Davis Wholesale Co., Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1967

165 N.L.R.B. 297 (N.L.R.B. 1967)

DAVIS WHOLESALE CO.
Davis Wholesale Co., Inc. and Food Store
Employees Union Local #347, Amalga-
mated Meat Cutters and Butcher Workmen
of North America , AFL-CIO. Case 9-CA-
3839.
June 12, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 3, 1967, Trial Examiner Robert E.
Mullin issued his Decision in this proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that Respondent had not engaged in certain
other unfair labor practices, and recommended that
allegations of the complaint pertaining thereto be
dismissed. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision, which included
supporting arguments, and the Charging Party filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 Trial
Examiner's Decision, the exceptions, the cross-
exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Davis Wholesale
Co., Inc., Culloden, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: Upon a charge
filed on February 9, 1966, by the Union, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 9 (Cincinnati, Ohio), issued a
complaint dated March 31, 1966, and an amended
complaint and notice of hearing dated April 25, 1966. On
motion of the General Counsel, the latter complaint was
further amended after the hearing opened. The amended
complaint, with its amendments, alleged that the
165 No. 40
297
Respondent violated Section 8(a)(1) and (3) of the Act. The
Respondent duly filed an answer and an amended answer
to the aforesaid amended complaint. In these answers the
Respondent conceded certain facts with respect to its
business operations but denied the commission of any
unfair labor practices.
Pursuant to due notice, a hearing was held in
Huntington, West Virginia, before me which extended
from June 13 to July 7, 1966. All parties appeared at the
hearing with counsel and were given full opportunity to
examine and cross-examine witnesses, to introduce
relevant evidence, to argue orally after presenting their
evidence, and to file briefs. The parties waived oral
argument. Various motions to dismiss, made by the
Respondent, are disposed of as appears hereinafter in this
Decision. On October 17, 1966, the final date set for the
submission of briefs, the General Counsel and the
Charging Party filed comprehensive briefs which have
been fully considered. On October 26, 1966, the
Respondent submitted a "Memorandum on behalf of
Davis Wholesale Co., Inc." Although filed belatedly, this
memorandum has also been considered by me.'
At the outset of the hearing and at various times
throughout the trial of this matter, the General Counsel
and the Respondent moved to consolidate the instant case
with Case 9-CB-1281, in which the Employer is the
Charging Party and the Union herein is the Respondent.
This motion was consistently and with great force and
vigor opposed by counsel for the Union. Numerous
arguments in support of this opposition were advanced.
Most compelling was the contention of counsel for the
Union that a consolidated proceeding would impose an
intolerable burden on the Union since this would require
that its counsel simultaneously represent a client that in
the same proceeding was both the accused and the
accuser, on the one hand compelled to cooperate fully with
the General Counsel in the presentation of the CA case
and, on the other hand, in fairness to the client, compelled,
as to issues in the CB matter, to maintain an arms-length
attitude in relation to that same General Counsel.Upon a
consideration of these issues, as well as the commitment
of the Union that it would be ready for trial in the CB
matter immediately upon the conclusion of the CA
hearing, I denied the motion to consolidate.2
Upon the entire record in the case, including the briefs
and memoranda of the parties, and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a West Virginia corporation, has been
engaged at all times material herein at Huntington and
Culloden, West Virginia, in the sale of wholesale grocery
items. During the 12 months preceding the original
hearing, a representative period, it had a direct outflow of
products , in interstate commerce, valued in excess of
' Other issues raised in connection with the filing of this
memorandum have been discussed in fn 3, of the Trial
Examiner's Decision in Davis Wholesale Co , Inc , Cases
9-CA-3599 and 3742, issued this date
2 On October 17, 1966, the General Counsel filed a motion to
correct the transcript in certain particulars On November 3,
1966, 1 issued an order correcting the transcript , copies of which
were served on all the parties and one copy of which was placed in
the exhibit file of this case
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 which were sold and shipped directly from its
warehouses in West Virginia, to points outside the State.
Upon the foregoing facts, the Respondent concedes, and 1
find, that Davis Wholesale Co., Inc., is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union Local #347, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, herein called Union or Charging Party, is a
labor organization within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
In Davis Wholesale Co., Inc., Cases 9-CA-3599 and
3742, both of which were heard before me, and the Trial
Examiner's Decision in which is issued this date, it was
found, inter alga, that:
(1) All employees employed by the Respondent at its
place of business in Culloden, West Virginia, excluding
salesmen, office clericals, guards, professional employees
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
(2) At all times since May 17, 1965, the Union has been
the exclusive representative of all the employees in the
aforesaid unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
(3) By failing and refusing at all times since May 19,
1965, to bargain collectively with the Union as the
exclusive representative of the employees in the aforesaid
unit, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
In that same Decision I further found that the
Respondent, during the period from May through
November 1965, had discriminated in regard to the hire
and tenure of various named employees, in violation of
Section 8(a)(3) of the Act, and had engaged in additional
conduct which interfered with, restrained, and coerced the
employees within the meaning of Section 8(a)(1) of the Act.
The issues in Case 9-CA-3839, the instant matter, cover
the period from November 1965 to the date of the hearing
in mid-summer 1966. It is alleged by the General Counsel
that, as a result of the Respondent's continuing refusal to
recognize the Union as the majority representative of the
employees, a strike called in December 1965 was an unfair
labor practice strike, and that the Respondent's refusal to
reinstate the strikers upon its termination in April 1966
was in violation of Section 8(a)(3) of the Act.
B. The Union's Renewed Request for Recognition Prior to
the Strike
The Respondent has consistently refused to recognize
or bargain with the Union on the ground that until the
i All dates during the months of November and December are
in 1965 unless otherwise indicated , all dates during the months of
January through July are in 1966 unless otherwise indicated
' Gunnoe testified that on several occasions when he extended
the invitation for such a meeting, Respondent 's president told
Gunnoe "you'll never get a damn union contract out of me "
Lewis Davis denied having made this comment His denial of the
profanity which Gunnoe attributed to him was convincing On the
other hand , Davis readily conceded that he had consistently
rejected all proffers to meet with Gunnoe or any of the other union
representatives Moreover , on cross-examination , when asked
latter won an election, the Company was under no
obligation to treat with it as the majority representative.
On November 14, 1965,•; the Union held a meeting of its
membership at the Davis plant The leadership discussed
the unsuccessful efforts which the Union had made to get
recognition from the Company and sought a vote on the
question of whether a strike should be authorized. Of
approximately 32 members present, all except 1 voted to
authorize a strike.
Thereafter, Sherwood M. Spencer, secretary-treasurer
of Local#347, renewed his efforts to secure a conference
with the Respondent. About November 29, in a telephone
conversation with Lewis Davis, president of the Company,
Spencer suggested that they meet and discuss recognition
and bargaining so that a strike could be avoided. Davis told
him that this would be useless, that all such discussion
would have to be had with Attorney John E. Jenkins, Jr.,
counsel for the Respondent. About December 6, Spencer
telephoned Davis to renew his request for a conference.
The latter declined to engage in any discussion and once
more referred him to Attorney Jenkins. The following day,
Spencer telephoned Jenkins to request a meeting. The
latter informed him that the Respondent would meet with
the Union only after it had won an election.
On December 8, 1965, the strike began. At various times
during the ensuing weeks, Woodrow Gunnoe , a business
agent for the Union , suggested to Davis that they meet for
a discussion of the differences between the employer and
the employees . In each instance this proffer was
declined.4 In a letter dated December 21, 1965,
Commissioner Lawrence Barker, of the Department of
Labor for the State of West Virginia, wrote the
Respondent to offer the services of that department in
mediating the dispute between the Company and the
Union. This letter was never answered. At the hearing,
Davis testified that he never made any response to the
letter "because we didn't consider we had a Union. We
have never had an election."
C. The Strike
As noted earlier, the strike began on December 8, 1965.
It continued until the following April. On April 4, 1966,
Spencer sent a telegram to the Respondent wherein the
strikers made an unconditional offer to return to work and
the Union renewed its request for recognition and
bargaining on behalf of all the employees in the
appropriate unit. On the morning of April 7, 28
strikers," accompanied by Business Agent Gunnoe,
appeared at the warehouse entrance and sought
reinstatement. They were met by Thurman Johnson, vice
president of the Respondent and superintendent of the
warehouse. The latter told the strikers to write their names
and addresses on a sheet of paper and stated that all those
for whom the Company had jobs would be contacted.
Gunnoe testified that when asked whether the Respondent
would take the strikers back in the order of seniority,
whether, notwithstanding the fact that there had been no election,
the Respondent would acknowledge the Union's majority, bargain
with it, and sign a contract , Davis replied with an emphatic, "No,
sir
Gunnoe testified that three additional strikers not present
were Alfred Maynor and Lindsey Finley, both of whom were ill
that day, and Harold Duffer, whom the Union had been unable to
contact on the morning in question Gunnoe testified that, in
addition to the last named , there were also other striking
employees whom the Union had not been able to reach However,
he never specified the names of any strikers in that category
DAVIS WHOLESALE CO.
Johnson replied, "Gunnoe, I'm not going to take them
back today. In fact, they don't have jobs any more here,
but if we need any of them we'll notify them by mail."
Johnson denied that he ever stated that the Company
would never take the strikers back, but in other respects
there was no substantial conflict between his account and
that of the General Counsel's witnesses as to what
occurred on the morning that the returning strikers sought
reinstatement.
In fact, none of the striking employees has ever been
reemployed. In a letter, dated April 7 and sent to each of
the strikers, the Respondent stated:
Your offer to return to work today is acknowledged.
You left work voluntarily about December 8, 1965,
and in order to carry on and preserve the company's
operation, you have been permanently replaced.
Because of the violence, threats and other unlawful
acts committed and/or conspired to, you will not be
reinstated.
Johnson testified that the decision to discharge all of the
strikers was reached on April 7 during a conference which
he had with President Davis and Attorney Jenkins. He
testified that at this meeting there was little or no
discussion of each individual striker, but instead only a
general discussion of the violence which had occurred
during the walkout. Johnson testified that the returning
strikers were treated as "a group and discharged as a
group."
Whereas the Respondent contended that the strikers
were not reinstated at the termination of the strike
because of alleged misconduct and picket line violence,
the General Council alleged that the strikers were in fact
discharged at the outset of the work stoppage for having
exercised the right to strike. To the evidence in connection
with this issue we will now turn.
It is apparent from the record that from the time the
walkout began the strikers were no longer kept on the rolls
of the Company as employees. As to this issue, Johnson
testified, "When they went on strike they walked off their
job and quit . .. I think we referred to them as employees
that had quit Lewis Davis testified that by December 30
he took the position that all those persons who were on
strike were no longer working for the Company and had
quit their employment.'
It was equally apparent from other evidence that the
Company took this attitude from the very outset of the
strike. Prior to the walkout all of the employees were
covered by a group hospitalization insurance plan.
Monthly premiums for this insurance were deducted from
the pay of each employee at the beginning of each month.
On December 8, and on the very afternoon that the strike
began, the wife of Lindsey Finley, one of the strikers, was
hospitalized for emergency treatment and remained in a
Huntington hospital for several days. Pearl Atkins,
medical records supervisor for the Cabell-Huntington
Hospital, testified that although the hospital bill for this
patient was sent to Davis Wholesale for transmittal to the
insurance company, it has never been paid . Maxine
McGinnis, secretary to Lewis Davis, conceded that the
premium for hospitalization insurance through the month
of December had been withheld from Finley's pay, as well
as that of all other strikers , at the beginning of that month.
" Later Johnson stated, "As far as I am concerned when a man
walks off and leaves his job when there is plenty of work there for
him they have quit "
7 The Respondent 's payroll records were regularly kept on a 2-
299
Notwithstanding this fact, Mrs. McGinnis, who was
responsible for handling all hospital claims for the
Respondent, testified that when the bill for Mrs. Finley
arrived at the Company, she never forwarded it to the
insurance carrier. Mrs. McGinnis conceded that she did
not do so because she took for granted that the patient's
husband had quit the employ of Davis Wholesale as soon
as he went out on strike. She also testified that in the latter
part of December a letter was sent to all the strikers
notifying them that they would have to make their own
arrangements for the continuance of any hospitalization
insurance coverage they had previously had as employees
of the Company prior to the strike.
Keith Tomblin, one of the employees who subsequently
went on strike, testified that about November 23, 1965, he
had a conversation with Thurman Johnson during which
the impending strike was discussed. According to
Tomblin, Johnson told him that if he went on strike "with
the boys ... I was fired and that I would never work again
for Davis Wholesale...." Johnson testified that he had
had a conversation with the employee on the day in
question, that it had occurred after Tomblin had asked
that he give him a ride home from the warehouse and that
the strike issue had been mentioned. According to
Johnson, however, he had refused to be drawn into the
discussion and in response to the employee 's questions on
the matter he had urged that Tomblin, who was a young
man, solicit the advice of his own father, rather than
Johnson. Tomblin and Johnson were related, through
marriage, to one another. Later in this Decision, it will
appear that, as to various incidents which occurred during
the strike, I place little credence in the testimony of the
employee Tomblin. On the other hand, as to this particular
incident I conclude that it occurred substantially as the
employee testified, and that Johnson did predict that those
who went on strike would be discharged and never again
work for the Company.
Several of the strikers testified as to conversations
which they allegedly had with Lewis Davis after the strike
began. James Belcher testified that about 5 p.m. on
December 8, while he and the other strikers were gathered
near the warehouse entrance, Davis appeared and started
to take down the names of those who had on picket signs.
According to Belcher, when he jestingly asked Davis if he
wanted his name, the plant president replied, "I know
your name quite well, Belcher, and you are all fired." This
same witness testified that on the evening of the next day,
he and several other strikers were again on the picket line
when Davis came out to where they were. According to
Belcher, there was an exchange of conversation during the
course of which he suggested that the plant president was
responsible for the employee walkout. Belcher testified
that after he had said this, Davis told him "you no longer
work for me, you are all fired." According to Belcher, he
then stated that at the conclusion of the strike he wanted
to return to work at the warehouse, but Davis told him
"you will not come back to work here for me or for no
one." Three other strikers, Gary Bias, Thomas Templeton,
and Dennis Holley, testified as to another conversation had
with the plant president about December 10. According to
Holley, Davis told them that they "were fired the day we
walked out the gate on strike." Bias testified that Davis
week basis , with the first pay period in December 1965 extending
from December 5 to 18 For the strikers who walked out on
December 8, however, a special payroll record was prepared
which ended with the date the strike began
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him how long he had worked at the warehouse and
when he replied, the Respondent's president commented,
"Well, if I knew then what I know now you never would
have worked for me ... none of you ... will ever work for
me again." Templeton corroborated the testimony of his
fellow strikers. Leonard Cremeans, another striker,
testified that about December 11, Davis had spoken to
several of the pickets and referred to all the bonus money
that they would lose by not working. According to
Cremeans, when one of the other pickets said "that's all
right we will make it up when we get our union in," Davis
replied, "You will never work for me. I fired you the day
you all left." Ronald Skaggs, one of the union business
agents, testified that about December 13, while in the
vicinity of the picket line near the warehouse gate, he had
a conversation with Lewis Davis, during the course of
which he urged that the company management sit down at
the bargaining table and ask the men then on strike what
they wanted. According to Skaggs, Davis' reply to this
suggestion was the remark ". . . these men have had their
last with Davis Wholesale Company ... I have told you
once and I will tell you all again that you are all fired...."
Thomas Templeton testified as to another incident which
occurred about December 21. This was at the Valley Food
Discount Service, a store in Charleston, West Virginia,
that was one of the Company's customers. Templeton and
several other strikers arrived at this site during the course
of their ambulatory picketing on the day in question.
According to Templeton, while he and the other pickets
were engaged in conversation with the store manager, Mr.
Davis and several others arrived. Templeton testified that
on entering the store, Davis declared to the store manager
"don't pay ... attention to these boys, they are no longer
my employees. They were fired when they went out on
strike."
Victor Howard, operator and manager of the Valley
Food Discount Service, testified that he could not recall
having heard Davis say anything about having fired any of
the employees. President Davis generally denied that he
had ever told any of the strikers that he was fired and he
specifically denied many of the comments to that effect
which the strikers attributed to him." On the other hand,
Skaggs' testimony related above, was never denied.
Whereas, as will appear later herein, I found much of
Davis' testimony credible, as to this particular series of
incidents, all of which occured early in the strike, I
conclude that the testimony of employees Belcher, Bias,
Templeton, Holley, Cremeans, and Business Agent
Skaggs is the more convincing. For this reason, I conclude
and find that, on or about the dates mentioned above,
Lewis Davis did tell the strikers that all of them were fired
at the time they went on strike.
D. The Allegations of Interference, Restraint, and
Coercion , Findings and Conclusions With Respect Thereto
The General Counsel alleged that the Respondent
engaged in extensive 8(a)(1) violations during the early
days of the strike . Much of the testimony offered in this
connection involved the alleged action and conduct of
Lewis Davis.
Subparagraph 5(a) of the complaint alleged that about
December 9, 1965, and at various times thereafter
President Davis interfered with peaceful picketing by
harassing the pickets with vile and abusive language and
also by using his automobile to block the picket area at the
warehouse entrance. Subparagraph 5(c) of the complaint
alleged that about December 21, 1965, Lewis Davis and
Donald Davis, the latter being secretary-treasurer of the
Respondent, threatened a business agent of the Union and
that Donald Davis urged the nonstrikers to knock a camera
out of the hand of the business agent and assault him.
Business Agent Gunnoe testified that during the month
of December, Davis frequently called the pickets "damned
Communists," "bastards," "sons-of-bitches," and used
various other profane epithets to characterize them. Paul
Christian, one of the strikers testified that early in the
strike he was with a group of pickets whom Davis berated
with several of the foregoing expletives. Keith Tomblin
testified that while he was picketing at the warehouse
entrance during mid-December, Davis used similar
language in upbraiding the pickets. John Valentine
testified as to several incidents when, as a picket, he was
the alleged object of profane taunts from the company
president. Wellington Breed, another striker, testified that
Davis was constantly cursing and maligning the pickets
with a stream of profanity.
Lewis Davis denied that he had ever called any of the
strikers a Communist, and further denied that he had ever
called any man a "son-of-a-bitch" or that he had ever used
any of the other profanity which the above-named
employees attributed to him. This denial was completely
convincing to me, whereas the testimony of the strikers in
this connection was not, Valentine and Breed being the
two most incredible of all those who testified on this
subject.
The testimony with respect to the alleged blockage of
the picket line concerned an incident which occurred
about December 21 at the Huntington warehouse.
The Respondent's Huntington warehouse, scene of most
of the incidents which figure in this case,`' is a large brick
structure, over 300 feet long and somewhat narrower in
width. The office entrance to the building is at one corner
and overlooks a rather narrow street which extends along
that side of the building. There is no curb or sidewalk on
this street. Prior to the strike the employees customarily
parked along this street and parallel to the building. Some
also parked in front of the office door and around the
corner of the warehouse along which side a railroad track
extends for the use of railcars that serve the warehouse
receiving department. During the period in question, there
was a large parking area at the rear of the building where
the Company kept its numerous trucks when they were
not in use. This lot was enclosed by a high chain fence.
For several weeks after the strike began, the nonstriking
employees, supervisors, and company officials kept their
cars on the fenced-in truck parking lot at the rear of the
wherehouse. On December 20, the Circuit Court for
Cabell County, West Virginia, issued an injunctive decree
which banned violence of all kinds in the dispute between
the Respondent and the Charging Party, severely limited
the number of pickets who could be on the picket line at
" In addition to those incidents which have been outlined
above, a number of other strikers testified as to similar incidents
in which Davis allegedly stated that they had been fired as soon as
they went on strike Among these strikers were Wellington Breed,
Keith Tomblin, John Valentine, and Clifford Sword Although the
testimony of these employees was generally corroborative of the
testimony of other strikers that is set forth above, it is not relied
on here
' In the fall and winter of 1965-1966 the Respondent had under
construction a new warehouse in Culloden , West Virginia, some
25 miles from Huntington In April 1966 the Company moved all
of its operations to the site of this new facility
DAVIS WHOLESALE CO.
any one time, defined the area that could be used for this
purpose, and established numerous other strictures on the
Union's picketing activities in and around the strike-bound
warehouse.
After the entry of the aforesaid injunction, the
nonstriking employees of Davis resumed parking outside
the fenced- in lot and Lewis Davis resumed the practice of
parking his car in front of the office door.
The General Counsel and the Union endeavored to
establish that the manner in which President Davis parked
his car , in the period subsequent to December 20,
constituted a deliberate effort on his part to block the
patrolling of the pickets who, by the injunctive decree,
were confined to the public street . Business Agent Gunnoe
testified that on December 21, Davis parked his car near
the office entrance and at such an angle that it protruded
into the street and blocked the pickets from getting by
without moving further into the street . He testified that
when he asked Lewis Davis to move his car, the company
president refused to do so. According to Gunnoe, the
following sequence of events thereupon ensued: After
having failed to induce Lewis Davis to move his car,
Gunnoe telephoned the Huntington police. Gunnoe
thereafter proceeded to take motion pictures of the scene
and, as he was doing so, Lewis Davis, Donald Davis, and
several others emerged from the company office. Donald
Davis and a number of those with him advanced on
Gunnoe and Donald Davis stated , "Let's knock the . .
camera out of his hand" at which instant Donald Davis
made a swinging motion at Gunnoe. At this point, Gunnoe
retreated across the street to escape being assaulted.
From the testimony of the General Counsel' s witnesses,
it is apparent that Davis ' car was parked within only a few
feet of the office entrance to the building, and extended no
more than a short distance into the street . Leonard
Cremeans, one of the strikers, testified that Davis' car was
within 5 to 6 feet of the office door to the building and John
Valentine testified that it was within 3 feet of the wall of
the warehouse. Clifford Sword, another striker , testified
that the rear of the car did not extend more than 3 or 4 feet
into the street . From the pictures received in evidence and
from the view of the premises which I had at the
conclusion of the hearing, it is difficult to understand how
the car could have been parked much closer to the
building. Lewis Davis testified , credibly and without
contradiction , that the manner in which he parked on the
day in question was the same as he had been doing for over
6 years prior to the strike. His testimony in this regard was
corroborated by Estil Loftis, one of the strikers and an
employee of several years' standing , who conceded on
cross-examination that prior to the strike Davis had
consistently parked his car in this same position in front of
the office door.
Harold Damron, the patrolman who responded to
Gunnoe's call to the Huntington Police Department, was a
witness for the Respondent . Officer Damron testified that
Gunnoe requested that he order the removal of the car
which Gunnoe asserted was blocking the street and the
picket line. According to Damron , after he examined the
location of the car with respect to the street, he told
Gunnoe that the car was not blocking the street and that
no ordinance was being violated. Damron testified that
while he was present at the scene , Lewis Davis and several
others came out of the company office and that Gunnoe
began taking pictures of them . He further testified that
301
thereafter he did not see anyone make a move or a
threatening gesture toward Gunnoe and that the latter left
the scene before he did.
Lewis Davis and Donald Davis denied that any threats
were made to Gunnoe at this time and that no assault or
attempted assault was made upon him by Donald Davis or
anyone else . Donald Davis , in particular , was a credible
witness as to the incident . His account was completely
convincing to me, whereas that of Gunnoe was not.
Furthermore , the account of the latter was not confirmed
or corroborated by the motion pictures which he took and
the film which was received in evidence . In view of the
foregoing conclusions as to the testimony offered on this
incident , I find that neither Donald Davis nor any other
representative of the Respondent engaged in any assault
or attempted assault on Business Agent Gunnoe in the
manner that he testified. Further, in view of the
uncontradicted testimony that for many years prior to the
strike Lewis Davis had parked his car in the same position
in front of the office door as he did on the day in question, I
conclude that there is no substance to the charge that his
resumption of that practice after December 20 constituted
interference or restraint of the pickets.
Finally, I conclude that Lewis Davis did not harass the
pickets with vile, profane , and abusive language.
Therefore, I shall recommend that subparagraphs 5(a) and
(c) of the complaint he dismissed.
The complaint also alleged in subparagraphs 5(d) and (e)
that about December 21, Lewis Davis drove his
automobile so recklessly as to endanger the lives of two
business agents who were with union pickets then engaged
in picketing a grocery store in Culloden, a nearby town,
and that about December 28, Davis drove his automobile
in such a manner as to endanger the lives of two strikers
then engaged in picketing the warehouse in Huntington.
Business Agent Gunnoe testified that about
December 21 "' he and Business Agent Jack Brooks were
with a group of strikers who had established a picket line
at the entrance to Sovine Brothers Grocery in Culloden.
According to Gunnoe, he and Brooks were in charge of a
group of strikers who were then engaged in what he
described as "informational picketing" of the Sovine
Grocery, while a Davis truck was unloading merchandise.
Gunnoe testified that as he and Brooks were standing near
the store , Lewis Davis came in off the highway and at great
speed drove his automobile between them so that both he
(Gunnoe) and Brooks had to leap in order to avoid being
struck . According to Gunnoe , as soon as Davis parked his
car he turned to them and declared , "You sons-of-bitches,
if you don' t get out of my way, I am going to kill you."
James Gibson, one of the pickets, testified as to this
incident and gave some testimony which partially
corroborated that of Gunnoe as to the manner in which
Davis' car entered the parking lot. He also testified that
neither Gunnoe nor Brooks was grazed or touched by
Davis' car . Moreover, Gibson did not testify that he heard
the threatening statement which Gunnoe attributed to
Davis. Business Agent Brooks was never called as a
witness and no explanation was ever offered for his
absence from the hearing.
Lewis Davis testified that the only occasion that he was
at Sovine 's when there were pickets in the vicinity was on
December 23, that on that occasion Gunnoe, Brooks, and
several other pickets were around the store as he drove on
to the parking lot, but that at no time did he ever come
"' In one pretrial affidavit , however , he had averred that the
date in questi on was December 23
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close to either Gunnoe or Brooks with his automobile.
Davis denied that he had ever attempted to hit either of the
business agents and he denied the threats which Gunnoe
attributed to him. Davis' testimony was corroborated by
that of Bernard C. McGinnis who was a passenger in
Davis' car at the time.
Gunnoe's testimony as to the incident was not
persuasive. It was in partial conflict with an affidavit he
had given prior to the hearing and no element of the
account which he gave as to the manner in which both he
and Brooks were allegedly endangered had any air of
conviction about it. The testimony of both Davis and
McGinnis, on the other hand, was credible. Accordingly, I
shall recommend that subparagraph 5(d) of the complaint
be dismissed.
In support of subparagraph 5(e) of the complaint, the
General Counsel called Roy Lewis and John Valentine.
Both of these witnesses were strikers. According to Lewis,
at a date shortly after the injunction was entered,'' he and
Valentine were on picket duty outside the warehouse
entrance when Lewis Davis was about to get into his car
and called out to Lewis ". . . get the hell out of the road or
he would run over me." Lewis testified that the
Respondent's president then entered his car, and, as Davis
drove off, the car came within a foot of hitting him. Lewis
conceded, however, that the car did not touch him in any
way. Valentine testified in partial corroboration of Lewis'
account as to the proximity of the car to Lewis when Davis
was leaving the area, but he gave no testimony in
corroboration of the threat which Lewis attributed to the
plant president. Davis testified that he could recall no such
incident as that related by Lewis and he denied ever
having made any threat to run down Lewis or any other
picket during the course of the strike.
I conclude, based on my observation of the witnesses
and an examination of their testimony, that the account of
Lewis and Valentine was totally unreliable and incredible.
For that reason, I conclude and find that there is no
substantial evidence to support the allegation in
subparagraph 5(e) in the complaint and that said allegation
should be dismissed.
Subparagraph 5(f) of the complaint alleged that about
December 28, Lewis Davis kicked the automobile of a
striking employee and damaged "the fender, paint, and
grill." The car involved was that of Clifford Sword, one of
the strikers. Although the tenor of this allegation attributes
nothing less than an attempt at malicious destruction to
the company president, even the testimony of Sword, the
General Counsel's sole witness on this issue, does not bear
this out. According to the latter, on or about the aforesaid
date, and when his car was at a parking lot near the
warehouse, he saw Davis and Johnson examining his car
and that at one point Davis kicked the side of the car and
then the license plate. Both the company president and
the warehouse superintendent testified as to the visit
which they made to the parking lot on this date. According
to Johnson, he and Davis went there on this occasion for
the express purpose of inspecting Sword's car because
they suspected that it had been used earlier that week to
run one of the nonstrikers off the road. Both Johnson and
" The injunctive decree was entered on December 20
Valentine fixed the date of the incident as about December 23
12 This employee is also known in the record as Eura Delano
Keenan
" At the conclusion of the hearing, counsel for the Respondent
stated that he would seek leave to secure a deposition from
Davis denied that the car was kicked or damaged in any
way during the course of their examination. Here, again, I
conclude that there is no substantial evidence to support
the allegation in paragraph 5(f) of the complaint, assuming
arguendo that, if true, the aforesaid allegation sets forth an
unfair labor practice.
There remains for disposition, only subparagraph 5(b) of
the complaint, wherein it is alleged that Thurman Johnson
told an employee that if he went out on strike with the rest
of the employees, he would be fired and never again work
for the Respondent. As found earlier, herein,
Superintendent Johnson did make such a statement to
Keith Tomblin about November 23. That statement was, of
course, coercive and its utterance by the warehouse
superintendent constituted a violation of Section 8(a)(1) of
the Act.
E The Allegations as to Delano Keenan and Paul
Christian; Findings and Conclusions With Respect Thereto
1. Delano Keenan' '
On December 8, 1965, Keenan, an employee in the
warehouse, was suspended, allegedly for making threats
against a fellow employee, one Robert Peterson.
Lewis Davis testified that Peterson reported to him that
in a conversation with Keenan in which Peterson
expressed his opposition to a strike, Keenan told the latter
that he would not be able to work if he went through a
union picket line. Davis testified that he and Thurman
Johnson thereupon called both Peterson and Keenan to
the company office, where they interrogated them as to the
circumstances in which the alleged threat had been
uttered. According to Davis, during this conference,
Keenan conceded that he told Peterson that the latter
would not be able to work if he came through the picket
line. Johnson testified that at this confrontation Peterson
told them that Keenan had stated that if he attempted to
cross the picket line he would never be able to work.
According to Johnson, Keenan at first denied having made
any such remarks, but when Peterson repeated the
substance of the alleged conversation, Keenan said
nothing.
At the hearing Keenan testified that, during the
conference in the warehouse office, Peterson accused him
of having threatened to beat him up if he crossed the
picket line. According to Keenan, he denied having said
this to Peterson and told Davis that all he had actually said
was that "it was a sorry thing for him (Peterson) to cross
the picket line."
Peterson did not testify at the hearing. On December 9,
the day after the above-described meeting in the company
office, he left the Respondent's employ for military
service. At the time of the hearing he was reportedly on
duty with the American Armed Forces in Germany. '•t
At the end of the meeting with Keenan and Peterson,
Davis announced that Keenan would be suspended for 1
week, effective immediately.14
Keenan was not a persuasive witness on his own behalf
at the present hearing. It is likely that his denials at the
meeting in the plant office were no more convincing to the
Peterson However, no such motion was ever submitted to me
" Both Davis and Johnson testified that the suspension was for
1 week, and that Keenan was to remain off work until 7 a in on
December 16 Although Keenan testified that lie was notified that
the suspension was for 2 weeks, his testimony in this connection
was obviously in error
DAVIS WHOLESALE CO.
company officials . In any event , I conclude that during the
conference with Davis and Johnson , Keenan did not
effectively deny the accusation by his coworker that he
had threatened to beat him up or render him unable to
work if Peterson crossed the picket line. Such conduct as
that attributed by Peterson to Keenan is not protected
concerted activity . Continental Woven Label Company,
Incorporated , 160 NLRB 1430 ; Burns Garage , Inc., 148
NLRB 363,368 ; cf. N.L.R.B. v. Tennessee Coach Company,
191 F.2d 546, 548, 550 (C.A. 6). The real question,
however, is whether the discipline meted out to Keenan
was motivated by his union activity , or represented,
instead, no more than a normal exercise of managerial
supervision designed to maintain harmony in the
warehouse . Elsewhere in this Decision , it is found that the
Respondent had a strong antiunion animus. It is likely that
this had some bearing on the Respondent 's disposition of
the matter . On the other hand , Keenan was not a
distinguished leader of the organizational movement in the
Respondent ' s warehouse . In the original cases (Davis
Wholesale Co ., Inc., Cases 9-CA-3599 and 3742), he was
identified only as a union card signer, but not in any other
way, and he was never called to the stand as a witness. Nor
was any evidence offered in the record of this case to
establish that , as of the morning of December 8, the
management had reason to identify him as one of the union
leaders. Had President Davis, in this instance , discharged
Keenan for the conduct in question , an antiunion
motivation might be more discernible . Here, in contrast
with dismissal , the employee received a comparatively
mild punishment . Consequently , I conclude that the
General Counsel failed to sustain his burden in this
matter. Having found that the General Counsel has not
proved by a preponderance of the evidence that Keenan's
suspension was discriminatorily motivated , I shall
recommend that the allegation to this effect in paragraph 6
of the complaint be dismissed.
2. Paul Christian
Christian was a truckdriver in the Respondent's employ.
When the strike began he did not join in the walkout
immediately . Instead he remained on the job until the
weekend after the strike started. On December 13,
however, he joined his fellow employees who were on
strike and appeared out in front of the plant with a picket
sign. According to Christian, about 8 a.m. that morning,
Lewis Davis was near the parking lot entrance and, on
seeing him, stated, "Paul, I didn't think you would do it
. You know you are fired along with the rest of them."
Christian's testimony was corroborated by that of James
Belcher and Delano Keenan. Whereas Keenan was at no
time an impressive witness, the account of both Christian
and Belcher as to this incident was credible. Lewis Davis,
on the other hand, denied ever having had the alleged
conversation with Christian and averred that he did not
even know the employee by sight, much less on such terms
that would have led him to address Christian by his first
name as the employee himself testified. Davis also denied
that Christian was ever, in fact, discharged
Earlier in this Decision I found that Lewis Davis had
declared to many of the strikers during the early days of
the walkout that they had all been fired by the
15 Templeton testified that he was called into Davis' office on
November 9 Cremeans testified that his conversation with the
Respondent ' s president occurred about that same day or
November B Davis did not fix a date with respect to any
303
Respondent. Whereas Davis denied that he had any
recollection of ever having recognized Christian at the
time of the walkout, this testimony was somewhat
implausible. Throughout the record there is evidence that
Davis made a practice of getting to know the employees in
the warehouse and that he knew and addressed many of
them by their first names. Christian had been an employee
from September 1965. Immediately after the strike began
he undoubtedly received some attention from the
management for having stayed on the job rather than
immediately joining the strikers. Consequently, I conclude
that by December 13, when Christian appeared on the
picket line, his identity was known to the company
president and that the conversation in question occurred
substantially as Christian testified. It is evident, and I find,
that the statement by Davis to Christian could only be
construed to mean that the employee had been discharged
for striking. Since a dismissal for this reason is plainly a
violation of the Act, I further conclude that by this conduct
on the part of the company president as to Christian, the
Respondent violated Section 8(a)(3) of the Act N.L.R.B. v.
Greensboro Coca Cola Bottling Company, 180 F.2d 840,
844 (C.A. 4); Home Beneficial Life Insurance Company v.
N.L.R.B., 159 F.2d 280, 285 (C.A. 4), cert. denied 332 U.S.
758.
F. The Issues With Respect to the Strike, Discharge of the
Strikers and Refusal to Reinstate Them, Conclusions With
Respect Thereto
Leonard Cremeans and Thomas Templeton testified
that during the early part of November each was called
into the office of Lewis Davis and while there the company
president presented their bonus checks. This was in
keeping with a practice which Davis followed in his annual
distribution of employee bonuses from the company profit-
sharing plan. As these employees met separately with the
company president in November, however, according to
Cremeans and Templeton, Davis warned each of them as
to what would happen if he joined the other employees in
taking what Davis described as a "vacation." Cremeans
testified that when Davis handed him his check, the
Respondent's president told him, "Leonard, I hear you are
going to take a vacation and ... I want to give you a little
money to take it on ... I got the feeling it's going to be a
long one." According to Cremeans, when he protested that
he had no plans for any vacation, Davis concluded the
conversation with the admonition, "Well, you got a job as
long as you know how to take care of it. If you no longer
know how to take care of it I will get somebody out on the
street that can." Templeton testified that when Davis
presented the bonus check to him, the Respondent's
president stated that he had heard that Templeton
planned to take a vacation and then went on to say, "I
want to tell you that you have a job as long as you take care
of it, but if you plan on taking a vacation with the rest of
the boys you have just lost your job ... we plan on
operating Davis Wholesale regardless of what the
employees [do]."
Lewis Davis conceded that he had spoken to these
employees at the time he presented their bonus checks,
but he denied that he had engaged in any such discussion
about vacations as they attributed to him.'' This denial,
conversation with Templeton, but lie testified that his discussion
with Cremeans took place on November 30 As to the date of the
meeting between Cremeans and Davis, the recollection of the
latter was probably the more accurate
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, was not as credible as the completely frank
testimony of the employees recited above. I conclude that
the conversations occurred substantially as Cremeans and
Templeton testified.
As found earlier, on November 14 the Union held a
meeting of its membership at the Davis Wholesale
Company and those present voted overwhelmingly to
authorize a strike. The knowledge of this action probably
became common knowledge soon thereafter. In any event,
on December 8, Davis sent a letter to all employees and
their families in which he stated that the Union had
insisted that the Company recognize it. Then, after a
discussion of the Respondent's position with respect to
this demand, he concluded with the statement "We expect
a strike shortly and we are ready for it."
In his conversations with Cremeans and Templeton
during the month of November, Davis raised the prospect
of their going on a "vacation" which might "be a long one"
and admonished them that if they planned on taking such
a "vacation with the rest of the boys you have just lost your
job...." This was in keeping with the prediction that Vice
President Johnson made to employee Tomblin on
November 23 when Tomblin was warned that if he "went
out on strike with the boys ... [he] was fired and ...
would never work again for Davis Wholesale...." When
the strike began on December 8, President Davis promptly
informed the strikers "you are all fired" and declared that
none of them "will ever work for me again." Later when
Paul Christian belatedly joined the strikers on
December 13, after having remained on the job for several
days after the walkout began, Davis told him "you know
you are fired along with the rest of them." Thus was
fulfilled the prophecy voiced earlier by both Davis and
Johnson that those who went on strike would be
discharged. It is apparent from this background, the
statements of President Davis to the pickets, the refusal of
Mrs. McGinnis to process Finley's hospitalization claim,
and the disposition of the payroll as to those who went on
strike, that the Respondent terminated all those who
joined in the walkout on December 8, 1965, and thereafter,
for having gone on strike. This was a manifest violation of
Section 8(a)(3) of the Act and I so find. N.L.R.B. v. Mackay
Radio & Telegraph Co., 304 U.S. 333, 345, 347; N.L.R.B. v.
Clearfield Cheese Co., 213 F.2d 70, 74-75 (C.A. 3); Great
Southern Trucking Co. v. N.L.R.B., 127 F.2d 180, 186-187
(C.A. 4), cert. denied 317 U.S. 652; Editorial "El
Imparcial" Inc. v. N.L.R.B., 278 F.2d 184, 187 (C.A. 1).16
The General Counsel and the Union alleged that the
walkout, which began on the afternoon of December 8 and
lasted until April 7, was caused and prolonged by the
Respondent's unfair labor practices and that, for this
reason , it was an unfair labor practice strike. This is
denied by the Respondent, according to whom the strike
was purely economic in character.
As noted above, in my earlier Decision, it was found that
the Respondent unlawfully refused to bargain with the
Union on May 19, 1965, and that this unlawful refusal to
recognize and bargain with the employees' majority
representative was never remedied in the months
thereafter. Early in December 1965, and on the eve of the
strike, when Spencer, on behalf of the Union, endeavored
to secure a meeting with the management he was referred
by Lewis Davis to the Respondent's attorney. The latter
declined to meet for any purpose other than to discuss an
election. This offer, of course, in no manner satisfied the
Employer's duty to bargain under Section 8(a)(5) of the
Act. 17 By December, and over 6 months after the Union
had achieved the status of majority representative, the
Company was still rejecting all overtures for recognition
and bargaining. This course of conduct frequently
precipitates such employee unrest that a strike ensues.
When this happens, it is well settled that the resulting
walkout is an unfair labor practice strike and that, on its
termination, the strikers are entitled to reinstatement
regardless of whether replacements have been hired to
take their jobs. Mastro Plastics Corp. v. N.L.R.B., 350 U.S.
270, 278; N.L.R.B. v. American Aggregate Company, 305
F.2d 559, 562-563 (C.A. 5). On the record in this case, I
conclude and find that the strike here involved resulted
from the Respondent's rejection of the principles of
collective bargaining, as manifested by its continuing
unlawful refusal to recognize the Union's majority
representative status and by the campaign of interference,
restraint, and coercion, which characterized its conduct in
the period immediately prior to the walkout. Accordingly,
the work stoppage here in issue must be and is found to
have been an unfair labor practice strike from its
inception. Moreover, since the Respondent's officials
spurned every attefnpt which the union representatives
made to meet with them from the outset of the strike and
President Davis told many of the strikers that they had
been discharged from the time they walked out of the
warehouse, it is equally clear that the Company's
continuing refusal to fulfill its statutory obligation to meet
with the employees' bargaining agent , coupled with the
discharges and threats of discharge voiced by President
Davis to the strikers, caused a prolongation of the work
stoppage. For these reasons, the employees who joined in
the walkout were unfair labor practice strikers, entitled,
upon application, to reinstatement regardless of whether
they had been replaced. The Respondent's refusal to
reemploy the strikers on and after April 7, 1966, when they
unconditionally sought reinstatement, or even to discuss
this matter with the Union, was a violation of Section
8(a)(3) of the Act. I so find.
16 The parties stipulated that the 29 following named
employees joined in the strike on December 8, 1965, Norris
Adkins, O'Neal Adkins, Ottie Adkins, James Belcher, Gary Bias,
Larry Blankenship , Jarrell Bowyer, Wellington Breed , Leonard
Cremeans, Kelsey Elkins, Lindsey Finley, James Gibson, Dennis
Holley, William Huffman, Dave Johnson, Delano Keenan, Roy
Lewis, Emil Loftis, Estil Loftis, John Lucas, Alfred Maynor,
Ronnie Napier, William Pack, Clifford Sword, Thomas
Templeton, Keith Tomblin, John Valentine, Homer Ward, and
Donald Watts To this list must be added the name of Harold
Duffer. Whereas, the Respondent would not stipulate that Duffer
was one of the strikers, counsel for the Company conceded that
Duffer quit working on December 8 and was later seen on the
picket line Duffer himself credibly testified that he joined in the
walkout on that date along with the rest of the strikers I conclude
that Duffer was one of the strikers from the outset of the walkout
Later in this Decision, it is also found that the names of Lowell
Damron and Fred Rood must be added to the list of those on
whose behalf the Union sought reinstatement
II N L.R.B v Loren A Decker d/b/a Decker Truck Lines, 296
F 2d 338, 341 (C.A 8), N.L.R B v Trtmfit of California, 211 F 2d
206, 209 (C.A 9), N.L R B. v Dahlstrom Metallic Door Company,
112 F 2d 756, 757 (C.A 2), Snow & Sons, 134 NLRB 709, 710-711,
enfd 308 F 2d 687 (C A 9)
DAVIS WHOLESALE CO. 305
G. The Alleged Misconduct of the Strikers; Findings and Gallimore 's testimony was credible and it was in no way
Conclusions With Respect Thereto denied or contradicted.
1. The strikers as to whom specific charges were asserted
a. James Belcher
Thomas Ball and Thurman Green, two of the
nonstrikers,ia testified that about December 9,
when driving a company truck and about a block from the
warehouse, they were accosted by two pickets, James
Belcher and Thomas Templeton. According to Ball,
Belcher castigated the two of them with various epithets
and concluded his remarks with the statement ". . . if we
don't get you all we will get your wives." Green testified
that during this meeting Belcher pointed out to him that
whereas Ball was with him then, ". . . He won't be with
you all the time ... If we don't get you, we will get your
wives." The testimony of Ball and Green was not denied or
contradicted by Belcher. Although the latter testified at
the outset of the hearing, he was not recalled in rebuttal.
Ball and Green were credible witnesses as to the above
incident. I S
William Jones, a nonstriker, testified that during the
week of December 12 he was working near the warehouse
platform when Belcher and several other strikers were on
picket duty outside the entrance, and Business Agent
Gunnoe was nearby. According to Jones, in an obvious
reference to the location of Jones' home which was some
distance away and out in the country, Belcher called out to
him on this occasion, "Jones ... You know you have only
one way in on that ridge and one way out.... It looks to
me like I am going to have to come out there and stomp
you in the mud of that ridge." Jones' testimony was
credible and in no way denied or contradicted by
Belcher.L°
Belcher was involved in another incident shortly before
the end of December. Several of the nonstrikers lived at a
rooming house some distance from the plant. Melvin
Gallimore, one of these employees, testified that about
6:30 p.m. on December 29 or 30, he and three other
nonstrikers'' were about to leave for work on their shift.
Pursuant to a practice which they were following during
that period, one of them telephoned the warehouse to ask
that some of the company officials provide them
transportation to the plant. President Lewis Davis,
Foreman Ed Frazier, and several others arrived to bring
Gallimore and the others to work. As the latter were about
to leave their rooming house, a group of strikers, which
included Belcher and John Valentine, gathered outside on
the sidewalk. When the nonstrikers began to leave the
house, the strikers closed in on them and, according to
Gallimore, Belcher struck him with his fist severely
enough to cause him to stumble and fall. No further blows
were struck, however, and the nonstrikers reached the
waiting cars without being assaulted any further.
b. James Gibson
Frank Meehling, a nonstriker, testified concerning an
incident which occurred about the middle of January at
Brotherton's Super Market in Charleston, West Virginia,
when Meehling was engaged in making a delivery at that
store. According to the employee, several pickets,
including James Gibson, had followed his truck and
surrounded the vehicle when he began to unload.
Meehling testified that Gibson asked him ". . . how I would
like to go home and find my mother in a wooden box or not
to make it home and stuff like that or the truck could be
wrecked and he kept wanting to know where the next stop
was and I told him I couldn't tell him." Meehling further
testified that later that same day at Swann's Grocery,
another market, Gibson, in the company of several other
pickets, asked him how would he like to get beaten up.
Gibson testified that he was at Brotherton's Market on
only one occasion, and that he could not recall ever having
been at Swann's. He denied that he had ever at anytime
threatened, or abused, the driver with any of the taunts
which Meehling attributed to him. In connection with this
incident Meehling was not as persuasive a witness as
Gibson. Under the circumstances here present, I conclude
that Gibson's denial is more credible than the testimony of
Meehling recited above.
c. John Valentine
James Stanley and Edward Layman, two nonstrikers,
testified to an incident which occurred about
December 10. According to these witnesses , when they
left the warehouse in their separate automobiles , shortly
after 10 p.m. that evening, they were pursued by a car
which Clifford Sword was driving . According to Stanley
and Layman, Sword cut around ahead of them and halted
abruptly. After this occurred, they managed to get around
Sword again, but the latter thereupon drove up behind
Stanley's car and collided with it from the rear. The
accident occurred about two blocks from the warehouse
and after it happened, Sword drove off. Thereafter,
however, a group of pickets gathered around the cars.
Included in this group were Business Agent Gunnoe and
John Valentine.
While Stanley and Layman were stopped at the scene,
Gunnoe spoke to them and endeavored to persuade them
to join the strikers on the picket line. In the meantime,
however, Valentine, who was nearby, used a knife to
puncture the right rear tire on Stanley's car. Gunnoe
conceded that he had been at the scene, but testified that
he had seen no tires cut or punctured. Valentine did not
appear to rebut the testimony of Layman and Stanley. In
his testimony, Gunnoe endeavored to establish that the
"As this term is used herein, it refers only to nonstriking
employees of the Respondent.
is Green's father operated a grocery store and was one of the
Respondent 's customers. According to Green, during the above
conversation, Templeton said to him, " I am going to get your
Dad " Templeton denied ever having talked with Green and
denied making any threats about doing anything either to Green's
father or to his wife Green's testimony as to this last issue was not
as convincing as that which he gave in corroboration of Ball In
addition, the statement which he attributed to Templeton did not
appear in a pretrial affidavit which he gave concerning this
incident For this reason , I conclude that Templeton's denial that
he ever made this statement , as set out above, should be credited
"Jones testified that after this incident he started carrying a
rifle in his car on the way to and from work According to Jones,
on one occasion during this period , he stored his weapon in the
IBM room at the warehouse , where it was visible to many of the
employees and supervisors, but that none of the latter ever spoke
to him about carrying a firearm into the building
21 Viz, James Gallimore, Charles Gallimore, and Keith Porter
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual whom the strikers had identified as Valentine
was, in fact, another picket who had never been a Davis
employee. His testimony in this connection, however, was
transparent and evasive for, notwithstanding the great
particularity with which he described the alleged
counterpart of Valentine, Gunnoe asserted that he could
not recall the names of other strikers who were at the
scene. Since Layman and Stanley were credible witnesses
and their testimony as to Valentine stands unrefuted in the
record, I conclude that this incident occurred substantially
as they described it."
Thomas Ball and Melvin Holstein, truckdriver and
helper, respectively, and both nonstrikers, testified as to
another incident which occurred about January 28 at
Paul's Grocery in Coal Mountain, West Virginia.
According to these witnesses, on making deliveries that
day their truck was followed by a car of pickets which
included Valentine, Ottie Adkins, Paul Christian, James
Gibson, and John Lucas. On arriving at Paul's Grocery,
the pickets surrounded the truck as Ball and Holstein
began to unload the customer's order. Ball, the driver, had
the order invoices and cash receipts from earlier
customers at which they had stopped that day in a back
pocket of his clothing. As Ball was starting to carry some
merchandise into the store, Valentine put his hand in
Ball's rear pocket and asked where his money was. Ball
pushed Valentine's hand away, demanded that he be left
alone, and turned back to his work. It was undenied that
Valentine thereupon struck Ball in the back with a blow of
such severity that the latter fell to the ground. Ball
testified that when he regained his feet, Valentine
threatened that if Ball swore out a warrant for him "the
next time ... he [Valentine] would take a piece of wood to
[him]." The testimony of Ball and Holstein as to this
incident was credible, uncontradicted, and undenied.
Holstein also testified that on the morning of
February 3, while he and two other nonstrikers were
approaching the plant on their way to work, Valentine, in
the company of six to seven other pickets, announced that
"they wasn't going to let us go in to work." When Holstein
and his coworkers began to run, Valentine and several
others pursued them. At that point, according to Holstein,
Lewis Davis happened to be driving by and stopped to let
them in his car and thereafter take them into the
warehouse. Holstein's testimony as to this incident was
credible and undenied.
On February 12, there occurred another incident which
two witnesses attributed to Valentine. Paul Morrison, a
truckdriver, and Larry Hill, his helper, testified that on
this occasion they were in their truck and stopped at an
22 Layman also testified that on this occasion Thomas
Templeton was one of the pickets at the scene and that
Templeton told him that " if I went back out on the truck they
might not know me when I got back home . you are liable to
have a bad accident . I might not be able to be home for
Christmas . " Templeton denied that he had been present on
the occasion in question and he denied that he ever had a
conversation with Layman It is my conclusion that in this
instance Templeton was more credible than Layman
'3 Thomas Gray also testified to another incident involving John
Valentine and Thomas Templeton, as well as a number of other
pickets and Business Agent Ronald Skaggs. According to Gray,
this occurred on January 27, 1966, and dunng the course of it
Templeton yelled a threat at him and Valentine struck him in the
face In its rebuttal , the Charging Union made an offer of proof in
intersection less than two blocks from the warehouse,
when John Valentine appeared. According to Morrison
and Hill, Valentine complained to them that the
nonstrikers on the night shift had vandalized his father's
car. At this point he was on the left side of the truck, but
then he walked to the rear and a few seconds later
reappeared on the other side of the Davis vehicle. An
instant before he was seen on the right side, a brick was
hurled from the rear of the truck and broke through the
right window on the cab. Both Morrison and Hill conceded
that they had not actually seen Valentine throw the brick.
Hill, however, testified that as Valentine reappeared on
the right side of the truck, he saw Valentine's arm come
down in a motion such as it would make after throwing
something. Morrison likewise testified that he witnessed
this same sight through the right rear view mirror on the
cab. The only witness produced by the Charging Party on
this issue was one Helen Gheen. The latter operated a
small restaurant near the warehouse and Valentine was
one of her frequent patrons. She testified that on the
morning in question he was near the Davis truck when she
called to him and he waved back to her just as he came
around the back of the vehicle. Whereas she testified as to
the details of this particular matter with great specificity
on direct examination, on cross-examination it was obvious
that most of her account was contrived and totally lacking
in any credibility. On the other hand, both Morrison and
Hill were credible and from their testimony and the
present state of the record I infer that Valentine was the
one who hurled the brick through their truck window 2"
d Clifford Sword
Witnesses for the Respondent testified to several
incidents involving the activities of Clifford Sword during
the course of the strike.
Herman McCallister and William Jones, two of the
nonstrikers, testified that as they were driving away from
the warehouse on the afternoon of December 11, Sword,
who was then on the picket line, had a brick in his hand. A
few seconds later a brick was thrown at the car. Whereas
Jones conceded that he did not see Sword throw the brick,
McCallister credibly testified that he witnessed Sword's
actual hurling of the brick at their car.
Donald Cummings testified that while going to work
about 6:30 a.m. on a morning in the latter part of
December, he identified Sword among the pickets.
According to Cummings, as he neared the warehouse
entrance, Sword swung a club at him and warned
Cummings as the latter sought to avoid being struck that
he "better not look up."
question - and-answer form through witnesses Templeton and
Skaggs Upon reconsideration of the original ruling made in this
connection I conclude that the testimony of both Templeton and
Skaggs in this regard should be, and it hereby is, received Both
testified that the incident to which Gray testified had occurred on
May 27 , rather than January 27 In this connection, the testimony
of both Templeton and Skaggs as to the date in question was more
persuasive It is my conclusion that Gray was confused as to the
date and that the incident about which he testified actually
occurred on May 27 Since at that point the strike had been
terminated and both Valentine and Templeton had already been
denied reinstatement , allegedly for misconduct dunng the strike,
I deem irrelevant and will not consider testimony as to events
which occurred subsequent to April 7, 1966, when the strikers
sought reinstatement
DAVIS WHOLESALE CO.
Thomas Gray and Larry Hill testified to an incident
which occurred about 2 weeks after the strike
began'24 while they were working as truckdriver and
helper, respectively, on one of the Davis delivery trucks.
According to these witnesses, as they were proceeding
along a highway near Milton, West Virginia, a car driven
by James Gibson, in which Clifford Sword and Keith
Tomblin were passengers, pulled off to the side and
parked on the berm. Both Gray and Hill testified that, as
they drove by this parked vehicle, Sword held a pistol in
his hand and pointed it at them. Gibson and Tomblin were
called as rebuttal witnesses and both testified that Sword
did not have a gun while in the car with them. Sword
himself, although a witness early in the case, did not
appear as a rebuttal witness. Thus, the testimony as to the
first two incidents described above is uncontradicted and
undenied. As to the third and last occurrence, the denials
of Gibson and Tomblin on the question as to whether
Sword had a gun in the car were not persuasive. Neither
one was completely frank in his testimony on this matter.
On the other hand, Gray and Hill were credible. On the
basis of their testimony, and because of the lack of
credence in the testimony of Gibson and Tomblin, as well
as the failure of Sword to appear and testify on this matter,
I conclude that, as Gray and Hill testified, on the day in
question Sword did point a pistol at them, or what clearly
appeared to be a pistol, and that he did this while engaged
in what was generally described throughout the case as
ambulatory picketing.
e. Delano Keenan and Wellington Breed
John Merritt and Ernest Ferguson were two nonstrikers
who, during the early part of the dispute, made deliveries
in one of the company trucks. They testified as to an
incident which occurred about 8:30 p.m. on December 13.
Merritt was driving the truck and Ferguson was
accompanying him in the right-hand seat of the cab.
According to these witnesses, as they were about 1-1/2
miles from the warehouse and proceeding along a street
that is a busy one-way thoroughfare in the city of
Huntington, an automobile pulled up along the left side of
the truck. Merritt testified that when he first noticed the
car he saw that Delano Keenan was sitting in the right
front seat and that Keenan was rolling down the right front
window. According to Merritt, while doing this, Keenan
leaned backward in the seat and the hand of the driver
reached across in front of Keenan. Merritt testified that at
that point he heard a sharp report which sounded like a
pistol shot, whereupon a small hole appeared in the left
front window of the Davis truck and splinters of glass flew
about the interior of the cab. Immediately after this
occurred, the car in which Keenan was riding sped past
Merritt's truck but a short distance down the street it
24 Although Hill testified that this incident occurred early in
February, three other witnesses involved (Gray, Tomblin, and
Gibson) testified that it took place in December and about 2 weeks
after the onset of the strike
25 Mrs Green did not know Keenan at the time he appeared at
her door She identified him, however, at the hearing,
unmistakably and beyond question At the outset of the hearing I
granted a motion that all witnesses be exluded from the hearing
room Certain exceptions were made as to particular witnesses,
one of those being Keenan , on the ground that he was named in
the complaint as a dischargee For some time thereafter Keenan
appeared at the hearing each day and dutifully remained
throughout the proceedings Mrs Green appeared as a witness on
the morning of the eighth day She testified that she arrived at the
307
became congested in the traffic. Thereupon, the driver
backed up for a distance of half a block and then
disappeared from view, via a side street, at the nearest
intersection.
Merritt's wrist was cut by the flying glass, but not
seriously. Ferguson, on the other hand, had a splinter of
glass in his eye and had to proceed to a nearby hospital for
emergency treatment and to have it removed. Ferguson
corroborated Merritt's testimony about Keenan.
According to Ferguson, he first noticed Keenan as the
latter was in the act of rolling down the car window.
Ferguson also witnessed the arm of what appeared to be
the driver reach across in front of Keenan an instant
before he (Ferguson) heard a sound like that of a pistol,
followed immediately by the shower of glass splinters that
filled the cab of the truck. Neither Merritt nor Ferguson
could identify the driver of the automobile, and both of
them frankly conceded that they did not see a gun in that
car.
Wellington Breed appeared as a rebuttal witness and
admitted that he was the driver of the car involved in this
incident. Keenan was not called in rebuttal. On direct
examination Breed denied that he had participated in the
shooting of any gun or other weapon from his automobile
on that occasion. Even on direct examination this witness
was arrogant and incredible. On cross-examination,
however, his testimony was totally lacking in any
semblance of plausibility. Most particularly was this true
of his attempts to explain his conduct immediately after
the Davis truck window was shattered, when his bizarre
driving behavior plainly gave the impression that as the
driver of the car in question he was attempting to make a
fast getaway from the scene.
Both Merritt and Ferguson were credible witnesses. On
the basis of their testimony, I conclude that this incident
occurred substantially as they testified. Furthermore, it is
my conclusion that the damage to the glass in the Davis
truck and the resulting injuries, minor in the case of
Merritt, but considerably more serious in the case of
Ferguson, resulted when an object was thrown, hurled, or
shot from the car in which Keenan was riding and Breed
was driving.
f. Delano Keenan
The wife of one of the nonstrikers testified that early in
the strike Keenan came to her home and there voiced a
threat about her husband's safety. Thus, Connie Green,
the wife of Thurman Green, one of the nonstrikers,
testified that on December 9, Keenan,'' accompanied by
an individual whom she did not know, arrived at her
apartment. According to Mrs. Green, Keenan told her that
he did not want to see her husband get hurt by continuing
to work. She testified that when she suggested that her
courthouse in the company of Thurman Johnson and Mrs Ethel
Davis, wife of Lewis Davis According to Mrs Green, as she
awaited the opening of the hearing, she noticed in the corridor
outside the courtroom the same individual who had called at her
apartment on December 9 She testified that Thurman Johnson
identified this individual to her as Delano Keenan Mrs Davis,
when called to the stand, also testified that while with Mrs Green,
she, too, had seen this individual and had identified him as Delano
Keenan However , when the hearing opened a few minutes later
that morning, Keenan was not present Counsel for the
Respondent asked, properly, that the record note the absence of
Keenan from the proceedings at that particular and significant
juncture
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
husband was a big man and he would be able to defend
himself, Keenan warned, "Well, there won't be just one."
Mrs. Green was a credible witness and her testimony was
in no way refuted or denied. I conclude that Keenan's
visitation occurred substantially as she testified.
Paul E. Bias, a nonstriker employed on the night shift as
a shipping clerk, testified that about 1 a.m. on February 19
or 20, he heard a noise outside the warehouse. When he
and the others investigated they found Business Agent
Gunnoe, Paul Christian, and several others outside the
fence. A short while later, according to Bias, he went to
the rear of the warehouse where he discovered Keenan
near the top of the guard fence, around the parking area
using a sling shot to fire objects at the glass windows in the
Davis trucks that were parked on the lot. Bias testified
that at this point he called out to Keenan, whom he knew
well, "Delano, you having fun?" According to Bias,
Keenan's only words were "You haven't got a camera,
have you?" and that thereafter Keenan made a hurried
departure from the scene. Bias' account of this incident
was completely credible and stands undenied in the
record.
Keenan told him that he "had better watch out if I thought
anything about my wife," and that Sword engaged in
obscene taunts about McCaw's wife. None of the three last
named strikers appeared at the hearing to contradict or
deny McCaw's testimony.26
g. Alfred Maynor
Thomas Gray, a nonstriker, testified that in the latter
part of December, while making deliveries with a Davis
truck, he was stalled for lack of gas along the side of a
highway several miles from Gallipolis, Ohio. According to
Gray, he did not leave his vehicle but remained in the cab
while awaiting the arrival of an emergency road service
truck he had seen in the vicinity. While he was so engaged,
an automobile filled with roving pickets arrived at the
scene. The car was driven by Lindsey Finley, and along
with him were Ronnie Napier, Gary Bias, Larry
Blankenship, and Alfred Maynor, all of whom were
striking employees of the Company.
Gray testified that while Finley stayed in the car, Bias,
Blankenship, and Napier came over to his truck.
According to Gray, Napier demanded that he get out and
uttered a vulgarism which plainly inferred that Gray would
be beaten if he left the truck. Gray replied that he would
remain where he was. For a few minutes thereafter the
three above named engaged in a tense conversation about
Gray's working during the strike and their desire that he
join the Union. According to Gray, while the pickets were
talking to him, Maynor got out of Finley's car and
thereafter he noticed that Blankenship, who was beside
the truck cab, "was looking back toward the back of [the]
truck with a sneaking grin on his face." Almost
immediately thereafter all of the strikers returned to
Finley's car and departed.
After the pickets had gone, Gray discovered that three
2s McCaw was a truckdriver However, in addition to his
regular duties as driver, for a period of several days from
December 8 to 13, he spent about 1 hour a day as an armed guard
at the warehouse parking lot . He testified that the foregoing
incident occurred while he was so engaged as a guard.
Whereas McCaw 's status as a, part -time guard might be
relevant to the question as to whether he would be included within
a unit of production and maintenance employees , it does not
of the four tires on the rear of his truck were rapidly going
flat, having been punctured with an object that made a
small round hole.
Blankenship, Finley, and Maynor were called in
rebuttal. They testified that all in the car had been
engaged in roving picket duties on the day in question.
Blankenship denied all wrongdoing and testified that the
pickets had stopped merely to offer good samaritan-type
assistance to their stranded, but nonstriking, former
colleague. Finley testified that Maynor had been out of his
car for only a short while, and that while at the scene, "I
seen there was no tires flat." The accounts of both
Blankenship and Finley were not plausible. Maynor, who
took the stand to deny that he had punctured any tires on
Gray's truck, impressed me as being equally incredible on
this issue. Both Finley and Maynor conceded that shortly
after leaving the scene of this incident they were stopped
by the Ohio State police and that a tool which they
described as a scratchall, and which resembled an ice
pick, was found in the trunk of Finley's car.
Upon the foregoing findings I conclude that whereas
Blankenship and Finley may have engaged in no more
than an attempt to persuade Gray that he should join them
in their strike, Maynor took advantage of the opportunity
to immobilize Gray's truck by inflicting the property
damage described above.
h. Thomas Templeton
William W. Baker, a nonstriker, testified that on
December 9 Gary Bias and Thomas Templeton came to
his home and that Bias told him "there was going to be
violence at the plant and he didn't want to see me or my
family get hurt." According to Baker, Templeton said very
little during the visit. On cross-examination, Baker
described the discussion on this occasion as "a friendly
conversation, no ... hard feelings on my side, I don't know
about their side." He conceded that the only purpose of
the visit seemed to be an attempt by Bias and Templeton
to persuade him to come out on strike. Bias did not testify
on rebuttal, but Templeton was called. He denied having
told Baker or Baker's wife that there might be violence
and he further denied having made any of the other threats
about which Baker testified. Templeton's denial in this
connection was credible.
Throughout the colder days during the early part of the
strike the pickets kept a fire going in a gas drum or barrel
near the warehouse entrances. James Myers, one of the
nonstrikers, testified that as he was driving away from the
warehouse one evening about the middle of December,
Templeton, who was standing near the fire barrel, came at
him with a flaming stick, 4- to 5-feet long. According to
Myers, he had a shotgun in his car, a weapon which he had
been carrying for several days, and at this point he raised
up the gun and looked at Templeton, whereupon the latter
backed away from his car and put the stick in the fire
barrel. Myers testified that he continued to carry the gun
in his car for several more days, but that, at the request of
appear material in any way to the issue as to whether the threats
voiced to him were protected concerted activity Whether McCaw
was a guard at the time in question or a member of the -
appropriate bargaining unit, the threats made by the pickets in
this instance were uttered "under such circumstances as to
insure that the employees would hear " of them N.L R B v Local
140, United Furniture Workers of America, 233 F.2d 539, 541
(C.A. 2).
DAVIS WHOLESALE CO. 309
Thurman Johnson, he discontinued this practice sometime
before the issuance of the injunction by the circuit court
for Cabell County.
Templeton denied having waved a stick at Myers.
According to Templeton, he and John Lucas were standing
near the warehouse exit, when Myers stopped his car
nearby, held up a double barrel shotgun and called out,
"This is what I'll do to you if you get in my way."
Templeton testified that at this point he and Lucas fled
across the street and that Myers then opened his car door,
stepped out, and brought the gun to a firing position.
According to Templeton, when this occurred he picked up
a stick and threw it at the gun barrel, whereupon Myers
got back in his car and left.
The account of neither Myers nor Templeton was
completely credible. John Lucas, a picket who, so far as
the record indicates, was the only other person present,
testified that he did not recall seeing Templeton with a
stick but that he did see Myers point the gun at him and
Templeton. Lucas also testified that Myers never took the
gun out of the car before he drove away. Lucas was a
credible witness and from, his account, as well as that
portion of the testimony by the others present at the scene
which was not in conflict, I conclude that whereas
Templeton may have held in his hand a burning faggot
from the fire barrel, Myers was very quick to presume that
Templeton was threatening him and resorted to the use of
his own very substantial weapon to engage in a far more
menacing gesture. On the other hand, from Lucas'
testimony I conclude that while Myers did point his
shotgun at both Templeton and Lucas from the car he did
not thereafter actually leave the automobile and bring the
gun to a firing position.
i. Keith Tomblin
Frank Meehling, a nonstriker, testified as to an incident
which occurred in late January or early February, while
making deliveries at the Nellie Jay Grocery, a Davis
customer located some distance from Huntington.
According to Meehling, while he and his helper were
engaged in unloading the customer's order, two cars
stopped at the parking lot near the grocery. A moment
later, one of the passengers, whom Meehling identified as
Keith Tomblin, rushed out and stooped down beside the
right front tire on Meehling's truck and punctured it with a
sharp instrument. The tire immediately went flat and had
to be replaced before the Davis truck could be moved.
Meehling's account of this incident was credible. Tomblin
was called in rebuttal and denied ever having been in the
area at the time in question. Reference has already been
made to Tomblin as a generally implausible witness. In
connection with this particular incident, Tomblin, when
called in rebuttal, was totally incredible and his attitude
while on the stand bordered on the contemptuous. I
conclude that the incident here involved occurred
substantially as Meehling testified.
j. Paul Christian
Donald Cummings, a nonstriker, testified that about
December 12, while in a service station some distance
from the warehouse, he was approached by Paul Christian
and another individual whom he did not know. According
to Cummings, Christian initiated the conversation by
asking whether Cummings intended to return to work at
the Davis warehouse the next day. When Cummings
answered this question in the affirmative, Christian then
asked him if he liked his car. According to Cummings,
after replying to the effect that he did, indeed, like his car,
Christian told him:
. . . if you go back to work you are liable not to have
any car or nothing on it, . . . its liable to go over the hill
before you get home tommorrow ... your dad and
mom they've got an upholstery shop ... there could
be damage to their property by your being a scab ...
would you hate to hurt your family by keeping on
being a scab? ...
Christian conceded that he had had a conversation about
the strike with Cummings at the time and place in
question. He denied, however, that it was anymore than an
attempt to induce Cummings to join forces with^the rest of
the strikers. He conceded that he knew of a "Cummings
Upholstery Shop," but he denied having any knowledge
that this was operated by Cummings' father and he denied
having made any threats regarding the shop or Cummings'
parents.
Christian's denials were not impressive. At the same
time, Cummings was a witness whose background did not
suggest any degree of stability or integrity. He was a young
man of 24 who, by his own admission, had had a
longstanding problem with alcoholism. More damaging
still, at the time of the hearing he was on probation after
having been convicted as an accessory to armed robbery.
Counsel for the Charging Union subjected him to an
extended and grueling cross-examination which served
only to highlight Cummings' poor recollection as to dates,
and his numerous admissions as to his aversion for
alcohol, and the troubles it had brought upon him.
Notwithstanding all of Cummings' admissions as to his
personal failings, it was apparent to me that while on the
witness stand Cummings was completely frank and
honest. Moreover, as to the conversation with Christian, I
conclude that it was Cummings, and not Christian, who
gave the more credible version of what had actually
transpired.
k. Ronnie Napier
Larry Hill, a nonstriker, testified to an occasion in mid-
February when he and one Jones, a truckdriver, were
delivering merchandise in a Davis vehicle. According to
Hill, a car in which Ronnie Napier was riding and which
had been following them for some time moved out ahead of
them and after a short while turned around and came back
towards them. Hill testified that as the car approached
their truck, Napier extended his arm from a window and
threw a pop bottle at them which struck and cracked the
window on the driver's side of the Davis vehicle. Hill's
testimony was credible and totally undenied, for Napier
did not appear as a rebuttal witness. Earlier herein, as
found above, Thomas Gray credibly testified that late in
December, while by himself and driving a Davis truck, he
was stalled on a deserted section of highway. According to
Gray, on this occasion, Napier and four other pickets
accosted him and Napier threatened to beat him up if Gray
would get out his truck. Gray's testimony as to this latter
incident was likewise undenied.
1. Ottie Adkins
At some time in January or February, Charles McCaw
and Donald Cummings were making a delivery to a Davis
customer known as Maynard's Grocery in Genoa, West
299-352 0-70-21
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Virginia.' Cummings testified that while he and McCaw
were engaged in unloading the truck, several pickets
appeared on the scene, among them being Ottie Adkins,
John Valentine, and Clifford Sword. According to
Cummings, Adkins told him that he would beat him up for
having sworn out a warrant against certain strikers a short
time before. Cummings further testified that Adkins told
him "If we ever catch you in the plant again ... you've
had it." According to Cummings, he told the strikers, that
if they would not bother McCaw, the driver of the truck, he
himself would quit and return to Huntington with them.
Cummings testified that Adkins told him that he "was the
only one they were after." Thereafter, with Adkins
standing at his side, Cummings telephoned Thurman
Johnson and told him that he was quitting. Johnson closed
the conversation with Cummings with the request that he
immediately put McCaw on the telephone. It was
undenied that at this point Adkins pushed down the
receiver and severed the telephonic connection so that
Johnson was prevented from talking with McCaw.
Cummings then departed with the strikers and returned to
his home.. Later, however, he returned to duty at the
warehouse.
When called as a rebuttal witness Adkins denied all of
the threats which Cummings attributed to him. He
endeavored to establish that Cummings joined the group
of pickets of his own volition. Adkins' denial of the threats
about which Cummings testified completely lacked the air
of conviction necessary to tend them any credence. I
conclude that Adkins did make the threats which
Cummings ascribed to him, that they were made in
substantially the language quoted above and that, as a
consequence of these threats Cummings left the truck that
day and returned to his home. Cummings' background, his
criminal record, and his addiction to alcoholism have been
set out earlier. Nevertheless, in connection with this
incident I conclude that he clearly was the more credible
witness and that the type of coercion practiced on him by
Adkins passed the bounds of free speech and was
threatening in the extreme.28
m. Additional incidents as to which thct as would compel
denial of their right to reinstatement.
Clinton Bledsoe, a nonstriker, testified that about 2
weeks after the strike began, Gary Bias, while picketing,
blocked the roadway near the plant with his car so that
Bledsoe's path was barred. On cross-examination,
however, it developed that Bledsoe was testifying about an
incident when Bias had backed his automobile out of the
roadway while in the process of moving it. Bledsoe
conceded that Bias did not stay in the roadway for more
than a minute or two and that he then moved off the street.
From the testimony of Bledsoe himself it is apparent that
Bias was engaged in nothing more than moving his car
from one parking space to another. This conclusion as to
2' Donald Cummings testified that this incident occurred about
4 months before the hearing. Ottie Adkins conceded that such an
incident as Cummings described had occurred at Maynard's
Grocery during the latter part of January.
28 Cummings testified about another occasion early in February
when , early in the morning , while walking to work at the
warehouse, two of the pickets whom he identified as Ottie Adkins
and O 'Neal Adkins sought to accost him as he proceeded along
the sidewalk. According to Cummings, O'Neal Adkins said,
"Let's get that scab." Cummings testified that thereafter, and to
elude their pursuit , he stopped at a machine shop in the
immediate vicinity, telephoned the warehouse for assistance, and
this particular testimony is reinforced by the fact that
there is no evidence in the lengthy record of this case to
establish that the pickets ever had a practice of using
automobiles to block the entrances to the warehouse or the
nearby streets in that vicinity.
Larry Hill, a nonstriker, testified to an incident in
February when he and Wilferd Plumly, one of the
truckdrivers, were making a delivery to a grocery store in
St. Albans, West Virginia. According to Hill, while he and
Plumly were unloading the groceries, they left the motor
on the truck running. For a short while, although the
precise amount of time is not clear, Business Agent
Ronald Skaggs and three pickets were in the vicinity of the
truck. As they were leaving, Hill noticed that the motor of
the truck had stopped and the ignition key was missing.
Hill conceded, however, that he did not see Skaggs or any
of the pickets take the key. While the circumstances
present here certainly give rise to a suspicion that the
departure of Skaggs and the pickets and the
disappearance of the key were more than coincidental,
obviously more evidence was needed to establish such a
conclusion. No such evidence was forthcoming.
Charles McCaw, a nonstriker, testified that about
January 10, while making a delivery to a Davis customer
known as Henderson's Grocery, at Gallipolis Ferry, West
Virginia, a union representative whom he did not know,
and several pickets, including John Valentine and James
Gibson, gathered about his truck. According to McCaw,
while he and Garry Gallimore, his helper, unloaded the
truck, several of the pickets, including Valentine and
Gibson, interfered with them. According to McCaw, this
interference consisted of the pickets kicking merchandise
back in the truck and placing obstacles in their path as
they walked toward the store, thereby delaying him and
Gallimore in unloading the truck. Notwithstanding the
interference, in due course, McCaw and Gallimore
completed their delivery. Valentine never testified with
respect to this incident. Gibson was called to the stand in
rebuttal and testified that he had never been at
Henderson's Grocery and that, in any event, he had never
kicked merchandise back into a Davis truck at any
location during the course of the strike. McCaw had been
an employee at Davis for some time prior to the strike and
his recollection as to the identity of Valentine and Gibson
was probably accurate. However, in connection with this
incident, I conclude that whereas this conduct by the
pickets constituted an annoying harassment, it was not of
such an aggravated character that, standing by itself, it
would justify denial of reinstatement to a striker otherwise
qualified for reemployment.
Herman McCallister, a salesman for the Respondent
and one of the nonstrikers, testified that late on the
afternoon of December 10, while he was driving back to
the warehouse, a rock was thrown at his car. The rock hit a
window and caused some damage, although the window
waited there until Thurman Johnson arrived to give him a ride to
work. Insofar as this incident was concerned, O'Neal Adkins
denied that he had made the threat ascribed to him, although he
conceded having been on picket duty on such an occasion as
Cummings described . In connection with this incident,
Cummings' identification of O'Neal Adkins was not convincing.
He was also somewhat confused as to whether the threat was
uttered by Ottie or O'Neal Adkins, For this reason, I conclude
that the proof here is insufficient to support a finding that the
threat in question was, in fact , uttered by O 'Neal Adkins as
Cummings testified.
DAVIS WHOLESALE CO.
was not broken. At that moment, Leonard Cremeans and
two other unidentified pickets were in the vicinity.
McCallister stopped, spoke briefly to the pickets, and then
drove on. He frankly conceded that although he had,
rather profanely, accused Cremeans and the other pickets
of having thrown the rock, he never really knew who it was
that had done so."' For this reason I conclude that on this
record, the evidence is clearly insufficient to ascribe
responsibility for the rock throwing to Cremeans.
Finally, there is other testimony, which the Respondent
offered, obviously to establish that certain strikers were
thereby disqualified for reinstatement, that I have not
considered as having any relevant bearing on this issue.
Included within this category is all testimony as to
occasions when pickets called nonstrikers "scabs" and
other appellations such as "dirty trash." 30 There was
likewise testimony by some of the Respondent's witnesses
as to other incidents that were trivial in the extreme.31
In another category were attempts by the Respondent to
establish evidence as to the number of broken windows in
the warehouse and the number of flat tires which had to be
repaired during the course of the strike. The Respondent
was permitted to make offers of proof in this connection.
Evidence of this general nature, however, was not
received. Since it was of a general character and
unrelated to specific strikers, I concluded that it had no
relevance to the question as to whether specific, individual
strikers were eligible for reinstatement.
2. The issue as to the Respondent's condonation of
violence on the part of nonstrikers
Both the General Counsel and the Charging Union
contend that whereas the Respondent discharged all of the
strikers for alleged misconduct, the Respondent allowed
violence of a more aggravated character by some of the
nonstrikers to go unpunished. The facts relevant to this
issue will now be considered.
The Union charged that the Respondent resorted to the
use of strikebreakers which Lewis Davis and Thurman
Johnson brought to the Huntington warehouse from Ohio.
Business Agent Gunnoe testified that he followed Davis
and Johnson to Chesapeake, Ohio, on two occasions and
that in each instance, the Respondent's officials picked up
four different individuals who were brought back by them
to the Huntington warehouse and thereafter employed.
29 At the time McCallister had a shotgun in the car According
to the latter , the gun was in a case and in the same position in the
car where lie frequently kept it during the hunting season because
he occasionally hunted while traveling on his sales route. He
further testified that at the moment he stopped to speak to the
pickets, the sudden application of his automobile brakes caused
the gun to slide off the seat where it was laying According to
McCallister, thereafter he picked it up to return it to the seat. He
denied on this occasion the gun was ever out of its case On the
other hand , Dave Johnson, one of the strikers , testified that he
was present during this incident and that McCallister had stepped
outside the car with an automatic shotgun and declared to all
those present "If another one of you throw a rock I will blow
you to kingdom come " Johnson so testified as a rebuttal witness
However, in this connection he was not convincing I conclude
that McCallister was the more credible
30 Larry Hill testified that on an occasion in January while he
and Thomas Gray were making deliveries, James Gibson referred
to him and Gray with this epithet Gibson denied that he had ever
used this term.
3i E g , William Jones , a nonstriker , testified as to an incident
in February, when, according to Jones, Dueird Pennington, one of
the pickets, kicked snow and slush at him
311
Both Davis and Johnson emphatically denied that they had
ever been to Chesapeake, Ohio, as Gunnoe testified. Their
denials were credible and are accepted as persuasive by
me.
There was testimony to the effect that Thurman
Johnson instructed the drivers to run down any of the
pickets who got in the way of any Davis' trucks. Thus, Paul
Christian, who did not join the strikers until several days
after the walkout began, testified that on December 9, he
heard Johnson tell Thomas Gray, one of the truckdrivers,
. if any of these suckers got in the way run over the top
of them." James Gibson, one of the strikers, testified that
later that month, in a conversation with Gray, the latter
told him that he had been instructed that "if any of the
strikers laid in front" of him he was "to run them down."
About December 29, Gray was involved in a collision with
an automobile driven by Kelsey Elkins when the latter and
his passengers were engaged in ambulatory picketing.
Although Gray testified that Elkins had been responsible
for the accident, Gray had a rear-end collision with Elkins
for which he was at least partially, if not completely,
responsible.3'
Estil Loftis, one of the strikers, testified that shortly
after this accident Elkins' car was parked near the
warehouse and that Lewis Davis came out to inspect the
damage." According to Loftis, as the company president
surveyed the automobile he remarked "Any damn one of
you guys that got his car in front of my trucks will ... get
hit like Kelsey's car got hit." Davis freely conceded that he
had gone out to inspect the damage to Elkins' car, but he
denied that he had made any such observation as that
which Loftis attributed to him He further testified that
while at the scene he had commented to the strikers
present, "Boys, I hate to see an accident. I don't care
who's involved because they're bad." Davis' version of this
encounter was completely credible to me. Loftis, on the
other hand, was very confused on cross-examination as to
various aspects of the alleged conversation. Throughout
his recitation of what purportedly occurred he did not
impress me as having either an accurate recollection of
the event, or of even trying to recall what actually was
said. For this reason, I conclude that the testimony of
Lewis Davis is the more accurate and reliable in
connection with this particular matter.
Thurman Johnson denied that he had ever instructed
the Davis truckdrivers to run down anyone, and Thomas
32 From the testimony of Gray, Elkins, and Larry Blankenship,
the latter being one of the passengers in Elkins' car, it appears
that for some while on the day in question Elkins had been
following Gray's truck After a time, Gray slowed down and Elkins
passed the truck. Thereafter, according to Elkins' credible
testimony , notwithstanding the fact that lie maintained a steady
speed of about 50 miles per hour , his passenger car was struck
from the rear by Gray's truck Gray testified that the accident
occurred solely because Elkins suddenly applied his brakes
several hundred feet ahead of the Davis truck, so that Gray had no
alternative but to hit him Elkins denied that he had done so and
his denial was credible It is inconceivable to me that Elkins, as
the driver of a passenger car, would deliberately apply his brakes
so as to cause a collision when being followed by the large ten-
wheel truck that Gray was driving Similarly, it seems equally
unlikely that Gray would have courted disaster by deliberately
ramming the vehicle ahead of him Gray conceded that he was
subsequently charged with a traffic violation in connection with
this accident and fined $35
33The damage was considerable Elkins testified that it cost
$584 to repair the car
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gray denied that he had ever reported to Gibson that he
had received such instructions from Johnson. Whereas, it
is my conclusion that Johnson did not, in fact, urge any of
the drivers to engage in the type of mayhem which the
Charging Union would attribute to the Respondent, I
conclude that Christian's testimony as to what he heard
Johnson say was substantially accurate. On the other
hand, it is also my conclusion that the subsequent collision
which Gray had with Elkins, while quite plainly the result
of Gray's own negligence, cannot, inferentially or
otherwise, be attributed to any alleged company policy
that strikers were to be "run ... down."
Another incident was offered by the Charging Party as a
dempnstration of the Respondent's tolerance of violence
on the part of nonstrikers. Thus, Keith Tomblin testified
that about a week after the strike began, when he and
other pickets were outside the plant, Thomas Gray, a
nonstriker then at work in the warehouse, came out to the
street and threatened to beat him up. Gray, however,
testified that on this occasion Tomblin was standing
outside the gate, cursing him and challenging him to come
out and fight. According to Gray, after this had gone on for
sometime, he called out to Tomblin that he would accept
his challenge, if the other pickets would stand back. Gray
testified that at that point, he started out to meet Tomblin,
but that Thurman Johnson intervened and ordered him
back in the warehouse with the declaration that Tomblin
was "just trying to cause trouble." Whereas neither
Tomblin nor Gray was completely credible, Johnson's
testimony as to this matter corroborated that of Gray.
Since Johnson's testimony was credible, I conclude that
the provocateur in this instance was Tomblin and that only
the warehouse manager's intervention prevented a fist
fight between Gray and the picket.34
The Charging Party offered a substantial amount of
testimony about an incident which occurred on
February 12 at Culloden, West Virginia. This was at the
site of the Respondent's new warehouse which was still
under construction at the time. Wellington Breed, James
Gibson, Thomas Templeton, and John Lucas testified that
on this occasion when they approached the Culloden
warehouse area, Lewis Davis and James Morrison came
out to s4here they were, that one, or both, of the latter had
long pieces of pipe or wooden clubs; they cursed the
strikers; and Lewis Davis declared that if any striker set
foot on his property he would "knock [their]
G-D-heads off."
Lewis Davis testified that on this particular day he was
at the Culloden warehouse when James Morrison arrived
with a truckload of merchandise and reported to him that
he had been followed for some distance by a group of
about 15 pickets. Davis testified that at the time he had
been measuring space for shelving in the new building
with a piece of reinforcing steel that was several feet long.
According to Davis, while still carrying that piece of steel
in his hand, he and Morrison went to the outskirts of the
warehouse area where the pickets were still gathered and
reminded them that they were to stay off the Respondent's
grounds. Davis testified that he told the strikers, "Boys,
when you cross the railroad you're on private property ...
I don't want to catch you over here." According to Davis,
at this point, Belcher, one of the pickets, yelled out "You
come over here, you s-o-b-, I've been waiting to get ahold
of you for a long time." Davis denied that either he, or
Morrison, waved any steel at the pickets or threatened
them in any way.
The testimony of the strikers as to this incident was
confused and contradictory and most of it, at the time it
was given at the hearing, impressed me as being grossly
exaggerated. On the other hand, I conclude that the
account of the incident by Lewis Davis was completely
credible.
Whereas the foregoing incidents provide no support for
the contention of the General ounsel and the Union that
the Respondent applied a double standard as to
misconduct during the strike, there is other evidence
which must be considered.
On the evening of December 30, Ralph Porter, one of
the nonstrikers, arrived in a taxicab at the warehouse
entrance, presumptively, to report for work. All witnesses
concurred that at this time Porter was in a very drunken
condition. As he stepped out of the cab at a point only a
few feet from the pickets then on duty in the area, Porter
drew a pistol and fired at the ground. He then turned and
endeavored to walk toward the warehouse entrance. Paul
Christian and Dave Johnson, two of the pickets in the
vicinity, immediately called the police.
In the meantime, Lewis Davis came upon the scene and
the pickets called Porter's condition and performance to
his attention. When the police arrived, Porter had no
weapon on his person. A search resulted and Davis located
the gun along the warehouse wall where Porter had
endeavored to conceal it. Johnson conceded that Davis,
along with the pickets, urged the police to get Porter out of
the area and to jail.
The following day, Donald L. Davis, secretary-treasurer
of the Respondent, signed a $500 bond which Porter was
obliged to post while awaiting a hearing on the charges
that had been brought against him. Lewis Davis testified
that he never authorized Donald Davis to sign such a bond
and that shortly after this incident he advised Attorney
Jenkins, as counsel for the Company, to take no part in the
defense of Porter in connection with any criminal charges
on which he might be tried.
It was conceded by the Respondent that Porter was an
employee at the time of the incident and that he remained
on the company payroll after its occurrence. Lewis Davis
further conceded that the State court injunction, then in
effect, enjoined the carrying of firearms by the employees,
as well as the strikers. Nevertheless, it does not appear
that Porter was ever disciplined, much less discharged,
for his performance at the plant entrance on the evening of
December 30. It is also of some significance that a
corporate officer, such as Donald Davis, posted bond for
Porter. Although Lewis Davis testified that this had been
done without his knowledge, he also conceded that, as the
secretary-treasurer, Donald Davis had considerable
latitude to act on his own.35
3' William Huffman, a striker, testified that about the first
week in January, he heard Thurman Johnson state " that boy
surprised me because he come out we'll get Bill's house
tonight " Johnson denied ever having made such a remark at any
time His denial was credible.
35 In another case involving the alleged misuse of firearms,
bond for the defendant was posted by Ethel Davis, wife of the
company president. This was after the incident in December
involving Templeton and Myers , when the latter was charged with
misuse of the shotgun which he had pointed at Templeton and
Lucas, when the latter two were picketing the warehouse exit
The bond for Myers, bearing Mrs Davis' signature , was offered in
evidence by the General Counsel as G.C. Exh 14 1 rejected the
exhibit and directed that it be placed in the rejected exhibit file
Upon reconsideration , I conclude that this exhibit should be, and
it hereby is, received in evidence.
DAVIS WHOLESALE CO. 313
About February 12, an incident occurred outside the
Huntington warehouse in which a number of the
nonstrikers gathered about a small group of pickets and
voiced a series of threats. William Pack, one of the
strikers, testified that he and three or four other pickets
were near the warehouse entrance about 8 p.m. on the
above date. According to Pack, Thomas Gray and several
other nonstrikers came out of the warehouse at that point.
Soon thereafter, about 12 or 13 nonstrikers who were at
work emerged from the building and gathered around the
pickets. In addition to Gray, William Jones, Charles
McCaw, James Stanley, R.A. Blankenship, Paul Bias,
Ralph Porter, Keith Porter, James Myers, Edward
Burgess, B.G. Perry, Mac Perry, and Foreman Ed Frazier
were in this group. According to Roy Lewis, Stanley, one
of the nonstrikers, urged the rest of the nonstrikers to
assault the pickets with comments such as "let's get them
... this is about the odds they like...." Two of the
pickets, Pack and Dale Barnett, were in an automobile
parked in the area. According to Pack, Gray yelled out at
him and Barnett, "Come on out . . . we want to give you
some of your own medicine." Estil Loftis, another striker
in the area, testified that Stanley challenged Homer Ward,
one of the strikers present, to step out where he could beat
him up. Loftis further testified that Burgess, one of the
nonstrikers present, had a steel bar in his hand throughout
the confrontation. Loftis conceded, however, that Burgess
did not hit anyone with this bar.
The large group of nonstrikers remained outside the
warehouse entrance for about 30 minutes and until at the
urging of Mac Perry, the warehouse guard, they returned
to their duties. It was undenied that Foreman Ed Frazier
was present during most of this occasion and that he did
nothing to get the employees back into the plant or quell
what could have developed into a melee. From the
timecards offered in evidence by the Charging Party it
further appears that, notwithstanding the uncontradicted
evidence that about 12 of the employees were outside the
gate on this occasion, they were not docked for any time
and were paid for a full shift. 36
3. Concluding findings
When the Respondent denied reinstatement to all of the
strikers, as Johnson testified, the Respondent considered
them "as a group and discharged [them] as a group." This
was, in effect, a mass refusal of reinstatement. In taking
this position, however, the Respondent erred, for it is well
settled that the unlawful acts of individual strikers are not
chargeable to other strikers without proof that they
participated in the acts. N.L.R.B. v. Cambria Clay
Products Company, 215 F.2d 48, 53 (C.A. 6); N.L.R.B. v.
Wichita Television Corporation, d/b/a KARD-TV, 277
F.2d 579,585 (C.A. 10), cert. denied 364 U.S. 871; N.L.R.B.
v. Deena Artware, Inc., 198 F.2d 645, 650 (C.A. 6);
N.L.R.B. v. Wallick and Schwalm Company, 198 F.2d 477,
485 (C.A. 3). Nor does the failure of any strikers to
abandon picketing or disassociate themselves from any
alleged violence justify a finding that such strikers ratified
any misconduct by their costrikers. N.L.R.B. v. B.Y.D.
Company, 237 F.2d 545,549-551 (C.A.D.C.).
Moreover, it is true, as the General Counsel and the
Charging Party urge in their respective briefs, that the
conduct of the Respondent throughout the strike, insofar
as that constituted condonation of misconduct by
nonstrikers, must be considered in evaluating the validity
of the Respondent's contention that the strikers engaged
in such misconduct as to free the Respondent of any duty
to reinstate them. N.L.R.B. v. Thayer Company, 213 F.2d
748, 752-753, 755-756 (C.A. 1), cert. denied 348 U.S. 833;
Kohler Co., 148 NLRB 1434, 1447; Quality Limestone
Products, Inc., 153 NLRB 1009, 1013-14.
Foremost among those considerations must be the
action of the Respondent, as found above, in immediately
discharging all those who joined in the walkout for having
gone on strike. Likewise, there was the incident at the
Huntington warehouse, on February 12, when some dozen
or more employees, in the presence of at least one
foreman, spent approximately a half hour outside the
premises engaged in an angry exchange with the pickets
which the nonstrikers had precipitated. Also, there is the
incident involving Ralph Porter, the nonstriker, who
appeared for work in a drunken condition and brandished
a gun which he fired in the presence of the pickets.
Notwithstanding this blatant violence, Porter was not
discharged or disciplined and the secretary-treasurer of
the Respondent posted bond for his appearance on the
criminal charges arising out of the incident.There is in the
record also the testimony of William Jones, another
nonstriker, who testified that for somewhile after the
strike began he carried a shotgun to work everyday and
that, while on duty, in at least one instance, he stored his
weapon in the IBM room at the warehouse where it was
within plain view of many of the employees at work.
On the other hand, it is equally clear that whereas the
unlawful practices of the Respondent may have excused
certain incidents in which the strikers engaged, some of
the misconduct of the strikers cannot be excused or
rationalized on any ground consonant with the purpose of
the Act. Consequently, I conclude, on the basis of the
findings set forth earlier herein, that the following named
strikers engaged in such unprotected concerted activity
during the strike as would free the Company of any
obligation to reinstate them: Ottie Adkins, because of this
threat to Donald Cummings to beat him up for having
sworn out certain warrants and his further threat to
Cummings that if the pickets ever caught him at work
after that day the Cummings had "had it"; James Belcher,
because of his threat to nonstrikers Ball and Green that "if
we don't get you all we will get your wives," his threat to go
to the home of William Jones "and stomp you in the mud
of that ridge," and his assualt on Melvin Gallimore near
the rooming house where Gallimore lived; Wellington
Breed, because of his participation with Delano Keenan
about December 13, in the incident which resulted in the
personal injury of nonstrikers John Merritt and Ernest
Ferguson; Paul Christian, because of the threat voiced to
Donald Cummings, a nonstriker, that if he continued to
work during the strike Cummings himself might be injured
and that the upholstery shop operated by Cummings'
father and mother might be damaged; Delano Keenan,
because of his role, along with Wellington Breed, in the
incident involving Merritt and Ferguson, his visit to the
home of nonstriker Thurman Green and his prediction to
Green's wife that her husband might be hurt unless he
joined the strikers, his threat during the same period to
Charles McCaw, another nonstriker, that he "had better
watch out if [he] thought anything about [his] wife," and
his vandalism on the night of February 19 when he used a
slingshot to destroy the glass windows on several Davis
36 These timecards, marked Charging Party's Exhibit 25 (a-1)
were rejected at the hearing and placed in the rejected exhibit
rile Upon reconsideration of this ruling, I conclude that they
should be, and they hereby are, received in evidence
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucks; Alfred Maynor, because of the role he played in the
incident, late in December, when three tires were
punctured on a Davis truck that was driven by Thomas
Gray, a nonstriker; Ronnie Napier, because of his threat to
beat up Thomas Gray, and for having hurled a pop bottle
from a speeding car at the Davis truck driven by
nonstriker William Jones; Clifford Sword, for having
thrown a brick, while on the picket line about
December 11, at the car in which Herman McCallister and
William Jones were riding, for having threatened
nonstriker Donald Cummings with a club while the latter
was attempting to report for work, and for having
brandished a pistol at nonstrikers Thomas Gray and Larry
Hill; Keith Tomblin, because of his having punctured a tire
on the truck driven by Frank Meehling; John Valentine,
because of his vandalism in puncturing a tire on the car of
nonstriker Stanley, his assault on nonstriker Thomas Ball
at Paul's Grocery, his threat to beat up Charles McCaw if
he caught him outside the warehouse gate, his threat to,
and pursuit of, nonstriker Melvin Holstein when the latter
was attempting to report for work, and his participation in
the rock-throwing episode involving the Davis truck driven
by Paul Morrison.
Of the remaining employees named in the complaint, I
conclude that none of them was either identified with any
of the acts of misconduct found herein, or chargeable with
such misconduct as would justify the denial of
reinstatement. Whereas all of them were identified as
having participated in the strike and having, at various
times, been on the picket line, there was no testimony,
insofar as I could ascertain, of overt conduct on their part
that was unprotected, or of such character, under the
circumstances present here, as would result in the
forfeiture of the right to reinstatement. "Unauthorized acts
of violence on the part of individual strikers are not
chargeable to other union members in the absence of proof
that identifies them as participating in such violence."
N.L.R.B. v. Deena Artware, Inc., 198 F.2d 645, 652 (C.A. 6).
Consequently, I conclude and find that on the present
record, the following strikers did nothing to disqualify
themselves for reinstatement: Norris Adkins, O'Neal
Adkins, Gary Bias, Larry Blankenship, Jarrell Bowyer,
Leonard Cremeans, Harold Duffer, Kelsey Elkins, Lindsey
Finley, James Gibson, Dennis Holley, William Huffman,
Dave Johnson, Roy Lewis, Emil Loftis, Estil Loftis, John
Lucas, William Pack, Thomas Templeton, Homer Ward,
and Donald Watts.
There remains for disposition only one other issue. The
amended complaint specified 31 employees as having gone
on strike and added to that listing the phrase "and other
employees whose names are unknown to the Regional
Director." This catchall phrase was never particularized
by the General Counsel, but the Charging Party devoted a
substantial amount of time to exploration of the question
as to how many employees, in addition to the 31 above
mentioned, had gone on strike. From the Respondent's
payroll records the Charging Party secured the names of
seven additional employees who were listed as having
been terminated in the period immediately following the
outset of the strike. These were Lowell Damron, Paul
Morrison, Dale Butcher, Robert Peterson, Tony Ashworth,
Fred Rood, and Alan Sadler. Thurman Johnson was called
by the Charging Party as an adverse witness and cross-
examined as to his knowledge of these terminations and
the extent to which any or all of them had resulted from the
strike. Johnson testified, in substance, as follows: Damron
telephoned Johnson immediately after the strike began to
tell him he had quit because he did not care to cross the
picket line. Morrison quit for a few days after the strike
began, but returned to work and was still employed at the
time of the hearing. Butcher quit on December 8, after the
picket line was established but thereafter Butcher never
appeared on the picket line himself. Johnson testified that
Butcher applied for reemployment about February, but
that he was not rehired because the Respondent did not
need anyone at the time. Robert Peterson left the
Company's employ on December 9 to join the military
service. Ashworth quit on December 11, after telling
Johnson that he was doing so because the strikers had
destroyed the roof on his car. He subsequently returned to
work at the warehouse and remained at his job until
joining the Army sometime before the hearing. Rood did
not report for work after the strike began and later told
Johnson that he quit because of the strike. Sometime later,
however, he sought reemployment. When Johnson
subsequently had a job opening for Rood he was unable to
contact him. Sadler rode to work with Paul Christian.
When the latter went on strike, Sadler notified Johnson
that he would be unable to report for work because he had
no means of getting to the warehouse. Johnson never saw
Sadler participate in any of the strike activities.
Whereas the Charging Union would appear to have been
in possession of any information that would establish more
concretely the participation of the seven above-named
employees in the strike, it offered no such evidence. Nor
was any of these seven individuals called as a witness on
this issue. Johnson's testimony, given under cross-
examination, thus constitutes the only evidence in the
record on this matter.
In its brief the Charging Party concedes that it is not
contending that reinstatement should be ordered for those
who quit work, on or after December 8, for reasons
unrelated to the strike, or who, after being off duty for a
short while, subsequently returned to their jobs. Included
in this category are Peterson, who went into military
service, and Morrison and Ashworth, both of whom went
back to work before the termination of the strike. Whereas
both Butcher and Sadler did not report for work after
December 8, they never notified the Respondent that their
failure to do so was because of their desire to join common
cause with the strikers. The Respondent was not required
to speculate as to whether that had been the reason. Ekco
Products Company, 117 NLRB 137,146, 218.
On the other hand, both Damron and Rood are in a
different category, for both specifically apprised Johnson
that they had quit because of the strike. Later, when Rood
sought reemployment Johnson told him that there was
nothing available for him. Damron and Rood had, indeed,
"made common cause with the strikers" (Mrs. Fay's Pies,
Inc., 145 NLRB 495, 498, enfd. 341 F.2d 489 (C.A. 9)) by
their open avowal to Superintendent Johnson of this
decision. For this reason they must be, and are, found to
have been unfair labor practice strikers along with the
other 31 employees whose strike status is not in dispute.
Accordingly, I conclude that Damron and Rood are
entitled to the same reinstatement rights as are accorded
the other unfair labor practice strikers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's
DAVIS WHOLESALE CO. 315
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce. -
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure of
employment of the employees who went on strike on
December 8, 1965, and thereafter, and of those strikers
who sought reinstatement , thereby discouraging
membership in the Union, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The General Counsel and the Charging Party have
not proved by a preponderance of the evidence that the
Respondent interfered with, restrained, or coerced its
employees in the exercise of the rights safeguarded by the
Act, except by the specific acts and conduct found herein
to have been violative.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Since it has been found that the strike which began on
December 8, 1965, was caused and prolonged by the
Respondent's unlawful refusal to bargain with the Union
and by the Respondent's discharge of all those employees
who went out on strike, under normal circumstances all
the strikers would be entitled to reinstatement whenever
they unconditionally applied for reemployment,
irrespective of whether or not their positions had been
filled by the Respondent. Here, however, it has been found
that certain strikers, by acts of violence and misconduct
during the course of the picketing, forfeited this right. The
names of this group are listed in Appendix A. All of the
other strikers, however, listed in Appendix B, having
engaged in no such misconduct, are entitled to full
reinstatement . Accordingly, in order to effectuate the
policies of the Act by restoring the status quo that existed
prior to the time when the Respondent engaged in the
unfair labor practices, I shall recommend that the
Respondent be ordered to offer reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges,
to all employees listed in the aforesaid Appendix B,
dismissing , if necessary, any person hired on or after
December 8, 1965, when the strike began. I shall also
recommend that the Respondent be ordered to make
whole said employees listed in Appendix B, for any loss of
pay they have suffered, or may suffer, by reason of the
Respondent's refusal to reinstate them, by payment to
each of them of a sum of money equal to that which he
normally would have earned as-wages during the period
from the date of his unconditional offer to return to work
on April 7, 1966, to the date of the Respondent's offer of
reinstatement.37
With respect to the employees listed in Appendix A it
will be recommended that reinstatement and backpay be
denied for the reasons hereinabove stated.
It will also be recommended that the Respondent be
required to preserve and make available to the Board or its
agents, upon request, payroll and other records to
facilitate the computation of backpay due.
As the unfair labor practices committed by the
Respondent are of a character striking at the root of
employees' right guaranteed by the Act, it will be
recommended that the Respondent be ordered to cease
and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Davis Wholesale Co., Inc., its officers, agents,
sucessors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with discharge, with
terminating their employment, with refusal to reinstate
them, and with other reprisals for engaging in concerted
activities.
(b) Discouraging membership in Food Store Employees
Union Local #347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any
other labor organization of its employees, by
discriminatorily discharging or refusing to reinstate any of
its employees, or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or
condition of employment.
(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
purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary 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,
of all those employees listed in Appendix B, dismissing, if
necessary, any person hired by the Respondent on or after
37 Backpay for the foregoing employees shall be computed in
accordance with the formula approved in F W Woolworth
Company, 90 NLRB 289, with interest thereon computed in the
manner and amount prescribed in Isis Plumbing & Heating Co ,
138 NLRB 716, 717-721
316 DECISIONS OF NATIONAL LABOR RELATIONS
December 8, 1965, and make whole the aforesaid
employees, in the manner set forth in the section of this
Decision entitled, "The Remedy."
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its warehouse at Culloden, West Virginia,
copies of the attached notice marked "Appendix C."311
Copies of said notice, to be furnished by the Regional
Director for Region 9, after being duly signed by the
Respondent's 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 said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.39
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges any unfair labor practices,
other than as herein specifically found.
381n 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 Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
39 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX A
Ottie Adkins Alfred Maynor
James Belcher Ronnie Napier
Wellington Breed Clifford Sword
Paul Christian Keith Tomblin
Delano Keenan John Valentine
APPENDIX B
List of Striking Employees Entitled to Reinstatement and
Backpay
Norris Adkins Gary Bias
O'Neal Adkins Larry Blankenship
Jerrell Bowyer
Leonard Cremeans
Lowell Damron
Harold Duffer
Kelsey Elkins
Lindsey Finley
James Gibson
Dennis Holley
William Huffman
Dave Johnson
BOARD
Roy Lewis
Emil Loftis
Estil Loftis
John Lucas
William Pack
Fred Rood
Thomas Templeton
Homer Ward
Donald Watts
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 membership in Food
Store Employees Union Local #347, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, or any other labor organization,
by discharging or refusing to reinstate any of our
employees, or in any other manner discriminating
against them in regard to their hire or tenure of
employment or any term or condition of employment.
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 Food Store Employees
Union Local #347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized by the Act.
WE WILL offer to the employees listed below
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and
make them whole for any loss of pay they may have
suffered by reason of the discrimination against them:
Norris Adkins
O'Neal Adkins
Gary Bias
Larry Blankenship
Jarrel Bowyer
Leonard Cremeans
Lowell Damron
Harold Duffer
Kelsey Elkins
Lindsey Finley
James Gibson
Dennis Holley
William Huffman
Dave Johnson
Roy Lewis
Emil Loftis
Estil Loftis
John Lucas
DAVIS WHOLESALE CO. 317
William Pack Homer Ward of their right to full reinstatement upon application in
Fred Rood Donald Watts accordance with the Selective Service Act and the
Thomas Templeton Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
DAVIS WHOLESALE CO., INC. This notice must remain posted for 60 consecutive days
(Employer) from the date of posting and must not be altered , defaced,
or covered by any other material.
Dated By If employees have any question concerning this notice
(Representative ) (Title) or compliance with its provisions , they may communicate
directly with the Board's Regional Office, Room 2407,
Note: We will notify the above - mentioned employees if Federal Office Building, 550 Main Street, Cincinnati, Ohio
presently serving in the Armed Forces of the United States 45202 , Telephone 684-3663.