The Mead Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1974

211 N.L.R.B. 657 (N.L.R.B. 1974)

F.C.F. PAPERS, INC.
F.C.F. Papers, Inc., a Division of The Mead
Corporation and Teamsters Local 118, Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
3-CA-5191
June 18, 1974
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On August 28, 1973, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the Administrative Law
Judge's rulings, findings , and conclusions only to the
extent consistent herewith.
The background facts show that on January 26,
1973,1 a meeting was held at the union hall attended
by all but one of Respondent's warehouse employees.
All those present signed union authorization cards,
and the Union subsequently requested recognition.
Richard Handel, Sr., a working foreman and
supervisor, who was at the time believed by the
Union to be an employee, testified that he told
Respondent's president, Arthur Ennis, that he and
most of the other men had signed authorization
cards. On February 2, the union president told
Richard DuRose, an attorney for Respondent, that
all employees, with the exception of Daniel Hamil-
ton, had signed cards. As discussed below, Respon-
dent's president convened a meeting of warehouse
employees, and Respondent's attorney questioned
certain employees. On February 9, Respondent
discharged Handel, Sr., correctly believing he was a
supervisor. The employees met on February 10 and
voted to strike. The strike, which commenced on
February 12, was continuing at the time of the
hearing.
1. The Administrative Law Judge found that
Respondent violated Section 8(a)(1) of the Act by
inviting and encouraging the employees to bargain
directly with Respondent as a means of warding off
the Union. On February 7 Respondent's president
I All dates are 1973.
s Compare Eugene Yokel! and Bernard Yokell, Co-partners, d/b/a
Crescent Art Linen Co., and Betsy Ross Needlework, Inc, 158 NLRB 447,
enfd . 387 F.2d 751 (C.A. 2, 1967). The Board found a violation where the
657
conducted a meeting among the employees and said
that he saw there were problems and wanted to get
them straightened out. He stated, "Well if anybody
got any problems they can come up and see me. I
think we can straighten them out." Handel, Sr.,
accused Ennis of not being interested in the
employees' problems and stated there were not
enough men, forklifts, or pallets.
Ennis' offer to deal with problems was not
conditioned, directly or impliedly, on rejection of the
Union. There were no antiunion statements; Ennis
said that he had nothing against unions. When
Handel, Sr., raised certain apparently recurring
problems, Ennis did not offer any solution. In this
context, we find that the speech appears to be an
attempt to check into normal work problems rather
than an invitation to bargain in derogation of the
Union.2 Accordingly, we shall dismiss this allegation
of the complaint.
2. The Administrative Law Judge found, on the
following facts, that Respondent unlawfully interro-
gated employees. On February 8, Respondent's
attorney, Edward Mitchell, individually summoned
five unit employees into the office of Respondent's
president. Mitchell told each that he had the right to
engage in or refrain from union activities, that his
participation was voluntary, that there would be no
reprisals or benefits, that Respondent had been
informed of the January 26 union meeting, and that
the only information sought concerned the activities
of Handel, Sr. Three employees signed statements,
one agreed to sign a description of the "assurances
given," and one refused to answer any questions. The
employees were asked whether they were present at
the union meeting, whether others were present, who
passed out authorization cards, who were given
cards, and who signed cards. One employee told
Mitchell the names of all the employees who had
attended the meeting.
Although questioning employees as to who attend-
ed a union meeting and passed out, received, and
signed authorization cards would, under most cir-
cumstances, constitute unlawful interrogation, in the
context here we find that it would not serve the
purposes of the Act to find that Respondent's
interrogation violated the Act. The Respondent had
a legitimate concern about supervisory participation
in the Union. That the supervisory status of Handel,
Sr., was not finally determined until March 13 does
not detract from Respondent's concern. The employ-
ees were given assurances against reprisal and were
told that their participation was voluntary. The
employer told employees , in a poll he was taking , if you vote for the union
we are through but if you vote against the union we can talk about your
problems. The employees voted against the union , and for an hour
thereafter discussed working conditions with the employer
211 NLRB No. 67
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal of one employee to participate indicates that
those statements were communicated and believed.
In addition, Respondent had been previously in-
formed by the Union that all employees but one had
signed cards , and at the outset of the interrogations
Mitchell told the employees that he knew about the
union meeting . Thus, any information about union
strength or employee participation in the Union
obtained during the interrogations would be cumula-
tive. As the employees were aware that this was so,
the interrogations did not tend to be coercive.
Accordingly , we shall dismiss this allegation of the
complaint.
3. The Respondent excepts to the Administrative
Law Judge 's finding that Respondent violated
Section 8(a)(1) of the Act by litigating in bad faith
the contention that it need not reinstate the strikers
because they had engaged in a slowdown . To find
that the assertion of an affirmative defense , albeit
frivolous , violates the Act is without precedent, is
unfounded, and would tend to unduly restrict the
rights of parties at Board hearings to fully litigate all
issues . Accordingly, we shall reverse this finding.
4. The Respondent contends that the employees
were engaged in an unprotected strike to force
Respondent to reemploy a supervisor , Handel, Sr.
We do not agree. We find, for the reasons set forth
by the Administrative Law Judge in his Decision,
that the strike was a protected economic strike.
Moreover, even if the sole purpose of the strike had
been to secure the reemployment of Handel , Sr., the
strike would be protected since Handel, Sr., had an
identifiable direct impact on the employees' own job
interests .3 Handel , Sr., was a low level supervisor
who also worked alongside rank-and-file employees.
Handel, Sr., and Respondent's president had fre-
quent discussions concerning the condition of the
warehouse area . At the meeting called by Respon-
dent on February 7, Handel, Sr., complained about
certain operational problems and said that Ennis,
Respondent's president , was out to "screw" the men
in the warehouse . Thus, Handel, Sr., was clearly
identified by the warehouse employees as taking their
position against top management.
5. The Administrative Law Judge properly found
that an unconditional offer to return to work was
made on behalf of all the economic strikers by the
Union in a letter which Respondent received on
March 9. Although apparently all the strikers had
been permanently replaced at the time of the Union's
unconditional offer, it is clear that a number of
3 Dobbs Houses, Inc., 135 NLRB 885, enforcement denied 325 F.2d 531
(C.A. 5, 1%3). Although believing the means selected by the employees
"was not reasonably related to the ends sought to be achieved ," the court,
nevertheless , recognized that the discharge of a supervisor could be within
the employees ' legitimate concern and a protected activity . The Board
vacancies subsequently arose. While we agree with
the Administrative Law Judge that Respondent
violated Section 8(a)(3) of the Act by failing to offer
reinstatement to the strikers, we do not agree entirely
with his analysis of the availability of positions where
replacements had left or never been hired.
We do not agree with the Administrative Law
Judge's finding concerning the student part-time
employees. There is nothing in the record to indicate
that they were other than regular part-time employ-
ees who were permanent replacements for the
strikers. We also disagree with the Administrative
Law Judge's finding that Barry Joy was hired on
March 18, the day he began work, rather than on
March 5 when the Respondent contends Joy was
hired. Uncontradicted testimony indicates that Res-
pondent accepted Joy for employment on March 5,
but that Joy could not start work until later because
he had to give his former employer 2 weeks' notice.
Respondent's payroll records show that, as of
March 9, there were 10 permanent replacements (of
whom 3 or perhaps 4 were students) on the job, a
commitment to hire 1 more, and 1 employee who had
not struck. Thus, we find that the strikers had been
permanently replaced when the unconditional offer
to return to work was made.
As found by the Administrative Law Judge,
Respondent's payroll records show that a number of
job vacancies occurred after March 9. Three persons,
not including Barry Joy, were hired-one on March
26 and two on April 9. In addition, an employee was
terminated on March 16 and two student employees
were terminated on April 13 and May 18, respective-
ly. Respondent made no effort to offer any strikers
reemployment until it successively offered one job to
four strikers on April 25, May 2, 9, and 23. Whether
these were proper offers of reinstatement will be
deferred to the compliance stages of this proceeding.
What is clear from this record is that Respondent
failed to offer reinstatement to any striker between
March 9 and April 25, during which time three
persons were hired and two terminated. Thus, we
find that Respondent refused to offer strikers
reinstatement during this period.
In The Laidlaw Corporation, 171 NLRB 1366, 1369,
enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397
U.S. 920 (1970), the Board held:
... economic strikers who unconditionally
apply for reinstatement at a time when their
positions are filled by permanent replacements:
(1) remain employees; and (2) are entitled to full
subsequently respectfully disagreed with the court's rationale . P/astilte
Corporation, 153 NLRB 180, enfd. in relevant part 375 F.2d 243 (C.A. 8,
1967). More recently the Board has reaffirmed the Dobbs Houses principle
in Okla-Inn, d/b/a Holiday Inn of Henryetta, 198 NLRB No. 68, and Kelso
Marine, Inc., Kel Stress Division, 199 NLRB 7.
F.C.F. PAPERS, INC.
reinstatement upon the departure of replacements
unless they have in the meantime acquired regular
and substantially equivalent employment, or the
employer can sustain his burden of proof that the
failure to offer full reinstatement was for legiti-
mate and substantial business reasons.
We have found that an unconditional offer to return
to work was made on behalf of the strikers at a time
when the Respondent had apparently permanently
replaced all of them. Since the Respondent subse-
quently terminated certain employees and hired
others, one or more positions of the strikers were
vacant and one or more strikers are entitled to
immediate reinstatement.4 The remaining strikers
may also be entitled to reinstatement at the depar-
ture of other replacements, unless they have, in the
meantime , acquired regular and substantially equiva-
lent employment. However, as we are unable to
determine from the state of the present record which
or how many of the strikers are entitled to immediate
reinstatement, and, if properly entitled, the order of
reinstatement of the strikers, we shall leave the
questions of such individual reinstatement rights for
resolution at the compliance stage of this proceeding.
We shall further order that Respondent make whole
those strikers entitled to immediate reinstatement for
any loss of pay they may have suffered.
6. The Administrative Law Judge, relying on
N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), found, upon the Union's bargaining request
and the Respondent's unfair labor practices, that a
bargaining order is necessary to protect the majority
selection of the Union. We do not agree. We have
reversed all the findings of violations except for the
8(a)(3) and (1) violation stemming from Respon-
dent's failure to reinstate economic strikers. We find
that in these circumstances this unfair labor practice,
standing alone , is not so likely to have a lingering
effect as to preclude the holding of a fair election.
Accordingly, we shall dismiss this allegation of the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
F.C.F. Papers, Inc., a Division of the Mead Corpora-
tion, Rochester, New York, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from interfering with, re-
straining , and coercing its employees in the exercise
4 Richard Handel , Jr., is not entitled to reinstatement because he
engaged in picket line misconduct.
S In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
659
of their Section 7 rights by failing and refusing to
reinstate its striking employees to properly available
positions after an unconditional offer to return to
work has been made on their behalf, or in any like or
related manner discriminating in regard to hire or
tenure of employment or conditions of employment.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) In accordance with the Decision and Order of
the Board and subject to any supplementary pro-
ceedings that may be had in this case, offer
immediate and full reinstatement to such of the
strikers whose former positions have been vacated
after the strikers' offer to return to work, without
prejudice to any seniority or other rights and
privileges previously enjoyed.
(b) Make those strikers who have been improperly
denied reinstatement whole for any loss of earnings
they may have suffered by reason of Respondent's
discriminatory failure to reinstate them. Backpay
and interest shall be computed under the standards
of the Board as set forth in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and other
records necessary and useful to determine the rights
to reinstatement and the amounts of backpay due
under this Order.
(d) Post at its Rochester, New York, warehouse
and facilities copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms
provided by the Regional Director for Region 3,
after being duly signed by Respondent's authorized
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER JENKINS, dissenting in part:
I cannot agree with my colleagues' dismissal of the
allegations of the complaint with respect to Respon-
dent's offer to straighten out employee problems or
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances on February 7 and the interrogation of
employees by Respondent's lawyer, Mitchell, on
February 8. Since I would find that the above-
described conduct by Respondent violates Section
8(a)(1) and join with my colleagues in finding
violations of Section 8(a)(3) and (1) stemming from
Respondent's failure to reinstate economic strikers, I
would find also that a bargaining order is appropri-
ate in these circumstances.
In a reversal of the Administrative Law Judge's
findings, my colleagues conclude that the Respon-
dent's offer on February 7 to straighten out employee
problems or grievances was an attempt to check into
normal work problems and did not violate the Act
because the offer to deal was not conditioned,
directly or indirectly, on rejection of the Union.
The credited testimony shows that Respondent's
president, Ennis, conducted the meeting because he
saw there were problems and wanted to get them
straightened out. It had not been Ennis' practice to
meet with the employees; in fact, Ennis told the
employees he was sorry he did not get together with
them before and closed the meeting by telling them
he would be available more frequently than in the
past and for the employees that had questions or
problems to come and see him. The timing of the
meeting is significant. It occurred immediately after
the Union came on the scene and at a time when the
Respondent had already received the Union's bar-
gaining request and an election petition was pending.
Thus, the effect of Respondent's offer to straighten
out employee problems and grievances can only be
an attempt to invite and encourage the employees to
bargain with the Respondent. The implication that
the employees do not need the Union to straighten
out their problems or grievances necessarily follows.
Accordingly, I would find, in agreement with the
Administrative Law Judge, that Respondent's offer
interfered with its employees' freedom of choice
concerning collective representation.
With respect to the interrogation of employees by
Respondent's attorney, Mitchell, my colleagues
excuse the conduct because Mitchell gave the
employees certain assurances and stated that the only
information sought concerned the activities of
Handel, Sr., a foreman. In fact, the interrogation
reached far beyond Handel, Sr.'s activities. The
employees were asked whether they were present at
the union meeting, whether others were present, who
passed out authorization cards, and who signed
cards. Mitchell elicited from one of the employees
the names of all the employees who had attended the
meeting . I am unable to understand how Mitchell's
far-reaching questions can be excused as having been
limited to the activities of Handel, Sr. Nor am I
persuaded by the attempt to justify the dismissal on
the ground that any information gathered from the
interrogation would have been cumulative. This
rationale is persuasive only if one makes the rather
difficult assumption that the Respondent did not
expect to learn anything more about the union
activities of its employees from the interrogation.
But, even if that were true, Respondent's continued
interest in, and ascertainment of, the employees'
support of the Union by directly approaching the
employees themselves interfere with rights guaran-
teed by the Act. The Board has held that interroga-
tion which seeks to place an employee in the position
of acting as an informer regarding the union
activities of his fellow employees is coercive .6 The
far-reaching scope of Mitchell's interrogations can-
not be lightly brushed aside. Mitchell did not limit
the interrogations to the activities of Handel, Sr. He
also asked questions about the union activities of
other employees. Under these circumstances, there
can be no justification for failing to adopt the
Administrative Law Judge's finding that Respon-
dent's interrogations violated the Act.
I likewise cannot agree with my colleagues' finding
concerning the student part-time employees. The
record shows that there were three, and possibly four,
student part-time employees. Two of them served
less than 3 months and only one apparently
remained employed on May 30, less than 4 months
after the strike. Since the Employer has the burden of
proving these striker placements were permanent if
that fact is placed in issue, in the circumstances here
it does not appear to me he has sustained his burden.
In my judgment, the nature and extent of this
unlawful conduct warrants the granting of a bargain-
ing order. At the time the Union made its bargaining
demand on the Respondent, it represented, on the
basis of cards, all but one of the unit's employees.
Upon receipt of this demand, the Respondent's
immediate reaction was to engage in unlawful
activities designed to determine the number and
identities of the union supporters and to suggest to
employees that their demands and complaints were
more likely to be settled if they would forego union
representation and deal directly with the Respon-
dent. The seriousness of this conduct, particularly
when considered together with the Respondent's
subsequent failure to reinstate employees in violation
of Section 8(a)(3), persuades me, as it did the
Administrative Law Judge, that there is little likeli-
hood that a fair election could be held in the
foreseeable future and that a bargaining order is both
6 Abex Corporation-Engineered Products Division , 162 NLRB 328; see
also Swanson -Nunn Electric Company, Inc., 203 NLRB No. 43.
F.C.F. PAPERS, INC.
necessary and appropriate to remedy this unlawful
conduct.
In all other respects, I join in the determinations
made by my colleagues.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the Decision and Order of the National
Labor Relations Board, we hereby notify our
employees that:
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their Section 7
rights by failing and refusing to reinstate econom-
ic strikers who have unconditionally offered to
return to work and whose former positions are
not filled by permanent replacements.
WE WILL, in accordance with the Order of the
National Labor Relations Board and subject to
any supplementary proceedings that may be had
according to the Board's Order in this case, offer
immediate and full reinstatement to those strikers
whose former positions were or became vacant
after the strikers' offer to return to work, without
prejudice to any seniority or other rights and
privileges previously enjoyed, and make them
whole for any loss of earnings they may have
suffered as a result of our failure to offer them
reinstatement.
F.C.F. PAPERS, INC., A
DIVISION OF THE MEAD
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Ninth Floor-Federal Building, 111
W. Huron St., Buffalo, New York 14202, Telephone
716-842-3100.
I All dates are in 1973.
2 The Union filed an original charge on February 14 and an amended
charge on March 19 ; the complaint issued on March 30.
DECISION
STATEMENT OF THE CASE
661
BENJAMIN B. LIPTON, Administrative Law Judge: This
proceeding was heard before me on May 30 and 31, 1973,1
in Rochester, New York, upon a complaint by the General
Counsel2 alleging certain violations of Section 8(a)(1), (3),
and (5) of the Act.
Upon the entire record,3 after consideration of the briefs
filed by General Counsel and Respondent, and from my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent has its principal office and place of business
in Dayton, Ohio, and maintains , inter alia, a warehouse in
Rochester, New York, where it is engaged in the sale and
distribution of paper products. The Rochester warehouse is
the only facility involved in this proceeding. During the
year preceding issuance of the complaint, Respondent had
a direct inflow in interstate commerce of products and
materials to its Rochester warehouse valued in excess of
$50,000. Respondent admits , and I find, that it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Essential Issues
Under Section 8(a)(1)-whether, on February 7, Respon-
dent's president invited and encouraged assembled em-
ployees to deal directly with Respondent concerning terms
and conditions of employment, notwithstanding Respon-
dent's prior receipt of the Union's demand for recognition
as the majority representative; and whether, on February
8, Respondent's attorneys unlawfully interrogated individ-
ual employees as to their union activities and those of other
employees.
Under Section 8(a)(3)-whether Respondent, by engaging
in unfair labor practices, initially caused or thereafter
prolonged a strike by its employees, and has refused to
reinstate the striking employees following their uncondi-
tional offers to return to work. Respondent presents the
defenses that (a) the strike was unprotected because its
purpose was to protest Respondent's discharge of its
warehouse manager, and to compel it to rehire this
individual, who was a supervisor; (b) the strikers were not
entitled to reinstatement because they had engaged in
misconduct in the form of a "slowdown" during the week
preceding the strike; (c) one striker had engaged in picket
line misconduct, thereby forfeiting his right to reinstate-
3 At p. 109, line 1, the transcript is hereby corrected to read : "Cross-
examination does not give you unlimited latitude."
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment; (d) and the strikers had been permanently replaced
preceding their unconditional offers to return.
Under Section 8(a)(5)-whether Respondent unlawfully
refused to bargain following the Union's demand; and
whether a bargaining order is justified under the Gissel
case ,4 based upon a majority of membership application
cards, in view of the serious nature of the asserted unfair
labor practices.
Respondent denies all the alleged violations.
B. Organizational Activity and Subsequent Events
On January 22, after earlier conversations with two or
three employees on the subject of union representation,
Ralph Hughson visited the Union's office. He had a
preliminary discussion principally with Ernest Moyer, the
Union 's president, and agreed to invite interested employ-
ees to a meeting with the Union set for Friday, January 26.
Hughson returned to the warehouse and informed other
employees of the scheduled meeting. At 5 p.m. on January
26, a meeting with Moyer and two other union agents was
held at the union hall. All but one of the nine warehouse
employees attended 5 and each listed on a sheet of paper
his name , address , classification , and wage rate. In
addition , Richard J . Handel , Sr., herein called Handel Sr.,
appeared and participated with the others under the
following circumstances : He came to the meeting with his
son, Richard F. Handel, age 17, in the event his signature
was necessary for his son to join the Union. He told Moyer
he was more or less in charge of the warehouse and did not
know if he should be there. At Moyer's request, he
described his duties, which included the distribution of
work to employees and the performance of similar work
himself in the warehouse. Moyer then told him that he was
a group leader or leadman, as covered in union contracts,
and that he could join the Union. During the meeting,
membership application cards were signed by all employ-
ees present and by Handel Sr.
By letter dated January 29, the Union notified Respon-
dent that it was selected as bargaining agent for the
"drivers , warehousemen , helpers , group leaders and cut-
ters," and requested a meeting to negotiate a contract. On
February 1, it filed with the Board a petition for
certification . It does not appear there was any written or
verbal response to the Union's bargaining demand.
On January 30, and within a period of the next 10 days,
various telephone discussions took place between Moyer
and Arthur Ennis, Respondent 's president, and Richard
Du Rose, an attorney for Respondent, who was present in
the plant. In one such conversation, on February 2, Moyer
told Du Rose that all employees except Hamilton signed a
card at the union meeting on January 26. Du Rose asked
him if he was aware that Handel Sr. was a supervisor, and
Moyer asserted his position that Handel Sr. was only a
working foreman or leadman. Without contradiction, it
4 N. L. R. B. v. Gissel Packing Co., Inc, 395 U.S. 575 ( 1969).
S Ralph Baker , Jimmy Collins , Robert Durr , Richard F. Handel, Ralph
Hughson , Eugene Lee , James McDonald , and Albert C. Schneider Daniel
Hamilton did not attend.
6 Moyer was uncertain as to the dates of certain conversations He
testified that , on February 7 or 8 , he told Ennis that , if they were going to
interrogate his people or discharge anybody, the Union would strike. He
was testified by Handel Sr. that, on February 2, he was told
by James Whalen and James Rodgers , executives of
Respondent, that Respondent's board of directors decided
to let him go . The reasons given related to the "condition
of the warehouse," and Respondent's belief that he had
brought the Union in. They informed him that he was
going to be discharged and would receive 4 weeks'
severance pay and his vacation pay. He promptly tele-
phoned this information to Moyer. On February 2, Moyer
left a telephone message for Ennis with Ennis' secretary to
the effect that the Union would call a strike the next
Monday (i.e., February 5) if any of the employees were
harassed . Ennis testified that, when he returned the call
that day, Moyer "emphatically" repeated the strike threat .6
On February 7, President Ennis made a speech to the
assembled employees. And on February 8, the employees
were individually interrogated in private offices at the
warehouse by Attorneys Du Rose and Mitchell. Also,
Respondent alleges that a concerted "slowdown" by the
employees occurred during the week beginning February 5.
These events are treated below. On February 7, Respon-
dent posted on the bulletin board a standard Board notice
indicating that an election petition had been filed and
generally apprising the employees of their statutory rights.
On February 9, Ennis posted a notice in substance that
Respondent has no intention of taking reprisals "because
of the union."
On February 9, Handel Sr. was discharged. Informed of
the discharge about 5 p.m. that day, Moyer scheduled a
meeting of employees to be held at McGraw's Grill on
February 10. At this meeting there were present, in
addition to the union agents , seven employees 7 and
Handel Sr . A strike vote was taken . Statements were made
by Moyer that the employees were being interrogated, that
Handel was discharged, and that "maybe the rest of you
fellows will be following . . . because you joined the
union." All agreed to strike beginning on Monday,
February 12. At such time, picketing commenced at
Respondent's premises with a sign stating, "Teamsters
Local 118 on strike." On February 14, the Union filed with
the Board its charges , which included an alleged violation
of Section 8(a)(3) based upon the discharge of Handel Sr.
On March 8, the Union sent the letter to Respondent
requesting "immediate unconditional reinstatement" of
eight named employees and Handel Sr. On March 13, a
reply was sent to the Union-essentially that permanent
replacements were hired and "no position is presently
available for the individuals named in your letter."
Further, Respondent requested the Union to answer
certain questions. On March 13, the Union was verbally
advised by the Board's Regional Director that, after
investigation, it was determined that Handel Sr. was a
supervisor . Thereupon, the Union formally requested by
letter the withdrawal of its 8(a)(3) charge relating to
Handel Sr. And on March 15, the Union wrote Respon-
indicated that interrogations (by Attorneys Du Rose and Mitchell on
February 8 , described infra ) had taken place at that point . It is entirely
plausible that Moyer would issue such a strike threat on February 2, upon
his receipt of the information from Handel Sr. Although conceivable, it is
not sufficiently clear , and I do not find, that he made an additional strike
threat following the interrogations on February 8.
7 Excluding Hamilton and Schneider.
F.C.F. PAPERS, INC.
dent deleting the name of Handel Sr . and renewing its
unconditional offer or reinstatement "on behalf of all the
others" named in the March 8 letter. At the hearing, the
parties stipulated that Handel Sr. was a supervisor under
the Act. At different dates beginning April 25, ostensibly
on the basis of a single vacancy, Respondent sent offers of
"employment" separately to four of the striking employees.
The circumstances of these offers, and of the alleged
replacements, will be considered infra. As of the hearing,
the strike continues.8
C. Restraint and Coercion
1. Ennis' speech on February 7
The meeting, convened by Ennis in the conference room,
was attended by Handel Sr. and eight of the employees.
Handel Sr. testified: Ennis said he was sorry he did not get
together with the employees before, but he did not have the
time. He saw that they have problems and wanted to get
them straightened out. He asked what the problems were,
and nobody answered . Then he said, "well, if anybody got
any problems they can come up and see me. I think we can
straighten them out." He does not have anything against
unions and, in fact, belongs to a union himself-the
Maritime Union. Handel Sr. spoke up. He accused Ennis
of not being interested in the employees' problems. And he
stated there were not enough men for the job, and they
needed more forklifts and pallets.
Ennis testified that he told the employees the purpose of
the meeting was "to discuss the apparent slow-down in
service in our warehouse." Later, he testified that the stated
purpose was to discuss "some apparent deficiencies in the
warehouse." In describing the "problems" to the employ-
ees, he "emphasized" that of service to customers, meaning
"operational problems," and the need to maintain such
service even during a period of union negotiations. At the
end of the meeting , he indicated that if there were any
problems that existed in the warehouse he would like to
know about them; he would be in Rochester more
frequently than in the past; and if the employees had
questions or problems to come and see him.
In my opinion, Ennis was attempting to shape his
testimony to preconceived legal conclusions. At the
hearing, Respondent's position was essentially that, during
the same week, the employees generally had engaged in an
unprotected concerted slowdown, and that those involved
in the subsequent strike thereby forfeited their right to
reinstatement. Assertedly, Ennis was aware of the slow-
down at the time of meeting on February 7. From Ennis'
own account of the meeting, it would indeed appear to be
an odd manner of addressing the employees on the subject
of such serious misconduct .9 Rather, it is clearly inferable
from the timing and the content of the speech that Ennis
was referring to the "problems" underlying the employees'
desire for union representation. I accept in essence the
testimony of Handel Sr. and do not credit ^EnWs to the
8 Respondent had filed charges against the Union on February 9,
alleging violations of Sec. 8(b)(1)(A) and (B). An informal settlement
agreement was executed as to the 8(b)(1)(A) charge, involving alleged
conduct by the Union unrelated to the issues in the present case.
Concerning the alleged 8(b)(1)(B) charge, the Regional Director dismissed
663
extent of the conflict. At the time, Respondent had
received the Union's bargaining request, and an election
petition 'was pending. As alleged in the complaint, I find
that ;Fpriis' primary purposelwas to invite and encourage the
employees to bargain directly with Respondent-"as a
means of warding off the Union, a violation of Section
8(a)(1)." 10
2. Interrogations of February 8
On this day, individual employees were summoned for
separate interviews with Attorney Mitchell in Ennis'office
and with Attorney Du Rose in the conference room. The
violative allegations refer specifically to Mitchell. He
testified, inter alia, that he told employee Hughson and
Schneider that he was investigating the activities of Handel
Sr. to determine if there were violations of the "Federal
Labor Relations Laws"; that employees had a right to
engage in or refrain from union activities; that their
participation in the interview was to be completely
voluntary; that there would be no reprisals or benefits from
Respondent; that the only information sought were the
activities of Handel Sr.; and that Union Agent Moyer had
already informed Respondent there had been a union
meeting on January 26 attended by employees and Handel
Sr. His questions to the employees concerned the participa-
tion of Handel Sr. in the organizing campaign and, as a
"collateral matter," to confirm the status of Handel Sr. as a
supervisor. Of the five employees called by Mitchell, three
signed statements drafted by Mitchell covering the
substance of the interview; one agreed to sign only a
description of the "assurances" given, and one refused to
answer any questions or sign a statement.
Hughson testified that certain of the questions by
Mitchell related to his own activity. Was he present at the
union meeting? He answered yes. Were there others in
attendance from the warehouse? He replied that there
were, and gave Mitchell all the names. Who passed out
authorization cards, who were given the cards, and who
signed the cards? He supplied such information. Schneider
testified that President Ennis introduced him to Mitchell.
He was also asked if he attended the union meeting, if
cards were passed out, and if anyone signed. His answers
were affirmative, but he did not recall whether he named
those who signed cards. Mitchell denied that he asked such
questions. Hughson and Schneider are credited. Du Rose
obtained signed statements from three employees. Handel
Sr. was also summoned by Du Rose, but refused to answer
questions without having his own attorney present.
In Johnnie's Poultry Co., 146 NLRB 770, 774, a lead case,
the following principles were delineated governing interro-
gation of employees:
Despite the inherent danger of coercion therein, the
Board and courts have held that where an employer has
a legitimate cause to inquire, he may exercise the
privilege of interrogating employees on matters involv-
the charge and was upheld on Respondent's appeal to the General Counsel.
9 The slowdown issue is more fully discussed infra.
10 N.L. R.B. v. Eugene Yokell and Bernard Yoked, d/b/a Crescent Art
Linen Co., 387 F.2d 751, 755 (C.A. 2, 1967), and cases cited by the court.
See also Donald Skillins d/b/a Yankee Distributors, 152 NLRB 1018, 1026.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing their Section 7 rights without incurring Section
8(a)(1) liability. The purposes which the Board and
courts have held legitimate are of two types: the
verification of a union's claimed majority status to
determine whether recognition should be extended .. .
and the investigation of facts concerning issues raised
in a complaint where such interrogation is necessary in
preparing the employer's defense for trial of the case.
In allowing an employer the privilege of ascertaining
the necessary facts from employees in these given
circumstances , the Board and courts have established
specific safeguards designed to minimize the coercive
impact of such employer interrogation . Thus, the
employer must communicate to the employee the
purpose of the questioning , assure him that no reprisal
will take place , and obtain his participation on a
voluntary basis; the questioning must occur in a
context free from employer hostility to union organiza-
tion and must not be itself coercive in nature ; and the
questions must not exceed the necessities of the
legitimate purpose by prying into other union matters,
eliciting information concerning an employee's subjec-
tive state of mind, or otherwise interfering with the
statutory rights of employees. When an employer
transgresses the boundaries of these safeguards, he
loses the benefits of the privilege . [Footnotes and all
case citations omitted.]
Respondent advances the justification for the February 8
interrogations that it was investigating the activities of
Handel Sr., a supervisor , with the view of filing unfair
labor practice charges, and that as a result of these
interviews it filed the Section 8(b)(1)(B) charge, earlier
described herein ." It immediately appears , among other
things, that such a purpose does not conform with either
type of permissible interrogation shown above. The
inherent dangers of coercion are manifest to a much
greater degree where an employer undertakes a course of
employee interrogations seeking to develop a basis for
filing charges, rather than in preparing a defense for the
trial of an actual case . 12 It can be seen that this type of an
employer investigation , if generally permitted , would open
up wide opportunities for subterfuge as a means of
entering into the area of interrogation otherwise forbidden.
In the circumstances of this case, I find that Respondent
was engaged in conduct reasonably calculated to interfere
with the employees ' Section 7 rights . Justification for the
interrogations is not established merely by asserting
assurances to the employees against reprisal or benefit.13
The supervisory status of Handel Sr. was evidently a
close question which remained unresolved until the
Regional Director's determination was made known on
March 13 . That Respondent itself was in doubt is indicated
by Attorney Mitchell's questions of the employees relating
to the duties of Handel Sr . Furthermore, it is undisputed
that high management officials told Handel Sr. a week
" As noted , the charge was ultimately dismissed . As of February 8, the
strike had not commenced and there was no indication of pressure by the
Union upon Respondent in the selection of its representatives (under Sec.
8(bXIXB)).
13 Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527, 530.
13 See Sullivan Surplus Sales, Inc., 152 NLRB 132, 133
earlier, on February 2, that Respondent had made the
decision to discharge him. This reduces even more the
reasonability of Respondent's concern over a possible
8(bx1XB) violation . The Union and the employees who
signed cards were then proceeding in good faith , and with
Respondent's knowledge , on the basis that Handel Sr. was
an employee, rather than a supervisor . Mitchell made it
plain to the interviewees that he was gathering evidence for
the purpose of taking action against Handel Sr. And,
indeed, Handel Sr., was discharged the next day. Although
Respondent was then acting at its peril, its opinion was
later upheld that Handel was a supervisor . The timing was
particularly sensitive in view of the Union's recent
bargaining demand and the pending election petition.
Respecting the substance of the interviews , Respondent
reached beyond its own stated necessities . It systematically
summoned at least eight of the nine employees -for
interrogation concerning Handel Sr ., much of which could
only have been cumulative and reflecting what Respondent
already knew before February 8. The very nature of such a
quest for evidence from employees relating to the organiz-
ing campaign could predictably provide disclosures of the
employees' individual activities and tend to coerce the
employees as a result. Separately summoned into the boss'
office, with Ennis present in at least one instance, the
employees were thus questioned in a locus of high
management authority and in an atmosphere of "unnatural
formality." 14 This context was not, in my opinion, free of
employer hostility to union organization such as would
minimize the coercive pressures stemming from the
interrogations . Then, finally, as I have found, there were
direct questions concerning the activities of the interview-
ees, Hughson and Schneider , and those of other employees,
which in no event could be justified as having a legitimate
purpose. Accordingly, it is concluded that Respondent
engaged in coercive interrogations violating Section
8(a)(l), as alleged.
General Counsel's contention that Mitchell conducted a
poll of the interrogated employees is plainly without
support. Such an allegation cannot be predicated merely
upon evidence that one (Hughson) out of the five
interrogated employees furnished answers to Mitchell
indicating that a majority of the unit employees had signed
authorization cards . Nor is there any merit to General
Counsel's ultimate position that Respondent, having
obtained such information from Hughson , could not rest
its refusal to bargain upon the Union's lack of a proven
majority.15
D. Cause of the Strike
The complaint alleges that the strike begun on February
12 was an unfair labor practice strike undertaken in protest
of Respondent's violative conduct in attempting to deal
directly with the employees on February 27, in coercively
14 See Bourne Co. v. N. L. R. B., 332 F.2d 47, 48 (C.A. 2, 1964).
15 The cases cited by General Counsel , e.g., Sullivan Electric Company,
199 NLRB 809, are patently distinguishable . Those situations involve an
actual poll in which the employer obtained from each employee the results
showing a majority designation of the union which had previously requested
recognition.
F.C.F. PAPERS, INC. 665
interrogating them on February 8, and in refusing to
bargain with the Union:op request.
An unfair labor practice strike does not result merely
because the strike follows the commission of an unfair
labor practice. A causal connection between the two events
must be established.16 My finding is that the strike was
clearly precipitated by the discharge of Handel Sr. on
February 9 and, but for this event, would not likely have
commenced when it did. On this issue, it is of no
consequence that the Union and the striking employees
then believed that the discharge was an unfair labor
practice and that their own jobs were similarly placed in
jeopardy. Handel Sr. was a supervisor, as was later
determined, and the Union conformed to this ruling. Thus
it appears that, on February 2, Union Agent Moyer
conveyed to Respondent a distinct strike threat after he
was apprised by Handel Sr. of Respondent's decision to
discharge him. There was no other apparent reason for
such a threat at this early date following the Union's
bargaining request. And on February 9, upon information
of Handel Sr.'s actual discharge, Moyer immediately
arranged for a meeting the next day to take a strike vote.
At this meeting, as the evidence reflects, the essential
discussion emanated from Moyer. By his own testimony,
he adverted to Handel Sr.'s discharge, stating that "he is
first, maybe the rest of you fellows will be following." He
referred to the interrogations with the comment that he
was not going to stand for it. I am unable to infer that the
interrogations alone would have brought on the strike.
Indeed, Moyer had earlier, on February 2, informed
Respondent that all but Hamilton had signed union cards.
While I do not assume that the employees were unaware of
the unlawful character of Ennis' speech on February 7, I
cannot find that such conduct combined with the interro-
gations provided the actual motivations to embark on the
strike. General Counsel's assertion that an unlawful refusal
to bargain was a further causative factor merely begs the
question. Even assuming arguendo that a remedial bargain-
ing order would he under the Gissel case,17 this conclusion
in itself would not establish that the strike was proximately
caused by any unfair labor practices. However, it is quite
evident that elements other than Handel's discharge were
involved in the strike. A basic labor dispute existed in the
whole context of the current organizational campaign,
including Respondent's failure to grant the Union's request
for recognition and the pending election petition. In net
result, therefore, I find that it was an economic rather than
an unfair labor practice strike in its inception.
E. Protected Nature of the Strike
Respondent has erected various defenses from the single
fact, as ultimately determined, that Handel Sr. was a
1e Capital Rubber & Specialty Co., Inc., 198 NLRB No. 46.
17 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969)
18 As earlier noted , Respondent's charge alleging such a violation was
dismissed by the Regional Director.
19 See Dobbs Houses, Inc., 135 NLRB 885, 888 ; Plasnhte Corporation, 153
NLRB 180.
20 Sec . 2(9) defines the term "labor dispute" as including "any
controversy concerning terms, tenure or conditions of employment, or
concerning the association or representation of persons in negotiating,
fixing, maintaining, changing , or seeking to arrange terms or conditions of
supervisor. It argues that the strike was unprotected, and
the strikers should therefore be denied all rights to
reinstatement because the strike sought to restrain and
coerce Respondent in the selection of its representatives for
the purposes of collective bargaining or the adjustment of
grievances. This is essentially the language of Section
8(b)(1)(B) of the Act defining a type of union unfair labor
practice.18 From all that appears, Handel Sr. was a minor
supervisor whose status presented a borderline question.
There is no evidence that he was a management represent-
ative who would participate, directly or indirectly, in the
collective-bargaining process, or that he was on a level to
be involved in the adjustment of grievances. The evidence
does affirmatively show that the Union and the striking
employees had a bona fide belief that he was a rank-and-
file employee and that Respondent was fully aware of this
position. The issue of his supervisory status was pending
before the Board. Respondent could not reasonably
assume that if Handel Sr. were found to be a supervisor,
the Union would persist in seeking his reemployment.
Indeed, when the Regional Office ruling came down that
Handel Sr. was deemed to be a supervisor, the Union
promptly withdrew its 8(a)(3) charge and notified Respon-
dent that its unconditional request for reinstatement of the
strikers did not include that of Handel Sr. Therefore, as a
factual matter, it cannot be held in these circumstances
that the purpose of the strike was to restrain or coerce
Respondent in the selection of its representatives.
The mere showing that employees strike in protest of the
discharge of a person, or that a striking union seeks the
reinstatement of a person, who is found to be a supervisor,
does not ipso facto render the strike unprotected. Each case
is determined on its own facts.19 This was not the type of
case in which the sole reason for the strike or concerted
activity was to protest the discharge of a supervisor, raising
the question of whether a valid labor dispute existed within
the meaning of the Act 20 "Where a `labor dispute' exists,
the employees may engage in a peaceful primary strike or
any other lawful manner of protest and still retain the
protection of the Act." 21 Unquestionably here, as found, a
labor dispute existed. And here the employees who joined
the strike could have harbored the fear, whether reasonable
or not, of further discharges in which they themselves
would be affected.22 In sum , I find no basis for holding
that the strike was unprotected.
F. Reinstatement of Strikers
1. Unconditional application
On March 9, Respondent received the Union's letter
offering "immediate unconditional return to employment"
of nine named "employees" who were on strike, including
employment." And Sec. 2(3) defines the term "employee" as including "any
individual whose work has ceased as a consequence of, or in connection
with, any current labor dispute "
21 Plastilite Corporation, 153 NLRB at 184.
22 The "reasonableness of workers' decisions to engage in concerted
activity is irrelevant to the determination of whether a labor dispute exists
or not" NL.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 16
(1962). And see N L.R.B v. Solo Cup Company, 237 F.2d 521, 526 (C A. 8,
1956).
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Handel Sr. In its reply letter of March 13, Respondent
indicated, inter alia, that it considered the strike an
unprotected activity, justifying its refusal of reinstatement
based upon the attempted compulsion to reemploy Handel
Sr., and also alleged picket line misconduct on the part of
"some" of the strikers 23 Respondent's letter further stated
that, "moreover," it had hired permanent replacements and
no position was presently available for any of the strikers
named by the Union. The letter also asserted that the
Union's offer was ambiguous in certain respects and
requested answers to two questions: (1) Whether the
Union's offer was contingent upon the reinstatement of all
the named strikers, and (2) whether the Union would
continue to strike if all the named strikers were not
reinstated . On March 15, the Union replied to Respon-
dent's letter reiterating that the offer was unconditional
and deleting the name of Handel Sr. (after the Union was
informed on March 13 of the Regional Director's decision
that Handel Sr. was a supervisor).
Respondent's construction of the Union's initial letter
was not reasonable. The offer was stated as unconditional
and conveyed no implication that reinstatement was
sought on an "all or none" basis. Nor would it follow that
the Union was conditionally insisting upon the reinstate-
ment of Handel Sr., whose discharge precipitated the
strike , while asserting at the same time that it was ready to
abandon the strike. Respondent need only have refused to
reinstate Handel Sr., maintaining its position that he was a
supervisor. This issue was, in any event, removed when the
Union advised Respondent that it withdrew its request for
the reinstatement of Handel Sr. It is my finding that the
Union's initial letter was unambiguous, that the Union was
not obliged to reply to Respondent's questions, as it did
not, and that it contained a valid unconditional offer of
reinstatement on behalf of the eight strikers, excluding
Handel Si'.
2. The alleged slowdown
At the hearing, in its opening statements, Respondent
asserted as a further affirmative defense that the employ-
ees, who later became strikers, had engaged in unprotected
activities in the form of a slowdown during the week before
the strike. At the instance of the Administrative Law Judge
during the hearing, Respondent's counsel specifically
confirmed the position that Respondent was relying upon
the alleged slowdown as reason for not reinstating the
strikers after their unconditional application to return to
work. A considerable part of Respondent' s case involved
the introduction of evidence on this issue, in substantial
length . A major portion of General Counsel's brief was
devoted to analysis of such evidence. Then in a footnote in
Respondent's brief it is simply stated that "Respondent
does not urge a slowdown among employees as a
justification for its refusal to re-employ the strikers." The
statement of counsel at the hearing, accompanied by
extensive evidence, was more than the urging of a legal
position. It also contained the admission that Respondent
refused to reinstate the strikers, when called upon to do so,
because of an asserted belief that such a slowdown had
occurred. As found below, the evidence scarcely establish-
es even a colorable basis for a good-faith belief that the
employees had engaged in such serious misconduct. In
these circumstances , Respondent will not be permitted to
escape the consequences of its fully litigated contention.
Respondent's witnesses on this issue consisted of
Thomas Fascetti, James D. Santini, and Arthur Ennis, all
management officials. The essence of their testimony,
based upon their observation and impression, was that
during the week beginning February 5 there was an
inordinate accumulation of unprocessed orders in the
warehouse; a large number of customer complaints
concerning delays in receiving their ordered merchandise;
delivery trucks leaving Respondent' s premises later than
was normal; an excessive number of rail cars at the sidings
which were not unloaded; aisles plugged and dock areas
filled with cargo; and the warehouse generally in a
condition of uncleanliness . In addition, Respondent
submitted a document, prepared for the purpose of the
hearing, which purports to show a comparatively sharp
reduction in the mileage driven on its delivery trucks
during the week ending February 10.24 Regarding the rail
car situation, Santini spoke to employee Baker, an order
picker, who responded that there were not enough pallets
and "they don't have the time." Santini did not take the
matter up with higher management . About February 6,
Handel Sr. was approached by Fascetti, Avery, and Rogers
concerning the "appearance of a slowdown." He told them
there was no slowdown, that the trucks were being held up
because of priority rush orders coming from the office.
It is no light matter to advance such a contention
asserting, on grounds of misconduct, the withholding of a
basic right of strikers to the Act's protection. The Act is
violated if a striker is discharged, or denied reinstatement
upon unconditional application, for misconduct arising out
of a protected activity when the employer does not have a
good-faith belief that such misconduct was committed, or
when it is shown, despite the employer's good faith, that
the misconduct never occurred.25
In general character, Respondent's evidence is highly
speculative and lacking in probity.26 Misconduct in the
form of a slowdown, such as alleged by Respondent in the
existing context, would necessarily have to consist of a
deliberate and concerted action by employees relating to
their organizational objectives. No attempt was made by
Respondent to adduce evidence of such concerted activity,
or to identify any employee believed to be involved.
During the week preceding the strike, there is no indication
of any serious concern by Respondent with such a
problem. If the workflow had actually slowed down during
this week, it is entirely plausible from this record that the
causes were directly attributable to management responsi-
bility, rather than to an unlawful design by the employees
or the Union.
23 Only that of Richard F . Handel , herein called Handel Jr ., was alleged counsel ." As Exh. 11, the document is admitted as an affidavit
at the hearing, infra. as N.L. R.B. v. Burnup & Sims, 379 U S. 21 (1964).24 On the same subject , Resp . Exh. 11 was reserved at the hearing for 26 Particularly, I regard President Ennis ' testimony on these matters as
receipt of a stipulation . After the close, Respondent submitted an affidavit largely conclusory , unresponsive, and unreliable.
of Joseph P. Moore, vice president, "in accordance with agreement between
F.C.F. PAPERS, INC.
I find that there was no reasonable basis for an honest
belief by Respondent that the alleged misconduct oc-
curred, that in fact it had not occurred, that Respondent
acted in bad faith in presenting and litigating this issue,
and that it completely failed to establish the necessary
support for its contention as a reason for denying
reinstatement to the strikers. Accordingly, on this ground
alone, Respondent violated Section 8(a)(1) of the Act.
3. Alleged misconduct of Handel Jr.
Handel Jr. had been an order picker and was one of the
strikers. Respondent contends that, on at least two
occasions, Handel Jr. had followed a company truck in a
manner designed to deter the driver from the performance
of his duties and to impede deliveries being made during
the strike. Edward Wendelgass, a striker replacement, was
the driver of Respondent's truck. Wendelgass testified
concerning two incidents which took place in succession
on April 19. He drove from Respondent's warehouse to a
local freight company-a straight route of about one
quarter mile along Commerce Drive. Handel Jr. followed
in his private car, and then walked into the freight
company while Wendelgass made his delivery. All the way
back to Respondent's warehouse, Handel Jr. drove directly
in front of Wendelgass "at twenty miles an hour and
wouldn't speed up," but he speeded up when Wendelgass
tried to pass. The city speed limit for streets is 30 miles per
hour. Wendelgass added that this particular strip "where
the main part" occurred was outside the city proper. He
normally drives on Commerce Drive at 30 miles per hour.
Upon his return to the warehouse, Wendelgass reported
this incident to Respondent.
Handel Jr. did not deny or contradict any of the
foregoing. General Counsel argues that there is a "logical
inconsistency" in the account given by Wendelgass as
would in itself negate the alleged "boxing-in" action. The
inconsistency is stated to be that Wendelgass normally
drives on the 1/4-mile stretch of road only 15 miles per
hour faster than Handel Jr. was traveling at the time. With
the facts thus virtually admitted, I perceive no basis for
turning the evidence on the theory of General Counsel.
The "boxing-in" could have been accomplished quite
effectively at the speeds indicated on such a length of road.
Handel Jr. was deliberately manipulating his vehicle with
varying speeds to prevent the truck from passing. It is well
known that automobiles are dangerous instrumentalities.
The risks assumed by Handel Jr. could, not unreasonably,
have caused a collision involving Respondent's truck or
other object. In my view, this is a type of recklessness
tantamount to violence. There is, I find, sufficient ground
for Respondent's asserted belief that Handel Jr. engaged in
misconduct as would render him unfit for further employ-
ment. As to Handel Jr., the complaint allegation is not
sustained. It is therefore unnecessary to pass upon the
second incident that day.27
27 This incident involved conflicting evidence on allegations that Handel
Jr. had again followed the truck driven by Wendelgass and had repeatedly
swerved his car toward the moving truck in an effort to stop it-with
particular testimony by Handel Jr . to the effect that he had been greatly
provoked and was attempting to apprehend Wendelgass , after the latter
4. The replacements
667
In the case of an economic strike, where the strikers
unconditionally apply to return to work, the employer
must offer them immediate reinstatement to their former
jobs or, if such jobs no longer exist, to substantially
equivalent jobs. Those applicants whose positions are filled
by permanent replacements remain employees and are
entitled to full reinstatement upon departure of the
replacements or when other appropriate vacancies occur,
unless they have in the meantime acquired regular and
substantially equivalent employment or the employer can
sustain its burden of proof that the failure to offer full
reinstatement was for legitimate and substantial ; business
reasons 28 As noted, the Union's unconditional offer
reached Respondent on March 9. President Ennis testified
that Respondent hired "replacements" after the strike,
without attempting to show in any instance that such
employment was of a permanent nature. The following
data was received in evidence:
WAREHOUSE EMPLOYEES
May 30, 1973
Actively employed since 2/12/73
Commenced Termi-
Name Work nated
Daniel Hamilton 4/10/72
LeRoy Beeman 2/26/73
James R. Jorgensen 2/26/73
Mike Kenny 2/26/73
Dan Geraci 2/26/73
James M. McNair 2/26/73 3/16/73
Barry Joy 3/19/73
Eddie Thompson 3/26/73
Ed. D. Wendelgass 4/9/73
Thomas R. Rowley 4/9/73
Daniel Giordano 3/6/73
Conrad Hoffman 2/16/73
Robert L. Olsen 2/16/73 4/13/73
Roger Houck 2/20/73 5/18/73
Robert Swartz 3/6/73
Respondent admitted that not all replacements were full-'
time employees , and that none of the strikers had worked
on a part-time basis . As replacements, college students
were hired to work after school , 5 days a week , "usually"
from 5 to 10 p.m. In this category were Olsen and Houck,
later terminated as shown . Ennis stated that, on the payroll
of May 30, there were two such part-time students, but
named only Giordano. The particular job duties and rates
of pay of these students were not disclosed . Fascetti,
nearly ran him down with the truck while he was walking the picket line
outside the warehouse.
28 The Laidlaw Corporation, 171 NLRB 1366 , enfd. 414 F.2d 99 (C.A. 7,
1969), cert . denied 397 U.S. 920 (1970).
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testifying for Respondent , was questioned only concerning
Barry Joy. He and Rogers had interviewed Joy as an
applicant on March 5 or 6, and "accepted" Joy on the basis
that he had to give his previous employer 2 weeks' notice.
Joy was not called as a witness , and no records were
produced to show that Joy was actually hired on March 5
or 6.
When Respondent received the Union's offer embracing
the 8 striking employees on March 9 , there were employed
10 nominal replacements , including the 3 named students
and conceivably a fourth student. In the very nature of
their employment, as appears , I do not consider that the
student employees were permanent replacements. It is
Respondent 's burden to show the permanency of such
employment . Thus , it is reasonable and proper to conclude
that, as of March 9, there were six possible permanent
replacements , or at least two job vacancies to which these
strikers were entitled . Respondent was also under a duty to
accord preferential hiring to the strikers as vacancies
occurred after their unconditional application on March 9.
As set forth above, the data submitted shows that four
employees , not indicated as students, were hired from
March 9 through April 9.
By separate letters dated April 25, May 2, May 9, and
May 23, Respondent offered "employment"-respectively
to Baker , Lee, Durr, and Schneider. Ennis testified that
each of them in turn declined . He averred that the offers
were made on the basis of a single vacancy . The record
does not reflect that this job was filled . It is not shown
which job or vacancy he meant; from the chart, above, the
appearance of a termination closest in time was that of a
student, Olsen , on April 13 . Another student , Houck, was
separated on May 18, after the first of the offers was made
(to Baker), indicating a further vacancy. McNair's termina-
tion occurred much earlier, on March 16, and Joy was
hired, as I find, on March 19.
It appears that Baker was a warehouseman and driver at
$4.20 an hour; Lee was a driver at $4.15 an hour; Durr was
an order picker at $3.25 an hour; and Schneider was a
warehouseman at $3.60 an hour. The similar letters sent to
these strikers do not specify the job and pay being offered.
Ennis' testimony implies that the intention in each instance
was to offer a single particular job which was made
available by the departure of a replacement . On this state
of the record, it need not be determined here whether
proper offers of reinstatement were made and were
effectively declined. These questions will be deferred to the
usual compliance investigation following Board decision.
It is sufficient on these facts to enter my findings that
Respondent violated Section 8(a)(1) and (3) as to the
striking employees generally , with the exception of Handel
Jr., and thereby prolonged the strike by denying reinstate-
ment to any of these strikers upon their unconditional
application (a) as of March 9 when Respondent received
such application , and (b) thereafter as further appropriate
jobs were available.29
Concerning the status of these strikers after March 9,
Respondent has presented no evidence of legitimate and
substantial business reasons for its failure to offer them
reinstatement ; nor was it shown that any of them had in
the meantime acquired regular and substantially equivalent
employment . In any event , I find that these strikers became
unfair labor practice strikers after March 9 and were
therefore entitled to offers of reinstatement to any
available jobs and could not be permanently replaced after
such date . Application of the necessary remedies affecting
particular employees will be left for resolution in the
compliance stage of this proceeding , as described in the
remedy section infra.
G. The Refusal to Bargain and the Gissel Issue
General Counsel alleges , and Respondent admits, that
an appropriate unit consists of all employees, including
drivers, warehousemen , helpers, and cutters at the Roches-
ter warehouse, excluding office clerical employees, sales-
men, professional employees , guards and supervisors as
defined in the Act. In its written bargaining demand sent
to Respondent on January 29, the Union described
essentially the same unit but specified the inclusion of
"group leaders ." On both sides it was understood that the
reference to group leaders pertained only to Handel Sr.
And, as already covered herein, a continuing issue existed
as to the supervisory status of Handel Sr., until it was
resolved, acceptably to the Union, by the action of the
Regional Director on March 13. There is entirely no merit
in Respondent's contention that the Union requested
recognition for an inappropriate unit because Handel Sr.
was sought to be included as a group leader . Clearly, such
a variance between the requested unit and the appropriate
unit is minor, subject to modification on the legal question
of one individual's supervisory status, and would not
relieve Respondent of any obligation to bargain.30
As previously indicated, the unit complement at the time
of the Union's bargaining demand consisted of nine
employees . In evidence are authentic union authorizations
on behalf of eight such employees , excluding Hamilton,
which they executed at the union meeting on January 26.
Respondent submitted an affirmative defense that "the
Union's authorization cards are invalid due to supervisor
Handel's participation in the Union 's card solicitation, and
due to the coercive activities of other Union agents." No
support was offered for the latter contention. In the
circumstances earlier described , Handel Sr. attended the
January 26 union meeting and signed a card with the
others. There is no evidence that Handel Sr ., at the meeting
or at any time, solicited any of the employees who signed
cards or influenced them in any way to support the
Union.31 Respondent relies on the testimony of Hamilton:
Handel Sr. knew that Hamilton left his previous job
because a union had come into that plant . In a conversa-
tion with Hamilton "the last part of January," Handel Sr.
"just wondered" what Hamilton thought about unions in
general . About January 27, Handel Sr. told Hamilton that
the employees "had decided they wanted the union, and it
would be nice if I joined, and if I didn't that was
alright...." About a week later, Handel Sr. told
Hamilton that "something will work out for you if you
xs Ibid.
30 E.g ., The Hamilton Plastic Molding Company, 135 NLRB 371, 373. Hughson, Schneider , and Handel Sr.
31 Affirmative testimony of the absence of such influence was given by
F.C.F. PAPERS, INC. 669
don't join the union," and asked him if he was sure he did
not want to join. In these casual discussions , Hamilton's
responses were, simply that he was not interested. He
testified that Handel Sr. never solicited an authorization
from him or threatened him about the Union . Hamilton
was the only employee who did not sign a card.
Respondent's defense that all the signed cards of
employees are tainted , by reason of Handel Sr .'s conduct
and status , is rejected as without substance . Handel Sr. was
a low echelon working supervisor . During the organizing
campaign and the strike, the employees believed him to be
a rank-and-file employee . He was openly aligned with the
employees in interest . In matters concerning the Union, it
must have been obvious to them that Handel Sr. in no way
spoke for management . It may not here be inferred that the
employees signed cards from fear of future retaliation by
Handel Sr. merely because he was present at the January
26 union meeting and signed a card himself. Accordingly, I
find that the Union possessed eight valid cards of the nine
unit employees, an overwhelming majority, when it
presented its bargaining request .32 Respondent made no
reply to the Union's request, and has refused to recognize
and bargain with the Union.
As detailed herein, Respondent engaged in serious
violations of Section 8(a)(1) and (3) after the Union's
demand for recognition . Thus, President Ennis , atameeting
of assembled employees , invited and encouraged them to
bargain directly with Respondent . Through its attorney,
Mitchell , Respondent coercively interrogated individual
employees summoned to Ennis' office . In bad faith,
Respondent assumed the position that the employees were
engaged in a concerted slowdown prior to the strike as a
reason for generally denying reinstatement to the strikers
upon their unconditional application . Similarly, its treat-
ment of all the strikers as unprotected because they were,
in part, protesting the discharge of Handel Sr. was
unfounded ; and it persisted in this attitude even after the
Union made it clear that reinstatement was not sought for
Handel Sr. This evidence is significant in assessing
Respondent's failure , initially and thereafter , to offer
reinstatement to the applying striker employees when in
fact it had properly available positions . It reasonably
reflects, in my opinion , that Respondent was resolved to
deny employees the protected rights under the Act as
retribution for their having engaged in union and strike
activity.33 Some pause is given on the question of issuing a
remedial bargaining order under Gissel34 when none of the
eight card signers in the original unit of nine is presently
employed on job . However, this was essentially the
situation involved in Franks Bros. Company v. N.L.R.B.,
321 U.S. 702 (1944), in which the Court early stressed the
Board's responsibility under the Act to direct such action
as will dissipate the unwholesome effects of the violations,
and not to permit employers to profit from their own
wrongdoing . It is highly dubious , in my judgment, that the
traditional remedies of reinstatement , backpay, and post-
32 E.g ., N.L.R.B. v. Orlando Paper Co., 480 F.2d 1200 (C.A. 5, 1973),
enfg. 197 NLRB 380; WKRG-TV, Inc., 190 NLRB 174; Clay City
Beverages, Inc., 176 NLRB 681; Welcome-American Fertilizer Co., 169
NLRB 862 at fn. 1.
33 Cf. Linden Lumber Division, Summer & Co, 190 NLRB 718, 719.
34 N. L . R. B. v. Gissel Packing Co., 395 U.S. 575.
ing of notices will serve to erase the lingering impact of
Respondent's coercive conduct as would permit the
holding of a fair and reliable election in the foreseeable
future. The unfair labor practices here have the distinct
tendency of destroying the Union's majority strength, as
expressed by the employee authorization cards, and to
impede any test of employee sentiment by the preferred
route of a Board election. And these practices, which
include the discriminatory denial of jobs to employees, are
sufficiently egregious35 to fit well within the standards set
forth in the Gissel case 36 In these circumstances, consider-
ation may validly be given to the signed authorization
cards as a reliable measure of the employees' representa-
tion desires. In addition, persuasive corroboration of the
Union's majority was demonstrated by the fact that all
eight employee card signers joined in the strike shortly
after the Union's demand for recognition.37 Therefore, it is
concluded that, by refusing the Union's bargaining request
and engaging in the aforesaid unfair labor practices,
Respondent violated Section 8(a)(5) and (1), and that a
bargaining order is necessary and appropriate to protect
the majority selection of the Union, and otherwise to
remedy the serious violations committed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions 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
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that 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 the strike on February 12 was
economic in its inception but was prolonged by Respon-
dent's unfair labor practices in discriminatorily refusing to
reinstate any of seven named striking employees, excluding
Handel Jr., upon their unconditional application received
on March 9, to positions properly available on March 9
and becoming available thereafter. I have found that the
part-time students hired during the strike were not
permanent replacements and, therefore, the positions held
by them as of March 9 were properly available to the
applying strikers; that at least two available positions
existed as of March 9; that from March 9 through March
26 at least four additional positions, filled by new hires,
became available; and that, on April 13 and May 18,
further vacancies were created by the termination of two
part-time students. Questions remain to be resolved in the
36 See, e.g., General Stencils, Inc., 195 NLRB 1109; and note particularly
Chairman Miller's dissent , taking the view that repeated violation of Sec.
8(a)(3) is sufficient per se to justify imposition of a Gissel bargaining order.
36 395 U.S. at 614-615.
37 Gissel, 395 U.S. at 597.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compliance stage of this proceeding (a) whether any of the
other replacements hired during the strike were permanent
in nature; (b) whether Respondent made proper offers of
reinstatement to Baker, Lee, Dun, and Schneider and, if
so, whether they effectively declined such offers; and (c)
the order in which the seven strikers in question were
entitled to be recalled.38 It is reasonably inferred that
positions were properly available on and since March 9
(apart from those which may have developed since May
30) sufficient in number to accommodate all seven of the
entitled strikers. Accordingly, I recommend as follows:
Respondent offer to Baker, Collins, Dun, Hughson, Lee,
McDonald, and Schneider immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered by
reason of the discriminatory failure to reinstate them, by
payment to each of them a sum of money equal to that
which each normally would have earned as wages from the
date of the discriminatory failure to reinstate them to the
date of Respondent's proper offer of reinstatement.
Backpay and interest shall be computed under the
established standards of the Board.39 If and as necessary to
make room for the reinstatement of these strikers,
Respondent shall dismiss the part-time student employees,
such other replacements hired during the strike who were
not engaged on a permanent basis, and all replacements
hired after March 9. Further, it is recommended that
Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary and useful to determine the
amounts of backpay and the rights of reinstatement due
under the terms of these recommendations.
Upon the foregoing findings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to reinstate seven named
striking employees, excluding Handel Jr., to properly
available positions after their unconditional request for
reinstatement, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. All employees, including drivers, warehousemen,
helpers, and cutters employed by Respondent at its
Rochester, New York, warehouse, excluding all office
clerical employees, salesmen , professional employees,
guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
5. Since January 26, 1972, the Union has been, and is
now, the exclusive representative of all employees in the
appropriate unit within the meaning of Section 9(a) of the
Act.
6. By failing and refusing, at all times since January 30,
1972, to bargain collectively with the Union as the
exclusive representative of the employees in the appropri-
ate unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
7. By the foregoing, and by other specific acts and
conduct interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
38 See , e.g., Coca Cola Bottling Works, Inc., 205 NLRB No. 27.
11 F. W Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating
Co, 138 NLRB 716