W. J. Ruscoe Co.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 618 (N.L.R.B. 1967)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. J. Ruscoe Company and International Molders
& Allied Workers Union, AFL-CIO. Cases
8-CA-4332,4357, and 4411
June 30, 1967
DECISION AND ORDER
BEFORE MEMBERS FANNING, JENKINS, AND
ZAGORIA
On April 19, 1967, Trial Examiner William Sea-
gle issued his Decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in certain unfair labor practices and recom-
mending dismissal of the complaint in its entirety,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief, and the Respondent filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Realtions Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 en-
tire record in this case, including the Trial Ex-
aminer's Decision and the exceptions and briefs,
and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations only to the ex-
tent consistent herewith.
1. The Trial Examiner found that the August 12,
1966, discharge of the seven employees who had
just struck because of the layoff of employee Justice
was not a violation of Section 8(a)(1) of the Act. We
disagree. The employees concerned were par-
ticipating in concerted activity protected by Section
7 of the Act. Earlier that day they had been
threatened with possible dismissal if they engaged
in a work stoppage because of the Justice con-
troversy. The dismissal letters directed to them in-
dividually were distributed on the picket line that
afternoon and purported to be "official notice of ter-
mination of employment." We so construe them,
unlike the Trial Examiner, who viewed them as a
tactical maneuver. The purpose and effect of the
Respondent's action in discharging the strikers was
necessarily to restrain them from engaging in con-
certed activities for their mutual aid and protection.
Accordingly we find that the Respondent thereby
interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(a)(1)
thereof.' However, we do not find that the strike
was thereby converted into an unfair labor practice
strike inasmuch as the General Counsel elected not
to allege that theory or to litigate it.'
2. The Trial Examiner found no violation of
8(a)(1) based on the antiunion statements of
Foreman Garner made before and after the July 26
election. He concluded that the employees did not
take Garner's remarks seriously, and he viewed
these antiunion threats as repudiated by the mere
fact of Garner's discharge shortly after the strike
ended. Garner's threats, as found by the Trial Ex-
aminer, ranged from immediate discharge of anyone
participating in union activities and refusal to
recommend such persons for other employment, to
loss of the employees' Thanksgiving turkey, their
Christmas bonus, their coffebreak, and the possi-
bility of a projected new plant.; The impact of such
activity is not judged by subjective testimony.4 The
parties stipulated that Garner was a supervisor and
agent of the Respondent. When the Respondent
discharged Garner, at least partly because he had
made these coercive statements to employees, it did
not repudiate the statements by appropriate notice
to the employees. Accordingly, we find that the
Respondent interfered with. restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) thereof. Similarly we find an 8(a)(1)
violation based on the Respondent's telling James
Johnson on October 20, and upon an earlier occa-
sion in October, not to solicit for the Union during
coffeebreaks. Not only does this record fail to
establish that Johnson was in fact obnoxious in sol-
iciting for the Union during coffeebreaks, as the
Trial Examiner implies,5 but it appears from
testimony of Operations Manager Echnat that em-
' See National Packing Company, Inc, 147 NLRB 446, see also
Rockwood Stove Works, 63 NLRB 1297-98, where the Board construed
discharge notices saying "You have provoked your discharge by con-
tinued absenteeism " as not intended to effectuate a termination of the em-
ployer-employee relationship but a tactical maneuver designed to coerce
resumption of work , basing its 8(a)(I) finding of violation on "threatening
discharge and purporting to discharge " the strikers
z The relevant issue revolves around the conduct during the strike of
strikers Ruth Six and Tina Johnson and Respondent's alleged justifica-
tion in discharging them on September 1 and refusing to reinstate them
with other strikers on or about September 19. Viewing the strike as having
been converted into an unfair labor practice strike would not absolve
strikers of responsibility for strike misconduct However, as the Trial Ex-
aminer observed, where the provocation involved in an employer 's unfair
labor practices is great, only flagrant misconduct will bar reinstatement
of a striker
' For example, Ruth Six testified that he said "You girls got your
Union so it will get you right out the door ," and James Johnson
"Anybody that he found participating in this union bit he would fire on the
spot."
4 We note, incidentally, that only one rank -and-file employee testified
concerning her subjective reaction to Garner' s remarks and her
answer-" ln a way, yes and no Mostly no "- was equivocal
5 The employee petition alleging "harassment ," introduced by the
Respondent, is a signed statement dated October 20, 1966 , objecting to
James Johnson soliciting for union membership without reference to
place , time, or particulars
166 NLRB No. 75
W. J. RUSCOE COMPANY
ployees who wished to avoid union solicitation
could have gone to another break area where smok-
ing is permitted, or. for that matter, to the restroom,
or outside the plant.6 Echnat also testified that be-
fore he learned that employees have the right to
discuss union matters during coffeebreaks, it was
his view that Johnson shouldn't "bother" the people
on coffeebreak, and that he later amended this
direction by telling Johnson that he might do so "so
long as we did not get complaints ..." The right to
free discussion of union matters on nonworktime
such as coffeebreaks would be meaningless if sub-
ject to curtailment simply because a fellow em-
ployee registers displeasure in general terms. We
see no basis on this record for failing to find that the
Respondent violated Section 8(a)(1) by restricting
Johnson's solicitation for the Union during cof-
feebreaks.
3. The Trial Examiner found no violation with
respect to the September I discharge of Tina John-
son and Ruth Six for alleged picket line miscon-
duct and the Respondent's refusal to reinstate them
with the other strikers reinstated on or about Sep-
tember 19.7 We disagree with this finding. As we
analyze the record concerning the picket line activi-
ties of these two employees, the evidence of
misconduct is insufficient to justify discharge. We
find therefore that-like the August 12
discharges8-these discharges and the refusal to
reinstate several weeks later were part of the
Respondent's effort to restrain employees engaging
in concerted activities for their mutual aid and pro-
tection. in violation of Section 8(a)(1) of the Act.
The Trial Examiner concluded that Tina Johnson
and Ruth Six were discharged because of the Bost
car incident of August 3 1. fully accepting Echnat's
testimony concerning their participation in it
although he did not accept his testimony concerning
an alleged license plate incident of August 30 in-
volving Linda Lobbe as well as Tina Johnson and
Ruth Six. The Trial Examiner found that the latter
incident was not a contributing reason for the two
discharges, noting the confusion in Echnat's
testimony about the incident.
Evidence concerning the Bost car incident in-
cludes four photographs taken by Echnat covering
a period of 4 to 5 minutes which, in sequence, show:
(1) the two girls standing with other strikers in front
of Bost's car as he attempted to enter the plant
grounds the morning of August 31; (2) Tina John-
son with her left hand on the car's left fender and a
c According to Echnat , employees are restricted to the factory grounds
during coffeebreaks; there are two coffee areas and employees may
smoke and have their coffee "there , or outside, or in the restrooms."
? Tina Johnson was working and not able to apply for reinstatement
until "a few days later "
s Ruth Six was one of the seven discharged on August 12.
The Respondent introduced as exhibits the photographs showing Tina
Johnson and Ruth Six in front of and in contact with the car, the General
Counsel introduced the remaining two showing them walking away and
standing on the sidelines
619
cigarette in her right hand, Ruth Six apparently with
both elbows on the hood (or one hand and one el-
bow), while two others push against the right front
fender of the car, one with his hand under the
fender, and several others standing by; (3) Tina
Johnson and Ruth Six walking away from the car
while the others (except for a girl) lift the front end
of the car off the ground; and (4) Tina Johnson and
Ruth Six on the sidelines watching as the car enters
the plant grounds, only one person now having his
hands on the car, toward the rear. The Trial Ex-
aminer noted that these photographs were not mo-
tion pictures and so not conclusive, but viewed
them as tending to support Echnat's testimony con-
cerning the participation of Tina Johnson and Ruth
Six in the incident. This testimony, however, was
couched by Echnat in terms of Tina Johnson and
Ruth Six attempting "to hold back" the Bost car "in
concert with others," and "very actively attempting
to push the car back." Echnat was the only witness
for the Respondent. Based on his testimony and the
photographs described above, only two of which
show participation at all and that passive,9 we view
the evidence concerning the actions of Tina John-
son and Ruth Six in connection with this incident as
insufficient to justify their discharge. We note that
Echnat also testified that no employees were
discharged for simply blocking the exit. These girls
appear to have done little more than that. In the cir-
cumstances here we are not persuaded that their
limited attempt to push the Bost car backward was
misconduct serious enough to justify discharge and
refusal to reinstate.
With respect to the refusal to reinstate Ruth Six
an added question arises by reason of an incident
which occurred several days after her discharge.
This occurred September 3 and involved the driver
for a trucking company and four girls: Mildred Ar-
vay. Ella Whiteman, Linda Lobbe, and Ruth Six. In
effect, the Respondent contends that Six s par-
ticipation in this incident, along with predischarge
incidents, should bar her reinstatement, referring to
the accumulative effect and the fact that it was com-
mitted in concert with individuals whose miscon-
duct the General Counsel has conceded forfeited
their right to reinstatement. 10 This, however, over-
looks the fact that another of the participants in this
incident, Linda Lobbe, who had figured
prominently in the earlier license plate incident, was
reinstated at the end of the strike. The Respondent
introduced in evidence two photographs of the Sep-
10 This concession by the General Counsel applies to Mildred Arvay
and William Bolyard, discharged on August 12 and again on August 17,
and Ella Whiteman , apparently discharged in early September
James Johnson (unrelated to Tina Johnson), who like Arvay and
Bolyard was also discharged on both August 12 and 17, was reinstated by
the Respondent before the complaint issued . We therefore find no ment in
the General Counsel's exception to the Trial Examiner' s failure to issue
a remedial order concerning James Johnson.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tember 3 incident, taken by Echnat, showing the
four girls who took part. In both photos Lobbe and
Six are farther away from the truck than the other
two girls, whose participation in this incident is con-
ceded to have overstepped the bounds of accepta-
ble strike conduct. In one photo Arvay is shown
close to the foot of the truckdriver (who is in the
cab) and Whiteman appears about to "throw a
punch"; in the other, Whiteman has a pop bottle in
her hand, which apparently was subsequently
thrown through the truck window. In neither pic-
ture does Ruth Six appear to be taking the active
part described by Echnat: "throwing a punch" at
the truckdriver. t t Echnat also testified that he did
not see Ruth Six touch the truck, but he "would
say" that she had the truckdriver by the trouser leg
for a matter of seconds. By contrast, he described
Mildred Arvay and Ella Whiteman as attempting to
pull the driver out of the truck. The driver did not
testify because, according to the Respondent, he
had suffered a serious accident shortly before the
hearing. Thus Six's testimony, that the driver
provoked the incident by calling the girls "bitches"
when they asked him why he came to the plant
when other drivers didn't, stands uncontradicted.
Unlike the Trial Examiner, we are not convinced on
this record that Six actively participated in the as-
sault on truckdriver Arlan White. Nor do we think
that Six's throwing one handful of small gravel at
Echnat's back when he was discovered taking pic-
tures of the incident is misconduct so grave as to
justify the refusal to reinstate her. Six had, only 2
days before, been discharged by the Respondent for
the second time since the strike began on August
12. Her limited participation in the September 3 in-
cident, while improper, we do not find sufficiently
flagrant in the circumstances-including the fact
that participant Lobbe was reinstated-to justify
her removal from the protection of the Act. Ac-
cordingly, we shall order that both Ruth Six and
Tina Johnson be reinstated with backpay from the
time they requested reinstatement until the date it
is offered them. 12
CONCLUSIONS OF LAW
The Trial Examiner's Conclusions of Law 3
through 5 are amended as follows:
3. By discharging Mildred Arvay, William
Bolyard. Clarence Hammond, James Johnson,
Olympia Mangli, Ruth Six, and Pearl Warier on Au-
gust 12, 1966, while engaging in protected con-
certed activities, the Respondent has violated Sec-
tion 8(a)(1) of the Act.
4. By discharging Tina Johnson and Ruth Six on
September 1, 1966, and by refusing to reinstate
them thereafter on the ground that they had been
" Echnat testified "The photograph I think will show that Ruth was
apparently throwing , for lack of another word , a punch -
guilty of strike misconduct, the Respondent
restrained its employees engaged in concerted ac-
tivities for their mutual aid and protection in viola-
tion of Section 8(a)(1) of the Act.
5. By interfering with, restraining, and coercing
its employees in the rights guaranteed in Section 7
of the Act through coercive statements of Foreman
Garner and of other supervisors and managerial
representatives, the Respondent has engaged in un-
fair labor practices within the meaning of Section
8(a)(1) of the Act.
In addition we conclude:
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) of the Act.
7. The Respondent has not engaged in unfair
labor practices by discriminating in regard to the
hire and tenure of employment of James Johnson
apart from his inclusion in the group discharged on
August 12.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, W.
J. Ruscoe Company, Akron. Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging activities of its employees pro-
tected under Section 7 of the Act by discharging
any of its employees because of their protected ac-
tivities, or by refusing to reinstate them for that
reason.
(b) Threatening any of its employees with
economic reprisal should they engage in any activi-
ty protected under the Act and unduly limiting their
solicitation in connection with union activities dur-
ing coffeebreaks by conditioning it upon the
absence of employee complaints.
(c) In any other manner interfering with,
restraining, or coercing employees in the exercise
of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action
designed to effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, to Tina Johnson and Ruth Six.
(b) Make Tina Johnson and Ruth Six whole for
any loss of pay suffered as a result of the Respond-
ent's unfair labor practices with respect to them,
" Member Zagoria, in agreement with the Trial Examiner, would find
that TmaJohnson and Ruth Six were not required to be reinstated
W.J. RUSCOE COMPANY 621
computed in accord with the F. W. Woolworth
Company formula (90 NLRB 289). together with
interest thereon at 6 percent per annum, as set forth
in Isis Plumbing and 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 pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to determine
the amounts of backpay due under the terms of this
Order.
(d) Post at its plant in Akron, Ohio. copies of the
attached notice marked "Appendix."t°; Copies of
said notice, to be furnished by the Regional
Director for Region 8, after being duly signed by
Respondent's representative. shall be posted by it
immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees and to applicants for employ-
ment are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered. defaced, or covered by an
other material.
(e) Notify said Regional Director. in writing.
within 10 days from the date of this Order, what
steps have been taken to comply herewith.
I I In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
through representatives of their own choosing,
to engage in other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection , or to refrain from any or
all such activities.
WE WILL OFFER to Tina Johnson and Ruth
Six reinstatement to their former or substan-
tially equivalent positions , without prejudice to
their seniority or other rights and privileges,
and make them whole for any loss of pay suf-
fered as a result of our unfair labor practices
with respect to them.
Dated By
W. J. RUSCOE COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue,
Cleveland, Ohio 44115, Telephone 621-4465.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT discourage our employees
from engaging in any activity protected under
the Act by discharging them for engaging in
protected concerted activities, or by refusing
to reinstate them for this reason.
WE WILL NOT threaten our employees with
economic reprisal if they engage in any activity
protected under the Act.
WE WILL NOT unduly limit our employees in
their solicitation in connection with union ac-
tivities during coffeebreaks by conditioning it
upon the absence of employee complaints.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations. to join or assist any
labor organization, to bargain collectively
WILLIAM SEAGLE, Trial Examiner: The charge in Case
8-CA-4332 was filed on August 16, 1966, and a com-
plaint was issued thereon September 29, 1966; the charge
and amended charge in Case 8-CA-4357 were filed on
September 13 and 27, 1966, respectively, and a com-
plaint was issued thereon on October 17, 1966; and the
charge in Case 8-CA-4411 was filed on November 7,
1966, and a complaint was issued thereon December 13,
1966.
All three cases were consolidated for hearing by an
order of the Regional Director entered on December 13,
1966.
The principal issue in these cases is whether the
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging some of its employees who had engaged in a
strike which began on August 12, 1966, and by sub-
sequently refusing to reinstate two of them, Tina Johnson
and Ruth Six, because of alleged misconduct during the
strike. Subsidiary issues are whether the Respondent vio-
lated Section 8(a)(1) of the Act by various acts of inter-
ference, restraint, or coercion.
Counsel for the Respondent having filed answers, in
which the commission of any unfair labor practices was
denied, the duly designated Trial Examiner held a hearing
on the issues presented by the pleadings at Akron, Ohio,
on January 31 and February 1, 1967.
Subsequent to the hearing, counsel for the General
Counsel and for the Respondent filed briefs, which have
been duly considered.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record so made, and in view of my observa-
tion of the demeanor of the witnesses, I hereby make the
following:
FINDINGS OF FACT
i THE RESPONDENT
The Respondent, W. J. Ruscoe Company (hereinafter
referred to as Ruscoe ), is, and at all material times has
been, an Ohio corporation, maintaining its principal office
and place of business at Akron, Ohio, where it is engaged
in the manufacture and sale of packaged adhesives, home
repair kits, and laminates.
In the course and conduct of its business operations,
the Respondent annually sells and ships its products, of
a value in excess of $50,000, from its Akron, Ohio, plant
directly to points outside the State of Ohio
The Respondent admits that at all material times it has
been an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and I so find.
It. THE LABOR ORGANIZATION INVOLVED
International Molders & Allied Workers Union,
AFL-CIO (hereinafter referred to as the Union), is a
labor organization that has successfully organized the
production employees of the Respondent.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Strike and the Discharge of the Strikers
After an organizational campaign in the summer of
1966, and a Board-conducted election, which was held on
July 26, 1966,' the Union was certified on August 2,' and
the Respondent and the Union entered into negotiations.
Ultimately, a collective-bargaining agreement was en-
tered into between the parties '
The strike, which is the principal factor in the present
case, was precipitated by the layoff of one of the Respond-
ent's employees by the name of Roger Justice At the
time of the election, the Respondent was operating in two
shifts but it had only about 22 production employees. The
second shift was discontinued shortly after the election,
due to lack of necessary personnel, and the employees on
the second shift were transferred to the first shift. One of
these employees was Justice, who had been the leader of
the second shift. Since Justice lost this position as leader
when he was transferred to the first shift, his rate of pay
was cut from $2.25 to $ 1 95 an hour. The Union
protested the reduction in Justice's rate of pay, and
Claude Davis, the union organizer, accompanied by three
of the employees, William Bolyard, James Johnson, and
Mildred (Mig) Arvay, who constituted the Union's em-
ployee committee, met with representatives of the
Respondent to discuss the matter but Justice's grievance
could not be successfully resolved. Justice himself took
the position that he would prefer a layoff to taking the
reduction in pay, and on August 12 he was laid off. On
the afternoon of the same day, D. M. Echnat, the
All references to dates hereinafter mentioned should he understood to
be in 1966 unless otherwise indicated
The certification was amended on August 12
The date of the agreement is not shown by the record but it must have
been some time before the date of the hearing in the present case
Respondent ' s operations manager, anticipating, ap-
parently, that a work stoppage might be precipitated by
Justice's layoff, issued a circular letter to all the em-
ployees, explaining the reason for his layoff , cautioning
the employees against becoming involved in any
unauthorized or illegal acts, and suggesting that if the em-
ployees felt that the Respondent was guilty of an unfair
labor practice in laying off Justice, that a charge be filed.'
Claude Davis, the union organizer, deciding, apparently,
to act on this suggestion, proceeded that same afternoon
to the Board's Regional Office in Cleveland, in order to
file such a charge While he was gone, some of the em-
ployees decided to quit work in protest against Justice's
layoff, and walked out of the plant. While they were still
congregated outside the plant, Davis, who after he had
returned from Cleveland, had learned of the walkout in a
telephone call to him by Mildred Arvay, arrived at the
plant. As he did so William Clause, the assistant to the
Respondent's president , emerged from the plant, and he
and Davis were engaged in discussing the situation when
Echnat came out of the plant, and handed to Davis a
group of identical letters addressed to each of the strikers,
informing each of them that he or she was discharged,
because of his or her participation in an unauthorized
walkout after being warned of the possibility of dismissal.
Each striker was also requested to turn in any company
tools, clothing, or other material, and advised that his
paycheck was available for pickup.' Having distributed
the discharge letters to the striking employees, Davis, de-
cided, apparently, to approve their strike, and gave them
readymade picket signs, which he carried in his car, and
which the striking employees carried thereafter on the
picket line.
The employees who received discharge letters on Au-
gust 12, the first day of the strike, were Mildred (Mig) Ar-
vay, William Bolyard, Clarence Hammond , James John-
son, Olympia (Libby) Mangli, Ruth Six, and Pearl Warier.
These seven employees were joined subsequently by
other employees who supported the strike. Mary Arvay
did not join the strike on August 12 because she was on
vacation on that day. However, she did receive on that
day a telephone call from Richard (Dick) Stanley, her
foreman, who read her the Respondent's letter explaining
Justice's layoff, and then asked her whether she was with
the girls or with the Company. When she replied that she
was with the girls, Stanley told her about the discharge
letter, which had also been read apparently over the inter-
com, and added: "Mary, I am afraid that you are fired."
This did not seem to convince her that she was really
fired, however, for she replied: "You can't fire me
because there are two sides to every story " Stanley's
response to this observation was to remark that she had
him buffaloed, and they both laughed. Stanley then asked
her whether she would be in to work on the following
Monday, August 15 (August 12 was a Friday), and she
told the foreman that he would see her on Monday either
inside the plant or on the picket line On Monday, August
15, Arvay joined the strikers on the picket line. Another
employee, who did not receive a discharge letter on Au-
gust 12 and who did not Join the strike until Monday, Au-
gust 15, was Tina Johnson.
i This circular letter is in evidence as G C Exh 3 The charge that was
filed by the Union in behalf of RogerJustice, which bears the case number
8-CA-4328 , is an evidence as Resp Exh I
5 These letters of discharge are in evidence as G C Exh 2
W. J. RUSCOE COMPANY 623
The most singular of the employees who joined the
strikers was Violet (Vi) Miller, who was an assistant to
Foreman Earnest E. Garner, the head of department 25,
and who was herself undoubtedly a minor supervisory
employee, for she even had the power to hire and fire.
Despite her position , she had voted unchallenged in the
election , and walked out with the other strikers on August
12. She did no picketing , however, because, as she ex-
plained, she was the mother of seven children.
Although the strike had been precipitated by the
discharge of Roger Justice, his discharge was not an un-
fair labor practice , for after due investigation the charge
that had been filed in his behalf it was dismissed. The
strike must be regarded , therefore , as economic.6
The picketing of the plant during the strike was not
peaceful ; indeed, it was marked by violence or by the
threat of violence, or by other unlawful conduct, such as
blocking ingress into or egress from the plant, and the
Respondent sought and obtained from the Court of Com-
mon Pleas of Summit County, Ohio, a restraining order
against such conduct, the order being entered on August
17. On the same date, the Respondent addressed a circu-
lar letter to all of the striking employees , inviting all of
them except three, whom it considered to be guilty of
picket line misconduct , to return to work. The three ex-
cepted employees, who were discharged by the Respond-
ent because of their misconduct, were Mildred Arvay,
William Bolyard, and James Johnson.
Mildred Arvay was discharged because on August 12
she had obstructed the passage of a motor truck by jump-
ing on the running board and screaming , "You better not
try to come in," with the result that the driver , in order to
avoid injury to her, had been compelled to stop , and also
because on August 13 she had impeded the movement of
a car being driven by David (Larry) Stock through the
main gate of the plant . She attempted to 'open the door of
the car and , being, apparently , unable to do so, hung on to
the door handle of the car while it was proceeding for a
distance of approximately 100 feet. While she was thus
running alongside of the car, she was shouting , "Don't
come in- you'll be sorry - we'll get you if you do."
Mildred Arvay was not called as a witness by counsel
for the General Counsel and thus the Respondent's ac-
count of the misconduct which led to her discharge must
be regarded as unchallenged . Counsel for the General
Counsel did call Bolyard and James Johnson as wit-
nesses, however , and challenges the justifications for
their discharges.
The reason advanced by the Respondent for the
discharge of Bolyard was that on August 15 he had
opened the door of a car being driven by David Stock
who was attempting to enter the main gate of the plant,
pulled Stock from the car , and swung at the latter. The
combatants were then separated by McPherson, the
Respondent 's vice president, and by Richard (Dick) Stan-
ley, one of its foremen. Called as a witness , Bolyard did
not deny accosting Stock while he was attempting to
enter the plant but claimed that it was Stock who had first
swung at him , although neither this blow nor his return
blow registered . The further justification offered by
Bolyard for his conduct on this occasion was that Stock
"came flying into, across the picket lines," doing "every
bit of 40 ," and almost skidded into the pickets as he
stopped . As the pickets were blocking ingress into the
plant , it is hardly surprising , however , that any employee
trying to get into the plant should "come flying ." It is also
significant that when Bolyard was asked whether he had
exchanged any words with Stock before the latter swung
at him, he did not give a very positive answer to the
question . "No," he testified , "I don't think we exchanged
any." [Emphasis supplied.]
James Johnson was discharged by the Respondent
because of his participation in a wild automobile chase of
the same David Stock on August 15. The pickets were
waiting for Stock as he drove out of the plant . According
to the testimony of Johnson , the pickets merely wanted to
talk to Dave Stock about the trouble of the day before,
and to persuade him not to engage in fisticuffs. It is fairly
obvious, of course, as Johnson was finally forced to ad-
mit, that their purpose was to persuade him not to work
during the strike. But Dave Stock drove out of the plant
so fast that Johnson and the other pickets were unable to
talk to him . With Bolyard and another unidentified picket
in his car , Johnson , therefore , decided to set off in pursuit
of David Stock. Richard Stock , the brother of David
Stock, in order to protect his brother , followed the other
two cars already on the highway. Claude Davis, the union
organizer who had come to the plant because he had
heard that there would be trouble on the picket line, fol-
lowed the other three cars , and Echnat , the Respondent's
operations manager , who had observed the initiation of
the chase from an office window, came out and followed
the other four cars in order to see what would happen and
to make sure that David Stock reached home safely. In
the wild chase that ensued for a distance of over three-
fourths of a mile at a speed of between 45 and 50 miles
an hour, and during which the cars at times changed their
relative positions , disaster was narrowly averted . I credit
the testimony of Echnat that at one point in the chase
Davis attempted to force Richard Stock's car off the
road, and that Bolyard, who was in the back seat of John-
son's car, was waving from the window what appeared to
be a jack handle or tire iron , and yelling , " I will get you"
or "We will get you." It is difficult indeed to credit John-
son's testimony that before the chase started he had
removed the tire iron , jack handle, and other utensils from
the back seat and floor board of his car , and put them in
the trunk of the car, in order to make room for Bolyard.
The objects in question should normally have been in the
trunk of the car. If they were not, the suspicion is aroused
that they were there as an arsenal of weapons which
might come in handy during the strike. Even if I were to
credit fully Johnson 's testimony , moreover , it would be
apparent that he had been involved in an episode which
was inherently calculated to terrify any nonstriking em-
ployee. Considering the nature of the conduct of which
some of the strikers had already been guilty, and which
could hardly be described as peaceful, any nonstriker
being pursued by a car full of pickets would be entirely
justified in concluding that if they caught up with him they
would not confine themselves to exchanging words.
Subsequent to their discharges on August 17, Mildred
Arvay and William Bolyard became involved in miscon-
duct of such a serious nature that counsel for the General
Counsel is not seeking their reinstatement or claiming any
backpay on their behalf. So far as James Johnson is con-
6 Indeed , none of the complaints involved in the present case contains nor is it alleged in any of the complaints that the strike was prolonged by
any allegation that the discharge of Justice was an unfair labor practice , an unfair labor practice of the Respondent
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ferried, counsel for the General Counsl stated at the hear-
ing and repeated in his posthearing brief that he is also not
seeking any remedy in his behalf' but the reason for this
is not the same as in the cases of Arvay and Bolyard Pur-
suant to an informal settlement agreement, James John-
son was reinstated by the Respondent with the un-
derstanding that he would not be entitled to backpay The
three discharges of August 17 have, therefore, become
moot and they have been considered in some detail only
because counsel for the General Counsel contends that
they constituted provocations on the part of the Respond-
ent, justifying the fusther misconduct of the strikers
During the strike the Respondent hired some new em-
ployees who worked during the strike but they were not
regarded by the Respondent as replacements for any of
the striking employees. In fact, at no time during the year
1966 did the Respondent have a sufficient number of em-
ployees to carry on its factory operations. The strike, of
course, worsened the situation, and this serves to explain
the Respondent's anxiety to have the strikers, including
those who had been discharged for merely participating
in the strike, return to work as soon as possible. The
strikers rejected, however, the Respondent's offer of Au-
gust 17, insisting, apparently, upon the reinstatement of
Mildred Arvay, William Bolyard, and James Johnson.
On August 19, the casus belli of the strike ceased to
exist. The discharge of Bolyard, who was the shift leader
on the first shift, left his position vacant, and on August
19 the Respondent sent a telegram to Roger Justice offer-
ing him Bolyard's job as shift leader Justice rejected the
offer, however Moreover, although Bolyard had been
discharged for illegal picketing, Echnat recommended
him for employment by another employer who employed
him
On August 26, the Respondent renewed its offer of
August 17 to take all the strikers back except the three
employees who had been discharged because of their
misconduct, and as to these three employees, the Re-
spondent offered to submit the issues involved in their
discharge to arbitration. The Union rejected, however,
the Respondent's offer to arbitrate the dispute.
On September 1, the Respondent sent letters of
discharge to two more of the strikers. Ruth Six and Tina
Johnson. The letter mentioned "illegal picketing" as the
reason for their discharge, and accused them specifically
of "physically attempting to obstruct the passage of cer-
tain employees and conveyances into the factory grounds
on August 31, 1966 " About this time, the Respondent
also discharged Ella Whiteman, another one of the
strikers, but it is conceded that her discharge was
warranted "
The testimony at the hearing relating to the discharges
of Tina Johnson and Ruth Six has to do with three in-
cidents: (1) the tearing of a license plate off a truck at-
tempting to enter the Respondent's premises on August
30; (2) the blocking of the passage of the Bost car- Bost
was one of the nonstriking employees-seeking to gain
entrance into the plant and the rocking of the car in an at-
tempt to turn it over on August 31; and (3) the assault on
a truckdriver named Arlan White, seeking to gain en-
trance into the plant, and the attempt to pull him from his
truck.
' See in 13 of the post hearing brief of counsellor the General Counsel,
which follows prior inconsistent statements
8 On page 2, fn 9, of his brief, counsel for the General Counsel gives
I do not find that the discharges of Tina Johnson and
Ruth Six can be justified by their involvement in the
license plate incident of August 30. This incident is not
mentioned specifically in the letters of discharge, and
could not have been within the contemplation of Echnat,
the writer of the letters, since it did not occur on August
31, the only date mentioned in the letters. Echnat himself
testified at one point, moreover, that he did not regard the
participation of Tina Johnson and Ruth Six in the license
plate incident as sufficient justification for their
discharge. Furthermore, Echnat had only vague recollec-
tions concerning what had occurred during the attempt to
tear the license plate off the truck, and his effort to recon-
struct the incident from notes and an unsigned statement
only led to confusion so great as to be difficult to resolve.
I fully accept Echnat's testimony, however, insofar as
it relates to the Bost car incident of August 31. There is
no doubt in my mind that both Tina Johnson and Ruth Six
participated along with Mildred Arvay and William
Bolyard, not only in blocking the Bost car, but also in the
attempt to turn it over. Indeed, Tina Johnson herself ad-
mitted that at least on two occasions, one of which in-
volved the Bost car, she not only stood in front of the cars
that attempted to get through the picket line and ob-
structed their passage into the plant but also that she
placed her hands on the automobiles She also admitted
that several of the pickets attempted to turn over the Bost
car, and it is difficult to believe that her share in the enter-
prise was simply a ceremonial laying on of hands Ruth
Six's testimony concerning the Bost car incident is pretty
much to the same effect as that of Tina Johnson, and she
specifically admitted that while the Bost car was being
rocked she had her hand on its hood. Olympia Mangli,
one of the General Counsel's own witnesses, testified
that when she came down to the picket line the evening of
August 31, Tina Johnson and Ruth Six told her that she
had missed "all the fun." The "fun" consisted not only of
blocking the car but also of attempting to turn it over.
Thus Mangli testified.
Q What else happened that was funny, did they
say anything about turning a car over almost?
A. Almost
Q. They said they almost turned a car over?
A. Almost.
Q. And that was the thing that they thought was
funny9
A. Yes.
Despite Ruth Six's denials, I also accept Echnat's
testimony that subsequent to her discharge she par-
ticipated actively in the assault on the truckdriver, Arlan
White. Mildred Arvay, Linda Lobbe, and Ella Whiteman
were the other girls involved in this incident, and it seems
apparent that they were acting in concert, so that the acts
of one are fairly attributable to the others. When the
truckdriver, after going through the picket line, was at-
tempting to get into his truck, Ruth Six grabbed him by
the trouser leg, and, at one point in the fracas, attempted,
apparently, to throw what Echnat described as a punch.
Ella Whiteman even threw a bottle through the window
of the truck. When the girls observed that Echnat was
taking photographs of the incident, Ella Whiteman
grabbed Echnat and attempted to take the camera away
the date of Ella Whiteman's discharge as September 15 but I am unable
to verify this date from the record
W. J. RUSCOE COMPANY 625
from him. As he ran away from them, the girls, including
Ruth Six pelted him with a shower of stones, rocks, and
debris lying beside a telephone pole.'I
It seems that subsequent to their discharge Tina John-
son and Ruth Six were, among five of the strikers -the
others were Mildred Arvay, William Bolyard, and Ella
Whiteman-against whom contempt proceedings were
brought in the Court of Common Pleas for Summit Coun-
ty, Ohio, for violation of its restraining order. The Union
chose not to call any of them as witnesses in the contempt
proceeding, and each of them was fined $50. The fines
were suspended, however, on condition that they would
refrain from picketing or demonstrating in any fashion for
a 30-day period up to and including October 22.
On September 19, the strike ended, and all the strikers
were reinstated except those who had been discharged
because of their misconduct during the strike.
B. Concluding Findings with Respect to the Discharges
of the Strikers
In considering cases involving the misconduct of
strikers, the Board, while not condoning the misconduct,
has attempted to balance the wrongdoing of the strikers
against the wrongdoing of their employer. Where the
provocation involved in the unfair labor practices of the
employer has been great, it is only flagrant misconduct
that will bar the reinstatement of a striker.' °
Counsel for the General Counsel, who is familiar, of
course, with this doctrine, has attempted to bring the
strikers in the present case within its protection by
representing their conduct in the most favorable manner,
and the Respondent's conduct in the least favorable
manner. In proceeding in this fashion, however, he
frequently departs from reality and the dictates of com-
mon sense.
The major theme which he seeks to develop in his brief
is that the Respondent "was continually provoking the
strikers with unfair labor practices into committing
further indiscretions." Considering that the strikers num-
bered 9 or 10, and that no less than 3 of them engaged in
such serious misconduct that even counsel for the
General Counsel concedes that their reinstatement would
not be warranted, and that 3 others of them engaged in
misconduct of such a dubious nature that their right to
reinstatement is disputed, the term "indiscretion" in rela-
tion to their conduct would seem to be something of an
understatement. Apparently, counsel for the General
Counsel regards even the following version of the wild
automobile chase of David Stock as an "indiscretion," for
he declares: "Whether the boys' or Mr. Echnat's version
of the Stock car incident is credited does, not seem to be
significant. Even Echnat's version, embellished as it is
with a few shouted threats of `I will get you' and the
brandishing of a tire iron or jack handle at the Stock au-
tomobile for at most a few seconds, does not describe
conduct on the part of either Johnson or Bolyard which is
so flagrant as to remove them from the protection of the
Act."
Counsel for the General Counsel launches his attack
on the Respondent by contending that Mildred Arvay,
William Bolyard, and James Johnson were discharged by
the Respondent because they constituted the three mem-
bers of the union employee committee, and the Respond-
ent wished to get rid of them. There is no good reason to
suppose, however, that the discharges of the three union
committee members were anything but a coincidence.
Counsel for the General Counsel did not even attempt to
challenge the discharge of Mildred Arvay, and, so far as
James Johnson is concerned, his ultimate reinstatement
by the Respondent is hardly consistent with an enduring
discriminatory purpose.
Counsel for the General Counsel continues his buildup
of the Respondent's "provocations" by assuming that the
Respondent does not dispute that the strike was a pro-
tected concerted activity. Counsel for the Respondent
seems to have made no such explicit concession at the
hearing, and in its letters of discharge to the strikers the
Respondent itself accused them of participating "in an
unauthorized walkout." Doubtless because it is so uncer-
tain that there was any concession on this subject, coun-
sel for the General Counsel seeks to bolster his position
by assuming that Clause and Davis had "agreed" to let
the Board decide the Justice dispute while the strikers
would return to work. Actually, there was no such agree-
ment. The only "agreement" which Clause made was to
have a meeting to talk over the problem, and whether
even this agreement was binding on the Respondent does
not really appear, since it is unclear whether the authority
of Clause, as assistant to the president of the Respondent,
was superior to the authority of Echnat as operations
manager. Davis himself seems to have behaved as if he
knew that Echnat had the greater authority, for when the
latter came out of the plant with the discharge letters, he
accepted them, and not only distributed them to the strik-
ing employees himself but at once went to get the picket
signs for them. Thereafter at least it certainly cannot be
said that the Respondent was engaged, as counsel for the
General Counsel puts it, "in torpedoing the peaceful
resolution of the strike," for it was the Union and the
strikers who remained obdurate, and refused to return to
work pending the submission of the dispute to arbitration.
In the popular sense of the term the walkout of August
12 was a wildcat strike, since the employees walked out
without prior consultation with or authorization by
responsible union officials whom they had selected to
represent them. It would seem, however, that there is no
occasion in the present case to decide whether this cir-
cumstance made the strike an unprotected activity
legally, since the Respondent has refused to reinstate
only two employees guilty of strike misconduct, and these
employees would not be entitled to reinstatement even if
the strike were a protected concerted activity.
The next step of counsel for the General Counsel, in
his effort to establish the "provocation" of the strikers by
the Respondent, is to argue that the strike, although
economic in its origin, was converted into an unfair labor
practice strike by the discharges of the strikers. But, apart
9 There are in evidence some photographs of the incident involving the
truckdnver, Arlan White, as well as photographs of the Bost car incident
of August 31 These photographs tend to support Echnat's testimony con-
cerning these incidents but it must be remembered that being still photo-
graphs, rather than motion pictures, they do not reflect the whole of the
actions, and that they cannot, therefore, be regarded as conclusive, It
should also be borne in mind that no inference unfavorable to the Respond-
ent can be drawn from its failure to call Arlan White, the truckdriver as
a witness , for Echnat testified that at the time of the hearing White was in
the hospital.
10 This doctrine is well expressed , for instance , in Trumbull Asphalt
Company of Delaware, 139 NLRB 1221, 1222-23.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the fact that it is nowhere alleged in the relevant
complaint that there was such a conversion, counsel for
the General Counsel declared at the hearing that his posi-
tion was that this was an immaterial issue," which is in-
deed the case. Furthermore, the strike could not be con-
verted into an unfair labor practice strike unless the
discharges of August 12 were unfair labor practices, and
so far as this question is concerned, which is also im-
material, the argument of counsel for the Respondent that
these discharges were merely tactical, and hence did not
constitute unfair labor practices, is, to say the least, very
plausible. The Respondent never replaced any of the
strikers, and never really intended to replace any of them
permanently. The "discharge" letters were simply one of
the several maneuvers in which the Respondent engaged
in its efforts to induce the striking employees to return to
work, and only those employees were actually discharged
who, in the opinion of the Respondent, had engaged in
serious strike misconduct. The purely tactical nature of
the discharges of August 12 is best indicated perhaps by
the case of Mary Avay who refused to be fired on August
12 and joined the strikers on August 15 Neither she, nor
her foreman, Stanley, seems to have taken her discharge
very seriously.12 In the light of this background, it is sure-
ly hyperbole for counsel for the General Counsel to treat
the subsequent discharges of August 17 and September
I as further "provocations" of the strikers, and to declare
melodramatically "On September 1. the respondent
struck again discharging striker Ruth Six for the second
time, and striker Tina Johnson for the first time."
[Emphasis supplied.]
Counsel for the General Counsel seems to rely heavily
on N L.R.B. v. Burnup and Sims, Inc., 379 U S. 21, as
his ultimate authority in challenging the discharge of the
strikers. Unfortunately, he is in error in describing the
factual situation in that case, and he misunderstands the
role of good faith in cases of this kind. Indeed, he ends up
by deducing legal consequences from the decision which
seem to me to be not only wholly unjustified but also
quite appalling.
Counsel for the General Counsel states that the
Supreme Court held in Burnup and Sims that "an em-
ployer's good faith, but mistaken belief that employees
had engaged in picket line misconduct is no defense to
their discharge if, in fact, they did not engage in the con-
duct for which they were discharged " In this, he mis-
states, of course, the nature of the misconduct for which
the employees were discharged in Burnup and Sims. That
case did not involve a strike or picket line misconduct. It
involved rather the discharge of two employees, who told
another employee whom they were soliciting to join their
union , that the union would use dynamite to get in if it did
not acquire the authorizations.
It is true that the principle recognized in Burnup and
Sims, which was that the good faith of the employer in
discharging an employee is no defense if, in fact, the em-
ployee was not guilty of the conduct for which he had
been discharged, is no less applicable in cases involving
picket line misconduct than in cases involving other types
of misconduct. But what this means is that an employer
may be legally guilty of violating Section 8(a)(1) of the
Act, although he is normally blameless, since he may
have acted in the honest but mistaken belief that the em-
ployee whom he discharged was guilty of misconduct. In
this type of case, it would seem to be pointless to berate
the employer, and charge him with all sorts of "provoca-
tions."
Believing that the evidence fails to establish the in-
volvement of Ruth Six in the license plate incident, coun-
sel for the General Counsel concludes his exegesis of
Burnup and Sims by also arguing that, in order to prevent
the watering down of the principle established by it "the
protection extended by that case to a striking employee
should apply just as much to partial-mistaken beliefs as to
wholly mistaken beliefs If an employer is going to
discharge a striker while he is under the protection of the
Act, then the employer should be required to discharge
the striker at his peril unless it is 100 percent correct in
assessing the extent of the striker's misconduct." Alas, if
an employer always had to be 100 percent correct, he
could be required to reinstate a striking employee who
had been discharged for beating up three nonstriking em-
ployees so badly that they had to be hospitalized if it
further appeared that the employer was mistaken in be-
lieving that the same employee had also set fire to a truck
seeking to make a delivery to the struck plant.
Counsel for the General Counsel has attempted to con-
struct a case against the Respondent based upon moot or
immaterial "provocations" of the strikers. Theoretically,
this approach has a certain validity. Actually, however,
counsel for the General Counsel has not succeeded in
establishing any provocations by the Respondent towards
the strikers. Indeed, it can more justly be said that the
strikers were guilty of provocations towards the Respond-
ent After the initial tactical discharges. the Respondent
did everything in its power to conciliate the strikers ex-
cept to reinstate the few strikers who were guilty of
misconduct but the strikers kept on spurning its proffers
of the olive branch until the strike collapsed After the
strike was over, the Respondent even reinstated Violet
Miller who, although a supervisory employee had sided
with the strikers She was not disciplined, moreover, in
any manner; in fact, as she herself testified, she was
treated "a lot better" after the strike than before the
strike It is difficult to convict such an employer of
"provocations."
C. The Alleged Acts of Interference, Restraint, or
Coercion
The alleged acts of interference, restraint, or coercion
with which the Respondent is charged are based mainly
on the activities of Foreman Earnest E. Garner, the head
of department 25, and the acts seem to have occurred for
the most part after the election had been held. The day
after the election Garner told Bolyard, who was his shift
leader, that he would fire on the spot anyone participating
in the Union, and blackball anyone who called up for
references after he had been fired. Garner also told
Bolyard that since he was shift leader he did not want him
to talk to the employees about anything but work. Garner
also made various threats after the election in a number
of conversations with Violet Miller, his assistant. In one of
these conversations, the foreman told her that, since the
" See transcript of hearing at page 8. lines I I to 13
't Despite this circumstance, and his failure to allege the discharge of
Mary Arvay on August 12 in the relevant complaint counsel for the
General Counsel requests a finding that Mary Arvay together with the
seven other strikers who are mentioned in the complaint , was discharged
on August 12 in violation of Section 8(a)(3) and (1) of the Act
W.J. RUSCOE COMPANY 627
employees had voted the Union in, they would no longer
get their Thanksgiving turkey or their Christmas bonus.
In another conversation, Garner told Violet Miller that,
since the Union had come in, there would be no more
overtime. Violet Miller repeated these threats in a joking
manner to Olympia Mangli, who seems to have been her
confidant, and possibly also to Ruth Six. Garner also re-
marked to Violet Miller, in the presence of Ruth Six and
Roger Justice, that since they had voted the Union in they
would not get the new plant which had been contem-
plated. On another occasion, Garner came into the cof-
feebreak room while Violet Miller was there with a
number of the employees, who included Ruth Six, Wil-
liam Bolyard, Roger Justice, and Olympia Mangli, and re-
marked to them that the Respondent would not stand for
a credit union and would do away with the coffeebeak.
The testimony of Violet Miller and Olympia Mangli
shows that the employees did not take Garner's threats
very seriously. Violet Miller testified that she did not be-
lieve anything that Garner said because she knew him to
be "a bag of wind." Olympia Mangli also testified that she
considered Garner to be a windbag. When she was asked:
"Would you take his [Garner's] statements very seri-
ously?" she replied, "In a way, yes and no. Mostly no."
It appears further, moreover, that not a single one of the
threats made by Garner was ever carried out. Indeed,
none of the Respondent's executives were aware of
Garner's antiunion activities. They had been dissatisfied
with his work, moreover, and, when they learned about
Garner's antiunion activities in the course of the in-
vestigation of the charges in the present case, they at once
discharged him.
There can be no doubt that in themselves Garner's
threats to the employees, direct and indirect, would con-
stitute unfair labor practices in ordinary circumstances.
I am aware also that ordinarily an employer is responsible
for the acts of his supervisory employees, and that no
direct proof that he authorized such acts is necessary. But
I do not understand these to be absolutely mechanical
rules to be applied at all times and under all circum-
stances. Garner was undoubtedly a supervisory em-
ployee, as was Violet Miller, his assistant, but it is ap-
parent that they were not part of the top managerial
hierarchy, which seems to have consisted of Ruscoe,
Clause, and Echnat. If Garner sided with management,
Miller sided with the striking employees, and indeed
joined them. I am convinced by the evidence as a whole
that the employees did not take what Garner said seri-
ously and that they knew that he was simply "sounding
off' rather than expressing the views of management.
Considering that as soon as the Respondent's manage-
ment became aware of Garner's activities, he was
discharged, moreover, and his threats were thus repu-
tiated, I do not find any violations of Section 8(a)(1) of
the Act.
The Respondent is also charged with interfering with
the soliciting activities of James Johnson after he had
been reinstated. These activities of Johnson took place a
considerable time after the election -in fact in the month
of October-and were carried on in the coffeebreak room
in the plant. This was the most advantageous place in
which to solicit union membership because smoking was
not permitted in any other place in the plant in which ex-
plosive materials were handled. Any employee who
wished to smoke during his coffeebreak had to go to the
coffeebreak room, and Johnson in pushing the Union had,
therefore, a captive audience. Some of the employees
who did not share Johnson's enthusiasm for the Union
resented, apparently, Johnson's activities. On one occa-
sion when he persisted in asking one of the employees,
Virginia Zumpano, to join the Union, she told him to shut
up. Indeed, Johnson continued to make such a nuisance
of himself, that 10 of the employees, including Virginia
Zumpano, finally presented a written complaint to the
management in which they stated that they did not wish
to be members of the Union, and asking that the manage-
ment compel Johnson to let them alone.13 Faced with
these complaints, Stanley and Echnat at first requested
Johnson to refrain from attempting to sell the Union dur-
ing the coffeebreaks, and mentioned to him that the em-
ployees were then a captive audience. But Echnat, after
consulting counsel, was told that Johnson had a legal right
to solicit the employees during their coffeebreaks. There-
fore, on October 20, Johnson was summoned to an inter-
view in Clause's office where Echnat told him that he was
free to talk about the Union during coffeebreaks, so long
as he did not do so to the point where there would be
complaint, which, added Echnat in testifying concerning
what he said to Johnson during the interview, "was the
only reason we asked him to stop to begin with because
we had complaint, even from the members of the union."
Echnat even testified further: "As a matter of fact we sug-
gested that he sell the union."
While what was actually said to Johnson by either Stan-
ley or Echnat prior to the view of October 20 does not
seem to me to be totally clear, it would seem that in
discussing the employee's complaints with Johnson, Stan-
ley or Echnat or both did mention that they thought that
what he was doing was unfair because the employees in
the coffeebreak room constituted a captive audience. In
certain circumstances, such a statement in itself might
constitute a violation of Section 8(a)(1) of the Act but to
reach such a conclusion it would be necessary to ignore
the context in which the statement was made. It was
made to Johnson only because of the complaints which
had been received from some of the employees, and the
captive nature of the audience may have been advanced
only as an aggravating factor. In any event it is clear that
whatever taint of illegality may have existed in what
previously had been said to Johnson about refraining
from pushing the Union during the coffeebreaks, it was
effectively removed by what Johnson was told during the
October 20 interview. Section 8(a)(1) of the Act certainly
does not guarantee to employees the right to make them-
selves obnoxious in prosecuting their union activities.
I find no persuasive evidence anywhere in the record
that either before or after the election, or before or after
the strike, the responsible representatives of the Respond-
ent were actuated by union animus. Even if it could be
said that by virtue of the activities of Garner or the
restriction placed upon Johnson, they violated any of the
prohibitions of Section 8(a)(1) of the Act, the violations
would be no more than technical. Considering that such
violations, if any, have been corrected, and that the
13 This complaint is in evidence as Respondent's Exh 9. There is ab-
solutely no evidence that the Respondent in any way inspired the prepara-
tion or presentation of this complaint.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has recognized the Union, and entered into
a collective-bargaining agreement with it, I see no need
for the entry of any remedial order. Such an order might
indeed disturb the amicable relations which the Respond-
ent and the Union seem to have achieved.
CONCLUSIONS OF LAW
1. The Respondent , W. J. Ruscoe Company, is an em-
ployer engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Molders & Allied Workers Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Mildred Arvay , William Bolyard,
Clarence Hammond , James Johnson , Olympia Mangli,
Ruth Six, and Pearl Warier on August 12, 1966, the
Respondent did not do so because they had engaged in
protected concerted activities , and did not , therefore, en-
gage in any unfair labor practices effecting commerce
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By discharging Tina Johnson and Ruth Six on Sep-
tember 1, 1966, and by refusing to reinstate them
thereafter on the ground that they had been guilty of
strike misconduct, the Respondent has not discriminated
with respect to their hire or tenure of employment, and
has not, therefore, committed any unfair labor practices
effecting commerce within the meaning of Section 8(a)(3)
and (1) of the Act.
5. The Respondent has not interfered with, restrained,
or coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and has not, therefore
committed any unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) of the Act.
RECOMMENDED ORDER
In view of my findings of fact and conclusions of law,
I recommend that an order be entered dismissing the
complaint.