makes a similar claim relative to other former strikers.
In this case, I deem this contention without merit. To the extent Respondent's asser-
tion, that Schumaker did not complain to Hargreaves about the lunch-time gathering,
implies a lack of knowledge of the occurrence, it must be rejected.
It is patent that Schumaker left the plant by reason of the lunch-time events. It is
undisputed that he obtained a sick pass within 15 or 20 minutes after this event.
The testimony of Parrino and Schumaker was mutually corroborative as to the
events of July 16. The demeanor of these witnesses and the extrinsic evidence of
preceding similar events persuade me that they truthfully reflected the conditions
with which they were confronted in the plant at lunch time on July 16. Respond-
ent's responsibility is considered infra, section I, 3.
90 Ratliff and Behrends were not called as witnesses. Ferguson's testimony that he
never saw Schumaker surrounded and was never present when that occurred is not credited.
Popovich's testimony that he could not remember any discussion with Schumaker is not
credited to the extent that it may constitute a denial of his presence. I have indicated
in the preceding section my finding that Ralph iCross, Jr., was not a supervisor . Only his
presence was asserted.
THE CROSS COMPANY 1067
40. William J. Vorhoff-July 20 to August 9
Vorhoff was recalled and reported on the day shift on July 20. Prior to the
strike he had been on the night shift. His classification was machine builder and he
worked in the subassembly department under Foremen Charbonneau and Ress. He
was initially employed by Respondent December 10, 1953. Vorhoff was still em-
ployed at the time he testified.
It is alleged in the complaint that Vorhoff was improperly excluded from the plant
and forced to remain away from his job on July 21, 1960. Respondent contends that
Vorhoff, after being excluded, failed to return to the plant.
Next considered are the events which occurred in the plant after Vorhoff returned
to work.
When Vorhoff entered the lockerroom on July 20, he was greeted by a group of
nonstrikers. He described the scene as hollering and banging, and the making of an
awful lot of noise. He was called quite a few names, including "SOB" and "bastard."
He was also told that he was not to come in, that they did not want him there. He
estimated the group as between 50 and 70 nonstrikers.
Vorhoff ate alone the first day. He had been advised of the harassment each
returnee received at lunch time and he did not wish to involve others. About 12:10
p.m. he heard a whistle and a group of somewhere between 40 and 50 nonstrikers
came to the place where he was eating and told him such things as "Get out of here,
you bastard; we don't want you here, you SOB." He was sitting on a box with his
back against a machine base. Vorhoff described William Rittenhouse, an employee
hired during the strike, as straddling Vorhoff's legs as he was sitting. Rittenhouse
was swinging his fists in front of Vorhoff's face. He also identified Popovich, Fer-
guson, and Richard Behrends as being in the group. Vorhoff quoted Rittenhouse
as telling him that it was going to be a cold winter and he had better get out now.
Someone Vorhoff could not see was poking a 2 by 4 against the box he was sitting
on, apparently attempting to knock it out from under him. Someone else suggested
that Rittenhouse kick Vorhoff in the (crotch). Vorhoff was accused of numerous
acts of violence during the strike. The group remained until the end of the lunch
period. Approximately 15 minutes after the lunch period was over Foreman Char-
bonneau came to Vorhoff and remarked that they had really given him a "going
over." Vorhoff responded that they (strikers) had dished it out for a while but he
thought this was a little dirtier than what they had dished out.97
Vorhoff returned to the plant on July 21. He estimated that somewhere between
40 and 60 nonstrikers were standing around. There were at least five to seven around
him all the time, they refused to let him through. When he attempted to backtrack,
to get around them, another group would block him. Vorhoff credibly testified
that because he worked on the night shift he did not know the names of most of
the day-shift employees. Vorhoff remained from 5 to 8 minutes, then decided to
leave. While Vorhoff was blocked near the shower room and drinking fountain
on the south side of the lockerroom, see Appendix B, he saw Foreman Harry Ress
come in, change clothes, and go into the plant without saying anything to the group.98
Vorhoff went to the guard shack at the front gate and told the guard that he could
not get through the lockerroom.
Later the same day, Vorhoff was advised that Kent had called his home. Vorhoff
called Kent and advised him that he could not get into the plant because a group
of nonstrikers blocked him. He quoted Kent as saying, "They won't hurt you, Bill.
They are just putting up a big show. You come in tomorrow. They won't hurt you."
Vorhoff responded, "Well, if I come in tomorrow I don't want to be hurt, and if I do
I will walk back out again ." Vorhoff did not recall Kent requesting any details of
what had occurred or making any request that he identify the individuals who blocked
him.
Kent was self-contradictory relative to whether or not the exclusion of Vorhoff
was reported to him. Kent first testified that this event was reported to him by the
guard on July 21. He later testified that he found no reference to the exclusion of
Vorhoff in his notes . I do not credit Kent.
97 While Vorhoff related swearing by individual employees, which occurred during the
morning and afternoon, it does not appear that these events were reported and they are
not considered. Rittenhouse and Behrends were not called as witnesses. To the extent
the testimony of Czekis, Ferguson, Zelinsky, Popovich, Karamon, and Woods is at variance
with the testimony of Vorhoff, I credit the latter.
98 Ress confined his testimony relative to Vorhoff to the statement that Vorhoff made no
complaints to him. He acknowledged seeing groups "talking" in the lockerroom He heard
"a little bellering and hollering occasionally." He did see a group of 10 or 15 around the
drinking fountain but thought this occurred on one of the earlier days.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vorhoff had regularly been employed on the night shift as a matter of preference.
When he reported on July 20, he requested Foreman Charbonneau to arrange for
his transfer to the night shift. He was transferred to the night shift effective Monday,
July 25. No one ever explained to Vorhoff why he had been called back on the day
shift.
The contention of Respondent that the evidence does not establish that Vorhoff
made a reasonable effort to go to work on July 21 "after his alleged exclusion from
the locker room" must be rejected. Respondent contends that after being excluded,
by the conduct of the nonstrikers, Vorhoff was under a duty to make another effort
to return to work. I am unable to agree with this premise. The responsibility of
the Respondent for the exclusion of Vorhoff on July 21 is considered infra, section I, 1.
41. Gus Caravas-July 21 to 26
Caravas, a radial drill operator, was recalled and reported on the day shift on
July 21. He worked under Foreman Stanley Balchunas; however, at the time Caravas
returned Balchunas was on vacation and his brother, Edward Balchunas, had replaced
him on the day shift. Caravas was initially employed October 15, 1951. Prior to
the strike he had been plant chairman and chief shop steward for the Union. His
term ended May 5, 1959.
It is alleged that Caravas was constructively discharged. Respondent contends that
he voluntarily quit.
Next considered are the events which occurred in the plant after Caravas returned
to work.
Caravas credibly testified that he purposely reported late because he had heard
of the commotion which went on when one of the former strikers returned. He
was uncertain if it was 7:45 or 8:45 when he punched in. Caravas met Ed Zelinsky
outside the building.99 Zelinsky preceded Caravas into the plant. Caravas rang his
card and then obtained a hand truck in order to bring his tools in. Just after he passed
the guard's desk in aisle E, a group he estimated at 40 to 50 nonstrikers gathered
around him. Caravas identified William Rittenhouse as one who raised his hand in
front of Caravas' nose and kept calling him a "no good rotten SOB." Rittenhouse
also told him, "I would like to take you outside and punch you in the nose."
Caravas was called foul names and told, "We don't want you around here, nobody
wants you." Caravas identified others in the group as Baker, Zelinsky, Behrends,
William Karbula, Paul Czekis, and Deno Costa. The demonstration lasted about 15
or 20 minutes. Caravas described the group as acting like "wild animals." The
group disbursed shortly before he reached Balchunas' desk in aisle E, section 5, see
Appendix A. Balchunas was not at his desk and Caravas went to the machine where
he had previously worked. When Balchunas approached him, Caravas asked him
what was going on, stating , "These people are like a bunch of caged animals, and I
thought everybody starts work, is supposed to work around here. These people here
don't seem to be working at all. All they do is wait for someone to come in and give
them a great big welcoming. I don't appreciate that type of a welcome." Caravas
quoted Balchunas as responding, "Well, that's just one of those things we have to
contend with. It's just like a wound. It will eventually heal." Balchunas then left.
Caravas credibly testified that Balchunas did not ask him to describe anything that
happened or to identify any of those present. Caravas had noticed the guard at his
desk when he punched the timeclock, but he had disappeared by the time the group
gathered around Caravas.
Babuska recalled that a couple of the nonstriking employees had stayed in the
lockerroom and were there when Caravas came in late Babuska acknowledging
that this was a violation of company rules, stated that he had gone into the lockerroom
to "raise hell" with the nonstrikers . Babuska then went to see Foreman Winke to
complain to him that some of his employees were in the lockerroom. Apparently this
was Babuska's explanation of why he was not near his desk when the group gathered
around Caravas.ioo Babuska described the noise making and pounding when Caravas
came in as something that occurs with everyone that comes in late. Bubuska de-
99 Absent evidence that Zelinsky's remarks were reported to a supervisor, they are not
considered However, since Respondent seeks to challenge Caravas' credibility on his
failure to mention meeting Zelinsky outside the building in his statement to a Board in-
vestigator, it is well to note that Zelinsky admitted meeting Caravas and Sylvester
Romola at that time and place. I deem it unnecessary to unduly extend this report by
-noting other such trivia, relative to ether witnesses.
100 Why it was up to Babuska to complain directly to Winke rather than to report to
his superior, Kent, is not explained.
THE CROSS COMPANY 1069
-scribed the morning of Caravas' arrival as a "mixed up morning," then asserted that
he could not recall too much about Caravas coming in.
Edward Balchunas acknowledged that when he gave Caravas his work assignment
on the morning of July 21 , Caravas said , "The boys were putting on quite a show for
him, reception," that Caravas thought that some of the noise was unnecessary.
Balchunas then asserted that Caravas had not made any complaint "beyond the shov-
ing." Balchunas denied seeing any group around Caravas during workhours.
Balchunas first asserted that Caravas "may have" asked "what is going on, they act
like caged animals." Then Balchunas thought he did recall this question from
Caravas. Balchunas related, "I told him (Caravas ) these things are going to wear off,
.as I told them all when they made these complaints ; there are others here, we are all
working fine , and this is all going to wear off ; it is going to take time for these wounds
to heal." To the extent that Balchunas' testimony is at variance with that of
Caravas, I credit Caravas.
At lunch time Caravas sat at his bench.ioi Five minutes after twelve a large group
crowded around Caravas. He was called vulgar names and told to get out of the
shop , that he was not needed. Caravas was also accused of acts of violence during
the period of the strike. He identified Deno Costa, Mike Zito, Richard Behrends, and
Rittenhouse as included in the group around him. The group remained until the end
of the lunch period. Immediately after lunch Caravas asked Balchunas if it was
necessary for him to be entertained by these people. Caravas related that Balchunas
responded that he did not know what he was talking about.
Edward Balchunas acknowledged that Caravas complained about the lunch-time
gathering. Balchunas related that he responded, "Gus, I am sorry. I would like to
set right here and have lunch with you. I don't know where to set any more, I am
getting fed up with these complaints, and I think I will just take and go out and eat."
Babuska saw the group around Caravas. He first testified that Caravas was trying
to "convert them," and later acknowledged that he was not close enough to hear what
was being said.ioa
Caravas did not return to work on Friday, July 22, or Saturday, July 23. He was
uncertain whether the next day he worked was Monday, July 25, or Tuesday, July 26.
Since he was separated as of July 28, and in view of Respondent's 3-day rule, it may be
inferred that he worked on July 25. He reported late, estimating that it was either 10
or 11 o'clock in the morning. He went to the tool crib to get some tools and a group
of seven or eight gathered around him . He identified one nonstriker , named Martin,
who threatened to take him outside and really give him the business and told him
to "get the hell" out of the plant. This group remained around him for 10 or
12 minutes while he was waiting for the necessary tools. Caravas, having worked less
than 2 hours, went to Ed Balchunas and requested a pass, advising him, "I don't
believe a man has to work under these type of conditions under any circumstances."
Balchunas urged him to stay. It was at this time that he advised Balchunas of what
had happened at the tool crib.
On July 27, Caravas sent a telegram to Respondent which read:
Due to unfavorable conditions which slander my character and jeopardize
my being I will be unable to report for work until existing conditions are
permanently rectified.
Kent acknowledged receipt of this telegram
On a date between July 27 and 30 Caravas and Domilici went to the plant to pick
up their tools, see section C, 37, supra. They had a conference with Kent. Kent asked
Caravas the meaning of the telegram . Caravas responded it was self-explanatory and
told Kent that the working conditions were unbearable , "when a man has to come in
and be treated like an animal he does not have to work under such conditions."
Caravas told Kent that supervisors were not taking any steps to prevent the existing
condition. Caravas quoted Kent as saying, "It is pretty hard to control these people,"
that there was not too much they could really do about it. Caravas advised Kent
that he had considered Respondent 's plant a home but it was quite obvious that it
no longer was . Kent again requested that they remain and they advised him that they
would not remain under the existing conditions but would be willing to return under
10i While Caravas related that there was a steady stream of one or two at a time who
came by his machine , called him names, and told him to get out of the shop, it does not
appear that these events were reported and they are not considered
102 To the extent that the testimony of Czekis , Wesch, Zelinsky , Popovich , and Baker is
at variance with the testimony of Caravas, I ciedit Caravas Zito, Rittenhouse, Behrends,
Karbula, and Costa were not called as witnesses.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normal conditions. Caravas inquired why supervision disappeared during the lunch
period. Kent denied knowledge of this fact. Caravas inquired why these demonstra-
tions were permitted during working hours and Kent responded that they were doing
everything humanly possible to restore order.
The testimony of Kent relative to this interview is inconsistent. He asserted that
Caravas acknowledged that he had not been touched or "molested" in any way, but he
was subjected to insults and called names, and this was his reason for returning to the
employment he had during the strike. Kent asserted that he pointed out to Caravas
that Caravas had a great deal of seniority and a good work record and they were
anxious for him to stay. Kent denied that Caravas complained about the lunch-hour
activities. To the extent Kent's testimony is in conflict with that of Caravas, I credit
the latter.
Respondent urges that the testimony of Caravas is impeached by his own prior
statement to the Board. In effect, it is asserted that Caravas' testimony covered mat-
ters not set forth in the statement he had made to the Board investigator. I find
no merit in this contention.
I have considered the demeanor of Caravas and the other witnesses who testified
relative to the events involving Caravas. I have found above the incidents which
took place when Caravas returned which caused him to determine that he could not
work under the conditions existing in Respondent's plant, absent any effort on the part
of supervision to restore normal conditions. Caravas' telegram and subsequent con-
ference with Kent leave no doubt that Respondent knew the reason for Caravas'
decision to remain away from Respondent's plant. The responsibility of Respondent
for the incidents related is considered inf ra, section I, 3.
In November 1960, Caravas called Kent relative to his supplemental benefits
(SUB). Caravas went to Kent's office, and was advised by Kent that he would have
to sign a resignation in order to obtain the supplemental benefits. Caravas advised
Kent that he could not understand why he had to resign when he had already
been terminated. Kent responded, "Well that is our policy." Caravas declined
to sign the resignation, but returned later on January 18, 1961, and signed the applica-
tion which indicates that Caravas quit on July 28, 1960. At the same time Caravas
signed a resignation. The effect of this resignation on any relief to which Caravas
may be entitled is considered infra, section I, 4.
42. Steven J. Janicki-July 21
Janicki, turret lathe operator, was recalled and reported on the day shift on July 21.
Prior to the strike he was on the night shift. Why he and others who were night-shift
employees were called back on the day shift is not explained. His foreman, Edward
Balchunas, was on the day shift while his brother was on vacation.
It is alleged that Janicki was constructively discharged. Respondent contends
Janicki voluntarily quit.
The events which occurred when Janicki reported are next considered.
Janicki approached the outer vestibule doors about 6:40 a.m. on July 21 with his
toolbox in one hand and lunch box in the other. Robert Woods told him he was not
wanted, to get out and go home, to go back to a union shop. Woods, Karbula, and
Zelinsky held the door closed so Janicki could not enter until 6:55 a.m. Janicki
acknowledged that other employees were going through the same door at that time,
and that Woods would open the door as each employee approached. When Janicki
went into the lockerroom, he was stopped by 20 or more nonstrikers and subjected to
cursing and threats. Behrends put his fist in Janicki's face and Janicki had to lean back
against the washbasin. Edward Balchunas entered the lockerroom and proceeded
into the plant while Janicki was being detained but did not intervene. Immediately
before 7 o'clock, Babuska came into the lockerroom, told the group it was time to go
to work, and escorted Janicki to the timeclock.
Janicki reported to Balchunas who said, "That was quite a reception they gave you
out there " Janicki asked him why he did not do anything about it. Balchunas re-
sponded that he could not control it, or something like that, Janicki was not certain
of the exact language.loa
' Respondent asserts that Janicki's testimony is impeached by his own affidavit, made
to a Board representative, the day after the occurrences, in which he did not mention his
alleged conversations with Balchunas. Respondent asserts, "It is inconceivable that these
references to Balchunas-would not be included in the Board statement had they in fact
occurred."
Respondent has made a similar challenge relative to the statements of other General
Counsel witnesses. I have not unduly extended this report by treating with each. There
THE CROSS COMPANY 1071-
Janicki's work station was in bay E, section 5. During worktime Janicki was
sworn at and told to go back where he came from and threatened by several of the
nonstrikers . He identified James Hernan and Grandville McMains as among those
who engaged in this conduct . Janicki told Balchunas he was being bothered by
different men. Balchunas responded that he could not stand there all of the time
and watch them. He told Janicki he once questioned an employee about similar
conduct and the employee advised Balchunas he was talking to himself.
Just before lunch, Janicki advised Balchunas he did not feel well and could not
work under the existing conditions . Balchunas responded that Janicki should go
home and come back the following day. Janicki advised Balchunas that he would
not return unless Balchunas would guarantee that he would not be subjected to
harassing and noisemaking . Balchunas responded that he could not do anything
about that . Janicki then advised Balchunas to call him if Respondent wanted
Janicki to return.
Kent acknowledged receiving a report from Balchunas that Janicki had advised
Balchunas , "I don't have to take this abuse from these men." Kent erroneously
testified that Janicki was on the night shift at that time. Balchunas acknowledged
that Janicki complained that other employees were swearing at him, that he was
going to try to work, but that he did not have to put up with this. Janicki said that
he did not want to be bothered and if the annoyances continued he was going to
leave. Balchunas related that he advised Janicki that he was fully protected and
that he (Balchunas) was sorry.
Balchunas acknowledged Janicki was one of the top turret lathe operators. His
estimate was , "I didn't want that man to leave . He was my output." i04
Is a distinct difference between an omission in a prior statement and testimony which is
clearly at variance with what had been previously reported.
Balchunas ' testimony relative to this conversation is far from a denial it occurred.
Q. Did you say anything substantially like this to Mr Janicki, that first morning
when he reported to you to go to work, "that was quite a reception you got in the
locker room this morning "
A. I don't remember saying that.
Q And did Janicki say anything like this to you, that you recall, "why didn't you
do something about it," and "you didn't?"
A. Each one of these men returning to work, we would have words about what may
have happened, and there may have been hollering and I wanted him to make it
known to me if anyone bothers him whatsoever in his work. After all, we have got
to work there and it is just a school and it was made known to him if anybody what-
soever bothers him, make it known to me.
Q Now, is this true of Janicki only or was this true of other employees as well?
A. All employees regardless of who.
Q You don 't recall ever saying to Janicki "that was quite a reception you got in
the locker room this morning'"
A. I may have. I don't remember.
Q. Did you see Mr . Janicki get any reception in the locker room the morning he
came to work'
A No, because I did not see Mr. Janicki.
Q Then what occasion would you have to make the remark to him?
A. Possibly when we began work. I wouldn 't make that remark-I don't recall
any noise . He may have said something to me of the hollering and I may have said
something back to that effect.
Babuska was unable to recall leading Janicki into the plant on July 21 . Zelinsky and
Woods denied holding the door to prevent Janicki from entering . Zelinsky denied having
a conversation with Janicki , although this is the same day that Zelinsky admittedly had
a conversation of the same nature with Caravas (see the preceding section) To the
extent the testimony of Respondent 's witnesses conflicts with that of Janicki, I credit
Janicki.
104 Balchunas summarized his reaction and handling of the problem with which he was
confronted . He explained that he told the returnees , when they complained about existing
conditions , "This is all going to wear off, it is going to take time for these wounds to
heal. . . . each ( striker ) returning to work did have a complaint They would say the
men were swearing at that time at them but with this I would have to have words and
say I am sorry , it will stop, it will eventually stop. I would make remarks they (non-
strikers ) were also sworn at , they were also . . they had things thrown at them, and to
try to comfort this guy because I needed help badly . I wanted these men to stay on
These were our keymen . This was a key drill press operator ( Caravas ) and a key turret
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends that Janicki quit and returned to the work he was doing at
another plant during the period of the strike, thus he had no intention of remaining
at Respondent's plant when he returned. Janicki credibly testified that he had quit
the other job in order to return to Respondent's plant. He admitted that he re-
turned to the other plant after leaving Respondent's employment. Respondent's
contention is rejected.
The principal question to be decided here is the reason for Janicki's leaving. The
credible evidence herein establishes that after futilely complaining to his supervisor
about the threats and insults to which he had been subjected, Janicki advised that
he was leaving and would not return unless he was guaranteed assurance that he
would not be subjected to similar treatment if he returned. He advised Baichunas
to call him if they wished him to return. It is undisputed that he was not thereafter
recalled. Respondent's responsibility for the events which occasioned Janicki's de-
cision to leave Respondent's employment is considered infra, section I, 3.
43. Sam Dogariu-August 1 to 9
Dogariu was recalled August 1. He is an assembler working under Foreman
Hargreaves. He was initially employed by Respondent February 26, 1956. He
was still employed at the time he testified.
It is alleged in the complaint that Dogariu was improperly excluded from the
plant and forced to remain away from his job on August 4, 1960. The events
relative thereto are considered infra, section C, 45.
The conditions with which Dogariu was confronted in the plant after he returned
to work are next considered.
Dogariu went to the plant on August 1 and arrived at the vestibule door about
6.55 a.m. He related he was met in the vestibule by 30 to 40 nonstriking employees
who stopped him when he stepped into the vestibule.105 Dogariu credibly testified
they threatened to throw him out and told him to get out. He was told this was not
a union shop, and foul language was directed to him. He was called "S O.B.," "bas-
tard," "dago," and other names. This continued until approximately 7 o'clock, at
which time they dispersed and he proceeded into the plant. Dogariu identified
Wesch, Rittenhouse, Woods, Karbula, and Popovich as among those in the vestibule
the first morning. It was Rittenhouse and Wesch who were making the threats
At lunch time Dogariu, whose work station is in bay D, section 14, went to the
lunch wagon which is located in bay C, section 1. While he was eating, Dogariu
noticed Mike Zito going from one machine to another, whereupon the different
employees would turn and look in the direction of Dogariu. Dogariu had stopped
to eat his lunch in aisle C, section 2. He returned to his work station About 12.20
a group of approximately 30 to 40 nonstrikers came to where he was eating. They
threatened him and swore at him. Dogariu identified Rittenhouse, Wesch, Karbula,
Woods, Costa, Popovich, Ferguson, and Zelinsky as being in the group. It was
Rittenhouse, Wesch, and Popovich who made the threats to throw him out of the
plant. The group remained until approximately 12.30.
When Dogariu left that evening there was hollering and whistling and banging
on lockers in the lockerroom. He did not stop to wash up. On August 2 he was
again stopped by Wesch, Rittenhouse, and Popovich. Dogariu was again sworn at
and told to get out. At lunch time the second day, about 12:15, a group again
converged on the place where he was eating. He was again subjected to threats and
swearing. He identified Popovich, Wesch, Rittenhouse, and Zito as being among
those present the second day. He was not bothered on August 3, the day Stanley
Filar returned.
Foreman Hargreaves ackowledged seeing the luncheon gatherings around Dogariu
It is undisputed that Dogariu never complained about them.ios
lathe operator (Janicki). I wanted that man and I would make it a point these men
were also personal friends of mine. I have been out drinking with them. I do not want
them to leave. I know them good. We eat together, eat in a restaurant. I do not want
them to leave , so naturally I would make these remarks , make it known to them it is
going to take time I would tell them I was discouraged in coming to work everyday."
105 Dogariu apparently transposed the setting of this event with the incident of August 4,
infra, section C, 45. Accordingly, I find Dogarlu was stopped in the lockerroom on
August 1 and in the vestibule August 4.
108 The denials of Zelinsky, Popovich, Woods, Rinsch, and Czekis, insofar as they con-
flict with the testimony of Dogarlu, are not credited. Rittenhouse, Zito, and Karbula did
not appear as witnesses.
THE CROSS COMPANY 1073
44. Stanley G. Filar-August 3 to 9
Filar, an apprentice machinist, was recalled on August 3. His supervisor was
Stanley Balchunas. He was initially employed in February or March 1957. He
was still employed at the time he testified.
It is alleged in the complaint that Filar was improperly excluded from the plant
and forced to remain away from his job on August 4, 1960. The events relative
thereto are considered infra, section C, 45.
The conditions with which Filar was confronted in the plant after he returned
to work are next considered.
Filar went to the plant about 6:30 am. on August 3. There was only one man
in the lockerroom at that time. Filar proceeded to Balchunas' desk in aisle E, sec-
tion 5, and waited for his arrival. While Filar was so waiting, a group of 10 or
15 nonstrikers gathered around him. They were cursing him and asked him what
right he had to come back to work. He was kicked twice on the ankle. At that time
he noticed both Stanley and Edward Balchunas were at the desk. Neither foreman
intervened or said anything at that time. Thereafter, Edward Balchunas told Filar,
"We can see what's going on, but there is not much we can do about it."
Edward Balchunas acknowledged that he was present when Filar reported. While
it was unusual, he had worked through the night. He recalled seeing Filar standing
near the file cabinet with a group of men around him and did hear some of them
swearing. He described the swearing as not unusual. Balchunas then related that the
swearing was at Filar because he heard something said about a car turning over and
that was not unusual to hear, "I wasn't interested in that." Stanley Balchunas
acknowledged seeing Filar surrounded the first day Filar came back to work.
Stanley Balchunas heard Filar called "S.O.B." and "dirty bastard." 107
Filar's work station on August 3 was in bay E, section 7. He ate lunch at his
work station and at that time Stanley Balchunas was eating his lunch at his desk.
Filar also noticed that about 12:10 Balchunas left his desk and went toward the front
of the shop. Approximately at the same time Filar heard a human whistle, then
noticed a group of nonstrikers coming from the front of the shop toward where he was
sitting. They converged and surrounded him. One nonstriker sat on the bench
with his back to the back of Filar and kept trying to push Filar forward, until
he succeeded in forcing Filar off the bench. Another nonstriker had his knuckle
in Filar's side twisting it, and another one was standing on his shoe. Others were
yelling, cursing, and asking him what right he had to come to work. William Ritten-
house advised Filar that he should get out, that they would carry his toolbox out and
then nothing would happen to him, Rittenhouse then threatened him if he did not
leave. Charles Wesch threatened to kill him. Filar estimated the group as numbering
between 20 and 30. Filar identified Paul Czekis, Mike Zito, Robert Woods, Grand-
ville McMains, and Johnny Farkas as others in the lunch-time gathermg.'08
45. Events of, and immediately preceding, August 4, 1960
It is alleged that on August 4, Arthur Derbin, Bruno Muszynski, Anthony Lewan-
dowski, Joseph Brown, Floyd Bristol, Jacob Krist, Philip L. Genest, Edward S.
Papcun, David Kidle, Sam Dogariu, and Stanley G. Filar were excluded from the
plant and forced to remain away from their jobs. All of those named were still
employed at the time they testified.
It is not disputed that those named did not work on August 4, 1960. Neither does
there seem to be any serious dispute that those named did appear at the plant on
August 4 for the purpose of reporting to work.
In essence, General Counsel asserts that those named were improperly excluded
and prevented from reporting to work. Respondent pleads ignorance of advance
knowledge of the exclusions, claims it did not condone the actions of nonstriking
employees, and asserts that it did all it could to encourage those excluded to return
to work on August 4 after the exclusions.
I have found supra that a strike which commenced August 4, 1959, was terminated
about May 16, 1960, shortly after the issuance of a Board order in a prior case. I
have also found that Respondent, in undertaking to reemploy all of the strikers who
made appropriate application, recognized on May 18, 1960, that a residue of animosity
1°7 Stanley Balchunas denied making the remark attributed by Filar to his brother
Edward Balchunas. I credit Filar.
108 The denials of Sierota and Woods that there were any Obscenities or profanities at
these lunch-time gatherings, particularly this one involving Filar, and the denials of Czekis
and Wesch are not credited. Zito, MeMains, Rittenhouse, and Farkas did not testify.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and bitterness, between those who engaged in the strike and those who did not or were
hired in the interim, could be anticipated, see supra, section C, 1. The validity of this
premise is amply demonstrated in the preceding sections in which I have found ex-
clusions of returning strikers on May 21 and 23 and on July 1 and 21, and the
departure and severance of others after brief employment, by reason of conditions
existing in Respondent's plant. It is with this background that we arrive at the first
anniversary of the strike.
The events immediately preceding August 4 are germane to the events of that date.
On August 2 at least five signs, 1 foot by 3 feet in size, appeared in the plant. Each
sign bore the legend "Remember August 4-Liberation Day." The signs were on
brown wrapping paper or stencil paper and were stenciled. They were held up
with masking tape. One was in the machine shop washroom, one on the southwest
corner of the machine shop tool crib, one on the north side of the desk in aisle D,
section 4, one on a hi-lo, and one in the assembly department washroom.109 See
Appendix A. They were thus displayed on August 2 and 3.
Charles Wesch was observed by Papcun putting the sign up in the machine depart-
ment washroom. Wesch's assertions that the signs were put up at 11 a.m. one day
and were down the next day, and said only "Remember the 4th," are not credited.
The latter assertion is in conflict with the testimony of Czekis, as well as that of
General Counsel's witnesses. Czekis testified that the sign on the tool crib said some-
thing about a celebration day or liberation day. Wesch acknowledged that he had
put a sign, similar to the one in the washroom, on the hi-lo and also on the machine
shop tool crib. Wesch also described one as being on a "cabinet," not further de-
scribed, which may have been the desk in aisle D, section 4. The testimony of
Wesch that he put the sign up on August 3 about 11 a.m. on the tool crib and it stayed
up only a few hours is in conflict with the testimony of Superintendent Riddell.
Riddell was "almost positive" that it was August 4, near the end of the day shift, that
Kent called his attention to signs on the tool crib. Riddell was certain it was the
same day that there was "supposed to have been some excitement in our lockerroom."
Riddell described two different signs, one above and one below the service window
of the tool crib. One bore the legend "Happy Birthday, Leach's Peaches," the other
"Liberation Day-August 4." Leach was identified as the president of the local.
Riddell related that he told the night foreman, Edward Balchunas, to have the signs
taken down. However, Edward Balchunas asserted that he never saw these signs
"but I have heard about it." Foreman Hargreaves saw a sign on the machine shop
tool crib a day or two before August 4 which said something about "Lincoln Freed
the Slaves." Hargreaves saw a sign on the hi-lo but could not recall what it said.
Foremen Sujaki and Charbonneau could not recall any unusual signs. Foreman
Stanley Balchunas thought there were some signs but could not recall what they said.
Kent testified variously that a sign reading "Happy Birthday, Leach's Peaches" was
on the tool crib on August 3, he also stated it was August 4. Kent placed a sign
reading "August 4 Liberation Day" as being on a machine opposite the tool crib.
George Ferguson is the tool crib attendant Kent related that when he saw the sign
he went directly to Riddell and told him, "I don't think they ought to be up there.
They might be considered inflammatory." He recommended that they be taken
down. Kent and Riddell both acknowledged that no one was disciplined, either for
displaying the signs or using company property in their preparation. Foremen Har-
greaves, Sujaki, and Stanley Balchunas acknowledged that Respondent had a rule that
no unauthorized signs may be posted in the plant.
On the afternoon of August 3, while he was in the lockerroom ready to leave the
plant, Genest heard Ralph Baker tell Jerry Walaki something on the order of "if the
returned strikers got into the plant they were going to gun us out of there, on
August 4." Genest did not report this conversation to anyone prior to his returning
to work the following morning.ilo
Robert J. Mills, president of Local 155, credibly testified that the Union had received
word of the signs which appeared in the plant and understood that there was going to
be some sort of turmoil on August 4. Mills, Oravec, Moore, Gauci, and some five or
six other former strikers gathered on the south side of the road on the morning of
August 4. Mills arrived about 6:45, and no other union officials were there. At no
time prior to 7 a.m. did Mills, or others not employed, cross the road. There is not
a scintilla of evidence that any signs were displayed by this group. I have found
1W This finding is based upon the testimony of Papcun, Genest, Lewandowski, Ridle,
Derbin, and Vorhoff.
uo Baker acknowledged that he talked to Wal'aki a lot and could not recall if he had
a conversation with him on August 3.
THE CROSS COMPANY 1075
above that Michael Oravec and Edward Moore were union committeemen."' The
assertions of some of the nonstriking employees that they thought a "demonstration"
or "picket line" was to be established I find to be without substance and implausible.
I credit Mills' assertion that no one in his group engaged in any provocative conduct.
I next consider the events which occurred as the former strikers attempted to report
for work that morning.
Arthur Derbin, see supra, section C, 9, entered the south vestibule of the locker-
room (see Appendix B). As he reached the inner doors, Robert Woods had his back
against the door holding it so it could not be opened. Derbin pushed several times,
Woods then stepped aside and Derbin stepped into the lockerroom. A group en-
circled him, some of them carrying signs as though they were on picket duty. Derbin
attempted to sidestep and get around them, then Luft pushed him and he fell back
against the glass doors. Derbin left, went to the entrance gate, and reported to
Guard Babuska that he had been thrown out. Later, Derbin went to Kent's office,
told Kent that he had been thrown out of the plant that morning, that his back
had struck a post of the door, and that his little finger had gone numb. Derbin re-
quested permission to go to the company clinic, which Kent approved. In Derbin's
presence, the doctor called Kent, after his examination, and advised Kent that Derbin
should not come back into work that day.
Foreman Stanley Balchunas related that as he was driving in that morning he saw
Derbin driving out. Derbin advised Balchunas "they threw me out." Balchunas
later reported this to Kent. Kent acknowledged Derbin's report of his injury and
Kent's approval of his trip to the clinic. Kent also acknowledged that Luft advised
him that he had pushed Derbin, but Luft also stated that Derbin had first pushed
him. I do not credit the testimony of Luft that Derbin pushed him.
Jacob Krist, see supra, section C, 21, went into the plant with Derbin and Lewan-
dowski. He related that two men had their backs to the door, then left. As he
entered the lockerroom there was hollering, "Get out from here. We don't want
you here " Someone pushed a sign in his face. He then attempted to get through
the lockerroom but could not without pushing the group around him out of his
way. He corroborated the testimony of Derbin that Derbin was pushed by Luft.
He saw Lewandowski also pushed but could not identify the individual who pushed
him. Krist then left. Krist related there there were five or six signs being carried
in the lockerroom. Krist returned to the gate, Babuska asked him why he had re-
turned, and he advised Babuska that he could not get in. Babuska then noted his
name.
Anthony Lewandowski, see supra, section C, 14, related that as he got into the
lockerroom he heard shouting and yelling. He saw nonstrikers carrying placards.
He heard, "Go home, you scab. You are not wanted here." He was blocked by
Grandville McMains who told him, "You are not going any place The best place
for you is turn around and go back out the door." McMains gave him a body
shove and Lewandowski stepped on Krist's foot. Lewandowski saw Luft pushing
Derbin Luft was yelling and screaming at the top of his voice telling Derbin to "get
the hell" out of the plant, "To go set up his own picket line outside the gate." Lewan-
dowski left with the other two, and also informed Babuska that he had been stopped
from going to work.112
Edward S. Papcun, see supra, section C, 27, arrived after Derbin had been ex-
cluded. He walked to the vestibule door and saw Robert Woods standing there with
a sign on a stick and Charles Wesch just behind him. He proceeded through the
vestibule, into the lockerroom, to the first washbasin (see Appendix B). He saw 60
nonstrikers standing there. Bill Karbula advised him that he was not getting in that
day. As Papcun turned his head he was hit in the back by a fist or an elbow. He
described the scene in the lockerroom as a lot of shouting and noise. He then left.113
Philip L. Genest, see supra, section C, 26, entered the vestibule, took about four
steps when his way was blocked by Luft, and at the same instant he was seized by
nl I do not credit the testimony of Guard Scott that he saw union officials Al Germain,
Beveridge, and Buchanan at the trailer that morning. Mills related that about 7 o'clock
they saw a caravan of approximately 15 ears Coming back out of the plant parking lot.
112 Upon appropriate request, Respondent' s counsel was furnished with statements given
by Lewandowski to a Board Investigator These statements were dated June 9, July 15,
and August 4 and 7, 1960. They are not in evidence . While the testimony of Lewandowski
relative to the events of August 4 may appear to conflict with his statements to the Board,
I find that the questioning was confined to his statements of June 9 and July 15. Thus,
his previous satements do not conflict with his testimony about the events of August 4.
McMains did not testify.
ua Karbula was not called as a witness.
717-672-64-vol. 143--69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the neck by Rittenhouse, pushed out, and told to get his "g- d- a- out of
there." He thereupon left. However he had noticed a placard reading "No More
Mazey Meddling." Genest identified Mazey as Emil Mazey of the UAW.114 Genest
saw Kidle approaching the door as he left. Genest returned to the gate and informed
the guard he had been excluded. Guard Babuska acknowledged that Genest had
advised him that Genest had been pushed out by Rittenhouse. Kent acknowledged
receiving such a report from Babuska.115
David Kidle, see supra, section C, 29, went to the parking lot the same time as
Bristol. He saw several of the former strikers who were either getting into their
cars or standing around talking to each other. He saw a group standing in the vesti-
bule and noticed Charles Wesch and Rittenhouse. He also saw a sign that said
something about Mazey. Wesch blocked his path and he attempted to move around
him. Wesch grabbed him by the shoulders and pushed him back toward the door.
Kidle then left. While Kidle was in the vestibule the nonstrikers were swearing at
him and told him to "get the hell" out of there, that he wasn't going to be working
there any more. Kidle later filed a criminal complaint against Wesch. Kent acknowl-
edged that he had been advised that Kidle was excluded.116
Bruno Muszynski, see supra , section C, 10, estimated that there were about 30
nonstrikers in the south vestibule. He credibly testified that he saw both Kidle and
Genest pushed out. Muszynski then did not make any effort to go into the vestibule
and left the plant.
Floyd Bristol, see supra, section C, 16, followed Kidle to the vestibule door. Bristol
described 20 to 30 nonstrikers as being in the vestibule. He and others saw Robert
Woods carrying a placard. Bristol testified that Wesch and Rittenhouse each grabbed
Kidle by an arm and hoisted him out. To the extent this testimony varies from Kidle,
I credit Kidle. Bristol then left.
Sam Dogariu, see supra, section C, 43, arrived behind Kidle and Bristol. He saw
a couple of nonstrikers carrying signs in the vestibule. He got through the doors
to the lockerroom and about 12 nonstrikers gathered around him and crowded him
against the wall. They threatened to throw him out. Dogariu, who had returned
to work earlier the same week, assumed that this was some of the treatment he could
expect each day. He identified Wesch as one of those in the group around him.
Dogariu was told that if he did not get out they were going to throw him out.
Dogariu left. It is undisputed that at the time Kidle entered the vestibule it was
crowded with nonstrikers and Wesch was near the outer door. Considering all of
the evidence relative to the events of August 4, I am convinced and find that Dogariu
transposed the events of August 1 with those of August 4. I have so found supra,
section C, 43, see footnote 105. The principal issue is whether Dogariu was pre-
vented from entering the plant on August 4. There is ample evidence to support
an affirmative finding.
Joseph Brown, see supra , section C, 15, attempted to go through the vestibule.
He described a number of nonstrikers as carrying signs. One of the sign carriers,
whose identity Brown did not know, kept pushing the sign right close to his face
as he tried to get by. Brown related that there were 2 or 3 ex-strikers and 30 to 40
nonstrikers in the vestibule, "I figured they didn't want me in there-and if they
wanted to get rough I didn't figure we had much of a chance." Brown then turned
around and left.
Stanley G. Filar, see supra, section C, 44, entered the vestibule about 6:57. Only
one person was standing there and he hollered, "Hey, come back here. Here comes
another one." As Filar reached the inner doors a group converged on him. William
Rittenhouse had his arm in front of him and bumped Filar a few times. Filar backed
up, was pushed out of the door, then left.
114 Rittenhouse was not called as a witness. Loft's testimony was that the south en-
trance was loaded with people, Genest was trying to push his way through, elbowing
people, he elbowed Rittenhouse, and Rittenhouse grabbed him and pushed him back out.
I do not credit Luft. The testimony of Hernan, placing this event in the lockerroom
near the drinking fountain , is not credited.
115 Kent related that he talked to Rittenhouse and told him that he had been accused of
pushing Genest Rittenhouse is alleged to have replied "he didn't even know Genest,
hadn't pushed anyone," whereupon, Kent related, he told Rittenhouse, "I didn't want to
find out for sure that he had pushed anybody or we would have to discharge him If he
was doing anything like that he would have to stop it immediately." I do not credit Kent.
118 Wesch testified that he was standing near the outer door with about 10 or 15 people
behind him, that the group behind him was pushing, and that he put his hands out so he
would not go through the door and brushed Kidle 's shoulder . Wesch's testimony, under
oath, at variance with his testimony herein is noted infra, footnote 118 I do not credit
Wesch.
THE CROSS COMPANY 1077
The testimony of Respondent's nonstriking employees reveals numerous conflicts
relative to the events of August 4; only a sufficient sample are set forth. Some as-
serted they were fearful a picket line would be established and crowded into the
vestibule to see what was happening at the gate. This assertion collapsed with an
admission that the gate was not visible from the south vestibule entrance. Some as-
serted that they did not seek to exclude the returnees, rather the nonstrikers "re-
quested" the strikers to go around to the north entrance. However, Kent admitted
he was advised the ex-strikers were sent home because the nonstrikers did not wish
to be locked in the plant with them if a picket line was established. Justification for
the shoving, found supra, was asserted, as distinguished from denial. To the extent
the testimony of the nonstrikers is at variance with that of the returnees, as set
forth herein, I credit the latter. I find it unnecessary to set forth more than a
sample of this conflicting evidence.
About 6:20 a.m. on August 4, Guard Scott saw approximately 12 people across
the road at the union trailer, of these 6 cars later entered the plant, the number of
ex-strikers in the cars was not specified. Scott called Kent and told him there was
a group "ganging" across the street. He did not know their intentions. Kent told
him to call the Frazier police. Scott later saw 12 or 14 of these ex-strikers come
back out, Arthur Derbin being the first one to return. Kent's testimony that Scott
advised him that a "picket line might be reestablished" is not credited.
Babuska was in the laundry room, in the lockerroom, when he heard someone, un-
identified, say "Looks like we are going to have action today," or something like
that. Babuska related, "I didn't wait to get the story. I just closed up and went to
the gate." He estimated the time as being about 6:40.
Babuska related that the first day of the strike, August 4, 1959, Milton O. Cross, Jr.,
president, told him there was too much work at the gate for one man "and if anytime
you see anything going on at the gate, I want you to report to the gate." It was for
this reason that Babuska went to the gate on August 4, 1960. Scott testified he did
not call Babuska, but it was after Scott's call to Kent at 6:20 that Babuska came out.
Babuska testified that Kent did not call him and tell him to go to the guard shack,
and the only reason he went was that he heard the employees saying that there were
"guys" gathering across the road. Kent first testified that he did not order Babuska
to leave his post and go to the guard gate. Kent then acknowledged that in a state-
ment he gave to a Board agent on October 27, 1960, he stated that after alerting the
sheriff's office and Superintendent Riddell he requested Babuska to go to the gate.
Kent then testified that he did not actually remember, when he testified, sending
Babuska to the gate. It is undisputed that there was no guard in the lockerroom
after Babuska left. Even though nothing was happening at the gate, Babuska did
not return to the lockerroom until 7:15.
George Ferguson, machine shop stockroom attendant, arrived between 6:45 and
6.50. He saw a congregation of union officials and shop employees across the road.
When he arrived he found the south vestibule crowded and went in through the
north entrance. Ferguson went into the plant and brought out some signs he had
previously prepared. The signs were made on brown corrugated paper, nailed to
"pieces of packing cases." The inscriptions were: "1959-1960 Taking a Lickin'
Leach's Peaches"; "1863, Liberation of the Slaves, 1959, Liberation of Cross Em-
ployees. They called us Niggers too"; "Unfair to Disorganized Labor"; "Captured
August 1959, August 1960 More Merrelli Meddling"; "Remember August 4, 1959,
We Do"; and "L & M-Cross Scabs Fight Back." Ferguson explained the L and M
meant Leach and Merrelli, union officials. Ferguson handed these signs to several
of the nonstrikers who carried them in the lockerroom and in the vestibule.117
James C. Allen, a nonstriker, arrived between 6:25 and 6.35 and saw a group in
the south vestibule. He had noticed the group across the road as he came in and
also saw some men up on the railroad tracks which is behind the powerhouse (no one
else testified to anyone being on the railroad tracks that morning). Allen climbed
on top of a dirty clothes hamper, which was midway between the two vestibule doors,
so he could see over the heads of the men in the vestibule. Allen related that Derbin
tried to come in through the south vestibule and was told that he should use the
other door. He related that the other ex-strikers were similarly told to go around
to the other door. Allen described 25 or 30 nonstrikers as being in the vestibule
and he saw pushing but he did not think anyone was pushed "deliberately." Allen
saw Rittenhouse put his hand on Genest's shoulder, then Genest walked away.
17 Ferguson's testimony was that he had prepared these signs for a party that they
were to have at Luft's home in celebration of the anniversary of the strike. I find the
reason for preparation of these signs unimportant. The undisputed fact is they were
used on the morning of August 4 on Respondent's premises.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zelinsky, Popovich, First, and Behrends arrived together about 6:45. Zelinsky
related that pickets were "all lined up" on the right-hand side of the road. This
would be the side opposite the plant's entrance. Zelmsky saw a group in the south
vestibule "all watching the gate, the entrance in other words, to the plant." The
whole south vestibule was crowded with people and some were carrying signs.
Zelinsky saw Derbin and Papcun in the parking lot, they turned and walked away.
He did not see any one struck or pushed. Popovich related that the south entrance
was packed with employees. He noticed signs being carried in the lockerroom. He
described the group in the lockerroom as almost all the employees. Popovich had not
seen any unusual signs in the plant immediately preceding August 4. First saw about
12 to 15 men on the opposite side of the road from the plant entrance. When they
arrived at the lockerroom, First noticed a group gathered in the south vestibule. He
saw some of the former strikers turn around, go back to their cars, and drive off.
First saw four or five signs being carried in the lockerroom.
Harold Wilson also arrived at 6:45. He noticed 10 or 12 cars parked across the
road. He went into the lockerroom, changed clothes and stayed there a few minutes,
and then went into the plant. He came through the south vestibule and did not see
anything unusual. There might have been 5 to 10 men inside the lockerroom near
the south entrance inner door. He did not see any signs while he was in the locker-
room . However, he recalled a sign on the machine shop tool crib that said some-
thing about an anniversary, which he noticed on the day of the anniversary, August 4.
James Hernan saw a number of men in the lockerroom on August 4, but they were
scattered all over the lockerroom and not congregated in any particular place.
He thought he saw a picket line as he entered the plant and there were quite a few
people at the south entrance. He saw signs in the lockerroom and also saw a sign
relative to "Leach's Peaches" on the machine shop tool crib on August 4. When
Genest and Derbin came in the door he saw a group go over and start talking to
them and heard someone holler, "You are not going to lock us in here with you, why
don't you go home." Hernan placed Derbin and Genest as being between the drinking
fountain on the south wall and the south entrance door in the lockerroom.
Engelhard (Phil) Luft arrived at the plant about 6:50. He noticed that the south
entrance was blocked with people. He went in the north entrance, then proceeded
toward the south vestibule. Derbin came through the group and ran right into him.
Luft testified that Derbin pushed him. Luft thereupon pushed Derbin out of his way.
Derbin then left. Luft acknowledged that Derbin later filed a criminal charge against
him. Luft saw Genest trying to elbow his way through the people in the south
vestibule. According to Luft, Genest hit Rittenhouse with his elbow and Rittenhouse
grabbed Genest by his jacket and pushed him back out again. Luft saw four to six
signs in the lockerroom that morning . Luft saw a number of the ex-strikers come up
to the door, note the people in the south vestibule, then go back to their cars.
Charles Wesch did not see any signs being carried by anyone. He had arrived be-
tween 6:40 and 6:45 that morning and was standing next to the outer door of the south
vestibule. The men in the lockerroom were just standing or sitting, drinking coffee
as they always did. Wesch related that Kidle opened the door, was requested to go
around and use the other door, the crowd behind him was shoving, and he was pushed
forward. He put his hand out to stop himself and his hand pushed Kidle's shoulder.
Kidle got his foot half way in the door when this incident occurred. Wesch was
unable to remember if he gave a substantially different version of this incident in his
testimony, under oath, before Justice of the Peace Castellucci in September 1960.118
Robert Woods acknowledged that he was in the south vestibule that morning.
He could not recall seeing Genest. He testified that he did not know Kidle. Woods
acknowledged that he testified in Justice of the Peace Castellucci's court but could
not recall if the event about which he testified involved Kidle, or if the events about
which he testified concerned August 4. The fact is he did testify relative to the
incident involving Kidle and Wesch, in defense of Wesch.119
118 Wesch's previous testimony was that he entered the plant about 10 or 12 minutes
to 7 Bob Woods and Rittenhouse were standing alongside of each other at the easterly
side of the south vestibule entrance. The vestibule was packed with people when Kidle
opened the door. Kidle advanced two or three steps and "he run right into Bill Ritten-
house and Bob Woods right between them, and he came around and he went right between
me and Ray and he knocked me off my balance when he came in."
119 Woods' testimony, before Justice Castellucci, was that when Kidle opened the door
Woods moved back and Kidle ran into Wesch and partially knocked him off balance. There
are other discrepancies in the testimony of Wesch and Woods in this case as compared
with the testimony of these two before Justice Castellucci.
THE CROSS COMPANY --1079
It is undisputed that a number of Respondent's supervisory personnel used the
lockerroom for ingress to the plant, and had lockers therein where they kept work
clothing. The testimony of these supervisors, relative to the events of August 4, is
next set forth.
Foreman Hargreaves saw employees walking around with "banners" in the locker-
room on August 4. He did not pay any attention to these signs or see what they said.
He arrived between 6:45 and 6:55 a.m. He could not recall the identity of the em-
ployees carrying the signs . He also saw a dummy hanging from the ceiling. (Har-
greaves obviously was confused since the dummy incident was May 21, see supra,
section C, 3.) Hargreaves surmised they were "just a mocking" the picketing of
the prior August 4. He asserted, "I couldn't see any harm in that." He made no in-
quiry and took no action.
Foreman Sujuki arrived about 6:50 a.m. He saw nothing unusual in the locker-
room, and did not see anyone carrying signs. He heard later that some of the ex-
strikers were not able to get into work that day.
Foreman Stanley Balchunas "could not recall" seeing any signs carried in the
lockerroom. He explained that he was delayed by his conversation with Derbin, supra.
The timecards of Balchunas and Sujuki reflect that they punched in before 7 a.m.120
When Balchunas entered the lockerroom he saw 10 nonstrikers standing together, but
he could not recall if they were inside the lockerroom or in the vestibule. He did
not ask any questions about the exclusion of Derbin.
Foreman Charbonneau could not recall if he saw any signs. He had heard so
much talk about it he was uncertain what he had seen and what he had not seen.
He normally punched in about 6:45 a.m. He did not recall anything unusual happen-
ing on August 4.
Foremen Ress and Winke were on vacation. Foreman Thaxton customarily ar-
rived at 6 a.m. and went directly into the plant.
Next considered are the events subsequent to the exclusions set forth above.
Babuska related that after he got to the entrance gate some of the former strikers
started coming back out. Babuska stopped them and started taking their names.
He described Arthur Derbin as the first one out. Derbin advised him that the
nonstrikers would not let them in. Babuska later called Kent. Kent advised Babuska
to advise those excluded to return to work and they would be paid from 7 o'clock.
Robert Mills credibly testified that it was about 7:15 when Babuska advised him
that Kent had said that the ex-strikers should go back to work and they would be
paid for the time they had missed and would be given protection. Mills advised
Babuska that the men would not stay at work "under the jungle warfare that had
been going on." Mills accompanied Derbin, Genest, and Kidle to Mount Clements
where criminal complaints were filed. It is undisputed that the ex-strikers all left the
area not later than 7:20.
Meanwhile, according to Kent, Kent called Stanley Balchunas and requested him
to go into the lockerroom and clear out anyone that might be still there. Kent
asserted that Balchunas later advised him that he went into the lockerroom 1 or 2
minutes before 7 and saw only a handful of people, whom he told to go to work.
Stanley Balchunas first was unable to recall going back into the lockerroom, having
arrived just before starting time , because he stopped to talk to Derbin. Later he re-
called receiving a telephone call from Kent, who told him to find out if the non-
strikers were keeping the strikers from entering the plant. He went into the locker-
room but did not find any ex-strikers there. However, he placed the telephone call
from Kent as being between 7:05 and 7:30.
Kent arrived at the plant about 7:40 a.m., and was advised by Scott that all of
the ex-strikers had driven away about 20 minutes before. While he was enroute
to Balchunas' desk, Kent was stopped by Luft, Karbula, and Czekis. Kent's version
was that these three inquired as to what was happening at the front gate. Kent
responded that there was no one at the gate. The three then advised Kent that "they"
were afraid there might be a demonstration and "they" sent the ex-strikers home
because they did not want to be kept inside the plant with them in the event of a
resumption of picketing.121 Kent later talked to Rittenhouse, Derbin, Babuska, and
120 Since Derbin was the first one ejected the other events must have occurred while
Balchunas was present on the plant premises.
121 Luft was positive that Kent was not advised by Czekis, Karbula, or himself that the
men in the lockerroom had sent the returning strikers away. Czekis, on the other hand,
was certain that Luft and Karbula were not with him when he talked to Kent that morn-
ing Karbula did not testify. I credit Kent.
I have found it unnecessary to set forth the implausible story of Czekis relative to the
events of August 4.
1080 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stanley Balchunas. While he asserted, "I was trying to make a run down on all
the incidents that had been reported," he did not talk to Genest, Kidle, and the
others who were excluded after they returned to work on August 5, except Derbin.
It is undisputed that no disciplinary action ensued. Neither had disciplinary
action ensued from prior exclusions.
Respondent contends that the nonstriking employees thought a picket line was
to be established on August 4 by reason of the appearance of union officials opposite
the entrance. Respondent urges that while a "misunderstanding" may have resulted
between two groups of employees, Respondent was not advised of anticipated trouble.
Obviously the supervisory force saw the same signs in the plant which were seen by
the ex-strikers. It was these signs that caused Mills, Oravec, Miller, and Gauci to
appear on August 4. The others in the union group were returnees. Guard Scott
saw six cars from the group across the road enter the plant gate. The maximum
number of people across the road before 7 a.m. appears not to have exceeded 12.
No signs of any sort were visible, and no one has asserted that a "picket line" was
actually established. It is inconceivable that these union adherents would seek to
enter the plant to work if the Union was establishing a picket line. I do not believe
the nonstrikers were not cognizant of this fact.
Respondent urges there was no deliberate or concerted plan to exclude the re-
turnees who sought to report on August 4. The credited testimony of Kent relative
to his discussion with Luft, Karbula, and Czekis is to the contrary.
Respondent's contention that the crowding of the vestibule was due to belief that
a demonstration would occur at the gate is implausible for obvious reasons. The
gate is not visible from the vestibule door. Most of those who had assembled across
the road were the returnees who sought to go to work.
Finally Respondent urges that steps were taken to rectify the situation "as soon
as the events of that morning were brought to the attention of Respondent." Quite
the contrary is true. Babuska having deserted his normal post to go to the gate
does not assert he found any abnormal condition there. Yet, after Derbin advised
him the returnees were being excluded, he made no effort to return to the lockerroom
until 7:15 or later. Stanley Balchunas was advised by Derbin he had been ex-
cluded. Derbin was the first one so excluded. Balchunas was on the premises
when the others were excluded and did nothing. Hargreaves, admittedly in the
lockerroom during the time these activities reached a peak, 6:45 to 6:55, did nothing.
While Foremen Sujuki and Charbonneau may have the poor memories they pro-
fessed, it does not follow that they did not observe what was going on. They did
fail to act, however. It is reasonable to infer that Kent knew that Thaxton regularly
arrived at 6 a.m. Scott called Kent at 6:20, but Kent made no effort to contact
a supervisor until after 7 a.m., when he called Stanley Balchunas.
Respondent's effort to have those excluded return to work after 7 a.m., does not
modify the fact of exclusion.
That the employees named were in fact excluded and prevented from reporting
for work appears beyond dispute on the basis of the credible evidence herein. I so
find. Respondent's responsibility for these exclusions is considered infra, section I, 1.
46. August 9, 1960, injunction
On August 9, 1960, Walter Karolak, Stanley Filar, and David Kidle obtained
an ex parte injunction in the Circuit Court of Macomb County, against Respondent
and Paul Czekis, George Ferguson, Ralph Baker, Charles Wesch, Jerome Waleke,
Frank Kinsch, William Rittenhouse, Michael Zito, Robert Woods, Englehard P. Luft,
John Doe, and Richard Roe. The injunction was sought "on behalf of a class
similarly situated." The restraints imposed were: (1) from obstructing or inter-
fering with free and unhampered passage into and out of the plant; (2) from
molesting, hindering, preventing, disturbing, or interfering with by unlawful threats
or charges, or by congregating in groups in the lobby, or the lockerroom, or at
the work benches or other areas of work-inside the plant, with the right to pursue
employment as employees at Respondent's plant; (3) from encouraging, inciting,
inducing, calling, procuring, authorizing, or otherwise causing other employees to
congregate in groups around plaintiffs and their class, in Respondent's plant, for
the purpose of molesting or interfering with their right to work; and (4) from touch-
ing, cursing, swearing, or threatening plaintiffs and their class with bodily harm,
or otherwise attempting to force plaintiffs and their class to refrain from their em-
ployment at Respondent's plant. A motion to dismiss the cause of action was filed
by Respondent on August 18, 1960. No further action has been taken in that
matter.
It is undisputed that on August 9, 1960, Arthur Derbin served a copy of the
restraining order on Respondent, by delivering a copy to Kent. Kent had copies
THE CROSS COMPANY 1081
prepared and placed on the plant 's bulletin boards . It is undisputed that the harass-
ing and objectionable conduct of the nonstrikers , outlined above , thereupon ceased
forthwith.
D. Alleged assignments to "more arduous less agreeable job tasks." Alleged
discriminatory discharge of Sassano
Background
The contentions under this and the following section , D and E , relate to work
performed on the filter bed and the digging of ditches for the purpose of uncover-
ing pipes near the powerhouse.
When the Respondent built its present plant it was essential that it provide a septic
tank and filter bed as part of a sanitary system . It was intended for use only for
a 2-year period , until Respondent could hook onto the public sewer system. Re-
spondent moved to its present location early in 1957 . An embankment was built
above the existing grade level, and a rectangular pit, 20 by 30 feet, is the septic tank
which receives the raw sewage from the plant. There is also a pump pit, 20 by 10
feet. Two pumps work automatically as the liquid rises and the affluent is pumped
into filter beds, then filters down through the sand which is about 30 inches deep,
then through gravel which is 1 foot in depth. The top of the embankment is ap-
proximately 1 foot above the top of the sand. The embankment is approximately
41/2 feet above grade level.
In 1959, before the strike, dirt which was carried into these filter beds by the
affluent settled and impeded the filtering process. Removal of the sand and its
replacement with new sand began about June 1, 1959, and was interrupted by the
commencement of the strike on August 4, 1959. A good deal of the sand was re-
moved and replaced with new sand before the strike. Romola Sylvester, a main-
tenance employee, built a wooden track from the level of the sand to the top of
the embankment, then down its side and over to an area near the powerhouse. The
sand was placed in wheelbarrows and some of it was wheeled to the place where
it was dumped. However, part of the time a hi-lo picked up a hopper, into which
the wheelbarrows had been dumped, and the hi-lo was used to move the sand from
the embankment. Walter Karolak, see supra, section C, 34, and Joseph Horonzy,
see infra, section E, both powerhouse employees, were the only employees engaged
in the removal and replacing of sand from the filter beds before the strike. How-
ever, in the fall and winter of 1959 and spring of 1960, maintenance men Phillips,
Bushell, and Majetti, and paint snaggers Walter Karita and Erdei, all nonstrikers,
were used to rake the top of the sand to remove the accumulated dirt.
In the spring of 1960, prior to the termination of the strike, it was discovered that
some of the underground pipes, which ran from the plant to the powerhouse, were
leaking. Phillips and Bushell , maintenance men, were taken off the filter bed project
and assigned to digging ditches to uncover the pipes, to locate the leak , and reseal
the pipe. A ditch 4 feet deep was required.
Sam Sassano , when recalled June 1, and John Fassbinder , when recalled June 6,
were assigned to digging the ditches described . Mykola Holowan, recalled June 1,
and Jacob Krist, recalled June 10, were assigned to both jobs. All four were in
the janitor-sweeper classification . Joseph Horonzy , recalled on June 1 and put on
short hours, because of alleged lack of work , and Walter Karolak, who was not
recalled until July 11, both of whom had worked on the filter beds before the strike,
were not reassigned to that work after they returned. Romola Sylvester and Majetti,
both maintenance men, replaced the siding in the septic tank . Sylvester was then
detailed to washing the sand which had been removed so it could be reused. Majetti
went back inside the plant where his assignment was "preventive maintenance" on
machinery.
It is alleged that Respondent discriminated against Sassano , Fassbinder, Holowan,
and Krist by assigning them to more arduous and less agreeable job tasks than those
previously performed by them , or then being performed by other employees in the
same job classification . Respondent does not dispute the nature of the work assign-
ment and does not claim that janitor-sweepers had previously been used to do this
type of work . However , Respondent contends that the work was not more arduous
or a less agreeable job task.
The normal duties of an employee in the janitor-sweeper classification appear
to have varied according to the particular assignment . Those in the machine de-
partment had two principal duties, cleaning away chips and scrubbing floors. To
clean away chips a steel rod three-eighths inch in diameter and 4 feet long with
a curved loop and steel plate is used as a rake. The chips are cast iron and steel
cuttings from material in the machining process. These chips fall on tables 3 feet
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
high and are raked into a wheelbarrow, or into gratings 18 inches high from which
they are raked into a shovel and dumped into a wheelbarrow , or onto the floor from
which they are swept into a shovel . A crane is used to empty the wheelbarrow into
a hopper . The floor scrubbing was done , when needed , and on an alternating basis,
by one sweeper operating a scrubbing machine while another operated a suction
machine which picked up the liquid . These were the normal duties of Sassano
who worked in the light machine department.
Janitor -sweepers in the assembly department , in addition to cleaning chips from
machines and scrubbing floors, wiped away oil which accumulated around ma-
chines, changed coolant in the machines by draining out-used coolant and replacing
it, and cleaned coolant troughs which required lifting gratings . These gratings and
troughs require scraping and wire brushing . When an assembled machine was moved,
it was necessary to remove riser blocks to clean the area. These blocks weighed
from 15 to 72 pounds . The lighter ones were carried or tumbled to a storage area,
while the heavier ones were moved on skids. Before the strike Fassbinder , Krist,
and Holowan worked in the assembly department at least a portion of the time.
Janitor-sweepers also cleaned out the paint pits in the paint department, which
are 5 feet deep and require wire brushing . Krist and Holowan did this before the
strike. Janitor -sweepers cleaned toilets and toilet rooms, washed walls in the plant,
cleaned out shipping and receiving wells, and piled lumber.122
1. Sam Sassano-June 1 to July 15
Sassano, janitor-sweeper , was recalled on June 1, 1960. His foreman was William
P. Reece, plant engineer . He was initially employed by Respondent in February 1952.
There are two allegations concerning Sassano in the consolidated amended com-
plaint , as amended. In addition to the assignment to more arduous and less agree-
able job tasks it is alleged that on or about July 15, 1960, Respondent discharged
Sassano and that said discharge was discriminatorily motivated.
It is undisputed that when Kent interviewed Sassano relative to his reinstatement,
Sassano presented a statement from Dr. Sultzman that Sassano should return to light
work. Sassano had been in an automobile accident in 1959, before the strike, and
had suffered a whiplash neck injury. On May 27, Kent sent Sassano to the Emer-
gency Industrial Clinic for an examination Kent asserted that they were "a little
leary" about putting Sassano to work unless the doctors at the clinic would approve.
Dr. Levine, of the clinic, advised Kent that Sassano should be put on light work.
Kent so advised Superintendent Riddell. Sassano reported on June 1. Plant Engi-
neer Reece assigned him to digging a trench to uncover the leaking pipes. The
trench required digging to a depth of 4 feet . Sassano immediately advised Reece
that digging ditches was not his job. Reece responded that it was his job now and
that if he did not wish to dig he should punch out. Reece acknowledged that
Sassano also complained about the work bothering his neck.
Sassano continued to dig ditches on June 1 and for 1 hour on June 3. On June 2
because it was raining , he was assigned to washing the walls and ceiling in the rest-
room in the lockerroom . Sassano asserted that he had never previously washed
walls or a ceiling. However , there can be little doubt from the evidence in the
record that the washing of walls and ceiling in the restroom was work normally
assigned to someone in the janitor -sweeper classification.
Sassano worked 1 hour on June 3 digging a ditch. He then went to Reece
and advised him that his neck was so sore he could not stand it any more and re-
quested that he be sent to the clinic . Reece refused and told him to go to see his
own doctor. Dr. Sultzman advised Sassano to stay home until he felt better and
to wear his surgical collar. On June 6, Sassano delivered a letter to Kent in which
Dr. Sultzman stated that Sassano was previously advised to do light duty , i.e., his
usual work , that because of the ditchdigging work Sassano had a recurrence of pain
and had to again wear his surgical collar, also that Sassano would have to remain
off work at that time.
On June 6, Kent advised Sassano to go home and he would be called when needed.
Within a day or two after July 1, Sassano delivered a statement of Dr. Sultzman,
dated July 1, to Kent. Dr. Sultzman advised that Sassano could return to his
regular job as long as it does not require any severe labor , such as ditchdigging.
Kent sent Sassano to the clinic for examination . The clinic approved Sassano's re-
turn to work.
122 Riddell asserted that janitor -sweepers had been used to shovel snow , to cut grass,
and to cut weeds in the field and ditches . Absent evidence of the time , place , and identity
of janitor -sweepers so assigned , these assertions are not credited.
THE CROSS COMPANY 1083
On July 15, Sassano was advised to report for work on the night shift. He went
to Kent's office and requested that he be placed on the day shift because of his
seniority 123 or, in the alternative, that he be permitted to work 8 hours on the
night shift. He presented Kent with a statement from Dr. Oetting that he had
a kidney stone. Kent advised him he had to work on the night shift and work 10
hours or quit. Thereupon Sassano advised Kent that rather than quit, he would
retire. Sassano then executed the necessary forms to place him in retirement
status.
Reece acknowledged that Sassano complained on June 1 that the work was hurt-
ing his neck. Reece asserted that he did not agree with Sassano.124 Reece knew
that Sassano had been in an automobile accident prior to the strike. Reece ex-
plained that since this was a nonindustrial accident, while they would not refuse to
let Sassano go to his own doctor, "we didn't have to finance it."
Reece, as plant engineer, was the supervisor of the employees in the janitor-
sweeper classification, maintenance employees, and powerhouse employees. Reece
was uncertain whether it was he or Superintendent Riddell who decided that Sassano,
Fassbinder, Holowan, and Krist, all recalled strikers, would be placed on the ditch-
digging and filter bed work, or placed inside at janitor-sweeper work. Reece
acknowledged knowing that Sassano and Fassbinder were over 60 years of age and
that other janitor-sweepers, some hired during the strike, were in their thirties.
Riddell, on the other hand, asserted that Sassano and Fassbinder were assigned
to Reece for the purpose of completing the project uncovering pipes. Riddell
acknowledged that Fassbinder worked on this assignment only a few minutes, due
to a previous back injury, and Sassano only a few hours, due to his neck injury.
Kent advised Riddell that both Fassbinder and Sassano had objected to the ditch-
digging assignment. At the time Riddell decided to recall Sassano, he was aware
of the fact that Sassano had worn a surgical collar because of his neck injury.
Riddell had been advised by Kent that the clinic had recommended that Sassano
be put on light work. Riddell knew this before he made the assignment of Sassano.
Riddell acknowledged that at the time Sassano was recalled there was other work
available in the plant that Sassano was capable of doing to which he might have
been assigned.
General Counsel urges that the refusal of Kent, on July 15, to allow Sassano to
work an 8-hour shift was a departure from established policy and was discrimina-
torily motivated. In support a provision of the contract, continued in force as a
matter of policy is urged. Kent acknowledged that the working conditions of the
contract between the Union and Respondent were continued, after expiration, as a
matter of policy. The contract provides that "for the purpose of computing over-
time and premium pay" the regular workday is 8 hours. It also provides, "Al-
though overtime work is not compulsory the Union will not restrict overtime in any
manner and employees will cooperate when requested by the Management to per-
form overtime work." Riddell asserted that the practice was that employees were
required to work "scheduled" hours, and deviations were permitted only to a lim-
ited degree if a satisfactory reason is offered for the desired deviation. In June
and July 1960, the plant was on a 58-hour week, 5 days of 10 hours and 8 hours
on Saturday. I find it unnecessary to reach this question.
At the time of the strike, August 4, 1959, Respondent employed 10 janitor-
sweepers, 3 of these either did not strike or returned during the strike and were
working on June 1, 1960. Respondent hired five in this classification during the
strike, one of whom was discharged on June 4, 1960. The provision of the union
agreement that seniority by classification would determine the order of layoffs and
recalls was followed on the recall of these strikers.125
Riddell acknowledged that Fassbinder was recalled on June 20 and assigned to
the job of janitor-sweeper in the light machine department on the night shift, Riddell
asserted they did not call Sassano at that time because they did not have any
other opening.126 The only change in the number of sweepers during May to
August 1960, indicated by Respondent's records, were the discharge on June 4, 1960,
of Scott who was first hired on May 16, 1960, the recall of the four employees
144 It affirmatively appears in this record that employees were promoted to day-shift work
on the basis of seniority, by classification
'- The claim of Reece that he told Sassano if the work was too heavy to take half a
shovel full was denied by Sassano I credit'Sassano
'5Holowan (1951) and Sassano ( 1952) were recalled June 1, Fassbinder (1953) was
recalled June 6, Krist (1954) was recalled June 10, and Wisinski (1955) was recalled
Jul-, 6.
i'a Since Riddell also asserted there was work in Sassano's classification on June 1, I do
not credit this statement.
1084 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
here considered, and the recall of Wisinski on July 6, 1960. Wisinski was the
jamtor-sweeper with the least seniority of the janitor-sweepers who had been on
strike.
Superintendent Riddell acknowledged that when Sassano was recalled on June 1,
there was work in his classification available to which he was not assigned. It thus
appears, and I find, that Sassano was recalled on June 1 and assigned to work which
was more arduous and less agreeable than the job tasks previously performed by
others in the same classification. Work in his classification was available but he
was not assigned to it. Respondent knowing of medical advice, from its' own doctor
as well as the employees' doctor, that Sassano should be placed on light work, as-
signed him to ditch-digging which he was unable to perform, as a result of which
he was further incapacitated. Respondent knew at that time that Sassano was in-
capable of performing this heavier work. Respondent's contention that the work
was not heavy work is patently without merit. Both Fassbinder, see infra, and
Sassano were thereafter advised they would be recalled when lighter work was avail-
able. Fassbinder, when recalled on June 20 for lighter work, was assigned to
janitor-sweeper duties in the light machine department, where Sassano had previously
worked. No evidence was offered by Respondent why Sassano was not thereafter
recalled and assigned to the work in his classification admittedly available on June 1.
Under the circumstances outlined herein, and being mindful of the credible evidence
in the record as a whole, I find the assignment of Sassano on June 1, to work he
could not perform, was discriminatorily motivated and was a pretext to effectuate
his separation from Respondent's employment. Respondent's responsibility and ap-
propriate findings are considered infra, section I, 6 and 7.
2. John Fassbinder 127-June 6 to July 5
Fassbinder, janitor-sweeper, was recalled on June 6. His foreman was Plant
Engineer Reece. He was initially employed on March 26, 1953.
It is alleged in the consolidated amended complaint, as amended, that Fassbinder
was assigned to more arduous or less agreeable job tasks. The only relief sought
is a cease-and-desist order.
When Fassbinder reported on June 6, Reece advised him that there was nothing
to sweep. Reece then took him to the powerhouse and told him he would have to
dig. Fassbinder responded that he had hurt his back in 1955 and would not be
able to do any digging. The digging referred to was the same work to which
Sassano had been assigned, opening a trench to uncover pipes. Reece then advised
him to only put a little bit on the shovel. Five minutes later Reece returned and
sent Fassbinder to the clinic for an examination. Fassbinder was at the clinic
for 3 hours and then went home. The following morning he returned to the plant
and reported to Reece. Reece took him to Kent's office and told him to wait for
Kent's arrival at 8 o'clock. Kent sent him home, advising him that he would be
recalled when light work was available. Fassbinder was recalled on June 20 and
was assigned to janitor-sweeper duties in the light machine department on the night
shift. Fassbinder worked until the night of July 5 when he left by reason of a
backache. He did not work thereafter and subsequently retired in April 1961.
Reece acknowledged that when Fassbinder advised that the digging would be
detrimental to his back, which he had previously injured, Reece went to the per-
sonnel department and found that Fassbinder's injury was an industrial injury which
he had suffered sometime prior to 1957. Reece then recommended that Fassbinder
be sent to the clinic.
I find it unnecessary to repeat the basis of my findings, set forth in the preceding
section , that the assignment of Sassano and Fassbinder to the job of ditchdigging
did in fact constitute an assignment to more arduous and less agreeable job tasks
and was discriminatorily motivated. Appropriate findings are considered infra,
section I, 6.
3. Mykola Holowan-June 1 to December 18
Holowan, janitor-sweeper, was recalled June 1. His foreman was Plant Engineer
Reece. He was initially employed on April 16, 1951. Holowan was still employed
at the time he testified.
It is alleged in the consolidated amended complaint , as amended , that Holowan
was assigned more arduous and less agreeable job tasks. The only relief sought is
a cease-and-desist order.
Holowan reported on June 1. Reece assigned him to the job of removing sand
from the filter bed and replacing it. He continued at this assignment for a period
1v Name corrected.
THE CROSS COMPANY 1085
of 4 to 6 weeks and continued working at various other jobs in the plantyard until
sometime in August . He was assigned to filling in the trench , which had been dug
to uncover the pipes , for approximately 3 weeks, and to cutting grass.
When he was reassigned inside the plant in August , he and Krist were placed on
the job of scrubbing the floors continuously for a period of 7 weeks . He and Krist
were then assigned to washing the walls and doors in the office section of the build-
ing. Holowan credibly testified that he had never been assigned to washing the
walls and doors in the office previously and that he had not scrubbed floors con-
tinuously prior to the strike. It was not until December 18 that he was placed on
his regular sweeping job. Holowan asserted that prior to the strike he only
scrubbed floors when machinery was moved which , on an average, would be about
once a month.
Superintendent Riddell acknowledged that Holowan was recalled and placed on
the work of changing the sand in the filter beds . Horonzy, a powenccuse employee,
see infra , who had done that type of work prior to the strike , was not placed on
it when he returned the same day as Holowan . It was Riddell who determined who
would be recalled and when. Reece acknowledged that he could have placed Sassano,
Fassbinder , Holowan, and Krist inside the plant and transferred other men outside,
but he deemed it more feasible to use these men on the filter bed and ditchdigging
assignments.
Reece acknowledged that prior to the strike floor scrubbing was done very inter-
mittently and was "rotated" among the janitors who would stay on floor scrubbing
for only a short period and then someone else would be assigned . Reece denied
knowing who assigned Holowan and Krist to the continuous job of scrubbing or
knowing that they in fact had such an assignment . However, he admitted "it is
very possible" that they did do the floor scrubbing for more than a month. Reece
then took refuge in the assertion that by "rotation " (on scrubbing ) he meant a
period of 6, 9, 5, or 4 months or a year "whenever we thought about it." Reece
acknowledged that prior to the strike a man might be on scrubbing for a half hour,
a day, or a week , then there would be no more scrubbing for a period of time.
Reece then acknowledged that the scrubbing was done in each area by the janitor
assigned to that particular area. Wall washing was similarly rotated by taking a
janitor-sweeper whose area was in good condition and putting him on wall wash-
ing for several days , then rotating and using someone else To the extent the testi-
mony of Reece and Riddell conflicts with that of Holowan, I credit Holowan.
Respondent asserts this claim is predicated on the failure of Respondent to shift
other janitor -sweepers to this outside work, and allow Holowan and Krist to work
inside This assertion is without merit. Respondent contends Holowan and Krist
never complained about the filter bed assignment . Determination of the existence
of a violation of the Act is dependent upon all surrounding facts, the protestation
of an individual is not an essential condition precedent under the facts herein. How-
ever , in passing , I note the protestations of Sassano were unavailing.
Respondent sets forth errors in the testimony of Holowan and urges that all of
his testimony should be discredited . I do not agree . There is corroborative evidence
of Krist and other extrinsic evidence in the record to support the portions of Holo-
wan's testimony which I have credited . The balance of Holowan 's testimony has
been disregarded because of contradictions.
Accordingly , I find the assignment of Holowan to the filter bed work, trench
filling work , and grass cutting was an assignment to more arduous and less agree-
able job tasks than previously performed by others in the same job classification.
I further find said assignments were discriminatorily motivated . Appropriate findings
are considered infra, section I, 6.
4. Jacob Krist-June 10 to December
I have found supra, section C, 21, that Krist reported on June 10 and that by
reason of the events in the lockerroom that morning Krist left at 7:18 a.m. Krist
was still employed at the time he testified.
It is alleged in the consolidated amended complaint, as amended, that Krist was
assigned to more arduous or less agreeable job tasks than previously performed
by employees in the same job classification. The only relief sought is a cease-and-
desist order.
Krist went to work on Monday, June 13. Reece took him to the area near the
powerhouse and assigned him to making mortar from cement, sand, and tar for
2 days. Bushell and Phillips, maintenance employees, worked with him. Krist then
did the same ditchdigging job, described supra, to which Sassano and Fassbinder had
earlier been assigned, for approximately 2 weeks. He worked with Holowan,
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bushell and Majetti for approximately 3 weeks on removal of the sand from the
filter bed and its replacement. Krist shoveled dirt back into the trench and tamped
it for 2 weeks. Krist also cleaned out ditches and cut grass.
In August, Krist and Holowan were assigned to cleaning floors by running the
scrubbing and suction machines. They continued on this asignment for a period of
7 weeks. Krist credibly testified that he and Holowan were the only ones doing
scrubbing during that period of 7 weeks. However, during the same period they
were also assigned to cleaning out the pit in the paint shop. It is not claimed that
cleaning the paint shop is other than normal work for the janitor-sweeper classifi-
cation . I have found supra, however, that previously the use of the scrubbing and
suction machines was rotated. Janitor-sweepers normally used these machines only
in the area in which they were assigned, not throughout the plant. Krist and
Holowan were next assigned to washing the tile walls in the office section of the
building. It does not appear that these walls had been previously washed. How-
ever, wall washing was janitor-sweeper work. Krist credibly testified that prior to
the strike he had never been assigned to digging or filling ditches, cleaning out
filtration beds, digging sand, or cleaning out ditches. He had scrubbed floors on a
rotation basis, never more than 2 or 3 days at a time. Sometimes he would scrub
the floors as frequently as at 10-day intervals and at other times it might be several
months. Usually it was done when a machine was moved. Krist obviously was
referring to assembly department work on these occasions.
Riddell asserted that Krist was recalled because Reece had indicated that he
needed someone to clean weeds out of the drainage ditches adjacent to the parking
lots. Riddell and Reece did not dispute the testimony of Krist as to the assign-
ments he was actually given. I have found supra that there is no credible evidence
that janitor-sweepers were previously used for the purpose of cleaning weeds out of
drainage ditches. Reece was uncertain who assigned Krist and Holowan to con-
tinuous scrubbing for the period of 7 weeks or if they were so assigned. I have
set forth supra the evasiveness of Reece on what was meant by the term "rotation."
I do not credit Reece or Riddell to the extent their testimony is at variance with
that of Krist.
I find, for reasons set forth herein, that the assignment of Krist to the mixing of
mortar, digging and filling in of ditches, removal of sand from the filter beds, and
cleaning of weeds from ditches were assignments to more arduous and less agree-
able job tasks than previously performed by others in the same job classification.
I further find said assignments were discriminatorily motivated. Appropriate find-
ings are considered infra, section I, 6.
E. Alleged discriminatory reduction of hours of Joseph Horonzy-June 1 to present
Horonzy, boiler operator, was recalled on June 1, 1960. His supervisor is Plant
Engineer Reece. Horonzy was initially employed by Respondent in October 1947.
Horonzy was still employed at the time he testified.
It is alleged in the consolidated amended complaint, as amended, that commencing
June 1, 1960, and continuing thereafter, Respondent provided Horonzy with less
employment then he normally would have received and that this action was dis-
criminatorily motivated. Respondent acknowledges that Horonzy's hours were re-
duced but denies that said reduction was discriminatorily motivated.
When Horonzy reported to work on June 1, he was advised by Plant Engineer
Reece that he would work only 4 hours a day on Monday, Wednesday, and Friday,
12 hours a week, and that his work would be confined to burning trash. Prior to
the strike Horonzy worked between 40 and 58 hours each week. The dispute herein
concerns this reduction in hours and contraction of duties.
Prior to the strike Horonzy worked directly under the chief fireman, Walter
Karolak, see supra, section C, 34. In 1957, the "boiler" operators, aslo known as
"powerhouse men," were Horonzy, Lawrence Ferdette, and Bill Skaggs who worked
a 56-hour week (8 hours, 7 days). In the heating season they took readings from
the heating plant and burned combustible refuse. In the nonheating season they
were responsible for the operation of the air-conditioning, cleaning of the boiler, and
burning combustible refuse. In the fall of 1958, Respondent partially changed its
heating unit from the use of fuel oil to the use of natural gas. Natural gas was
used other than during an 8-hour daytime period. As a result Skaggs and Ferdette
were laid off since the controls on the gas burning boiler were automatic and did
not require manual attendance. During the period from September 1958 through
May 1959, Horonzy worked a 40-hour week. During the heating season of 1958-59,
Respondent continued to burn oil during the first shift in order to dispose of a
quantity of oil on hand. This oil was ultimately consumed sometime between Janu-
THE CROSS COMPANY 1087
ary 1959 and the end of the heating season . Plant Engineer Reece described
Karolak 's duties during this period as the maintenance of equipment including heat-
ing, ventilating , air-conditioning , sewers, and water. He described Horonzy 's duties
as keeping the boilerhouse area clean , firing the incinerator , and assisting Karolak
when necessary . During the oil-burning period Horonzy was also responsible for
the operation of the burner guns , filters, and strainers . It may be inferred , and I find,
that he also continued to take the essential readings during this period. The asser-
tion of Reece that a log was not kept because they were burning oil only 8 hours
a day is not credited . There were two units ; one of which was automatic and used
gas and the other was not automatic and burned oil. The heating season in 1959
ended in late March or early April.
It appears undisputed that before the strike Horonzy worked on cleaning the boiler
and worked on lines , valves , or pumps as needed. He also swept floors, washed walls,
and painted in the powerhouse , did sewage work, such as cleaning out catch basins,
and burned trash. Reece acknowledged the boilerroom operation has been the same
since June 1960, and it was between September 1958 and August 1959, except for
the discontinuance of the use of oil in March or April 1959.
Reece asserted that among the projects requiring attention in June 1960 under
his jurisdiction , the heating system had to be reconditioned and the sewer system,
manholes, and catch basins needed to be cleaned out. This appears to be work
formerly performed by Karolak and Horonzy . Nevertheless , Horonzy's duties since
the strike have been confined to burning trash.
Commencing in June 1959 , Horonzy and Karolak were assigned to removing
sand from the filter beds and replacing it with new sand. Respondent 's records
reveal Horonzy worked 486 hours in the 9-week period between June 1 and August 2,
an average of 54 hours per week. This was the period when Horonzy was working
on the filter beds. I have noted supra , section D , that Mykola Holowan a janitor-
sweeper also recalled on June 1, and was placed on the work of removing the sand
from the filter beds. Since it is undisputed that Horonzy did work on the removal
and replacement of sand in the filter bed in 1959 , the assertions of Superintendent
Riddell that Horonzy refused to accept work outside of his classification in the spring
of 1958, even if credited , does not establish such a refusal as a basis for the action
taken by Respondent in 1960.
Riddell asserted that Horonzy was not assigned to available work on the filter
beds on June 1, because Reece and Riddell were dissatisfied with Horonzy's perform-
ance in the period of June to August 1959. The dissatisfaction of Riddell was pred-
icated upon a report made by Reece to Riddell which is next examined . Reece,
however, asserted that it was he who made the decision not to use Horonzy on the
filter bed work and he did not discuss his decision with Riddell. i28 Reece described
the reason for his dissatisfaction with Horonzy's work in the filter bed in 1959, as
stemming from one incident . One day Reece observed Karolak and Horonzy sitting
down during worktime. As a vehicle approached the filter bed they would both
jump to their feet and appear busy, then again relax.
Reece advised Horonzy the same day that he had watched them and did not want
to see them loafing again . Reece acknowledged this was the only such event. He
was uncertain as to when , between April and August 4, this happened . This incident
and the alleged refusal of Horonzy in 1958 to do work outside of his classification
were asserted by Reece as the basis for his decision not to use Horonzy on the filter
bed work in 1960.129
Horonzy asserted that after the heating season , in 1959, when the air-conditioning
was turned on, he took hourly readings and kept a log which was turned over to
Reece. Horonzy described these readings as being of pressures and temperatures,
they required about 2 minutes and were taken every 2 hours. Horonzy asserted
that since the strike these readings have been taken by the guards . Riddell asserted
that the only thing required to operate the air-conditioning equipment was to open
the four valves and push four buttons. This was sometimes done by Karolak or
one of the maintenance men. The air-conditioning was shut off in the evening
about 5:30 or 6. Riddell asserted that readings on the air -conditioning equipment
was not necessary, "if they are made by someone who chooses to do it without
interfering with their duties Mr. Reece would use them to satisfy his curiosity but
they are not necessary and not required and very often are not taken ." During
128 Since Riddell determined who would be recalled and when to recall an individual and
since Riddell reduced Horonzy 's workweek, this purported decision of Reece 's appears
improbable.
1=9 Riddell asserted it was not until 2 or 3 weeks after Reece saw Horonzy loafing that
Reece reported it to Riddell . Thus it does not appear to have had importance at that time.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike a guard was placed in the powerhouse . Riddell asserted that these guards
would burn some of the combustible refuse in a gas-fired furnace. Riddell then
related, "The guards, since they are there anyway, chose to take readings on the air
conditioning equipment , readings which we don 't require. They are not taken all
the time but they chose to take them and since it involves 5 or 10 minutes an hour
at most, we have no objection to it ." Reece related that because the guards who
are stationed in the powerhouse showed a lot of curiosity and asked a lot of ques-
tions he thought they might be interested in taking the readings because this would
enable them to learn a little more about it. Reece therefore asked them if they
would like to take the readings and they said they would , so he allowed them to do so.
Reece also asserted that no readings were taken in 1959 , and that none were neces-
sary. I do not credit either Riddell or Reece to the extent their testimony is in
conflict with that of Horonzy.
Respondent urges that the reason for the reduction of Horonzy 's hours was that
the operation of the incinerator was all that remained of the work in Horonzy's
classification . Respondent predicates this conclusion largely upon the conversion of
the boilers from oil to gas. The record reflects that Horonzy worked 40 hours a
week between the end of the heating season in 1959 and June 1, 54 hours a week
thereafter until the time of the strike . Respondent's assertion that the operation
of the incinerator requires only 12 hours a week is contradicted by the admission
that guards presently burn trash . Respondent does not dispute that the balance
of the work formerly done by Horonzy remains. In fact, Reece specified this work
as among the projects needing attention on June 1, 1960, when Horonzy was recalled.
Respondent has advanced no justification for the change in Horonzy 's duties, or
the failure to return him to the filter bed work when he was recalled, rather than
assigning that work to a classification of employees never previously assigned to it.
The assertion of Reece relative to Horonzy loafing one day and the assertion that
Horonzy refused to do work outside his classification in 1958, is a mere pretext.
I find accordingly.
I also find Respondent 's assertions as to the reasons for the reduction of Horonzy's
workhours are in fact a pretext , and that said reduction was discriminatorily moti-
vated . Respondent's responsibility for said reduction in hours is considered infra,
section I, 8.
F. Alleged constructive discharges of strikers who did not report
Nine employees who went on strike applied for reinstatement in May 1960, at
the same time as the others considered herein. Subsequently, on various dates be-
tween May 23 and August 4, 1960, Respondent issued notices for them to return
to work. They failed to report for various reasons. General Counsel contends
that each was constructively discharged. Respondent inaccurately asserts that none
of these employees communicated with Kent, or any other supervisor, when they
were requested to report. I find to the contrary infra in the cases of Martz, Jacobs,
Russner, Payne, Jarosz, and Olms.
1. Leo Marschke -May 23
Marschke was initially employed by Respondent on December 4, 1945. He was
a machine builder in the assembly department at the time of the strike on August 4,
1959. He was requested to report on the night shift on Monday , May 23.
It is alleged that Marschke was constructively discharged . Respondent denies this
allegation.
Marschke was working elsewhere when he was advised to report for work on
Monday, May 23, on the night shift. Marschke credibly testified that he intended
to report for work on Tuesday, May 24. That afternoon he read an article in the
Detroit Times of the previous day relative to the eviction of Cortis , Moore, and
Miller on May 23 by 60 nonstriking employees . The article also set forth what had
occurred on Saturday , May 21 , to Cortis and Oravec . While succinct , the article
accurately recited the forcible ejections from the plant by nonstrikers of the return-
ing ex-strikers on said dates . See supra, sections C, 3, 4, 5 , and 6. On Friday,
May 27 , Marschke called Kent and requested advice as to whether it would be agree-
able for him to report that night. Kent inquired as to why he had failed to come
in by Wednesday . Marschke advised Kent that he was afraid to come in. Kent
advised Marschke , "Well I'm sorry. I had to pull your card yesterday."
Kent did not dispute the testimony of Marschke . Kent acknowledged that he
made no effort to contact any of the employees who were notified to return and
failed to do so , including several who sent telegrams.
THE CROSS COMPANY 1089
Respondent contends that the decision of Marschke, and the others who did not
report, was based upon hearsay, speculation, and rumor, and they made no eflort
to verify the facts. I have found supra, section C, 4, that Milton O. Cross, Jr.,
found the same newspaper reports sufficiently "alarming" to cause him to appear at
the lockerroom at 7 a.m. on May 24 to ascertain what was happening in the locker-
room. The facts reported in the newspaper, upon which Marschke relied, are well
established in this record.
Whether Marschke was under a duty to advise Respondent of his decision to
not report prior to the expiration of 3 days, and whether his failure to so do is
fatal to his claim, is considered infra. The resultant question is whether Respond-
ent was justified in using the 3-day rule to consider Marschke a quit, or whether
the use of said rule constituted a pretext and was discruninatorily motivated. Re-
spondent's responsibility is considered infra, section I, 3.
Subsequently in October 1960, Marschke called Kent and, pursuant to his request,
Kent forwarded the necessary form for Marschke to apply for his supplemental
employment benefits (SUB). It does not appear that Marschke signed a resigna-
tion or quit slip.
2. John J. Varriale-May 26
Varriale was initially employed by Respondent on February 19, 1952. At the
time of the strike he was a machine builder. Varriale was requested to report on
the day shift on Thursday, May 26.
It is alleged that Varriale was constructively discharged. Respondent denies the
allegation.
Varnale was advised to report on the day shift on May 26. Varriale credibly
testified that he had read the Detroit News account of what had occurred to Michael
Oravec when he sought to report on May 21. He related his memory was that
Oravec had been roughed up and this caused Varriale to be fearful of reporting
since apparently only two employees had been called in at that time. The news
article succinctly, but accurately, reflects that Oravec and Cortis were forced to
leave the plant by nonstriking employees.
Varriale asserted that he went to the plant area and learned that only he and
one other employee were due to report on May 26, that others had been called
in two or three at a time, and that they had received rough treatment. I have
found supra, section C, 9, that Derbin also reported on May 26. I have also
found the treatment described by Varriale, as being reported to him, was received,
prior to May 26, by Oravec, Cords, Miller, Moore, and Castle. See supra, section
C, 3, 4, 5, 6, and 7.
Varriale did not contact Respondent or advise anyone of his decision not to
return to work. Respondent, without further inquiry, applied its 3-day rule and
considered Varriale an employee who quit.
Whether Varriale was under a duty to advise Respondent of his decision to not
report prior to the expiration of 3 days, and whether his failure to so do is fatal to
his claim is considered infra. The resultant question is whether Respondent was
justified in using the 3-day rule to consider Varriale a quit, or whether the use of
said rule constituted a pretext and was discriminatorily motivated. Respondent's
responsibility is considered infra, section I, 3.
In October 1959, Varriale called Kent and requested his supplemental employ-
ment benefits (SUB). Varriale was advised by Kent that he would have to sign
a "quit" slip. The necessary forms were subsequently mailed to Varriale who signed
and returned them. The effect of the signing of the quit slip on any relief to which
Varriale may be entitled is considered infra, section I, 4.
3. Earl R. Martz-June 3
Martz was initially employed by Respondent on April 23, 1951. His job classifica-
tion was saw operator. He was requested to report on the day shift on June 3,
1960.
It is alleged that Martz was constructively discharged. Respondent denies this
allegation.
Martz credibly testified that during the period between May 20, when he was in-
terviewed by Kent relative to returning to work, and June 3, when he was requested
to return, he spent a considerable amount of time at the trailer across the road from
the entrance to Respondent's plant. He was at the trailer on Monday, May 23, at
the time Cortis, Moore, and Miller were ejected from the plant, see supra, section
C, 4, 5, and 6. Cortis and Moore advised him as to what had occurred. Later in
the same week Moore and Miller advised Martz what had occurred in the plant on
succeeding days. A union meeting was held on Sunday, May 29, at which Michael
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oravec related what had happened to him as he sought to enter the plant on May 21.
Martz was in attendance and heard Oravec's report.
On June 3, Martz sent the following telegram to Respondent:
I hereby express my willingness and desire to return to my duties as an em-
ployee of the Cross Company. However I consider it impossible to perform
those duties properly under the harassment and intimidation which apparently
occur at this time. I wish to delay my return until conditions in the plant are
such that I feel I can properly perform my duties for the Company.130
Martz received no communication from Respondent in response to the telegram.
Kent acknowledged receipt of the telegram and the fact that no response was made
by Respondent. Respondent never communicated with Martz thereafter, and it
maybe inferred from the testimony of Kent that the 3-day rule was applied. The
later advice of Kent to Martz that he was considered a "quit" on June 7 confirms
this finding.
Respondent asserts that while Martz was in the vicinity of Respondent's plant and
talked to ex-strikers who had returned to work, he did not talk to Kent. Re-
spondent also asserts broadly that none of these employees who failed to report
"communicated with Mr. Kent or any other of Respondent's supervisors after they
were notified to return to work." In the case of Martz and others who sent
telegrams, this assertion is obviously erroneous.
Unlike Marschke and Varriale, Martz sought a specific delay in reporting be-
cause of conditions of which he had been apprised, which I have found supra ex-
isted. The application of Respondent's 3-day absence rule under these circum-
stances, in the light of the credible evidence in the record as a whole, was a pretext
to sever an employee and was discriminatorily motivated I so find. The respon-
sibility of Respondent under these circumstances is considered infra, section I, 3.
In November or December, Martz called Kent relative to his supplemental em-
ployment benefits (SUB). Kent advised Martz that since he was considered a quit
as of June 7, the intervening period would be applied against an essential 6-month
waiting period. Kent advised Martz to sign a statement that he had quit as of
June 7. The effect of Martz' execution of this statement on any relief to which
Martz may be entitled is considered infra, section I, 4.
4. Albin J. Melkus-June 17
Melkus was initially employed by Respondent on December 7, 1953. He was a
machine builder in the assembly department at the time of the strike. He was
requested to report on the day shift on June 17, although prior to the strike he had
been on the night shift.
It is alleged that Melkus was constructively discharged. Respondent denies the
allegation.
Melkus credibly testified that he attended the union meeting in late May, where
Oravec related his experiences on May 21 when he sought to report. Moore, at
the same meeting, told Melkus of his experiences at the plant.
Melkus was a night-shift employee by preference, yet was requested to report on
the day shift. He credibly testified this was a factor in his decision not to report.
He also asserted that because he had four small children he decided not to risk
getting hurt, by reporting, in view of the experiences of Oravec and Moore.
Respondent challenged Melkus' assertion relative to his past work on the day
shift. Melkus recalled working on days for a 2-week period, at other times for
several days or a week. Melkus admitted he might have worked on the day shift
longer than a 2-week period but he could not remember it. He then denied work-
ing on the day shift for a period of 10 months. Respondent's records reflect
Melkus was transferred to the day shift on March 11, 1957, and not retransferred
to the night shift until January 27, 1958. He was also on the day shift from
February 24 to April 10, 1958. Between April 10, 1958, and August 4, 1959,
Melkus was either on the night shift or in layoff status. It is evident that Melkus
was in error in stating that he had not worked for a period of 10 months on the
day shift. I do not find it necessary to discredit all of Melkus' testimony because
of his error as to the amount of time he had worked on days. It is well established
as a principle of law that it is not essential to credit all or none of the testimony
of a witness.
130 Superintendent Riddell described the telegrams from Martz, Payne (infra, section
D, 7), Caravas, and Domilici (supra, section C, 41 and 37) as the first notice he had about
conditions in the lockerroom in the morning, events during the lunch hour, and events
during worktime . I do not credit Riddell.
THE CROSS COMPANY 1091
Melkus' assertion that he preferred the night shift and that his foreman knew of
this was not disputed. This circumstance coupled with Melkus' knowledge of what
had happened to returning strikers Oravec and Moore when they reported for work
on the day shift was the reason for Melkus' failure to report on that shift. It is
undisputed that Melkus did not advise Respondent of his decision not to report.
Kent made no effort to ascertain the reason for Melkus' failure to report. Respond-
ent applied its 3-day absence rule.
Whether Melkus was under a duty to advise Respondent of his decision to not
report prior to the expiration of 3 days, and whether his failure to so do is fatal to
his claim, is considered infra. The resultant question is whether Respondent was
justified in using the 3-day rule to consider Melkus a quit, or whether the use of
said rule constituted a pretext and was discriminatorily motivated. Respondent's
responsibility for the separation of Melkus is considered infra, section I, 3.
5. Roy Jacobs-June 21
Jacobs was recalled June 21 and requested to report on the night shift. His
classification was assembler. He was initially employed in March 1950, and had
been at all times a day-shift employee.
It is alleged that Jacobs was constructively discharged. Respondent denies this
allegation.
Jacobs went to Kent's office on June 23 and objected to being assigned to the
night shift. He asserted his seniority entitled him to daywork, where he had worked
ever since he started. Kent advised Jacobs to talk to Foreman Hargreaves. Har-
greaves advised Jacobs he would have to work on the night shift. Jacobs advised
Kent that he would quit rather than work on the night shift.
Jacobs credibly testified that while he was at Kent's office on June 23, a police-
man was interviewing some of the nonstrikers relative to some violence that had
happened in the plant and this event was one of the things that caused him to de-
cide not to go back to Respondent's plant. Jacobs identified Ralph Baker as the
nonstriker being interviewed. Jacobs had attended the union meeting, described
supra, at which Oravec related his experiences when he reported for work. Jacobs
also had read newspaper articles relative to the treatment accorded Oravec and
Moore when they were ejected from the plant. Jacobs credibly testified that he
told Kent that he would not return to Respondent's plant under the existing conditions.
Kent acknowledged that Jacobs informed him on June 23 that he would not re-
turn to the plant under the conditions then existing. Foreman Hargreaves acknowl-
edged that Jacobs talked to him by telephone and inquired how long he would have
to work nights. Hargreaves responded that he could not guarantee how long he
would have to work nights Thereupon Jacobs advised him that he was not com-
ing back because he did not have to work nights.
Accordingly, I find that Jacobs' failure to return was predicated in part on the
conditions existing in the plant which had come to his attention and in part on
the refusal of Respondent to assign him to his normal work on the day shift.
Respondent advanced no justification for assigning day-shift employees to the
night shift and night-shift employees to the day shift when they were recalled after
the strike. I have found above, on the basis of the record as a whole, that gravita-
tion from night shift to day shift was a matter of progression resulting from
seniority. Respondent has not contended that no work was available for Jacobs on
the day shift. Accordingly, I find the assignment of Jacobs to the night shift was
a pretext to effectuate a separation from Respondent's employment and was dis-
criminatoriy motivated. Respondent's responsibility for this action is considered
infra, section I, 3.
At the time Jacobs was in Kent's office on June 23, after Jacobs advised Kent of
his intentions, Kent inquired as to whether Jacobs desired to make application for
his supplemental employment benefits (SUB). Jacobs advised Kent he would do
so. Kent then advised him to sign a resignation. The effect of this resignation on
any relief to which Jacobs may be entitled is considered infra, section I, 4.
6. William Russner-June 22
Russner was requested to report June 22 on the day shift. At the time of the
strike he was a toolmaker (machine builder or machine assembler). He was in-
itially employed by Respondent in July 1950.
It is alleged that Russner was constructively discharged. Respondent denies the
allegation.
717-672-64-vol . 143-70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Russner attended the union meeting at which Oravec related his experiences at
the time he attempted to report to work. Russner credibly testified that on June 21
he was having lunch with Leo Herbert and Ed Banke , at the place he was then
working, when Robert Wagers came in . Wagers, see supra, section C, 23, displayed
a black footprint on the groin of his pants and advised Russner and others, "That's
the greeting I got when I went in." Wagers then related to them what had occurred
in Respondent 's plant the prior evening when Wagers reported for work. Russner
called Kent and advised Kent that he was quitting . Russner acknowledged that it
might have been 4 or 5 days later that he called Kent. Kent advised Russner that
he figured Russner had quit because he hadn 't reported.
Respondent urges that Russner made no effort to corroborate the correctness of
the reports from Oravec and Wagers by talking to his brother-in-law, Genest. Since
Respondent raises this question in its brief , it is well to note that Russner testified
that Genest called him the evening of the first day Genest worked , June 22. See
supra, section C, 26. Genest advised Russner , "Bill, whatever you do, don't go in
there." Russner inquired why, and Genest advised him, "Because they are waiting
for you . I don 't know what you have done but they are really waiting for you.
They asked me today, `where is that g. d. blond brother of yours-you tell that
s.o.b. when he gets in here we are going to kick his up around his ears.' "
Respondent urges that Bernard Wickman , a brother-in-law, and James Allen, a
half brother , both nonstrikers , were not contacted by Russner . It is obvious from
Russner 's testimony that a family split resulted from the strike at Respondent's
plant . Respondent's contention that Russner should have made further inquiry is
rejected.
I find that Russner did not report for work at Respondent 's plant by reason of
the events which occurred to Oravec and Wagers, the latter being reported to Russner
on June 21, the day preceding Respondent's request that he report. Whether Rus-
sner was under a duty to advise Respondent of his decision to not report prior to
the expiration of 3 days, and whether his failure to so do is fatal to his claim, is
considered infra. The resultant question is whether Respondent was justified in using
the 3-day rule to consider Russner a quit , or whether the use of said rule constituted
a pretext and was discriminatorily motivated . Respondent's responsibility is con-
sidered infra, section I, 3.
Subsequently , on October 25, 1960, Russner went to Kent's office to file his ap-
plication for supplemental benefits (SUB). Kent advised him that he had to sign
certain papers in order to obtain his severance pay, a quit slip thing among them.
The effect of this application and quit slip on any relief to which Russner may be
entitled is considered infra, section I, 4.
7. Fred R. Payne-July 7
Payne was requested to report on July 7 on the day shift. Payne's classification
was electrician and his foreman was Hargreaves . Payne was initially employed
by the Respondent on May 16, 1953.
It is alleged that Payne was constructively discharged . Respondent denies the
allegation.
Payne was interviewed by Kent on the morning of May 21, relative to his avail-
ability for recall. Payne credibly testified that he saw Oravec at the trailer that
morning and Oravec advised him, "They are screaming like wild animals." Oravec
also advised Payne that he had been kicked by Popovich . Prior to receiving the
telegram requesting him to report on July 7, Payne talked to several former strikers
who had returned who described the conditions with which they were confronted,
such as oil being placed in the tool boxes , bolts and nuts thrown at them , and other
harassment . Payne acknowledged that he was uncertain which reports he received
before July 7 and which were thereafter. He identified Moore, Castel, Kidle,
Peterson , Domilici, and Oravec as the employees who described conditions in the
plant to him . Since Domilici did not report until July 14, reports by or concerning
him are disregarded.
On July 8, Payne advised Respondent by telegram , "I will not report for work
until the Company will assure me protection ." Riddell acknowledged this telegram
came to his attention . Payne credibly testified his reason for not reporting when
requested was his knowledge of what happened to Oravec , particularly the fact that
Oravec sought help from the guard and was unable to obtain it, coupled with the
fact that Respondent was recalling the ex-strikers one and two at a time, and the
advice he had received as to the harassment to which those who had reported had
been subjected.
THE CROSS COMPANY 1093
It is undisputed that Respondent made no response to Payne's telegram. Rather
it applied its 3-day rule and considered Payne a voluntary quit. I find the applica-
tion of the 3-day rule to Payne in spite of his telegram requesting assurance of
protection, under the circumstances established by the credible evidence herein, was
a pretext to justify the severance of Payne and was discriminatorily motivated. Re-
spondent's responsibility is considered infra, section I, 3.
8. Wallace Jarosz-August 1
Jarosz was recalled August 1. At the time of the strike he was a boring mill
operator. Jarosz also was union committeeman. He was initially employed by
Respondent in June 1955.
It is alleged that Jarosz was constructively discharged. Respondent denies this
allegation.
Jarosz credibly testified that at the time of the Oravec incident, May 21, he read
the Detroit News articles of May 21 and 22. These articles correctly reflect, suc-
cinctly, some of the circumstances surrounding the exclusion of Oravec and Cortis
on May 21, which I have found supra, see section C, 3 and 4. Subsequently, about
the middle of June, Jarosz met Oravec. Oravec advised Jarosz he had been surrounded
by a group who used profane language, shoved him, and kicked him in the groin,
and had then been taken to a hospital. Jarosz also talked to Edward Moore who
advised him of the dye being put in his tool box. Jarosz was a union committeeman,
as were Oravec and Moore.
When recalled on August 1, Jarosz sent a telegram to Respondent which read,
"I will not report to work until matters are settled." Receipt of the telegram by
Respondent is not disputed. Jarosz received no further communication thereafter
from Respondent. Jarosz related that his principal reason for not reporting was
the treatment accorded the other two union committeemen when they reported.
It is undisputed that Respondent made no response to Jarosz' telegram. Rather
it applied its 3-day rule and considered Jarosz a voluntary quit. The telegram may
be considered ambiguous, standing alone. It also may reasonably infer a willingness
to return to work when the objectionable conditions at the plant ceased to exist, as
intended by Jarosz. Undisputed is the fact that Respondent made no effort to ascer-
tain Jarosz' intentions, if it found the telegram ambiguous. I find the application
of the 3-day rule to Jarosz in spite of his telegram, in the light of the other facts
I have found supra, which constitute the surrounding circumstances herein, was a
pretext to justify the severance of Jarosz and was discriminatorily motivated. Re-
spondent's responsibility is considered infra, section I, 3.
9. Walter Olms-August 4
Olms was recalled August 4, 1960. At the time of the strike he was a boring mill
hand. He was initially employed by Respondent in August 1950.
It is alleged that Olms was constructively discharged. Respondent denies the
allegation.
Olms credibly testified that on August 3 he received Respondent's telegram re-
questing him to report on August 4. He called Kent about 10 or 11 a.m. on August 4
and advised Kent that under the existing circumstances he did not know if he
wanted to come back to work or not. Kent assured him that he had a good record
and they needed him. Kent advised Olms that he did not have to be afraid, "be-
cause there was nothing more going on anymore." Kent also advised Olms that
everyone was getting along swell and there was no trouble. This was the day 11 of
the returned strikers had been ejected from the plant, see supra, section C, 45.
Olms then requested time to think it over, advising Kent that he understood he had
3 days in which to report. Shortly after lunch time on August 4, Robert J. Mills,
incoming president of the Union, visited Olms at the place where he was working.
Mills advised Olms that a group of the returned strikers had been ejected from
Respondent's plant that morning.
Olms credibly testified that he had read articles appearing in the Detroit News
on May 21 and 22, relating to the ejection of Oravec and Cortis on May 21; a
similar article in the Detroit Times of May 22; an article in the Detroit Times of
May 23 relative to the ejection of Cortis, Moore, and Miller that day; an article
appearing in the Detroit Free Press of May 22 relative to the events of May 21;
an article appearing in the Detroit Times on May 24 relative to the experience of
Cortis at Respondent's plant the same date; and an article which appeared in the
Detroit News on August 5 concerning the ejection of Kidle, Derbin, and Genest on
August 4. These articles correctly reflect succinctly the events found supra herein.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Olms attended the union meeting in late May, at which Oravec described his experi-
ences on May 21.
Olms credibly testified that he did not report because he found the representa-
tions made by Kent, to him, on August 4 were untrue and that he was not equipped
for physical combat. Olms called Kent on August 8 and advised him he definitely
was not going to return to work. He advised Kent that his reason for not return-
ing was that he found out Kent's assertion on August 4 that everything was fine
was inaccurate. August 4 being a Thursday, August 8 was the third workday. Kent
did not testify relative to these events.
Respondent inaccurately asserts that Olms relied on the representations of Mills
and did not further contact Respondent. I have found to the contrary that Respond-
ent was advised by Olms why he was not reporting on August 8.
Respondent made no further effort thereafter when normal conditions were restored
to contact Olms relative to employment. The use of the 3-day rule to consider Olms
a voluntary quit, under the facts found herein, was a pretext and was discriminatorily
motivated. Respondent's responsibility is considered infia, section I, 3.
G. Respondent's defenses
Respondent urges that this case is premised on the theory that Respondent "con-
doned" what allegedly took place in the plant because Respondent "didn't do
enough." Respondent urges that the incidents established by the evidence and de-
cisions of management relative thereto permit a finding of illegal or improper motive
only by suspicion and surmise, that there is a total lack of any direct affirmative
evidence that any employee who returned to work was ever intimidated, coerced
or forced to leave his employment due to any conduct condoned by the Respondent.
Respondent urges there is a total lack of evidence that Respondent was motivated
by any animus toward the individual returned strikers. Respondent urges that it
did everything it reasonably could to eliminate friction and to secure the return to
work of those who had not worked during the strike. Respondent asserts it took
affirmative action to prevent any acts of interference or coercion, investigated any
complaints made, and warned all employees against any violence or threats, in-
cluding the discharge of a nonstriking employee who admitted throwing a firecracker.
In urging that it was not motivated by animus toward the returned strikers, Re-
spondent urges that any "genuine" complaint which was made was investigated, that
where a returned striker indicated that he was quitting (because of the conditions
with which he was confronted) Respondent did everything it could to urge that em-
ployee to remain, that the supervisors never gave any employee any reason to be-
lieve that Respondent would fail to protect him or would condone any acts of
intimidation or coercion against him. Respondent urges that the returned strikers
who left did not make any genuine effort to remain at work. Respondent urges
that it did everything it could reasonably be expected to do in an effort to secure
the return of these employees "with a minimum of disturbance-in view of the
hostility which existed," that none of the complainants would be claiming he was
forced to quit if he had cooperated with the Respondent.
These asserted defenses are rejected for reasons set forth infra, section I.
H. Credibility
Throughout this report , I have indicated acceptance in part and rejection in part
of the testimony of a number of the witnesses . It is, therefore , appropriate here
to note the rule which has previously been stated that " it does not follow that
simply because one does not believe a particular thing to which the witness testified,
that everything he says must then be rejected ." Judge Learned Hand stated the
rule thus:
It is no reason for refusing to accept everything that a witness says because
you do not believe all of it; nothing is more common in all kinds of judicial
decisions than to believe some and not all. N.L.R .B. v. Universal Camera
Corporation , 179 F . 2d 749 (C.A. 2).
In arriving at my findings of credibility herein , I have considered carefully all of
the testimony , the plausibility or implausibility of the recitations of a particular
witness or witnesses, the consistency or inconsistency of the testimony of the witness
herein when compared to former statements or testimony previously given under
oath, evasiveness where it appeared , faulty memories and apparent exaggerations,
the interest of the particular witness in the outcome of the case or lack of interest,
the fact that some 23 witnesses who appeared for General Counsel are still em-
ployed by the Respondent , yet testified adversely , and the demeanor of the witnesses.
THE CROSS COMPANY 1095
The demeanor of the witnesses for General Counsel was impressive with the ex-
ceptions of Bristol, Karolak, Holowan, and Suiter. Portions of the testimony of
the four named are credited on the basis and to the extent that it was corroborated
either by other witnesses or other extrinsic evidence.
I have in the main largely rejected the testimony of Respondent's nonstriking
employees because of the implausibility and incredibility of their testimony as noted
supra (for example, see section C, 3 and footnotes 20, 21, and 23, and section C, 23,
and footnotes 62 through 66). The assertions of some of these witnesses that there
was no profanity, shouting, swearing, or threats in the lockerroom or in the lunch-
time or other gatherings, that no returning striker was ever blocked, stopped, sur-
rounded, or prevented from reporting for work, is in conflict with testimony given
by other of Respondent's witnesses, as well as by witnesses whom I have found to
be credible. The same observation may be made relative to testimony of some of
these witnesses that the lunch-time gatherings were most infrequent, that they ter-
minated after the first week or so, that the nonstrikers stood in the same area where
the strikers were eating, but talked among themselves only. Without exception,
the demeanor of these witnesses was unimpressive.
I have found inconsistencies, self-contradictions, evasions, and implausible and
incredible recitations in the testimony of Respondent's supervisory and plant protec-
tion personnel. However, I have found supra and infra that portions of their
testimony is credible.
1. Concluding findings re 1960 events
This case involves 48 employees who filed applications for reinstatement after a
strike, which had extended from August 1959 to May 1960. Respondent, without
exception, undertook their reemployment: Twenty-six have since been separated, al-
legedly because they failed or refused to report on 3 consecutive days or resigned;
Wagers was separated for other reasons; 15 were forcibly excluded from the plant
on one or more workdays; and 13 were allegedly subjected to other forms of dis-
crimination, including the 1961 events.
Personnel Director Kent and Superintendent Riddell both recognized the explosive
potentialities that might result when the strikers were recalled, by reason of bitter-
ness engendered during a 10-month long strike, between the two groups of em-
ployees. Accordingly, on May 18 Riddell issued instructions to the supervisory
force that the returning strikers were there to work and inferentially were not to be
molested. That this instruction related to worktime only is patent. The problems
of lockerroom and before-work gatherings, lunch-time gatherings, and between-shift
gatherings were not evident and were not considered at that time. That this in-
struction was honored in its breach, without ensuing disciplinary action, is estab-
lished by the credible evidence herein. Worktime molestation and harassment of
a number of returned strikers appears beyond doubt. While Respondent's supervi-
sors asserted the period of such interference was of short duration, it extended from
the return of Castle on May 23 until after the return of Caravas and Janicki on
July 21. Many of these events took place within the sight and hearing of supervi-
sors who did not intervene. When the inaction of supervision was followed by
complaints by the aggrieved ex-striker, he was given solace by being advised to "stick
it out-it will die down." Kent and a number of foremen acknowledged giving
such assurance. Meanwhile, nothing was done to terminate the condition. While
janitor-sweepers were assigned to a particular portion of the plant, the evidence is
that Wesch was involved in incidents in many different areas. Popovich, an as-
sembly department employee, appeared at Miller's machine in the machinery depart-
ment and in the heat-treat room to harass Miller during worktime. These are
illustrative. No censure or discipline resulted from these and numerous other work-
time incidents.
Respondent elected to have these strikers return one, two, and three at a time,
in spite of the experience which ensued and in spite of the protestations of the Union.
Kent was promptly advised, on May 21, of the exclusion of Oravec and Cortis
by Guard Scott and Police Chief Jacobs. That he took no effective action relative
to these exclusions is demonstrated by the exclusions of Cortis, Moore, and Miller
the following workday, May 23. Why Foreman Winke, who was present, neglected
to intervene in these latter exclusions is not explained.
President Milton O. Cross, Jr., on May 21, after the forcible exclusion of Oravec
and Cortis, held four, apparently unusual, conferences with employees solely to
warn the nonstrikers to keep at least 6 or 7 feet clear of any returning striker
"until the workers (nonstriker) were confident of not being attacked by any re-
turning strikers." The purpose of this warning and its relationship to the Oravec
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident is not explained. It may be inferred that no one was censured by Cross
for the lockerroom events of that morning.
The presence in the lockerroom of President Cross on May 24 resulted in a tem-
porary alleviation of the lockerroom blocking. Kent, however, contented himself
with instructing Guard Babuska to make certain that no returning striker seeking to
report was prevented from doing so. No claim is made that the nonstriking em-
ployees were given any instruction or warned of disciplinary action because of their
conduct. Superintendent Riddell, in fact, denied knowledge of the lockerroom in-
cidents until telegrams of complaint were received. The first such telegram was
that of Martz on June 3. However, Riddell attended the May 25 meeting with
the Union, the principal subject of which was these lockerroom events.
On July 1, Peterson, Bristol, and Papcun were excluded from the plant by non-
strikers. This matter came promptly to the attention of Kent and no disciplinary
action ensued. On July 11 Ferdinand and Karolak were blocked in the lockerroom
and it was necessary for Guard Babuska to intervene. On July 13 Gray was blocked
by a group of nonstrikers and subsequently Foreman Stanley Balchunas intervened.
On July 21 William J. Vorhoff was excluded, and promptly reported the exclusion
to the guard. Foreman Harry Ress was present during this event and did nothing.
On July 21 Steven Janicki was blocked in the lockerroom until Guard Babuska
intervened. Foreman Edward Balchunas, present at the time, did nothing. The
climax to these lockerroom episodes came on August 4 when, as I have found supra,
section C, 45, 11 of the returned strikers were excluded at a time when several of
the plant foremen were reporting to work The inaction of the supervisory per-
sonnel during these lockerroom incidents is consistent only with their inaction, on
other occasions, during occurrence elsewhere in the plant.
Riddell issued no instructions to the supervisors at the June 9 meeting, or there-
after, relative to lockerroom, before-work, or shift-break gatherings. His instruc-
tions relative to lunch-time gatherings was nonintervention absent altercation, even
though many returned strikers had complained about the threats, insults, abuse, and
other conduct of the nonstrikers. Foreman Ress, Hargreaves, and Stanley and Ed-
ward Balchunas thereafter either witnessed or were apprised of instances of returning
strikers being blocked in the lockerroom and took no action to effect a cessation of
such conduct. Guard Babuska on a number of occasions escorted blocked return-
ing strikers from the lockerroom into the plant. No censure or discipline by Re-
spondent resulted. In fact, Babuska did not even bother to report which employees
had engaged in the blocking. It may be inferred Kent never requested such
information.
I find it unnecessary to repeat the numerous instances when returning strikers
were greeted by the nonstrikers in the lockerroom and in the plant, during work-
time as well as before and after, and during lunch time , with insulting , degrading,
and abusive profanity, unprintable obscenities, and threats. Many of these events
were observed by or reported to management and no disciplinary action ensued.
I have detailed the pouring of oil , dye, and other substances in toolboxes that were
the personal property of the employees, the throwing of metal objects, eggs, and a
bottle of oil , each admittedly reported to management , and no disciplinary action
ensued , in spite of the existence of an alleged warning that "violence or threats of
violence will be disciplined ." This notice of President Cross was ignored with im-
punity. Only the injunction afforded surcease 21/2 months later.
I have found above that some 14 returned strikers, excluding Oravec, Gauci,
Wagers, and Sassano, were treated to a sufficient quantity of abuse, insults, and
threats to cause them by reason of fear, and of the offensive nature of the treatment
received , to advise management that they were unable to continue employment under
existing conditions . Here again no disciplinary action against the offenders ensued.
Another nine employees , who had applied for reinstatement, refused to report
by reason of the conditions existing in the plant, which were given substantial
publicity in local news media, or related by those who had been subjected to de-
scribed abuses.
Personnel Director Kent and Superintendent Riddell acknowledged that none of
the nonstriking employees were disciplined as a consequence of any of their activities
in Respondent's plant between May 21 and August 9 with the sole exception of
Novack (supra, section C, 23). The pleas of Riddell and Kent that they were un-
aware of what was happening in the lockerroom in the mornings, or at the lunch-
time gatherings, or the exact nature of the gutter language being engaged in, or
the other events which this record reflects were within their knowledge or easily
ascertainable upon inquiry, I find incredible. Respondent's supervisory force were
adequately advised and remained passive. These pleas are reminiscent of the fabled
three monkeys of China, one saw no evil, one spoke no evil, and one heard no evil.
THE CROSS COMPANY 1097
Perchance, Kent's advice to Castle, Enzmann, and others that the nonstrikers
"took a lot on the picket line" was intended as a palliative. Respondent's inaction
permits no other conclusion.
However, as to the foregoing Respondent, through its agents is allegedly account-
able only because it permitted, acquiesced in, encouraged, and condoned the conduct
of the nonstriking employees. Responsibility of management where it abandons
its prerogatives to a group of employees is considered infra.
Respondent urges that there is no demonstration of animus on its part. I do not
agree. Animus is a state of mind, the existence or absence of which must be deter-
mined from the record as a whole. I turn next from the acts demonstrating in-
difference and inaction to actions which I find were discriminatorily motivated. In
this category are: (1) the discharges of Oravec, Sassano, and Wagers; (2) the
assignment to more arduous and less agreeable job tasks of Sassano, Holowan,
Fassbinder, and Krist; (3) reduction of the hours of work of Horonzy; (4) dis-
criminatory layoffs and recalls in 1961, infra; (5) the assignment of Gauci, by
Thaxton, to heavier work outside his classification; (6) the assignment of Krist
and Holowan by Reece, to an abnormal continuous period of floor scrubbing and
wall washing; and (7) the assignment of Lewandowski, by Riddell, in 1961 to more
arduous and less agreeable job tasks outside his classification. I find unnecessary
the listing of other incidents.
The acts of violence to, abuse of, threats of violence to, eviction of, and vilifica-
tion and harassment of, returning former strikers by nonstriking employees, on
Respondent's premises, to force the returning strikers to leave the plant premises and
remain away from their jobs appear repetitiously on numerous dates between May 21
and August 9, 1960, as I have found supra. Only the issuance of an injunction
against continuation of such conduct brought a cessation on August 9 In the interim
Respondent took no effective measures to prevent or stop said conduct of the non-
striking employees, thus it did permit, acquiesce in, encourage, and condone said
conduct. It is undisputed that the protected concerted activity of the former strikers,
set forth supra, was the reason for the conduct described. I find accordingly.
The court and Board decisions uniformly have held that an employer who ac-
quiesces in the exclusion of employees from his plant by a nonunion group will be
regarded as having constructively discharged the excluded employees in violation
of Section 8(a)(3). The Board and courts have found that whether Respondent
had, or had not, responsibility for any part of the feeling which existed is of no
consequence. Repeatedly these cases hold that difficult as an employer's position
may be under the circumstances, his duty requires him to resist the domination of
his managerial prerogative to employ. See Altamont Shirt Corporation, 131 NLRB
112, 120, and cases therein cited. This duty exists even where the failure to yield
to employee pressure might cause disruption to the employer's operations. See
Majestic Metal Specialties, Inc., 92 NLRB 1854, 1862. Where exclusions of union
advocates by an antiunion group of employees was encouraged and tacitly, if not
openly, approved by Respondent, its contention that it was under no obligation to
protect its union employees is without merit. See N.L.R.B. v. Fred P. Weissman
Co., 170 F. 2d 952 (C.A. 6), enfg. 71 NLRB 147.
There is undisputed evidence of a failure of Respondent to resort to disciplinary
action to bring a cessation to the incidents found herein. The court in N.L R.B.
v. Hudson Motor Car Company, 128 F. 2d 528 (C.A. 6), enfg. 34 NLRB 815,
found no disciplinary measures were taken at any time by the respondent to prevent
the employee members of the CIO from annoying, harassing, or interfering with the
employee members of the AF of L. An internecine struggle, in respondent's plant,
between adherents of these rival organizations culminated in the CIO members
"ganging up" on the AF of L members, and by physical violence ejecting them from
respondent's plant without any protection or protest from respondent's supervisory
employees, who were aware of the struggle and witnessed many of the incidents
thereto. In finding such conduct violative of the Act, the court noted
Respondent's contention boils down to the proposition that it was forced to favor
CIO and that under the circumstances here present, it was not a free agent in
the premises and therefore should not be charged with a violation of the Act
because it had no intent to violate any of its terms. We think such an argu-
ment should be submitted to the Congress and not to us. Whether or not the
Congress may deem it wise to protect the employer against labor strife which
he does not incite or encourage is a problem with which we are without power
to deal, it being the duty of the Court to administer the law as it finds it. We
think it right and just to say that so far as the record shows, Respondent has not
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willfully violated the provisions of the Act, but the intent of the employer is not
within the ambit of our power to review. When it is once made to appear
from the primary facts that the employer has violated the express provisions of
the Act, we may not inquire into his motives.
However, the Hudson case is distinguishable to the extent that Respondent herein
was no mere bystander. I have found conduct which was discriminatorily motivated.
Respondent was under a duty to investigate the exclusions , assaults, threats,
harassments , and other misconduct which precluded normal working conditions and
precipitated abrupt departures of returned strikers fom the plant . It was also under
a duty to take effective disciplinary action to cause a cessation of these abnormal
activities and restore normal order . The antiunion campaign carried on by the non-
strikers coupled with nonintervention or hindrance by supervision amounted to an
open invitation to the nonstikers to take further steps to eliminate the returned
strikers. Once normal conditions were restored Respondent was under an obliga-
tion to communicate, at that time, with the excluded employees and offer them rein-
statement. It failed to make any such effort and ignored such offers to return as
were made after August 9. See D. W. Newton, an individual, d/b/a Newton
Brothers Lumber Company, 103 NLRB 564, 567; Riverside Manufacturing Com-
pany, 20 NLRB 394; General Shoe Corporation, 5 NLRB 1005; Brown Garment
Manufacturing Company, 62 NLRB 857.
Accordingly, the events of 1960 are disposed of as follows:
1. Exclusions from plant
a. Nickolaus Miller and Edward Moore, May 23
I have found supra, section C, 5 and 6, that Miller and Moore were forcibly ex-
cluded from Respondent's plant on May 23 by the threats and other abusive conduct
of the nonstriking employees gathered in the lockerroom at that time, who prevented
ingress into the plant. Foreman Burton Winke, admittedly present, did not
intervene.
Respondent contends that Kent, the same morning, requested Miller and Moore
to return to the plant and they failed and neglected to do so. Such failure to re-
turn is not disputed. The question then is whether by reason of Kent's action Re-
spondent should be absolved of any liability resulting from these exclusions.
I have found supra, section C, 3 and 4, that Michael Oravec and Louis Cords
were excluded from Respondent's plant on the preceding workday, May 21, by sim-
ilar threats, violence, and abusive language being directed at them by a group of
nonstriking employees. Respondent, promptly apprised of these earlier events, took
no action to effectively prevent a repetition. Court and Board cases uniformly hold
that a returning striker is entitled to return to normal working conditions. That
Kent's offer did not contemplate a return to normal working conditions is adequately
demonstrated by the incidents which occurred to Miller and Moore as well as to
others, set forth supra, on May 24, when they did return, and thereafter.
Appropriate findings are set forth infra, subsection d.
b. Floyd Bristol, Theodore Peterson, and Edward S. Papcun, July 1
I have found supra, section C, 31, that Bristol, Peterson, and Papcun were forcibly
excluded from Respondent's plant on July 1 by the threats and other abuse heaped
upon them by a group of nonstriking employees gathered in the lockerroom that
morning, who prevented ingress into the plant. It must be concluded, in the light
of the evidence herein, that with knowledge of the events of May 21 and 23, supra,
Respondent had taken no effective action to prevent a recurrence.
Respondent urges as a mitigating circumstance that Kent thereafter offered to
accompany these employees to their work stations. I have found that such an
offer was not made. In any event Kent's offer did not constitute, under the facts
found herein, an offer to return these employees to work under normal conditions.
Appropriate findings are set forth infra, subsection d.
c. William Vorhoff, July 21
I have found supra, section C, 40, that William J. Vorhoff was prevented from
gaining ingress into the plant on July 21 and was excluded from said plant by the
conduct of a group of nonstriking employees . I have also found that Foreman
Harry Ress who was present did not intervene or prevent the exclusion.
Appropriate findings are set forth infra, subsection d.
THE CROSS COMPANY 1099
d. Anthony Lewandowski, Arthur Derbin, Joseph Brown, Sam Dogariu, Philip
L. Genest, Jacob Krist, David Kidle, Bruno Muszynski, Stanley Filar, Floyd
Bristol, and Edward S. Papcun, August 4
I have found supra, section C, 45, that Lewandowski, Derbin, Brown, Dogariu,
Genest, Krist, Kidle, Muszynski, Filar, Bristol, and Papcun were forcibly excluded
from Respondent's plant on August 4 by the threats, violence, and abusive conduct
of a group of Respondent's nonstriking employees. Foreman Hargreaves, admittedly
present when these activities reached their peak, did nothing. I have also found
that Foreman Stanley Balchunas was on the premises when Derbin, the first of those
excluded, advised Balchunas as to what was happening, yet Balchunas took no
action to rectify the situation. That the exclusions occurred is not disputed. In
fact, Kent acknowledged that he was advised shortly after his arrival by Czekis,
Karbula, and Luft that the nonstrikers had sent the returned strikers away from
the plant. Here again, Respondent issued no reprimands and took no disciplinary
action.
Respondent contends that Kent instructed Guard Babuska to advise the excluded
employees that they should return to the plant and they would be, in such event,
paid from starting time. This advice is not unlike the advice of Kent and other
supervisors when complaints of misconduct and threats were made, that the returned
strikers should "stick it out-it will die down." Each was equally meaningless in
terms of Respondent's duties under the circumstances herein. I have found supra
that the harassments, vituperations, and threats continued after August 4 until the
injunction was obtained on August 9, 1960.
I find that Respondent's failure to take appropriate action to prevent the exclu-
sions of Miller, Moore, Bristol, Peterson, Papcun, Vorhoff, Lewandowski, Derbin,
Brown, Dogariu, Genest, Krist, Kidle, Muszynski, and Filar on the dates found
supra, and its failure to provide normal working conditions, constituted discrimina-
tion with respect to the hire and tenure and conditions of employment of said em-
ployees, thereby discouraging membership in and activity on behalf of the Union,
and said conduct is an unfair labor practice within the meaning of Section 8(a) (3)
and (1) of the Act.
e. Floyd Bristol "other days"
I have found supra, section C, 16, that the evidence herein does not establish
that Bristol was unable to report for work by reason of threats, violence, or other
misconduct of the nonstriking employees on days other than July 1 and August 4, or
that he by reason of the conduct described was required to leave work prior to
normal quitting time. In so finding I am not unmindful of the fact that Bristol's
absentee record does reflect his absence on five specific dates other than those men-
tioned. Bristol was unable to explain the particular reason for any of these absences.
In view of my other findings herein, there is a good reason to suspect that some
portion of this claim of Bristol may indeed be founded upon fact. Those facts,
however, are not reflected by the evidence herein.
Accordingly, for the reasons indicated, I shall recommend a dismissal of this
portion of the complaint.
2. Discriminatory discharge of Michael Oravec
I have found supra, section C, 3, that Oravec was prevented from reporting for
work on May 21 by reason of the violence with which he was greeted by Respond-
ent's nonstriking employees. Respondent may properly, on the basis of this record,
contend that it had no advance knowledge of the plans of these nonstriking em-
ployees. However, this does not modify the fact that Respondent, having been
fully apprised of the events which occurred, took no action either to rectify the
situation or to prevent its recurrence relative to other returning strikers.
Respondent, with knowledge of the reason Oravec did not report on May 21 and
23, received a medical report on May 24 from the clinic. On May 24, Respondent
requested Oravec to report on May 25, see supra, section C, 3. Thus, Oravec was
required to report not later than May 27 if Respondent's 3-day absence rule had
any application to the facts herein. Oravec did report May 27 and was advised
by the guard that there was no timecard for him. Oravec awaited the arrival of
Kent and was advised by Kent that his card had been pulled because he had not
reported within 3 days and was thus considered a "voluntary quit."
In Brown Garment Manufacturing Company, 62 NLRB 857, 874, the Board
held:
The Respondent owed the affirmative duty of reinstating the excluded em-
ployees. Even where no other unfair labor practices are committed, an em-
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer who takes no action to prevent the exclusion of his employees from
work by members of a rival organization is himself responsible for the ex-
clusions, such exclusions being tantamount to discharge [ see cases cited in
footnote].
In view of the facts found herein , and inferences reasonably drawn therefrom,
and upon the record as a whole, I find that Respondent 's purported reason for the
separation of Oravec was a pretext , and that the real reason and "moving cause"
was the known union and concerted activities of said employee. Said discharge con-
stituted discrimination with respect to his hire and tenure of employment to dis-
courage membership in the Union, and is an unfair labor practice within the mean-
ing of Section 8 ( a) (3) and (1) of the Act.
3. Constructive discharges
a. Lockerroom , lunch-time, shift-change and worktime events, resulting in
separation of employees
I have found supra, section C, 4, that Louis Cortis having been excluded on
May 21 and 23, succeeded in reporting on May 24 . I have also found that he was
threatened , harassed, and abused by Charles Wesch . His efforts to obtain the inter-
vention of Foreman Thaxton were unavailing , Thaxton expressing his prejudices in
unmistakable language. Illness, induced by the mistreatment of Wesch , and recog-
nition of the discriminatory attitude of his supervisor , caused Cortis to leave the
plant within 20 minutes . I have found above that Cortis ' illness continued until
sometime in July and thereafter he failed to return solely by reason of the continua-
tion of the abnormal conditions in the plant.
I have found supra, section C, 7, that Edward Castle reported on May 23, left at
noon , worked on May 24 , and did not work thereafter . I have also found that
Castle's request on May 27 that he be given a leave of absence, because he could
not take the pressure of working in the plant under existing conditions , was rejected
by Kent. I have found , supra, that Castle was desirous of protecting his 10 years
of seniority and desired to return to Respondent 's plant at a later time when condi-
tions were normal. The acceptance of a "quit" slip or "resignation " under these
circumstances has been held to be tantamount to a discharge . See Taylor-Colquitt
Company and Mrs. Elma La Boone, 47 NLRB 225, enfd. 140 F. 2d 92 (C.A. 4).
I have found supra, section C, 13, that Charles Heyworth returned after the strike
on June 2, left before noon of the same day, and did not work thereafter . I have also
found that Heyworth explained to Kent that be became sick as a result of treatment
he received during his short stay in the plant . There is a medical report that Hey-
worth experienced "apprehension" and "anxiety " as a result of the threats , insults,
and abuse heaped upon him by Respondent 's nonstriking employees.
I have found supra, section C, 25, that Hermann Enzmann returned to work on
June 20, left work June 23, and did not work thereafter . I have found Enzmann's
reasons for leaving was the harassment he experienced and the refusal of Foreman
Hargreaves , when requested , to take any action to cause a cessation . Enzmann
advised Kent he could not work "when management allows these things to happen."
I have found supra, section C, 30, that Rolland Christen returned to work June
30, left work on July 18, and did not work thereafter . I have also found that
Christen complained to Foreman Charbonneau about threats and abuse directed
to him by other employees ; that Charbonneau and Hargreaves witnessed shift-
break gatherings around Christen and did not intervene ; and that Christen was sub-
jected to physical violence and insults. Christen advised Respondent that he would
not return "until the labor dispute is settled."
I have found supra, section C, 33, that Arthur Ferdinand returned to work
July 11 , left immediately after the lunch period that day, and did not work thereafter
When Ferdinand sought to report, he was blocked by nonstrikers in the lockerroom
until Guard Babuska intervened ; at lunch time Ferdinand was surrounded and sub-
jected to threats and insults . Even though he had returned to Respondent 's plant
to protect 14 years of seniority , Ferdinand obtained a "sick" pass and left.
I have found supra, section C, 34, that Karolak returned to work July 11, left
on July 30, and did not work thereafter. Karolak was blocked in the lockerroom
on several occasions , threatened, and subjected to vituperations . He advised Re-
spondent he could not work under existing "dangerous" conditions , but would return
when conditions were normal.
I have found supra, section C, 35, that Roy A . Gray returned to work July 12, left
before the end of the workday on July 13, and did not return thereafter. Gray
was subjected to abuse and threats during worktime on July 12; these events were
THE CROSS COMPANY 1101
repetitious in spite of Foreman Stanley Balchunas' ineffective intervention. Gray
was blocked in the lockerroom on July 13 until Foreman Balchunas intervened.
Gray was threatened and subjected to insults in the lockerroom, at lunch time, and
during worktime. He advised Balchunas he could not work "under these conditions."
Gray advised Respondent he would not return until he was guaranteed protection
from intimidation.
I have found supra, section C, 36, that Chester R. Pierson returned to work
July 12, found no timecard available, and was subjected to humiliating insults. He ad-
vised Kent of these events. In turn, he was advised by Kent that he could not "blame
those men," because "they got pretty rough treatment on the strike line."
I have found supra, section C, 37, that Frank Domilici returned to work July 14,
left July 22, and did not return thereafter. Domilici frankly admitted he did not
complain about the abuse, threats, and insults to which he was subjected while at
work. However, Domilici promptly advised Respondent that he would not return
until verbal abuse and harassment were eliminated.
I have found supra, section C, 38, that Philip Parrino returned to work July 15,
left July 16, and did not work thereafter. The insults and abuse to which Parrino
was subjected in the lockerroom and at lunch were the cause of his refusal to report
thereafter. Parrino advised Kent he would not return "until a man can be treated
with respect." Kent's assertion of ignorance of conditions has been discredited.
I have found supra, section C, 39, that George Schumaker returned July 16, left
after lunch, and did not work thereafter. Schumaker was subjected to threats and
insults and obtained a "sick" pass from Foreman Hargreaves shortly after the lunch
period.
I have found supra, section C, 41, that Gus Caravas returned to work July 21,
left July 25, and did not work thereafter. Caravas, reporting after starting time,
was surrounded, insulted, threatened, and subjected to abuse during worktime and
during lunch time on July 21. His complaint to Foreman Edward Balchunas was
futile, Balchunas advising that conditions would "eventually heal." When he re-
turned on July 25, Caravas having been subjected again to the offensive treatment
advised Balchunas, "I don't believe a man has to work under these type of condi-
tions under any circumstances." Caravas advised Respondent that he would not
return "until existing conditions are permanently rectified." Kent thereafter advised
Caravas, "It is pretty hard to control these people (nonstrikers)."
I have found supra, section C, 42, that Steven J. Janicki returned to work
July 21, left before lunch, and did not work thereafter. Janicki was threatened
and insulted during worktime, his complaints to Foreman Edward Balchunas re-
sulted in advice from the latter that he could not stand there all of the time and
watch the other employees.
These employees had a minimum of 4 and maximum of 18 years' seniority.
Respondent urges the application of its 3-day absence rule. Under the circum-
stances herein said rule has no application. Respondent was under a duty to offer
these employees reinstatement under normal working conditions. It failed to pro-
vide normal working conditions when these employees were recalled. It did not
recall these employees after August 9, when normal working conditions were restored,
claiming their prior failure to report constituted a voluntary "quit" This action
of Respondent was tantamount to a discharge.131 I find the severance of these 14
employees was in each instance a constructive discharge, discriminatorily motivated.
I further find these discharges were unfair labor practices within the meaning of
Section 8(a) (3) and (1) of the Act.
b. Peter Gauci
I have found supra, section C, 11, that Peter Gauci was recalled on May 27.
On June 1 he was assigned to "snagging" work which was more arduous and less
agreeable work and was not work within his job classification I have also found
that he was subjected to threats, intimidation, and harassment. His efforts to ob-
tain intervention of Foreman Thaxton, and later Kent, were unavailing. Having
suffered an injury while on this work assignment, Gauci ultimately left Respondent's
plant on June 16 because his back was bothering him. I have found above that
he did not return thereafter because of Respondent's refusal to provide him with
work within his classification.
Respondent, in its brief, does not contend that "snagging" was work within the
"painter" classification. It asserts rather that painting and snagging was done in-
" See Detroit Gasket and Manufacturing Company, 78 NLRB 670; Newberry Lumber &
Chemical Company, 17 NLRB 795; Brown Garment Manufacturing Company, supra;
and Taylor-Colquitt Company, et al., supra.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terchangeably by painters and snaggers. I have found to the contrary, supra. No
claim has been asserted that work within the painter classification was not available
when Gauci was recalled. I have found supra, section C, 7, that Castle an elec-
trician was similarly assigned work not within his classification on May 23 while
other employees not in the electrician classification were doing electricians' work.
Respondent's contention that Gauci failed to return because of his back injury
is unsupported by credible evidence. Gauci's offer of August 30, 1960, to return
to work because normal conditions had been restored in the plant was ignored by
Respondent.
Absent evidence that a striker had been replaced, reinstatement to a job not
equivalent to his prestrike job has been found to be not a bona fide reinstatement
and unlawful discrimination.132 I find that Respondent's failure to provide Gauci
with work within his classification was discriminatorily motivated, the severance of
Gauci was a constructive discharge, and was an unfair labor practice within the
meaning of Section 8 (a) (3) of the Act.
c. Employees who "did not report"
I have found supra, section F, that nine employees did not report for work when
requested so to do on the following dates- Leo Marschke, May 23; John J. Varriale,
May 26; Earl R. Martz, June 3; Albin J. Melkus, June 17; Roy Jacobs, June 21;
William Russner, June 22; Fred R. Payne, July 7; Wallace Jarosz, August 1; and
Walter Olms, August 4. All credibly testified that knowledge of conditions in the
plant, which I have found, supra, to be unfair labor practices, were the season for
their failure to report. All, except Varriale and Melkus, promptly so advised Re-
spondent. Respondent made no further effort to reinstate these employees either
before or after normal conditions were reestablished in the plant, rather it promptly
applied its 3-day absence rule and considered them as "voluntary quits."
The Board held in the Progressive Mine Workers case 133 that an employer will
be regarded as having constructively discharged employees in violation of Section
8(a)(3) if he knowingly permits the ouster of such employees from his plant by
any union or antiunion group. The Board found that two employees remained away
from work as a direct consequence of the coercive actions of the respondent unions,
and that the company was fully aware of the unions' conduct andacquiesced therein.
In Newberry Lumber & Chemical Company, 17 NLRB 795, 806, the Board held
that an employee not present at the time of the discharge of others would be treated
the same as the others where his failure to report to work was the result of respond-
ent's unfair labor practices
In N.L.R.B v. Valley Die Cast Corp., 303 F. 2d 64 (C A. 6) (May 23, 1962),
enfg. 130 NLRB 508, the court affirmed a finding of the well-established principle
that an employee is not required to perform a futile act at his peril This case
involved a failure to apply for reinstatement, normally an essential condition
precedent.
I have found that Roy Jacobs credibly testified there were two reasons for his
failure to report to work. the conditions in Respondent's plant and its refusal to
recall Jacobs on the day shift, his normal employment. This refusal. I find, was
also an unfair labor practice. See Taylor Manufacturing Company, Incorporated,
83 NLRB 142.
Accordingly, I find the separation of each of these nine employees was a con-
structive discharge and an unfair labor practice within the meaning of Section 8
(a)(3) and (1) of the Act.
4. Severance pay applications and alleged resignations
I have found supra, that Oravec, section C, 3; Castle, section C, 4; Enzmann, sec-
tion C, 25; Karolak, section C, 34; Gray, section C, 35; Pierson, section C, 36;
Caravas, section C, 41; Varriale, section F. 2; Martz, section F, 3; Jacobs, section
F, 5; and Russner, section F, 6, at the time of filing applications for supplemental
benefits (SUB), signed resignations or quit slips.
Respondent contends the execution of "quit" slips or "resignations" constitutes
a terminal point for remedy to which the named employee might otherwise be
entitled.
The circumstances surrounding the obtaining of these quit or resignation forms
is next examined. Kent related that during the strike, a striker named Phillips
132 California Cotton Cooperative Association Ltd, etc, 110 NLRB 1494; Pacific Powder
Company, 84 NLRB 280
133 Randolph Corporation, 89 NLRB 1490, and see cases cited in footnote 6 thereof
THE CROSS COMPANY 1103
requested his supplemental benefits. This money is distributed on the basis of a
"quit, discharge or layoff." Kent was advised by counsel to obtain a letter of
resignation from Phillips , to make his status clear on the record.
Each of the employees named, except Castle, Enzmann , and Jacobs , filed appli-
cations for supplemental benefits between September 1960 and April 1961 , months
after they had been listed as "voluntary quits" by Respondent, on the basis of its 3-
day absence rule. Kent acknowledged that previously some of those named had
advised him that they did not intend to quit and would return (when conditions
were normal ) or stated that they did not want to work at that time but were not
giving up their seniority rights. In order to determine their status as of the time of
each application he obtained the "quit" and "resignation" slips.
Kent acknowledged that each employee had previously been terminated by Re-
spondent . Kent first denied advising these applicants that their resignation was
a prerequisite to their obtaining severance pay. Kent then admitted , "I told them
we were requested to get them to verify their status . . . they would have to sign
a resignation in order to obtain their severance pay."
Supplemental benefits are payable from a fund. The fund is comprised of moneys
paid to a trustee by Respondent at a rate of 5 cents for each hour worked by em-
ployees. Benefits are provided for employees who retire , are permanently and
totally disabled , die, or an employee who quits , is discharged , or is laid off and not
again employed for at least 131 hours prior to the expiration of the second full
calendar quarter which immediately follows such quit , discharge , or layoff. Where
no application for such a benefit is filed within 2 years of its accrual , it is auto-
matically canceled.
Albin J. Melkus, supra , section F, 4, was in layoff status before the strike and
received his supplemental benefits by reason of the extension of his layoff beyond
6 months. His testimony is undisputed.
Edward Moore , supra, section C, 5, quit Respondent 's employment on July 25,
1960, by reason of illness, applied for his supplemental benefits, and received them
the same day.
It is patent that an employee who has been discharged , quit, or laid off more than
6 months is entitled , upon application , to these benefits. I so find.
Respondent contends that the voluntary action by these employees , in filing ap-
pilcations for supplemental benefits and simultaneously signing quit or resignation
forms, clearly demonstrates that these employees intended to permanently terminate
their employment at the time they left Respondent 's plant. This contention is
rejected.
The primary question herein is whether the separation of these employees was
an unfair labor practice . I have so found. Numerous court and Board decisions
have held that the existence of a statement signed by an employee to the effect that
he had voluntarily resigned cannot prevail as against solemn evidence that he left
by reason of Respondent's unfair labor practices, nor can Respondent be thereby
purged. N.L.R.B. v. East Texas Motor Freight Lines, 140 F. 2d 404 (C.A. 5).
These payments were due upon discharge, if application was made. I have found
constructive discharges caused these separations . I find these alleged resignations
a nullity.
5. Discriminatory discharge of Robert Wagers
I have found supra, section C , 23, that Wagers , employed since 1946, was dis-
charged the day after he returned to work . General Counsel alleges he was dis-
charged because he defended himself from nonstriker violence and that said discharge
was discriminatorily motivated Respondent contends that Wagers was discharged
for cause.
Wagers, shortly after first reporting for work, having intervened in an effort to
assist another returned striker who was surrounded by a group of nonstrikers, found
himself under attack. He was kicked in the groin by Czekis and Woods swung at him,
but missed . Wagers grabbed a drill and was immediately disarmed . Foreman
Winke and Rodgers, within sight, did not intervene. Wagers immediately retreated,
after being disarmed , and was followed by 10 to 15 nonstrikers. Foreman Edward
Balchunas intervened and sent this group home, it being their quitting time.
Foreman Edward Balchunas advised Wagers that shift break or other harassment
continued the first 2 or 3 days after a striker returned , then the nonstrikers leave the
returnee alone.
Kent acknowledged that in talking to Wagers , relative to these events, on the
evening of June 20, "I told him that he was a pretty controversial figure, and the
men felt pretty strongly about him because of his picket line activities, and we
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would do our best to protect him, but that he had to stay at his machine and not
go wandering 200 feet across the plant."
These events took place during shift break, 5:25 to 5:30 p.m., before Wagers'
starting time. Wagers' work station was bay E, section 7, Czekis' work station was
bay E, section 3, Suitor's work station where the events took place was bay C,
section 7. Why Cezkis and other nonstrikers were free to roam through the plant,
even during worktime as I have found supra, and Wagers was so restricted before
worktime is unexplained.
Wagers credibly testified that Kent advised him, by telephone on June 21, that
he was discharged "for starting a riot." Kent testified herein that he advised
Wagers he was discharged for "provoking an assault." Superintendent Riddell,
who issued the order for Wagers' discharge, gave his reason as "in both cases they
admitted they had engaged in acts of violence." ("Both" refers to Novack and
Wagers.) No such admission appears in the credible evidence herein. The credible
evidence establishes only that Wagers did grab a drill to defend himself, was im-
mediately disarmed, and no "scuffle" or "riot" ensued.
It is well established that an employer may discharge an employee for any
reason, or no reason, provided the discharge is not discriminatorily motivated.
Kent's assigned reason for the discharge "provoking an assault" requires an observa-
tion. This record is replete with the entire gamut of gutter language directed by
the nonstriking employees at returning strikers. Complaints by the returnees to
management brought no surcease. The Supreme Court, in Chaplinsky v. State of
New Hampshire, 315 U.S. 568, 62 S. Ct. 766, has observed, "The English language
has a number of words and expressions which by general consent are `fighting words'
when said without a disarming smile.. . Such words, as ordinary men know
are likely to cause a fight. So are threatening, profane, or obscene revilings." The
`'provocations" of this type in this record, resulting in no disciplinary action, are
repetitious and numerous.
The assertion of Superintendent Riddell that he thought the question of the dis-
charge of Wagers over "over night" I have found patently false. Kent did not
complete his investigation, or report to Riddell relative to it, until the same day as
the discharge.
Kent's reference to Wagers' prior activity on the picket line, the credible evidence
herein that Wagers was at no time aggressive in the situation in which he found him-
self, and the complete absence of other disciplinary action being taken by Respond-
ent against other employees when numerous acts of violence were reported, cause me
to find, on the basis of the record as a whole, that the reasons advanced for the
discharge of Wagers were in fact a pretext, and that the real reason was his known
protected concerted activities. Accordingly, I find Wagers' discharge was an un-
fair labor practice within the meaning of Section 8(a)(3) and (1) of the Act.
6. Assignment of more arduous and less agreeable job tasks, Sam Sassano,
Mykola Holowan, John Fassbinder, and Jacob Krist
I have found supra, section D, that Sam Sassano and John Fassbinder, upon
recall after the strike, were assigned to digging a 4-foot ditch which work was more
arduous and less agreeable than work previously performed by them, or then being
performed by other employees in the janitor-sweeper classification.
I have made the same finding relative to Mykola Holowan and Jacob Krist who,
upon recall after the strike, were assigned to removing sand from the filter bed
and replacing it, back filling a trench, cutting grass, cleaning out ditches, and mixing
mortar.
I have also found that Holowan and Krist were assigned continuously, for an
inordinate period of 7 weeks, to running the scrubbing and suction machines.
I have also found supra, section E, that Joseph Horonzy, recalled the same day
as Holowan, June 1, who before the strike was engaged in the removal and replace-
ment of the sand in the filter bed, together with Walter Karolak, was not reassigned
to that work Karolak was not recalled until July 11, when it may be inferred the
filter bed work was completed.
Respondent's contention that this work was not more arduous or less agreeable
has been found incredible upon the basis that Sassano and Fassbinder were both
advised, when it became evident they could not do this heavier work, that they
would be recalled when "lighter" work was available. Later on June 20, Fassbinder
was recalled to do the work done by Sassano before the strike.
Respondent urges these janitor-sweepers were assigned to this work because of
a need for additional employees on this work. This is advanced as justification for
the assignment of Sassano and Fassbinder known by Respondent to be physically
incapable of performing such an assignment. It is also advanced to justify the
THE CROSS COMPANY 1105
assignment of Holowan and Krist, while Horonzy who prior to the strike had done
the filter bed work suffered a cut in hours allegedly because no work was available.
I find, on the credible evidence in the record as a whole, that the assignments of
Sassano, Holowan , Fassbinder , and Krist were discriminatorily motivated , thereby
discouraging membership in and activity on behalf of the Union , and were unfair
labor practices within the meaning of Section 8(a) (3) and (1) of the Act.
7. Constructive discharge of Sam Sassano
I have found supra, section D, 1, that when Sassano was recalled on June 1, he
was assigned to a more arduous and less agreeable job task, i.e ., digging a 4-foot
trench. Sassano had previously suffered a nonindustrial whiplash neck injury, a
fact known to Respondent . Kent asserted they were "a little leary" about reem-
ploying Sassano for this reason . Both Respondent 's doctor and Sassano 's doctor ad-
vised he should be given "light " work. Riddell was so advised by Kent. Riddell
acknowledged that at the time Sassano was recalled there was other work available
in the plant that Sassano was capable of doing, to which he might have been as-
signed. The assignment which Sassano was given resulted in his being further in-
capacitated and unable to work. I have found supra that the assignment of Sassano
to work,which Respondent knew he could not perform , work which was not pre-
viously performed by those in his classification , was discriminatorily motivated
and was a pretext to effectuate his separation from Respondent 's employment. Ac-
cordingly , I find that Sassano 's layoff on June 3, resulting from such an assignment,
was a constructive discharge and an unfair labor practice within the meaning of
Section 8 ( a) (3) and ( 1) of the Act.
Subsequently , within a day or 2 after July 1 , Sassano advised Kent he could
return to his regular job, as long as it did not require severe labor, such as ditch-
digging. Respondent recalled Wisinski , another janitor-sweeper who had not pre-
viously been recalled after the strike , on July 6. While Wisinski had less seniority
than Sassano , the record is obscure as to what work assignment he was given.
On July 15, Sassano was advised to report on his regular job, but on the night
shift. He remonstrated with Kent that his seniority entitled him to a day-shift as-
signment , or in the alternative that he be allowed to work an 8-hour shift at night.
Kent advised he would either work a 10-hour night shift or quit. Sassano elected
to retire.
Respondent 's remedial obligation , following the discriminatory discharge of Sas-
sano, was to restore him to his same or a substantially equivalent position, on the
same terms and conditions . See Pacific Powder Company , supra, and footnote 132,
supra. Respondent failed to meet these conditions on July 15; such an offer was
thus not bona fide.
The alleged retirement of Sassano I find a nullity for the same reasons the resigna-
tions have been so found, supra, section I, 4.
8. Discriminatory reduction in hours of Joseph Horonzy
I have found supra, section E, that Horonzy was employed 40 hours a week from
the fall of 1958 until June 1, 1959 , and an average of 54 hours a week thereafter
until August 4, 1959, when he joined other employees in a strike.
Horonzy was recalled on June 1, 1960 , and advised he would be given only 12
hours' work a week, that his duties would be confined to burning trash in an
incinerator.
Respondent would urge that a change in the heating fuel from oil to gas, with
automatic controls, eliminated a substantial portion of Horonzy's work Respond-
ent also urges that guards have been used to take "these readings (air-conditioning
and heating units ) that are not necessary ," and burning trash. It is urged that
Respondent "could" justify abolishing Horonzy's job.
I have found supra, from Respondent's records , that after the heating season in
1959 , until June 1, Horonzy worked 40 hours a week . I have found credible
Horonzy's recitation of his varied duties, none of which are performed by guards.
Foreman Reece acknowledged this work still remained in 1960. No claim has been
made that a replacement was hired during the strike . No economic justification
for the reduction in hours appears in the evidence . Respondent contends it did not
return Horonzy to the filter bed work because of a single reprimand by Reece on
an unspecified date in 1959, which admittedly did not result in Horonzy 's removal
from the work at that time.
The curtailment of Horonzy's hours is an established fact. It was effective im-
mediately upon his recall after the strike. No justification for the change in
Horonzy's duties has been substantiated . Obviously, Horonzy was no more, or no
1106 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
less, active on behalf of the Union than the others whom this record reflects were
subjected to discrimination by Respondent.
Accordingly, on the credible evidence in the record as a whole, I find the reduc-
tion of hours of work of Horonzy was discriminatorily motivated and an unfair labor
practice within the meaning of Section 8 (a) (3) and (1) of the Act.
J. Alleged discriminatory layoffs, terminations, and recalls in 1961
1. Theodore Peterson
Peterson, supra, section C, 22, was recalled after the strike on June 13, 1960.
He was laid off on January 11, 1961, and recalled from layoff on June 26, 1961,
on the night shift.
It is alleged that the failure to recall Peterson on April 10 , 1961 , when employees
in the same classification with less seniority were recalled, was discriminatorily moti-
vated . Respondent contends that Peterson was recalled on the basis of length of
service coupled with ability to do the work avilable in an acceptable manner, and
said failure to recall was not discriminatorily motivated.
Peterson, a hydraulic pipefitter, worked under Foremen Sujuki and Hargreaves.
He was initially employed by Respondent in May 1953 in his present classification.
When Peterson was laid off on January 11, Hargreaves advised the layoff would be
for a couple of weeks. On January 26, Peterson was advised by Respondent that
the layoff was extended "due to lack of work."
In 1961, Respondent had five employees in the hydraulic pipefitter classification,
in order of seniority they were: Wallin (1945) ; Ramachek (1951) ; Peterson (1953) ;
Riley (1954); and Oostlander (1959). The order of layoff and recall in 1961 was:
Wallin laid off January 21 and Oostlander laid off January 19, were both recalled
January 30; 134 Ramachek, Riley, and Peterson were laid off on January 11, the
first two were recalled April 10 and Peterson was recalled June 26.
Kent acknowledged that Respondent had continued, as a matter of policy, the
union contract provisions on the order of layoff and recall, with an exception rela-
tive to subsection c not germane here. The collective-bargaining agreement between
the Union and Respondent expired October 1, 1958. Article VI, section 10, pro-
vided the "layoff and recall procedure." Subsection b provided that employees
would be laid off in the order of their seniority in the job classification affected.
Subsection d provided that employees would be recalled in the order of their seniority
in the classification affected.135
It is undisputed that Peterson was third in seniority, and the last to be recalled.
Respondent evidently abandoned its contention that ability to perform the work
satisfactorily was a factor in the failure to recall Peterson and sought instead to
establish other previous deficiencies in work habits on his part.
Peterson credibly testified that he had received no complaints or reprimands rela-
tive to his work in the period since his return from the strike. He acknowledged that
approximately 6 months before the strike in 1959 he and others were told they were
"going slow"; this was the only time he was criticized.
Foreman Hargreaves related that he talked to Peterson on two occasions relative
to his performance, once before the strike and the second time right after he
returned from the strike, in June 1960. Hargreaves asserted that Peterson "just
took too long on a job and seemed to waste a lot of time," that he would make extra
trips to the tool crib and to the pipe rack when it was not necessary. This is what
Hargreaves says he mentioned to Peterson . Hargreaves stated he asked Peterson
to show a little more interest in his work and to try to show "as though he was want-
ing to do a job for the company ," since he appeared to have no interest . Hargreaves
134 However, Riddell's assertion that Oostlander upon recall was assigned to work in a
different classification is undisputed . Respondent ' s contention in its brief that Oostlander
was "recalled" before Ramachek and Riley , nonstrikers , requires no further comment.
105 Superintendent Riddell testified at variance with the testimony of Kent. Riddell
acknowledged that the policy on layoff and recall followed by Respondent during the term
of the contract was continued thereafter. Riddell, however, asserted that strict seniority
was not the sole test , rather it was coupled with an "unstated" limitation of "their ability
to do the work available satisfactorily." Riddell gave this unstated limitation as the basis
upon which Respondent in 1961 failed to recall Peterson , Bristol, Alexander , Shook, and
Lewandowski in the order in which they would have been recalled had seniority been
followed in their respective classifications . Riddell thus asserts a variance from the
unambiguous contract provisions , by past practice as distinguished from amendment by
agreement . On this conflict , in view of the other credible evidence herein , infra, I do not
credit Riddell.
THE CROSS COMPANY 1107
reported these conversations with Peterson to Riddell. Hargreaves asserted that
since Peterson returned from the strike "there has been an improvement in his work,"
and Hargreaves has made no further complaint to Riddell relative to Peterson's work.
Hargreaves acknowledged that he never complained to Riddell about the quality
of Peterson's work, but asserted that his productivity was not as high as that of other
pipefitters.
It is undisputed that Hargreaves is the general foreman over the assembly depart-
ment. Sujuki is assistant foreman in charge of electrical and hydraulic work. How-
ever, Hargreaves asserted that if an employee's work is unsatisfactory it would be
Hargreaves rather than Sujuki who would discuss it with Riddell. Suluki asserted
that Peterson's productivity was not up to par before the strike. Sujuki acknowl-
edged that the last time he had discussed this matter with Peterson was before the
strike. He described the quality of Peterson's work as average.136
It thus appears that Respondent's asserted defenses are conflicting. Respondent
abandoned its contention that Peterson was unable to do the work available in an
acceptable manner, even assuming such a test was applicable. Respondent's con-
tention then became one of Peterson's wasting time with unnecessary trips to the
toolcrib; however, these events were prior to the strike in 1959. The warning by
Hargreaves in June 1960 was predicated upon past, not present, performance.
In view of Hargreaves' assertion that there had been improvement in Peterson's
work since his return in June 1960, and Riddell's admission that he did not personally
observe Peterson during this period, it must be found that Peterson's abilities were
not the motivation for discrimination in recall. The evidence in this record as a
whole reflects, and I have found, other discriminatory conduct of Respondent.
Accordingly, I find the failure to recall Peterson on April 10, 1961, when employees
in the same classification with less seniority were recalled, was discriminatorily
motivated. Respondent's responsibility is considered infra, section M, 1.
2. Floyd Bristol
Bristol, supra, section C, 16, was recalled after the strike on June 6, 1961. He
was laid off on February 10, 1961, and recalled from layoff on May 9, 1961.
It is alleged that failure to recall Bristol when employees in the same classifica-
tion with less seniority were recalled was discriminatorily motivated. Respondent
contends that Bristol was recalled on the basis of length of service coupled with
ability to do the work available in an acceptable manner, and the failure to recall
was not discriminatorily motivated.
Bristol's undisputed testimony was that after he had been laid off approximately
a month he inquired of Kent as to when he would be recalled, advising Kent that
he had learned that employees in his classification with less seniority were working.
Kent responded that the employees described would only be working a few weeks
and then would be laid off when the machine they were working on was completed.
I have found in the subsection immediately preceding, section J, 1, that recalls
from layoffs, under Respondent's policy, pursuant to former contract provisions,
was in the order of seniority in the classification affected I have rejected Re-
spondent's contention that its policy was coupled with "ability to do the work avail-
able in an acceptable manner." However, in the case of Bristol, this contention
warrants additional examination.
Respondent's records reflect that early in 1961 there were 26 employees in the
machine builder classification, 4 of whom were transferred to other classifications.
Of the remaining 22, Bristol was seventh highest in seniority, his seniority date
being November 23, 1953. Of the 15 below Bristol in terms of seniority, of whom
9 were initially hired in 1960, all were recalled in 1961 before Bristol was recalled,
except I who was not recalled after a disciplinary layoff. Five of these employees
with less seniority were recalled on March 14, 1961.
The complete disregard of seniority by Respondent in 1961 is reflected in the order
of recalls. On March 14 those recalled were 9th, 12th, 18th, 20th, and 22d in
"'In conflict with the testimony of Hargreaves and Sujuki, Riddell sought to establish
dissatisfaction with the work of Peterson as the reason for Respondent's failure to recall
him according to seniority. Riddell asserted this was the reason Peterson was left in lay-
off status. Riddell assertedly advised the foremen to so advise Peterson upon his i961
recall. Neither foreman alluded to such an instruction. Riddell was self-contradictory
in relating that he received reports of Peterson making unnecessary trips to the tool
crib as late as 1961, then admitting no such reports were made to him after Peterson
returned in June 1960. I do not credit Riddell.
717-672-64-vol. 143-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority . On April 26 they were 15th, 17th, and 19th in seniority. On May 2
they were 11th, 14th, and 21st. Bristol was last.
Respondent's prestrike layoff and recall records of 51 employees in the machine
builder classification, from January 27, 1958, to August 4, 1959, reflect that seniority
was strictly adhered to in layoffs and recalls except in the case of a union committee-
man, Kapuscinski, and one other employee, Dogariu. Obviously the exception
does not establish the rule.
Bristol was initially hired in May 1952 and worked as timekeeper and tool crib
attendant until he was transferred to the assembly department in the machine
builder classification on November 23, 1953. Thereafter he worked as an upgrader,
worked on heads in subassembly, and worked in the fixture department and tool
building department. For a period of 2 or 3 years before the strike he was doing
the work of a leader in the making of tool boards. It is undisputed that Respondent
makes frequent use of leaders in the various operations in the assembly department
and other employees act in the capacity of assistants under the guidance of these
leaders. When there was no tool board work Bristol was assigned to other work,
including placing protective guards on the machinery , clamping hydraulic lines,
making small mamfolds, and mounting component parts.
It appears undisputed that since the recall of Bristol in June 1960 he has not
worked on tool boards. After his recall in May 1961, until the time of his testi-
mony on August 29, Bristol worked on final assembly, laying the center bases,
mounting the wing bases, mounting all of the component parts onto the machine,
and setting up tooling. He also ran parts on the machine, lined up heads, put in-
dicators on the spindles, and set the machine up to precision setting for the final
running of the parts. Bristol's testimony that he had never been reprimanded or
disciplined is undisputed.
Foreman Hargreaves related that Respondent had both official leaders and un-
official leaders who were the more experienced men, who were assisted by less ex-
perienced men who acted as helpers on a particular job. The leader on one job
might be an assistant on a different job. Hargreaves acknowledged that the more
experienced men have lesser experienced men working with them all of the time,
but not always the same men. Hargreaves acknowledged that Bristol was the
leader on the tool board work when that work was done. He also acknowledged
that there are some employees in the machine builder classification who have always
been helpers, as distinguished from leaders. Hargreaves classified Bristol as being
very good on tool boards. Hargreaves recalled discussing Bristol with Riddell short-
ly before Bristol was recalled but was unable to recall what discussion he had with
Riddell relative to Bristol. Hargreaves, in conflict with Riddell, placed Bristol
as working on tool boards most of the time until the strike. Hargreaves described
Bristol as a willing worker in the helper classification.
Superintendent Riddell acknowledged that Bristol was the last employee in the
machine builder classification to be recalled from layoff in 1961. Riddell asserted
his reason for failing to recall Bristol in the order of seniority was that Bristol was
"not capable of doing the work satisfactory that was available at the time other
people were recalled." This judgment was based on reports that he had received
from Hargreaves, at various times, the last of which he placed as being in March
1961. Riddell was uncertain as to when, previous to March 1961, Hargreaves had
indicated that Bristol lacked ability to do many jobs in the assembly department
but estimated that it was in 1959 or in 1958. Riddell asserted that Bristol worked
mainly on tool boards in 1957 and occasionally in 1958 , when that work became
less and less in volume. At other times in 1958 and 1959 Bristol worked on the
assembly floor or in subassembly. Riddell characterized Bristol as a "willing
worker-that has no abilities beyond helping someone else who is experienced on the
job." Riddell acknowledged that he had never personally informed Bristol of any
deficiencies, or that he was being recalled out of order of seniority because of
deficiencies
It thus appears, and I find, that Bristol was retained in the machine builder
classification from November 23, 1953, to August 4, 1959, the date of the strike,
being laid off and recalled during that period "in order of seniority" in that job
classification. He was a leader in the making of tool boards for several years,
while other employees never became leaders but remained as helpers Bristol,
recalled on June 6, 1960, worked at various assignments until February 10, 1961,
in a manner sufficiently satisfactory that he was never reprimanded or disciplined.
With this undisputed background, Respondent asserts that it recalled employees in
1961 in accordance with ability to do the work available in a satisfactory manner,
with the result that all other machine builders were recalled before Bristol.
I have found supra, section H, that the testimony of Respondent's supervisory per-
sonnel included implausible and incredible recitations. The asserted justification
THE CROSS COMPANY 1109
for the failure to recall Bristol is but one illustration. Bristol, sufficiently com-
petent to be a tool board leader for several years, suddenly became less competent
than any other machine builder, including a number who never were leaders, yet
Bristol was never informed of any deficiencies. Neither was Bristol advised his
deficiencies were the cause of his not being recalled according to seniority.
I do not credit Respondent's evidence that Bristol's inadequacies motivated its
determination to delay his recall. In view of the facts found in this subsection,
and the other credible evidence in the record as a whole, I am constrained to find
that Respondent failed to recall Bristol on March 14, 1961, in accordance with its
established policy of recall by order of seniority in each classification, and that said
failure was discriminatorily motivated. Respondent's responsibility is considered
infra, section M, 1.
3. Lorne Alexander
Alexander was initially employed by Respondent in August 1954. He has been
in the machine builder classitication since that date. His foreman is Hargreaves.
He was still employed at the time he testified. Alexander was among the employees
who went on strike in August 1959. He was in layoff status at the time of the
strike in August 1959. Alexander, Kidle, and Lucas were given disciplinary sus-
pensions on January 30, 1961, because of errors in recording certain measurements.
This suspension was followed by a general layoff of those in the machine builder
classification on February 10, 1961. Alexander was recalled on May 2.
It is alleged that the failure to recall Alexander at the same time other employees
in the same classification with less seniority were recalled was discriminatorily
motivated. Respondent contends that Alexander was recalled on the basis of
length of service, coupled with ability to do the work available and in an acceptable
manner, and said failure to recall was not discriminatorily motivated.
Alexander applied for reinstatement, after the strike, in May 1960 and was re-
called approximately June 15, 1960. Alexander credibly testified that at different
times he had worked in all different phases of assembly and subassembly work.
Other than the suspension from January 30 through February 7, 1961, Alexander
received no reprimands or complaints relative to his work.
I have noted in the preceding subsection, J, 2, that Respondent's records reflect
that in 1961 there were 22 employees in the machine builder classification. Alex-
ander was the 11th highest in terms of seniority in the classification. Only four
machine builders were not recalled ahead of Alexander including Bristol, supra,
section J, 2. Recalled, on March 14 and April 26, before Alexander, were six
employees who were not hired until 1960. I have found, supra, a complete dis-
regard by Respondent in 1961, of its past practice of recalling its employees in
the order of seniority in a particular job classification.
Foreman Hargreaves described Alexander as "he is just not a machine builder."
Hargreaves asserted that Alexander has to be told practically everything to do, how
to do it and what to do, and is unable to work by himself. Hargreaves then recited
the error in January 1961 which led to the disciplinary layoff of Lucas, Kidle, and
Alexander. Hargreaves asserted that he had discussed errors with Alexander at
different times. However, there is no evidence of any reprimand or disciplinary
action at any other time.
Riddell asserted that his determination to delay the recall of Alexander, and to
recall other employees with less seniority ahead of him, was based on reports he
had received from Hargreaves. He placed the time of these reports as January
and March 1961, the latter being the time when Riddell decided to bypass the recall
of Alexander.
Respondent urges that an error by Alexander in August 1961 attests to the fact
that the judgment of management regarding Alexander's abilities is justified. This
question is not before me for resolution. Respondent also urges that Alexander,
Peterson, Bristol, and Shook do not appear to have held an office or actively cam-
paigned for the Union, or that their feelings about the Union were known by Re-
spondent, thus Alexander in particular "does not appear as a logical target for
any alleged discrimination." Respondent knew these employees went on strike.
To the extent this contention suggests remoteness it must be rejected.
I have rejected supra, section J, 1 and footnote 135, Respondent's contention
that layoff and recalls were historically determined by seniority coupled with ability
to do the work. Karamon, a nonstriker. was immediately below Alexander in
seniority. In April 1958, Karamon and Alexander were laid off on the same date,
Alexander was recalled 1 week before Karamon. Both were again laid off in
May 1958 and Alexander was gain recalled before Karamon. In contrast, in 1961,
Karamon was recalled on March 14 and Alexander on May 2.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alexander, similar to Bristol, worked some 5 years before the strike with no
record of a reprimand or disciplinary action. He was regularly laid off and recalled
according to seniority only. I find that Respondent failed to recall Alexander
on March 14, 1961, in accordance with its established policy of recall by order
of seniority in each classification, and that said failure was discriminatorily moti-
vated. Respondent's responsibility is considered infra, section M, 1.
4. Raymond Shook
Shook, supra, section C, 12, was recalled after the strike on June 1, 1960. His
classification is timekeeper.
It is alleged that the layoff on February 10, 1961, and failure to recall Shook
constitued a termination and was discriminatorily motivated. Respondent admits
that Shook was laid off and has not been recalled but denies that the failure to
recall was by reason of any concerted collective-bargaining activity or any other
reason in violation of the Act.
Respondent, prior to the layoff of Shook on February 10, 1961, employed four
timekeepers, two in the machine department and two in the assembly department.
In each department, one of the timekeepers would work on the day shift and the
other on the afternoon shift. The seniority by date of classification of these four
employees was: Shook (1954); Wilson (1958); Henderson (1959); and Costa
(1960).
It appears undisputed that the duties of the timekeeper were the same in both
the machinery department and the assembly department. They kept records of
the time spent by each employee on a particular job, by job lot or other identifica-
tion number, clocking the employees on and off each operation. The sole difference
being that in the machinery department the employees came to the timekeeper's
desk to report the time of their commencement and completion of each job, while in
the assembly department, on some occasions, the timekeeper would go to the job
situs and obtain the information from the employee.
When Shook was recalled, June 1, 1960, after the strike, he worked in the ma-
chinery department on the night shift. During a portion of June and August he
worked in the machinery department on the day shift. The other machinery de-
partment timekeeper was Harold E. Wilson, a nonstriker. The assembly depart-
ment timekeepers at that time were Henderson and Costa, also nonstrikers. Hender-
son and Costa were laid off on December 16, 1960, recalled on December 27, 1960,
laid off on January 11, 1961, and recalled January 30, 1961. When the assembly
department was shut down on February 10, 1961, Shook and Costa were laid off.
It may be inferred that Henderson was transferred to Shook's job. Costa was re-
called February 27, 1961. Shook had not been recalled prior to the completion of
the hearing herein in September 1961.
I have found supra, section J, 1, that a contract previously in existence between
the Union and Respondent provided that the order of layoff and recall would be
"in the order of seniority in the job classification affected." I have also found that
Respondent continued these provisions after the termination of said agreement as a
matter of policy.
Shook testified on June 12, 1961, relative to matters contained in the original
consolidated complaint, as amended, in which he was not mentioned as an alleged
discriminatee. The charge in Case No. 7-CA-3233 was not filed until thereafter,
on June 20. When the hearing proceeded on the new complaint Shook was in a
hospital with a lung and heart condition and unable to appear as a witness. At the
conclusion of General Counsel's case, Respondent moved to strike the name of
Shook from the complaint on the ground that there was no evidence to support
the allegation relative to him. General Counsel opposed this motion on the ground
that a prima facie case had been presented. Decision was reserved. In considering
this motion I have reveiwed and considered the evidence cited in this subsection, the
evidence of similar acts of the Respondent set forth in this section, and the evidence
presented by General Counsel in this record as a whole, I find that a prima facie
case has been presented. Accordingly, the motion is denied.
Foreman Edward Balchunas asserted that Shook was not capable of handling all
the different types of timekeeping that Respondent had, as a result of which em-
ployees had to wait at the timekeeping desk. Balchunas asserted he made such a
report to Riddell, but was evasive as to the time of this report, finally fixing it as
being before Shook was recalled after the strike in 1960. Balchunas asserted this
was the first time he had discussed Shook's inadequacies with Riddell. Balchunas
then related that Shook had worked under him at the old plant as a machinist's
helper, inferentially between July 1953 when Shook was hired and May 1954 when
Shook became a timekeeper. Balchunas asserted that he complained to Riddell
THE CROSS COMPANY
about Shook's inabilities on a number of occasions after Shook had returned from
the strike, culminating in the layoff of Shook. The errors of Shook came to Bal-
chunas' attention when Donaghey, who is in charge of the timekeeping, called errors
to Balchunas' attention. Balchunas was involved in tracking down the errors in
order to make the essential corrections.
William B. Donaghey, master mechanic, was Shook's immediate supervisor for
approximately 4 years. Donaghey described the timekeeping duties in the machine
shop, where Shook worked, as being the same both before and after the strike.
Donaghey related that prior to the strike Shook was quite slow and on occasions
when he tried to hurry he made many errors. Donaghey related that rather than
bawl Shook out "or give him a hard time" Donaghey tried to work with him to
help him eliminate these errors. Donaghey related that in the fall of 1960, apparently
on one occasion, Shook had difficulty completing his essential work. Upon inquiry
by Donaghey, Shook explained that he had a last minute rush which prevented him
from completing "follow up cards." This work inferentially was left for the day-
shift timekeeper to complete in turn this caused the complaint.
Donaghey worked on the day shift and was there only for a short period after
Shook would start on the afternoon shift. He asserted that he noted during the
period when Henderson and Costa were laid off, either December 1960 or January
1961, that there would be occasions when men were kept waiting at the timekeeper's
desk to be clocked on to a job. Donaghey acknowledged that a similar condition
occurred when other timekeepers were functioning, but described the occasions in-
volving other timekeepers as being "less frequent." Donaghey also asserted that
the timekeeping errors for Shook were more numerous than they were for Wilson.
Donaghey asserted that, in the fall of 1960, he advised Riddell that Shook was
having difficulty completing his work. That was the last time he recalled talking to
Riddell about Shook and Shook's inability to carry out his functions, except for an
occasion sometime after Shook had been laid off. Donaghey asserted that Shook
was laid off because of "a temporary lack of work." Donaghey related that Shook
was ne'ver told that he was given a disciplinary layoff.
Superintendent Riddell acknowledged that Shook was not laid off in accordance
with seniority in his classification, and that others in the classification with less
seniority were retained. Riddell asserted the reason for Shook's layoff was "his
inability to perform the duties of his classification-in sufficient volume-without
making an inexcusable or at least an unacceptable number of errors." Riddell
acknowledged that the layoffs in the timekeeper classification in December 1960,
and again in January 1961, were in the order of seniority.
Riddell formed his opinion relative to the number of errors that Shook was
responsible for from reports he received from the cost department and his analysis
of these reports which reflected which timekeeper was responsible for the errors.
It was this analysis that caused Riddell not to recall Shook in the order of seniority.
Riddell did not reduce the results of his investigation to writing and "doubted"
that the particular reports analyzed were available. In any event, they were not
produced. Every weekly report has a list of timekeeping errors. The reports do not
contain the identity of the timekeeper making the error, but do contain the identity
of the employee whose time was not correctly recorded, thus the department and
shift are determinable. Riddell did not try to keep a tabulation on which time-
keeper made which errors but depended on Donaghey for that information. Riddell
was not certain whether Donaghey made such a tabulation for every report. Riddell
had not studied these reports or made any investigation since early in 1961, at that
time the report covered a period of approximately a month or 6 weeks in that calen-
dar year. Riddell did not advise Shook he was not being recalled because of
deficiencies, and knew Shook was told his layoff was due to "lack of work." Riddell
asserted that it is not his practice to advise an employee laid off for "lack of work"
that he was actually laid off "out of seniority" because of "his inability to do the
work-unless the employee specifically asks."
During the period of the union contract Respondent issued both oral and written
warnings. Riddell described the oral warnings of employee shortcomings as "mild"
and "increasingly severe warnings orally if he did not respond." If the case re-
quired immediate action the employee was suspended pending an investigaiton by
management to determine if the suspension should be converted into a discharge
or disciplinary layoff. No given number of written warnings was specified. This
statement of policy was distributed to the foremen, not to employees, at the time the
union contract became effective, August 1957. The foreman might give one to six
oral warnings, depending on whether it was the same offense repeated or a different
offense. Sometimes a written record was made of an oral warning, sometimes two
or three written warnings were issued before further discipline was imposed. If an
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee repeated an error , a written warning was given , if the offense was of a
grave nature the employee was given a written warning or suspension even on a first
offense. Prior to the strike only one written warning was issued, but several were
given oral warnings . Since the strike in August 1960 a number of oral warnings
were issued for leaving work before lunch time or washup time. Written notices
were issued for excessive scrap . Other than that there have been no written warnings.
It thus appears that when Shook was laid off on February 10, 1961 , Respondent
did not follow its established policy of layoff by seniority . It is undisputed that
Shook was advised only that he was laid off for "lack of work." Respondent's con-
tentions of Shook 's inadequacies are not established by credible evidence , the testi-
mony of Riddell, Donaghey , and Balchunas implying an excessive number of errors
ware made by Shook is unsupported , unconvincing , and is not credited . Shook, an
apparently satisfactory timekeeper since May 1954 , was never advised he was laid
off because of inadequacies and was never given a written warning. In fact , it does
not appear Donaghey ever gave him an oral warning.
Accordingly, I find the layoff of Shook on February 10, 1961 , and failure thereafter
to recall him, was discriminatorily motivated . Respondent 's responsibility is con-
sidered infra, section M, 1.
5. Joseph Agosta
Agosta was initially employed by Respondent in December 1949 . His classifica-
tion is tool and cutter grinder and he has been in that classification since June 11,
1951. Agosta was among those who went on strike in August 1959 and was recalled
on August 6, 1960.
It is alleged that Agosta was laid off, or terminated , on January 11, 1961, and
that said layoff or termination was discriminatorily motivated . Respondent acknowl-
edges that Agosta was laid off on the date specified , but denies he was terminated and
denies that the layoff was discriminatorily motivated.
The work of a tool and cutter grinder consists mainly of sharpening cutters, re-
conditioning cutters, repairing cutters, and in some cases making a cutter or cutting
tool.
Respondent has three employees in the cutter grinder classification . In order of
seniority they are: Farkas (1950); Agosta (1951); and Gentry (1956). Agosta
and Gentry were both laid off on January 11, 1961 . Gentry has since been recalled,
but it is undisputed that he is doing work outside the classification here under con-
sideration . Agosta had not been recalled since , up to the time of his testimony in
August 1961 . Agosta credibly testified that at the time he was laid off Foreman
Balchunas advised him that he would only be laid off for about a week. Sub-
sequently he was advised that the layoff was continued until January 30, and there-
after that they were going to try to get along with "one man" or "one machine,"
he was uncertain which.
The problem presented here is the use of apprentices who did work that might
have been assigned to a journeyman , while the journeyman was in layoff status.
Respondent 's records reflect that apprentices were used after Agosta was laid off on
January 11, 1961 , to do tool and cutter grinding . Apprentice Jones worked all or
'portions of 28 weeks, between the 4th and 32d week, or a total of 968 1/2 hours, an
average of 34.6 hours per week. During the same period of time, Apprentice Horecki
in the 6th to 10th week put in a total of 135 hours, or an average of 27 hours per
week . Apprentice Modzelewski did the same work for substantially all of the 12th
to the 18th week, a total of 312 hours, or an average of 44.6 hours per week.
Apprentice Consiglio worked portions of the 19th to 22d week, a total of 139.5
hours, or an average of approximately 35 hours per week. The record thus establishes
a total of 1,555 hours worked in 28 weeks by apprentices , an average in excess of
551/2 hours per week.
Prior to the strike Agosta was in layoff status from February 27 to November 11,
1958 , and from January 30 to April 8, 1959 . During this same period Gentry was
in layoff status from January 16, 1958 , to September 14, 1959. Respondent's
records reflect that apprentices were used on tool and cutter grinder work during this
period, but the number of hours devoted to this type of work is not specified. How-
ever , for whatever value it may have Kaip was so employed for 10 days in February
1958 and 20 days in March and April 1958, the first period being before the layoff
of Agosta . Salansky worked at cutter grinding for 14 days in March 1958 , preced-
ing the time Kaip was so occupied , and 12 days in November , after Agosta was
recalled . Schachinger, immediately following the second period , Kaip worked in
cutter grinding for a period of 18 days . Chateau worked in cutter grinding from
May 19 to July 13, 1958 , a period of 55 days. It thus appears that during Agosta's
layoff in 1958 , from March 3 continuously until April 24 and again from May 19
THE CROSS COMPANY 1113
to July 13, one apprentice was doing cutter grinding work on part or all of 97
different days.
Riddell described the apprenticeship program standards prescribing the number of
hours to be worked in the shop and the number of hours for school attendance
required of an apprentice , as distinguished from the number of hours an apprentice
is to spend on any one category of work , the latter being determined by the appren-
ticeship committee . The apprenticeship committee is comprised of the various
foremen in Respondent 's plant. Riddell asserted the only reason Agosta had not
been called back was "because we don't need an additional employee in this classi-
fication . There is no one working in this classification with less seniority , other than
apprentices ." Riddell asserted as a reason for the failure to recall Agosta , "There
hasn 't been enough ( work ) available to warrant his recall , in my opinion ." Riddell
acknowledged that it was he who would decide whether Agosta, or an apprentice,
would do the work on tool and cutter grinding.
The apprentices are regulated by the apprenticeship standards which were estab-
lished and approved in 1955. Riddell identified Master Mechanic Donaghey as
the supervisor of apprentices in the shop . However , Donaghey did not assume those
duties until approximately January 1959. The apprenticeship standards established
an 8,000-hour apprenticeship , portions of which are in school and the rest in the
shop . The hours of training are left to the judgment of the apprenticeship committee
and the needs of the apprentice as he develops, the availability of work and machines
to put them on.
Donaghey asserted that he and the apprenticeship board determines where to
place an apprentice and he then relays the information to Riddell. It is Riddell
who then decides whether an apprentice should be placed on a particular job or not.
The apprenticeship board is made up of the supervisors of the various classifications
in which the apprentice works.
Donaghey acknowledged that normally an apprentice is not kept on a particular
job for a consecutive period of time but is shifted from job to job periodically.
The apprenticeship schedule does not specify that an apprentice remain on a job
consecutively but is used as a guide for hours . The decision to keep an apprentice
on for a consecutive period, and the particular assignment , depends on the avail-
ability of an apprentice and the availability of a machine . Donaghey asserted that
an apprentice 's ability to do a reasonably good job determines the time of moving
him to a different job so as to round out his education.
Donaghey related that it was his decision , concurred in by the day and night
foremen , that Jones should be put on cutter grinding work . Donaghey then ob-
tained Riddell 's approval of this assignment . Donaghey described Jones as a special
case. Jones had a serious home problem and they left him in a classification where
he could "work and coast" until he got his "facilities" all back. Jones was left in
this classification "because there was enough work to keep him going."
General Counsel urges that there was work available in Agosta 's classification,
but Respondent elected to assign it to an apprentice . The record amply establishes
this fact and Riddell acknowledged it was true. General Counsel urges the choice
was made because Agosta engaged in the strike . If this is true there could be no
question that such action would be a violation of the Act.
The facts here are that Respondent continued its past practice of using apprentices
on tool and cutter grinding work while journeymen were laid off. In addition, over
a period of 16 weeks Respondent used two apprentices part of the time, while for-
merly only one had been used at any given time. It may be inferred that the total
hours of such use were substantially increased in the relative period of time.
The residual question is whether discriminatory motivation is established. I have
found a variety of incidents herein reflect discriminatory conduct by Respondent
against former strikes. It does not follow that every act of Respondent is per se
discriminatory . The evidence relative to the continued layoff of Agosta permits
strong suspicions , nothing more . Accordingly , I will recommend dismissal of this
allegation of the complaint.
K. Alleged assignment of more arduous or less agreeable job tasks to
Anthony Lewandowski , commencing March 6, 1961
Lewandowski , supra, section C, 14, was recalled after the strike on June 3, 1960.
He was laid off on February 10, 1961, and recalled from layoff on March 6, 1961,
but was not returned to duties in his classification of storekeeper.
It is alleged that on or about March 6, 1961 , and thereafter , Respondent as-
signed Lewandowski to more arduous or less agreeable job tasks, and that said
assignments were discriminatorily motivated . Respondent entered a general denial.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewandowski was initially employed as a tool crib attendant, and on January 6,
1958, the classification of "storekeeper" was established. Lewandowski credibly
testified that initially all he did was to lay out tools, when requested, place them
back in stock when they were returned, keep records relative to the location of the
tools, and requisition such tools as were needed. As a storekeeper, he also placed
finished stock and purchased stock into carriers and bins that were used for surplus
material, or pulled stock and placed it on carriers for different sales orders (use as
components in the assembly department). Some stock which was received from
the inspection department, accompanied with blueprints, bore identifying numbers
to reflect a sales order. They also pulled cards from a file which were sent to the
accounting department, in order for it to keep appropriate records relative to the
stock.
Immediately prior to the strike, Lewandowski was working on the night shift, in
the assembly department stockroom, see Appendix A. He was the only storekeeper
working on the night shift inside that stockroom at that time, and had been so
working approximately 6 months. While he had worked at the same location
prior to and since January 1958, other storekeepers worked with him during the
prior period.
I have found supra, section C, 16, that when Lewandowski was recalled from
the strike on June 3, he was not returned to his former duties in the stockroom.
He was assigned to unloading and stocking electric wiring, uncrating electric motors,
and doing similar work in the placement of stock He continued working as a store-
keeper until he was laid off on February 10, 1961. Lewandowski was recalled on
March 6, 1961, but his work assignment since that time has not been the normal
work assignments of a storekeeper. Lewandowski's assertion that he had not been
reprimanded or disciplined relative to his storekeeper work does not appear disputed.
It is undisputed that when Lewandowski was recalled on March 6, 1961, he was
assigned to "snagging" work in the paint department, see supra, section C, 11, under
Foreman Thaxton. He continued snagging for approximately 6 weeks. Philip
L. Genest, supra, section C, 26, also a storekeeper, and also a former striker, was
likewise recalled on March 6 and assigned to snagging. However, it appears that
Genest worked at snagging for only approximately 1 week and was then returned
to his storekeeper duties. After approximately 6 weeks, Lewandowski was trans-
ferred to work in the maintenance department, sweeping the floors and running the
scrubbing machine and vacuum cleaner. This latter work is the normal work of a
janitor-sweeper, see supra, section D, 3 and 4. Lewandowski was still engaged in
this janitor-sweeper work when he testified in August 1961. Lewandowski de-
scribed the snagging work as being harder, dirtier, and more dangerous, and the
operation of the scrubbing machine as being more difficult than the work he did
in the storekeeper classification. While both "snagger" and "janitor-sweeper" are
lower rated classifications, Lewandowski continued to draw a "storekeepers" clas-
sification pay.
Respondent's records reflect that those in the storekeeper classification and their
respective seniority dates are: Lewandowski (1952); Genest (February 1954);
Burge (September 1954); Lambka (1955); George (1955); and Salansky (1960).
Thus, it appears that Lewandowski had the highest seniority in the classification.
It appears that the assembly department was shut down on February 10, 1961, and
some of those in the storekeeper classification were laid off. Lambka, George, and
Burge were transferred to another department.
Immediately prior to March 6, Kent called Lewandowski and Genest and advised
them that the "snagging" job was available, that while snagging was a lower paying
job, they would be paid their regular rate, and that their acceptance or rejection
would not effect their recall when storekeeper work became available. Both ac-
cepted and reported for the snagging work on March 6. Kent acknowledged telling
both men that no work in their classification was available at that time, that the
snagging job was a temporary assignment until each could be placed back in the
storekeeper's job.
Superintendent Riddell acknowledged that Lewandowski had the highest seniority
in the storekeeper classification, that prior to the strike, except for layoffs, he spent
most of his time working inside the stockroom. Prior to Lewandowski's return
after the strike, on June 3, 1960, but after his application for reinstatement. May 17,
1960, Riddell decided not to return Lewandowski to his former work inside the
stock crib. However, Lewandowski was never advised of this decision The de-
cision was based on frequent reports and complaints from Balkwill about the per-
formance of Lewandowski all through 1958 and in 1959 until the strike. Riddell
never communicated, orally or in writing. with Lewandowski relative to these re-
ports and complaints from Balkwill. Riddell asserted that the principal complaint
was that Lewandowskr continued to do his work as a tool crib attendant, but after
THE CROSS COMPANY 1115
becoming a storekeeper did not do the work expected of him in dispensing stock and
watching the level of supply of many items, and did not keep records properly.
Riddell asserted that his dissatisfaction with Lewandowski continued over the entire
period of time from January 1958 until the time of the strike in August 1959. As
a result of the complaints from Balkwill, Riddell decided that Lewandowski would
be used on storekeeper work in the stock areas outside the crib but would not be
used on storekeeper work in the crib. Riddell never so advised Lewandowski.
Riddell was unable to recall telling Kent to advise Lewandowski and Genest that
the snagging job was temporary, and that they would be returned to storekeeper
work when that work was available.137 Riddell determined not to return Lewan-
dowski to storekeeper work, when Genest was so returned, March 13, because
Lewandowski was working on another job (snagging) and there was no storekeeper
work outside the stockroom available at that time. At the time that Lewandowski
was called back on March 6, no one was working on the storekeeper's job. When
that job became available, Lewandowski was not placed on it because of his in-
ability to perform the work satisfactorily. Salanski was recalled on March 13, 1961,
for storekeeper work, and George has done storekeeper work since that date.
Lambka, George, and Burge, all nonstrikers, were continued in the storekeeper
classification, without layoff, while Lewandowski and Genest were laid off; however,
Riddell's assertion that the first three named were doing work outside the classifica-
tion does not appear disputed. Riddell asserted, "One thing I made sure of, he
(George) did not work in the stockroom or storekeeping classification while people
with greater seniority were laid off from that classification."
About the middle of May 1961 Lewandowski was placed on the janitor-sweeper
duties of running the scrubbing machine and vacuum machine. I have found supra,
section D, 3 and 4, that except for the period when Holowan and Fassbinder were
given a continuous 7-week period of scrubbing the floors, this job was normally
rotated among the janitor-sweepers.
Balkwill was Lewandowski's supervisor since late in 1956 or early 1957. Balkwill
related that Lewandowski's performance after he became a storekeeper "was not
very acceptable in line with the new duties." Balkwill's complaint was that Lewan-
dowski was only servicing tools and not doing the other work that came within the
duties of a storekeeper. Balkwill talked to Lewandowski and tried to straighten
him out. Balkwill checked back about 2 months later and Lewandowski had made
some progress but in Balkwill's view it was not sufficient, and Balkwill asserts he so
advised Lewandowski. Thereafter, on several occasions prior to the strike, Balkwill
pointed out to Lewandowski errors which he had made. He described Lewandowski's
performance as "not any marked changes for the better." Lewandowski worked 6
or 7 months on the night shift, before the strike, and Balkwill was thus able to
pinpoint certain errors which he made.138 He defined Lewandowski's deficiencies
as not keeping the stock up to the required order point, not putting through the
information so the material could be requisitioned and material kept in stock. The
material was described as miscellaneous, including pipefittings, bolts, nuts, screws,
washers, and things of that nature. Why the ordering of miscellaneous items fell
on the night storekeeper, as distinguished from the daytime storekeepers, does not
appear in the record. Balkwill acknowledged talking to the other storekeepers about
errors they made but talked to them much less than he did Lewandowski. Balkwill
talked to Riddell about Lewandowski immediately prior to the time Lewandowski
returned from the strike (June 1960). Balkwill asserted that he told Riddell that
Lewandowski's efficiency as a storekeeper was not very good and that he did not
want him back in the stockroom proper. Balkwill could not recall talking to Riddell
about Lewandowski since that time. Balkwill acknowledged he never gave Lewan-
dowski a written reprimand.
When Lewandowski was recalled after the strike, he was placed in the stock
area outside the stockroom putting material in its proper sales order location and
stockpiling other material, no record keeping was involved. Lewandowski was
then assigned to stockpiling raw castings in section one, see Appendix A and supra,
section B, 2. Balkwill asserted that Lewandowski was not recalled as a storekeeper
after February 1961.
Plant Engineer Reece related that Riddell assigned Lewandowski to the main-
tenance department in response to Reece's request for someone who could do just
137 However, Riddell also testified that he told Kent to offer the snagging job to Lewan-
dowski and Genest and "to be sure and tell them they did not have to take it, and it
would not jeopardize their recall rights to their regular classification if they refused to
take that job"
138 Balkwill specified an error in placing material in the wrong sales order carrier. Pre-
cisely, work to which Lewandowski was reassigned after the strike
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the floor scrubbing work . Reece explained that they felt it would be more "pro-
ficient" to use Lewandowski rather than a jamtor -sweeper, even though Lewandow-
ski had never done this type of work before.
Respondent asserts that it was under no obligation to place Lewandowski in work
outside his classification on March 6 and pay him his storekeeper classification rate
of pay which was higher than the snagger classification rate . 1 agree that Respond-
ent's transfers of employees to work in other classifications when work in their own
classification was nonexistent is not before me. The placement of Lewandowski
on March 6 , when no storekeeper work was being done, is not properly at issue.
On March 13, Genest was transferred to storekeeping duties and Salansky
was recalled for the same purpose. Lewandowski was left on the snagging job
until mid-May, then transferred to jamtor-sweeper duties, while Genest , Salansky,
and George performed duties in the storekeeper classification . This is the nub
of the problem presented , even though it is otherwise expressed.
Respondent urges that Lewandowski was "offered " these jobs, and accepted them,
and Respondent was under no duty to make such an offer particularly since some
jamtor-sweepers were in layoff status in May 1961 . Such contentions serve only
to confuse , not to clarify, the issues presented , and are rejected . I have noted
supra that the existence or nonexistence of an unfair labor practice is not dependent
upon a timely complaint , to the employer , by the discriminatee.
Simply stated , Lewandowski was the senior employee in the storekeeper classifi-
cation . He had never received a written reprimand or been subjected to disciplinary
action by reason of incompetence . In contrast , Alexander , Kidle, and Lucas were
summarily suspended , on January 30, 1961 , for errors in preparing a chart. Lewan-
dowski, recalled as a storekeeper after the strike, was never advised of Riddell's
decision not to use him on the duties he had previously performed . Lewandowski
continued ostensibly as a storekeeper until the February 10 layoff , still unaware of
Riddell 's decision and Balkwill 's alleged report . In March 1961 , Lewandowski
was advised by Kent of a temporary assignment he might accept "without prejudice"
to his return to storekeeper duties when they became available . This representation
was authorized by Riddell 9 months after Riddell purportedly had decided that
Lewandowski would not be reassigned to duties in the stockroom. Finally, Re-
spondent proceeds on the assumption that so long as Lewandowski is continued
nominally in the storekeeper classification , at that rate of pay, the duties to which
he is assigned are of no significance . Both the "snagger" and "janitor-sweeper"
classifications are lower rated in pay , and comprised of more menial and less
agreeable jobs tasks. They are not the same or an equivalent of the duties of a
storekeeper . In addition , I find on the basis of the evidence in this record as a
whole such assignments are in fact more arduous.
Accordingly , for the reasons stated, I find the assignment of Lewandowski to
"snagging" and "janitor-sweeper" duties, commencing March 13 and thereafter, were
assignments to more arduous and less agreeable job tasks and were discriminatorily
motivated . Respondent's responsibility is considered infra, section M, 2.
L. Alleged discrimination in assignments of Saturday overtime, Edward S. Papcun-
May 13 to June 25, 1961
Papcun, supra, section C , 27, was recalled on June 27 , 1960 . His classification
is surface grinder . He was still employed at the time he testified.
It is alleged that commencing May 13 and continuing to June 25 , 1961 , Respond-
ent provided Papcun with less employment in Saturday overtime than he would
normally have received , and that said action was discriminatorily motivated. Re,
spondent generally denied the allegation.
Respondent employs three journeymen surface grinders in the grinder classifica-
tion : Papcun ( 1953 ) ; Dowling ( 1957 ) ; and Koistinen ( 1959 ). Koistinen worked
on the surface grinder in the light machine department , Dowling worked on a
medium sized grinder , and Papcun was in the heavy machine department. The
first two were under Foreman Stanley Balchunas , while Papcun was under Foreman
Winke. Papcun and Koistinen both operated a rotary table in addition . Papcun
related that he worked a 40- or 45-hour , 5-day week ; the hours fluctuated. In
May 1961 Papcun heard that the other surface grinders were working on Saturdays.
He inquired of Foreman Winke whether he was to work and was advised he was
not.
Prior to the strike Papcun had worked on the night shift on the light grinder.
When a daytime job opened it was on the heavy grinder and Papcun was transferred
to that machine. Papcun related that prior to the strike if the surface grinders
worked overtime all the machines would operate , if only one machine worked they
would ask the top man in seniority to do the work , if he refused they would go
THE CROSS COMPANY 1117
to the next senior man. Papcun acknowledged that he could not recall an instance
where only the senior man, and not all of the surface grinders worked.
Riddell asserted that where overtime is worked beyond scheduled hours, it is
offered to the people they feel most suitable for the job, or if there are several
it is offered on the basis of trying to equalize the amount of overtime, but em-
ployees are not required to work "that overtime."
Riddell asserted that in the period from May 14 through June 25, 1961, Papcun
received less overtime than one other employee in the classification and more than
the other employee in the classification, but that he worked all of the overtime
that was worked on the machine to which he was assigned and was given any available
overtime on the rotary machine. Riddell asserted that when an employee is
regularly assigned to a particular machine, he gets all of the overtime that is
available on that machine. If he is in a classification that involves several different
machines, and he regularly moved from one machine to another, frequently during
the workweek, then Respondent would attempt to divide up the overtime as equally
as they could by shifting people around, but where the man is regularly assigned
to one machine all during the week, he gets the overtime that is available on
that machine and he is not moved to another machine where he may be less
proficient, just for the purpose of dividing up overtime. This principle of allocation
of overtime has been followed by Riddell since he has been with Respondent.
Riddell is the one that authorized overtime to be worked. When Papcun worked
overtime he worked on the Madison surface grinder which is the only grinder
in the heavy machine department.
An analysis of the daily and Saturday overtime worked by the three employees
in the surface grinder classification in the period of 1 year from June 27, 1960, when
Papcun was recalled, through June 25, 1961, reveals the following: (Dowling
is identified as (d), Koistinen is identified as (k), and Papcun is identified as (p):
In the 13-week period from June 27 to September 25, there was substantial overtime,
(d) and (k) worked daily overtime during 10 weeks totaling 85.5 and 85.25 hours
(p) worked 12 weeks involving daily overtime, a total of 96 hours; in the same
period (d) and (k) worked 10 Saturdays, 80 hours, while (p) worked 11 Saturdays,
a total of 88 hours; in the 27-week period, September 26 to April 2, when little
overtime appears, (d) worked no daily overtime, (k) worked daily overtime in 3
weeks totaling 11.5 hours, (p) worked no daily overtime; (d) worked 2 Saturdays,
16 hours, (k) worked 3 Saturdays, 27.5 hours, (p) worked 3 Saturdays totaling
23 hours; in the 5 weeks from April 3 to May 7 overtime increased, (d) worked
24 hours daily overtime, (k) worked 21 hours daily overtime, (p) worked 22
hours daily overtime; (d) worked 4 Saturdays, 32 hours, (k) worked 3 Saturdays,
24 hours, (p) worked 3 Saturdays, 24 hours; in the 7-week period, with which we
are here concerned, of May 8 to June 25, (d) worked daily overtime in 3 weeks,
9 hours, (k) worked daily overtime in 2 weeks, 5 hours, (p) worked daily overtime
in 3 weeks, 8 hours, (d) worked 6 Saturdays, 48 hours, (k) worked 3 Saturdays,
20.5 hours, and (p) worked 2 Saturdays, 16 hours. Totals of daily overtime for
the 52-week period are: (d) 118.5 hours, (k) 122.75 hours, and (p) 126 hours.
Saturday overtime totals are: (d) 176 hours, (k) 152 hours, and (p) 151 hours.
A mere cursory examination of the overtime chart reflects that on some Saturdays
in the 52-week period, all three surface grinders worked 8 hours, on other Sat-
urdays only one or two worked, not always the same number of hours. Daily
overtime similarly reflects uniformity in some weeks and not in others. It must
be concluded therefore that since June 27, 1960, overtime worked by employees
in this classification was varied, in the sense that all three employees did not, in a
number of instances, work the same days or the same number of hours. No records
to support the assertion of Papcun as to the prestrike practice of all employees in
the classification working when overtime was worked appear in this record.
The evidence establishes that Papcun did in fact work less overtime hours than
the other two surface grinders, on the seven Saturdays included in the allegation.
It also establishes that Papcun worked more total hours of daily overtime than
the other two employees in the 52-week period, and substantially the same total
hours of Saturday overtime as Koistinen in that period. The purported practice of
equal division of overtime is not established by the evidence. Hence, there can be
no finding of departure from such past practice. Accordingly, I will recommend
a dismissal of this allegation of the complaint.
M. Concluding findings re 1961 events
1. Discriminatory layoffs and recalls
It appears undisputed that Peterson, a hydraulic pipefitter, was not recalled from
layoff on April 10, 1961, when a hydraulic pipefitter with less seniority was recalled,
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but was subsequently recalled on June 26. It is also undisputed that Bristol and
Alexander, machine builders, were not recalled from layoff on March 14, 1961,
when machine builders with less seniority were recalled, but were subsequently
recalled on May 9 and 2, respectively. It appears undisputed that Shook, a time-
keeper, was laid off on February 10, 1961, while Henderson, a timekeeper with less
seniority, was not laid off, and Shook has never been recalled, while Costa, another
timekeeper with less seniority, has been recalled since that date.
Respondent and the Union entered into an agreement which provided, inter alia,
that a layoff or recall would be in the order of seniority by classification. I have
found, supra, that no other condition attached, even though Superintendent Riddell
sought to establish that at that time a condition of "ability to do the work available
in an acceptable manner" was in fact coupled with the contract provisions. Respond-
ent does not assert that the added qualification was pursuant to a supplemental agree-
ment with the Union. Neither does it assert that the added condition was publicized.
The evidence permits only a finding that contract provisions of strict seniority were
adhered to, with few unpersuasive exceptions. That the conditions which prevailed
during the period of the union contract were continued in force by Respondent, as a
matter of policy, is not disputed.
Respondent sought to show that Peterson, Bristol, Alexander, and Shook had
inadequacies. Largely, except in the case of Alexander, these contentions related
to conduct which preceded the strike in August 1959. They are asserted as justifica-
tion for actions taken in 1961. It is undisputed that no reprimands or disciplinary
action were issued against any of these employees prior to the time of the strike.
These four employees had all been recalled in June 1960. Peterson's work after he
returned from the strike, was described as "satisfactory," "improved," and "average"
by the two foremen who were his supervisors. The contention made against Peter-
son related to dilatory conduct in 1959, as distinguished from ability or competence.
Bristol admittedly had sufficient competence to be a "tool board" leader. However,
Respondent asserts, in effect, that he became less competent than any other machine
builder and therefore was the last to be recalled in that classification, while Alexander,
who according to Foreman Hargreaves could do little without being shown each
operation, was among those recalled ahead of Bristol. The failure to recall
Alexander, in turn, was largely related to one error for which he was given a
disciplinary layoff in January 1961. Peterson and Bristol had been in their respec-
tive classifications since 1953 and Alexander and Shook had been in their respec-
tive classifications since 1954. Thus, each had performed approximately 5 or 6 years
of work which it must be assumed was satisfactory, absent reprimand, prior to their
engaging in the strike. Respondent did not attempt to introduce proof that employees
hired as late as 1960, recalled before these employees, were in fact more competent
than these employees.
I am constrained to find that Respondent has advanced unpersuasive reasons for
its failure to reinstate these employees in the order of seniority by classification and
to justify its layoff of Shook in clear violation of that policy. The Board has held that
where there is no evidence that the work of those recalled, with less seniority was
better, and where claimed greater potential was not a factor in established policy,
the conduct found herein was a violation of the Act. See Ward Body Works, Inc.,
103 NLRB 680. The Board has also held that where Respondent offered no credible
explanation for its failure to follow its customary practice in the manner of recalls
such conduct as is reflected in this record constitutes a violation of the Act. See
Lingerie, Inc., 101 NLRB 1374, and Morgan Furniture Company, 102 NLRB 944.
In numerous cases the Board has held that the failure to recall a known union adherent
after an economic layoff was discriminatory where the employer departed from
established policy by recalling laid-off employees with less seniority. See Industrial
Fabricating, Inc.; et al., 119 NLRB 162, and Conso Fastener Corporation, '120
NLRB 532.
The layoff of Shook, February 10, 1961, while Henderson with less seniority was
retained, was in contravention of established policy. This policy is clearly demon-
strated by the layoff of Henderson and Costa on December 16 and January 11.
Donaghey's testimony sought to establish incompetency on the part of Shook prior
to either of these layoffs. If ability to do the work in a satisfactory manner was a
factor it is unexplained why it was not used on these earlier dates. Riddell sought
to predicate his decision upon later unproduced report from Donaghey, reflecting
an excessive number of errors by Shook. If such reports were made and formed
the basis for Shook's layoff, Donaghey's assertion that he had no conference with
Riddell between the fall of 1960 and a date after Shook's layoff is implausible.
I find the alleged reports of errors never existed. Shook admittedly was advised that
his layoff was for "lack of work." Respondent' s assertion that it was a disciplinary
THE CROSS COMPANY 1119
layoff is unsupported by credible evidence and, I find, is an afterthought without
substance. Accordingly, I find the layoff and failure to recall Shook constituted
a constructive discharge, discriminatorily motivated.
While the events relative to these four employees occurred in February, March,
and April 1961, they do not stand in isolation from the discriminatory conduct of
Respondent in 1960 which I have found, supra, which furnishes an adequate back-
ground for a finding of discriminatory motivation, if any were needed.
Accordingly, I find that Respondent's discrimination with respect to hire and
tenure and conditions of employment of Peterson, Bristol, Alexander, and Shook
constituted in each instance an unfair labor practice within the meaning of Section
8(a)(3) and interference with, restraint, and coercion of employees in the exercise
of rights guaranteed in Section 7 of the Act within the meaning of Section 8(a)(1)
of the Act.
2. Assignment of more arduous or less agreeable job tasks
Lewandowski, a storekeeper, was assigned to more menial, lower rated, less
agreeable, and more arduous duties after his recall on March 6, 1961. When
Lewandowski was recalled on March 6, 1961, Respondent did not have anyone per-
forming the duties of a storekeeper. It is undisputed that Lewandowski's acceptance
of work in snagging, at that time, was voluntary on his part. However, on March 13,
Genest, a striker with less seniority, was transferred from snagging to storekeeping
and Salansky, a nonstriker, was recalled from layoff to do the storekeeping work.
Lewandowski was never returned to storekeeper duties, but, in May, was transferred
to sweeping and running the scrubbing machine and vacuum cleaner, duties of a
janitor-sweeper.
Here, again, Respondent advances alleged incompetence which preceded the strike
in August 1959 as justification for its action. Oddly, while Balkwill, Lewandowski's
supervisor, allegedly advised Riddell of Lewandowski's incompetence, neither Balk-
will nor Riddell issued any reprimand or other form of disciplinary action, nor does
it appear that Lewandowski was advised at that time of the depth of Balkwill's dis-
satisfaction. While Riddell assertedly determined before Lewandowski's recall on
June 3, 1960, not to restore him to his former duties as storekeeper, Riddell acknowl-
edged that he never so advised Lewandowski. No claim appears that Lewandowski's
work was unsatisfactory from 1952 to January 1958. Respondent's decision not to
assign Lewandowski to his prestrike duties obviously required explanation. Respond-
ent's alleged justification appear as afterthoughts, I so find.
Respondent unquestionably proceeded on the erroneous assumption that if it con-
tinued to employ Lewandowski and pay him the wages of the classification of a store-
keeper it could assign him to tasks outside of that classification without regard to
whether those tasks were similar or an equivalent of the tasks he had formerly
performed. Numerous Board and court decisions are to the contrary. In a com-
parable situation the Board has held that the voluntary acceptance of a transfer to
a position which was, in effect, a demotion, even though the employee continues to
draw the same basic rate of pay, does not render it unnecessary to determine whether
such transfer constituted an assignment to more arduous or less agreeable work.
The Board found such a transfer to more menial tasks constituted discrimination
and an unfair labor practice. See Majestic Metal Specialties, Inc., 92 NLRB 1854,
1862.
Accordingly, I find the failure of the Respondent to transfer Lewandowski to store-
keeper duties on March 13, 1961, and his assignment then and thereafter to work in
the snagger and janitor-sweeper classifications were assignments to more arduous
and less agreeable job tasks, were discriminatorily motivated, and each assignment
was an unfair labor practice within the meaning of Section 8 (a) (3) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain 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.
It has been found that Respondent unlawfully discriminated in regard to the hire
and tenure of employment or other term or condition of employment of 28 employees
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discourage membership in a labor organization by discriminatorily discharging
them. The identity of these employees and the date of their respective discharge is
set forth in Appendix C attached hereto and made a part hereof. I recommend that
the Respondent be ordered to offer each said employee immediate and full rein-
statement to the former or substantially equivalent position of each, without prej-
udice to their respective seniority and other rights and privileges, and make each
of them whole for any loss of pay each may have suffered by reason of Respondent's
discrimination against each of them by a payment of a sum of money equal to that
which each normally would have earned as wages from the date of said discharge,
as shown on said Appendix C, to the date when, pursuant to the recommendations
herein contained, Respondent shall offer each said employee reinstatement, less said
employee's net earnings during said period. Said backpay shall be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289. Said amount shall include, among other things, any insurance benefits
lost by the discriminatees under the insurance, hospital, and medical service plans of
Respondent.139
Respondent having discriminated with respect to hire and tenure of employment
against 15 employees who were excluded from Respondent's plant on one or more
days, thereby discouraging the free exercise of rights guaranteed by Section 7 of the
Act, and discouraging membership in and activities on behalf of the Union, I recom-
mend that Respondent be ordered to make each of said employees whole for any
loss of pay each may have suffered by reason of Respondent's discrimination against
,each by a payment to him of a sum of money equal to that which he normally would
have earned on the day or days on which he was excluded. Said employees are
identified in Appendix D, which is attached hereto and made a part hereof, and the
date or dates of such exclusions are set forth therein.
Respondent having discriminated against Joseph Horonzy with respect to hire
and tenure of employment or other terms and conditions of employment by providing
him with less employment than he normally would have received, commencing June 1,
1960, thereby discouraging the free exercise of rights guaranteed by Section 7 of the
Act, and discouraging membership in and activities on behalf of the Union, I recom-
mend that Respondent be ordered to offer him immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole for any loss of pay be may
have suffered by reason of Respondent's discrimination against him by payment to
him of a sum of money equal to that which he normally would have earned as wages
from June 1, 1960, to the date when, pursuant to the recommendations herein con-
tained. Respondent shall offer him reinstatement, less his net earnings during said
period. Said backpay to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289. Said amount shall
include, among other things, any benefits lost by him under the insurance, hospital,
and medical service plans of Respondent.
Respondent having discriminated against Theodore Peterson, Floyd Bristol, and
Lorne Alexander with respect to hire and tenure of employment, or other terms
and conditions of employment, by failing to recall them in the order of their
seniority, thereby discouraging the free exercise of rights guaranteed by Section 7
of the Act, and discouraging membership in and activities on behalf of the Union,
I recommend that Respondent be ordered to make each of them whole for any loss
of pay each may have suffered by reason of Respondent's discrimination against
them by payment of a sum of money equal to that which each would normally have
earned as wages during said periods: In the case of Peterson from April 10 to June 26,
1961; in the case of Bristol from March 14 to May 9, 1961; and, in the case of
Alexander from March 14 to May 2, 1961; less the net earnings of each during said
period. Said backpay shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289. Said amount shall
include, among other things, any benefits lost by the discriminatees under the
insurance, hospital, and medical service plans of Respondent.
Respondent having discriminated against Anthony Lewandoswki with respect to
hire and tenure of employment or other terms and conditions of employment, by de-
moting him to janitor-sweeper classification duties, thereby discouraging the free
exercise of rights guaranteed by Section 7 of the Act, and discouraging membership
in and activities on behalf of the Union, I recommend that Respondent be ordered
to restore him to his former or substantially equivalent position of storekeeper with-
out prejudice to his seniority and other rights and privileges of employment.
Im Deena Artware, Incorporated, 112 NLRB 371 ; East Texas Steel Castings Company,
Inc., 116 NLRB 1336.
THE CROSS COMPANY 1121
It is also recommended that the Respondent be ordered to make available to the
Board, upon request , payroll and other records to facilitate the checking of the
amount of earnings due.
In view of the nature of the unfair labor practices committed , the commission of
similar and other unfair labor practices reasonably may be anticipated . I shall there-
fore recommend that Respondent be ordered to cease and desist from in any manner
infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, and its Local Union No. 155, International
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL-CIO, are labor organizations within the meaning of Section
2(5) of the Act.
3. By discriminating with respect to the hire and tenure of employment and terms
and conditions of employment of: (a) 28 employees identified in Appendix C; (b)
15 employees identified in Appendix D; and ( c) Joseph Horonzy , Lorne Alexander,
Mykola Holowan, and John Fassbinder, thereby discouraging the free exercise
of the rights guaranteed by Section 7 of the Act and discouraging membership in and
activities for the above -named labor organization , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and
(1) of the Act.
4. (a) By its layoff of Joseph Agosta on January 11, 1961 , its failure thereafter
to recall said employee, and its use of apprentices to do tool and cutter grinding
during the period of said layoff; (b) by its assignment of overtime to employees in
the surface grinder classification ; and (c ) by reason of the failure of Floyd Bristol
to report for work, in the period of June 6 to August 9, 1960, on days other than
July 1 and August 4; Respondent did not engage in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
APPENDIX C
Gus Caravas ------------------------------------ July 25, 1960
Edward Castle ----------------------------------- May 24, 1960
Rolland Christen --------------------------------- July 18, 1960
Louis Cortis ------------------------------------- May 24, 1960
Frank Domilici --------- ------------------------- July 22, 1960
Hermann Enzmann ------------------------------- June 23, 1960
Arthur J. Ferdinand ------------------------------ July 11, 1960
Peter Gauci ------------------------------------- June 16, 1960
Roy A. Gray ------------------------------------ June 13, 1960
Charles Heyworth -------------------------------- June 2, 1960
Roy Jacobs ------------------------------------- June 21, 1960
Steven J. Janicki --------------------------------- July 21, 1960
Wallace Jarosz ----------------------------------- August 1. 1960
Walter Karolak ---------------------------------- July 30, 1960
Leo Marschke ----------------------------------- May 23,1960
Earl R . Martz ----------------------------------- June3,1960
Albin J. Melkus --------------------------------- June 17, 1960
Walter Olms ------------------------------------ August 4, 1960
Michael Oravec ---------------------------------- May 27, 1960
Philip Parrino ----------------------------------- July 16, 1960
Fred Payne ------------------------------------- July 7, 1960
Chester R. Pierson -------------------------------- July 12, 1960
William Russner --------------------------------- June 22, 1960
Sam Sassano ------------------------------------ June 3, 1960
George Schumaker ------------------------------- July 16, 1960
Raymond Shook --------------------------------- February 10, 1961
John J . Varriale --- ------------------------------ May 26, 1960
Robert Wagers ---------------------------------- June 21, 1960
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
Floyd Bristol ------------------------------------ July 1 , and August 4, 1960
Joseph Brown ----------------------------------- August 4, 1960
Arthur Derbin ---------------------------------- August 4, 1960
Sam Dogariu ------------------------------------ August 4, 1960
Stanley G. Filar --------------------------------- August 4, 1960
Philip L. Genest --------------------------------- August 4, 1960
David Kidle ------------------------------------- August 4, 1960
Jacob Krist ------------------------------------- August 4, 1960
Anthony Lewandowski ---------------------------- August 4, 1960
Nickolaus Miller --------------------------------- May 23, 1960
Edward Moore ----------------------------------- May 23, 1960
Bruno Muszynski -------------------------------- August 4, 1960
Edward S. Papcun ------------------------------- July 1, and August 4, 1960
Theodore Peterson ------------------------------- July 1, 1960
William J. Vorhoff ------------------------------- July 21, 1960
United States Gypsum Company and District #15, International
Association of Machinists , AFL-CIO. Case No. 2-CA-7872.
August 1, 1963
DECISION AND ORDER
On May 31, 1962, Trial Examiner Eugene E. Dixon issued his
Intermediate Report, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. He further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and the Re-
spondent filed supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the modifications and additions
as hereinafter set forth 2
We have carefully considered the evidence in the record, and mind-
ful of the difficulty that is inherent in disposing of the factual question
of good faith, nevertheless we must conclude, for the reasons set forth
by the Trial Examiner, that on the record as a whole the Respondent
i The Respondent has requested oral argument . This request is hereby denied because
the record , the exceptions , and the briefs adequately present the issues and the positions
of the parties.
2 The Respondent , in its briefs to the Board, requested dismissal of the complaint on
the ground the General Counsel had not proved his case. For the reasons hereinafter set
forth the request is denied.
143 NLRB No. 101.