Honaker Mills, Division Of Top Form Mills, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1246 (N.L.R.B. 1984)

1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Honaker Mills, Division of Top Form Mills, Inc.
and International Ladies Garment Workers
Union, Upper South Department, AFL-CIO.
Case 5-CA-11305
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 12 May 1981 Administrative Law Judge Joel
A. Harmatz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in response to
the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended
Order.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings Nor do we find merit in the Respondent's contention that,
because the judge generally discredited the Respondent's witnesses and
credited the General Counsel's witnesses, his credibility resolutions are
erroneous or attended by bias or prejudice NLRB v Pittsburgh Steamship
Go, 337 U S. 656 (1949) Likewise, we find no merit in the Respondent's
further contention that the judge demonstrated bias when, in an off-the-
record discussion prior to hearing, he expressed an opinion regarding the
ultimate merits of the case In this respect, even assuming the incident
occurred as alleged, we note that the Respondent did not object on the
record to the alleged discussion and did not comply with our procedures
for requesting disqualification of a judge. Sec 102 37, Rules and Regula-
tions of the National Labor Relations Board See Sanford Home for
Adults, 253 NLRB 1132 fn 1(1981), enfd 669 F 2d 35 (2d Cir 1981),
Canal Electric Go, 245 NLRB 1090 fn 2 (1979) Indeed, upon careful ex-
amination of the judge's decision and the entire record in this proceeding,
we are satisfied that the Respondent was accorded a full and fair hearing
and that its allegations of bias and prejudice are without merit
2 We agree with the ultimate conclusion reached by the judge that the
strike-related misconduct here found does not rise to a level which would
warrant depriving the Union of its collective-bargaining status In so
holding, we find it unnecessary to pass on the observations made by the
judge in his discussion of Laura Modes Co., 144 NLRB 1592 (1963), and
its progeny, particularly those set forth in the first four paragraphs of the
"Concluding Analysis" section of his decision Indeed, because the con-
duct here in question does not rise to a level which would otherwise
warrant invoking the Laura Modes doctrine, we need not, nor do we,
pass on the applicability of that doctrine to postelection misconduct by a
union generally
Chairman Dotson agrees that the conduct attributed to the Union is
not of such a character as to warrant revocation of its certification and
thus he would not deprive the employees of their elected collective-bar-
gaining representative However, picket line misconduct engaged in by
union agents Bill Dennison and Connie Brown is serious enough that he
would not require the Respondent to bargain with Dennison and Brown
in matters related to terms and conditions of employment for the Re-
spondent's employees
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Honaker
Mills, Division of Top Form Mills, Inc., Honaker,
Virginia, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding derives from an original unfair labor practice
charge filed on August 15, 1979, and a complaint issued
on September 27, 1979, alleging that Honaker Mills, Di-
vision of Top Form Mills, Inc.' (Respondent) violated
Section 8(a)(5) and (1) of the Act by refusing to meet
and bargain in good faith with the Charging Party pursu-
ant to a National Labor Relations Board certification
issued on June 6, 1979, designating said Union as exclu-
sive collective-bargaining representative in an appropri-
ate unit. Said complaint further alleged that a strike,
which commenced about July 24, 1979, in which certain
employees in the aforesaid unit participated, was caused
and prolonged by the aforesaid unfair labor practice, and
hence was an unfair labor practice strike.
Evidence of the Union's majority herein stems from an
underlying representation proceeding. Thus, pursuant to
an election petition filed on June 21, 1978, in Case 5-
RC-10511, seeking a unit of production and maintenance
employees at the Employer's Honaker, Virginia plant, an
election was conducted on August 18, 1978. The tally
showed that of approximately 207 eligible voters, there
was 1 void ballot, with 124 valid ballots cast for repre-
sentation by the Charging Party and 72 against. There
were five challenged ballots which were insufficient to
affect the results. Thereafter, the Employer filed timely
objections to the election. On September 29, 1978, the
Acting Regional Director for Region 5 issued a "Report
on Objections and Notice of Hearing" in which certain
objections were overruled, and others deemed to have
raised material issues of fact warranting an evidentiary
hearing. Pursuant to notice, a hearing on objections was
conducted before Hearing Officer John M. Glynn on
October 18 and December 19, 1978. Thereafter, on Feb-
ruary 2, 1979, the aforesaid hearing officer issued his
report, recommending that all remaining objections be
overruled in their entirety, and that a certification of rep-
resentative be issued. The Employer filed timely excep-
tions thereto, and on June 6, 1979, the Board issued a
"Decision and Certification of Representative," adopting
the hearing officer's findings and recommendations and
certifying the Charging Party as the exclusive represent-
ative.
' The name of Respondent appears as amended at the hearing It is of
no small interest that Respondent objected to this correction on grounds
that its due process right to personal service was offended Inasmuch as
the original papers in this proceeding named "Honaker Mills Corpora-
tion" as Respondent
273 NLRB No. 158
TOP FORM MILLS 1247
In its original answer, Respondent denied that any
unfair labor practices were committed, setting forth af-
firmative defense to the effect that the election conduct-
ed by the National Labor Relations Board in Case 5-
RC-105l1 was invalid and, accordingly, the Union had
not been designated by a majority of Respondent's em-
ployees in a "free and untrammeled" election.
With the issues so framed, on November 26, 1979, the
General Counsel filed a "Motion for Summary Judg-
ment" on grounds that Respondent should not be permit-
ted to litigate in this proceeding issues previously consid-
ered by the Board in the prior representation proceed-
ings and therefore requesting the Board to continue the
proceeding before it and to grant summary judgment and
conclude as a matter of law that Respondent had violat-
ed Section 8(a)(5) and (1) of the Act.
On December 4, 1979, the Board issued an "Order
Transferring Proceedings to the Board and Notice to
Show Cause," as to why it should not grant the relief re-
quested by the General Counsel.
Thereafter, Respondent filed an amended answer to
the complaint, dated December 2 ,1, 1979, which for the
first time, raised the following:
Respondent sets forth affirmatively that the union
has committed numerous coercive acts of violence
and intimidation against respondent and its supervi-
sors and employees. These coercive acts include,
but are not limited to, engaging in mass picketing so
as to block ingress and egress to respondent's plant,
blocking the right-of-way, intimidating and threat-
ening employees, scattering nails in front of re-
spondent's plant, throwing paint and acid and
scratching with sharp objects and tire slashing of
the cars of non-striking employees, and other coer-
cive acts too numerous to mention. Due to an at-
mosphere of fear and coercion generated by the un-
lawful conduct, the respondent submits that the
union is unfit to represent the employees of the re-
spondent and that it is not entitled to the benefit of
a bargaining order and that the certification should
be revoked. The respondent further submits that the
union should be denied the right to invoke the
Board's statutory processes in aid of its demand for
recognition until an appropriate time when the em-
ployees are able to demonstrate their desires in an
atmosphere free from coercion, and the union
proves its majority among those employees through
a new election.2
Also on December 21, 1979, Respondent incorporated
the above in its response to the Notice to Show Cause,
urging that a hearing is required on "newly discovered
or previously unavailable evidence."
By order dated March 6, 1980, the Board denied the
General Counsel's Motion for Summary Judgment and
remanded said proceeding to the Regional Director for
2 In its original answer dated October 5, 1979, Respondent denied par.
8 of the complaint which alleged as follows:
On or about July 24, 1979, certain employees in the unit described
above in paragraph 5 ceased work concertedly and commenced a
strike against Respondent.
Region 5 for further appropriate action. In doing so, the
Board concluded that issues of fact existed with respect
to (1) allegations that the strike was caused and pro-
longed by Respondent's unfair labor practices, and (2) as-
sertions by Respondent that the Charging Party is unfit
to represent Respondent's employees in view of mass
picketing and numerous acts of violence and intimidation
which occurred in the course of said strike.2
Pursuant to the foregoing, a hearing in this matter was
conducted before me in Lebanon, Virginia, on August 21
and October 6, 7, 8, and 9, 1980. Following close of the
hearing, briefs were filed on behalf of the General Coun-
sel and Respondent.4
3 In its posthearing brief, Respondent argues that the Board denial of
summary judgment requires collateral review herein of all issues going to
the validity of the election and the Union's certification, including alleged
preelection conduct on the part of the Union and alleged procedural un-
fairness committed by the Board in the investigation of the Employer's
objections to the election. There is no merit in this view. Said issues were
in a summary fashion rejected by the Board in adopting the hearing ofti-
cer's report on objections in Case 5-RC-10511. See G.C. Exh. 2. The
present effort on Respondent's part to relitigate these preelection matters
is unsupported by a showing of previously unavailable or newly discov-
ered evidence. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941), and Rules and Regulations of the National Labor Relations
Board, Secs. 102.67(f) and 102.69(c). Nor is there merit in Respondent's
contention that the Board implicitly paved the way for redetermination
of these issues in directing a hearing and denying the General Counsel's
Motion for Summary Judgment. It is true that the Board in directing a
hearing in this unfair labor practice proceeding, states as follows:
The Board has duly considered the matter and is of the opinion that
there are issues of fact, including the nature of the strike and whether
violence was in fact committed, which may best be resolved at a
hearing conducted before an administrative law judge. [Emphasis
added.]
Contrary to Respondent, that direction by the Board fails to sanction
new findings on matters disposed of with finality in the underlying repre-
sentation case. The Board's direction of a hearing was preceded by ex-
plicit reference confmed to Respondent's contentions based on the Charg-
ing Party's alleged improprieties during the course of the strike which
began on July 24, 1979, a date well after the election and a month after
certification of the Union by the National Labor Relations Board. The
language utilized by the Board in denying summary judgment and defm-
ing the scope of this hearing, at best, from Respondent's point of view,
was tailored to issues concerning "the nature of the strike" and "whether
violence was in fact committed," and beyond that only such matters as
would be supported by newly discovered and previously unavailable evi-
dence. Absent specific direction from the Board, it would be ulture vires
were I to enlarge the proceeding m a manner contravening Pittsburgh
Glass v. NLRB, supra, and the Board's own Rules.
4 The General Counsel, in its posthearing brief, for the first time an-
nounced that he was seeking partial reimbursement to the Board and the
Union for reasonable counsel fees, salaries, witness fees, transcript and
record costs, printing costs, and other costs and expenses to be deter-
mined at the compliance stage. Thereafter, Respondent filed a supplemen-
tal brief with respect to this limited remedial matter. By telegram dated
February 9, 1981, the General Counsel opposed Respondent's request to
file an answering brief on the following grounds:
I. The Board's rules and regulations do not provide for the filing
of answering briefs before the Administrative Law Judge.
The Adminstrative Law Judge indicated at the hearing that he
would consider a partial reimbursement remedy if the Respondent .
relied on frivolous defenses, and
3. Respondent's request for permission to file an answering brief
was . submitted 18 days after the closing date for the receipt of posth-
earing briefs.
It is my opinion that ordinary conceptions of fairness demand in this in-
stance that Respondent's election to respond be upheld. Firstly, receipt of
Respondent's answering brief has not unduly delayed resolution of the
merits of this proceeding. Furthermore the General Counsel, though well
aware of the positions taken by Respondent, which it now claims to have
Continued
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the foregoing, and the entire record in this pro-
ceeding, 5 including the posthearing brief, and the oppor-
tunity to observe directly the demeanor of the witnesses
while testifying, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent Honaker Mills, Division of Top Form
Mills, Inc. is a New York corporation engaged in the
manufacture of women's and children's apparel at its
Honaker, Virginia plant. During the 12 months preced-
ing issuance of the complaint, a representative period,
Respondent sold and shipped in interstate commerce
goods and services valued in excess of $50,000 to cus-
tomers located outside the Commonwealth of Virginia.
The complaint alleges, the answer, with stipulations
entered at the hearing, admits, and I find that Respond-
ent is and has been at all times material herein an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent stipulated at
the hearing, and it is found that International Ladies
Garment Workers Union, Upper South Department,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent unlawfully refused to bargain
in violation of Section 8(a)(5) and (1) of the Act by with-
holding recognition and failing to bargain with the
Union as the certified representative of production and
maintenance employees at its Honaker plant.
2. Whether a strike, which commenced on July 24,
1979, caused and prolonged by said refusal to bargain,
constitutes an unfair labor practice strike.
been frivolously maintained, did not at any time prior to the close of the
hearing or under circumstances affording notice of its intentions raise the
claim for extraordinary relief While it is true that very early in the hear-
ing I cautioned counsel, pointing out that delays on the basis of frivolous
contentions would not be tolerated, while alluding to the possibility of a
partial remedy pursuant to Titdee Products, 194 NLRB 1234 (1972), in the
interest of protecting the integnty of the proceeding, said reference by
me was couched in terms of warning, which, considering the time and
circumstance in which that statement was made, would not necessarily
have been construed by Respondent as giving rise to extant issue The
issue belatedly raised by the General Counsel calls for extraordinary
relief on a partial basis, lacking direct support in precedent and, hence,
Respondent has been permitted to address the question
5 The record herein has been reopened to receive into evidence stipu-
lated testimony of Cecille Vest This segment of Vest's testimony was ac-
tually afforded before me on October 7, 1980 However, through error of
the reporting service, the testimony of the latter was erased prior to in-
clusion in the official transcript By motion dated January 5, 1981, the
General Counsel sought to reopen the record to receive as Jt Exh 1, the
agreement of the parties as to the testimony in question Based thereon, I
reopened the record and received Jt Exh I However, while rulings are
accurately reflected therein, further comments attnbuted to me are delet-
ed as they fail to reflect context fully and are not verbatim reconstruc-
tions
3. If paragraph 1, above, is answered in the affirma-
tive, were acts of violence and coercion committed in
the course of the aforesaid strike to a degree sufficient to
find that the Union is unfit to hold the status of exclusive
statutory representative in accordance with Laura Modes,
144 NLRB 1592 (1963), and related cases.
B. Concluding Findings
1. The refusal to bargain
Following designation of the Union by a majority of
the employees in the appropriate unit on August 18,
1978, the Union was certified as exclusive statutory rep-
resentative on June 6, 1979.
By mailgram dated June 20, 1979, 6 the Union notified
the Respondent as follows:
Pursuant to the National Labor Relations Board's
certification I hereby request that you contact me
so that we can set a date to negotiate a contact [sic]
in behalf of the employees at Honaker Mills.
If we do not hear from you by Friday, June 29,
1979 I will assume that your lack of communication
indicates an unwillingness to negotiate and we will
be forced to take appropriate action.7
By letter dated June 26, 1979, Respondent, through
Plant Manager Joe Hooker, informed the Union as fol-
lows:
I have received your mailgram of 6-20-79 and have
forwarded it to appropriate Company Officials and
Company counsel. However, it may not be possible
for you to receive a reply to your request by the
June 29, deadline which you mentioned.8
As of July 24, a month had lapsed since the Union's
request. Apart from Hooker's letter of June 26, the Com-
pany's posture was one of silence. On July 24, a strike
commenced at the Honaker plant. Thereafter, while still
declining to offer a further response to the Union, Re-
spondent by letter dated July 31, 1979, explained its posi-
tion to employees in the following terms:
As you know the Union has called a strike because
Honaker Mills has refused to bargain with it. The
reason we have refused to bargain is that we believe
the National Labor Relations Board Regional Office
determination was wrong and that the Honaker em-
ployees are entitled to a fair and proper vote free
from union threats and union harassment. The only
way we can appeal and get review of this in Wash-
ington is to refuse to bargain. We think we deserve
our day in court on the issue.5
At no time since the Union's request of June 20 has
Respondent communicated its position directly to the
6 All dates refer to 1979 unless indicated otherwise
7 See G C Exh 3
8 See G C Exh 4
9 See G C Exh 5
TOP FORM MILLS 1249
Union or otherwise expressed a willingness to negotiate
and bargain. -
Prior to the aforesaid refusal to bargain, all issues
going to the validity of the certification based on the
Union's alleged objectionable conduct during the pree-
lection period had been overruled in Case 5-RC-10511.
With respect to those issues, no effort has been made in
this proceeding to elicit evidence of misconduct on the
part of the Union prior to the aforesaid election which
was newly discovered or previously unavailable and
which would require the Board to reexamine the certifi-
cation issue in the underlying representation proceeding.
Nevertheless, Respondent seeks dismissal of the 8(a)(5)
allegation on the basis of a discrepancy in the Board's
description of the appropriate unit appearing in the Cer-
tification of Representative issued on June 6, 1979. By
way of background, it is noted that the election conduct-
ed herein was pursuant to a Stipulation for Certification
Upon Consent Election, wherein the parties agreed that
the following constituted the appropriate unit:
All production and maintenance employees em-
ployed at the Employer's Honalcer, Virginia loca-
tion; but excluding office clerical employees, techni-
cians, sales people, professional employees, guards
and supervisors as defined in the Act.
Said unit description appeared in that exact form in the
notices of election, pursuant to which employees cast
their ballots in the election held on August 18, 1978.
Further, in both the Report on Objections and the hear-
ing officer's report, the appropriate unit was described in
those precise terms. However, on June 6; 1979, when the
Board adopted the hearing officer's findings and recom-
mendations and certified the Union, it defined the fol-
lowing as the appropriate unit:
All production and maintenance employees em-
ployed at the Employer's Honaker, Virginia loca-
tion; but excluding office employees, guards and su-
pervisors as defined in the Act.
Further, the complaint issued by the Regional Director
on September 27, 1979, repeated this erroneous descrip-
tion of the unit.
Respondent contends that the omission of the excluded
categories of "technicians, sales people, professional em-
ployees" constitutes a fatal flaw in this proceeding. On
this ground, Respondent seeks to negate the obvious
choice made by its employees pursuant to statutory pro-
cedures.
With respect to the erroneous definition of the unit it
was not until August 12, '1980, that the Regional Direc-
tor for Region 5 sought Board amendment of the certifi-
cation to include the omitted exclusions. Thereafter, on
August 21, 1980, at the instant hearing Respondent, in
seeking dismissal on this ground, was sharply critical of
the General Counsel's failure to act with greater dispatch
in this regard -as stated by Attorney Spelfogel on behalf
on Respondent:
We would like to move to dismiss the complaint in
this case on the grounds that there is a defective
certification. The underlying representation pro-
ceeding certification is significantly different from
the bargaining unit which the parties stipulated to—
significantly different from the bargaining unit in
which an election was held.
This discrepancy has been a matter of public knowl-
edge for at least eight months, when in opposition
to a motion for Summary Judgment, the respondent
expressly stated in its papers these facts.
The Regional Director has acknowledged the dis-
crepancy and finds • the discrepancy so significant
that it feels obliged to make a Special Motion to the
National Labor Relations Board in Washington to
amend and change the Certification.
We have opposed thin request to the National
Labor Relations Board and this morning, just before
the opening of this hearing, I was advised by the
Executive Secretary in Washington that the Board
would entertain briefs and arguments on the ques-
tion and take the matter under advisement.
Under the circumstances, I think the admission by
the Regional Director that the matter is so signifi-
cant to warrant the unusual request to amend at this
late date—some eight months after this matter was
brought to his attention at the opening hearing, and
the fact. that there is this discrepancy, we submit
that the complaint should be dismissed, that the re-
spondent cannot be ordered to bargain in a unit
which is significantly different from the unit in
which the election was held.
At this juncture, I note that it is difficult to subscribe
to the view of Spelfogel that the matter was previously
raised in the response to show cause so as to alert others
as to the defect. Indeed, the cryptic reference to the
matter in that document hardly matches the clarity and
single-mindedness with which Respondent's position was
articulated to me at the hearing and in a formal motion
to dismiss, dated September 4, 1980, which recited as fol-
lows:
The Respondent moves that the complaint in Case
No. 5-CA-11305 be dismissed on the ground that
the charge and complaint are contingent upon an
erroneous certification of the bargairiing unit by the
National Labor Relations Board.
Respondent's response to the Board's Notice to Show
Cause was a six-page document enumerating a variety of
grounds on which summary judgment should be denied.
The only reference therein to a controversy with respect
to the unit was expressed as follows:
Respondent states that the entity named in the
charge and complaint is not a corporate entity sub-
ject to process, nor is the unif set forth in the com-
plaint an appropriate unit or a unit stipulated to by
respondent. The Board is not precluded from reex-
amining representation issues where there is newly
discovered or previously unavailable evidence or
sufficiently changed circumstances or where the
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties do not object. City Motor Co., Inc., 214
NLRB No. 38 (1974). Moreover, a bargaining order
may not be enforced in an inappropriate unit,
NLRB v. Metropolitan Petroleum Co., 506 F.2d 616
(CA 1, 1974), and to the extent that the election
stipulation is ambiguous, there is no meeting of the
minds so as to require a remand in order to give the
parties another chance to stipulate to an appropriate
unit. Buckley Southland Oil, 210 NLRB No. 145
(1974). An examination of the stipulated unit and
the unit cited in the complaint reveal such discrep-
ancies warranting remand and/or a hearing. In ad-
dition, as previously stated, the respondent states
that "Honaker Mills Corporation" is not an entity
subject to service of process and specifically contro-
verts any contrary allegations in the complaint.
As should be apparent from the foregoing, the reference
to the unit discrepancy was not highlighted, but inter-
twined with another line of argument pertaining to the
complaint's misidentification of Respondent." In addi-
tion, while Respondent at the time was seeking to avoid
summary judgment, and did state that "An examination
of the stipulated unit and the unit cited in the complaint
reveal such discrepancies warranting remand and/or a
hearing." definition of the nature of the error was not ar-
ticulated. Indeed, the quoted statement itself is mislead-
ing as to the exact basis for the challenge to the unit in-
sofar as Respondent urges "remand and/or a hearing"
For as Respondent has consistently maintained before
me, the discrepancy of which it speaks would obviate
further hearing and warrant outright dismissal. No such
claim was made to the Board, though if substantial, such
would be the only appropriate disposition. The instant
motion is unaided by Respondent's assertion that the
"discrepancy has been a matter of public knowledge for
at least eight months" prior to the effort by the General
Counsel to rectify the error.''
In any event, on October 3, 1980, the Board granted
the Regional Director's request to amend the certifica-
tion, but declined to address itself to the motion to dis-
miss. In support of the latter, Respondent now claims
that, because the faulty certification was in effect both at
the time of the Union's June 20 demand for negotiations
and at the time of the alleged refusal to bargain, no
8(a)(5) violation can be found based on Respondent's
conduct at that time.
However, the above contention is unsupported by evi-
dence that said inadvertence created confusion, misun-
derstanding, or uncertainty as to the scope of the Union's
demand. Indeed, were such a claim made it would be
difficult to honor, in the circumstances, as genuinely
maintained. For on July 31 Respondent, during the first
week of the strike, conveyed to its employees the justifi-
10 The General Counsel's characterization of the reference as "ob-
lique" conforms with my view See G C Exh 1(u), p 2
" One possible explanation for the delay is offered by Respondent
itself
a reasonable inference may be drawn that the General Coun-
sel noticed the mistake in certification during his final pretrial prepa-
ration, and immediately asked the Regional Director to request the
amendment [See R Br p 37 fn 61
cation for its refusal to confer recognition. That expres-
sion was clear-cut, lacking in open endedness, and relat-
ed exclusively to the disposition of Respondent's objec-
tions by the National Labor Relations Board Regional
Office. The message afforded employees was unambig-
uous and hardly susceptible to an interpretation suggest-
ing that the extant unit description presented any prob-
lem." Furthermore, every indication on this record con-
firms that the election was conducted pursuant to con-
sent of the parties concerning the appropriate scope of
the unit as well as excluded categones and nothing ap-
pears in their subsequent conduct suggesting a shift in
position inconsistent with the unit set forth in the pree-
lection stipulation, the notice of election, the Report on
Objections, and the hearing officer's report.
This proceeding arises under authority of remedial leg-
islation designed by Congress to vindicate public rights.
The Board's error, if objectively viewed by those with
only slight acquaintance with Board practices, proce-
dures, and policies, would readily be ascribed to editorial
oversight or perhaps even typographical miscue. Could
there have been any other possible explanation? None is
offered by Respondent, nor is one suggested from my
own imagination.
Although Respondent speaks in terms of its being pe-
nalized by the subsequent correction of this error, this
would have been true had it adopted a course of action
in direct reliance on the Board's error." However, on
the face of the history of this proceeding, it would be lu-
dicrous to assume that recognition would have been con-
ferred were it not for the erroneous unit description. Ob-
jective fact attests, beyond peradventure, to the multi-
tude of issues raised by Respondent in contesting the va-
lidity of the certification. It is difficult to imagine that
these separate and independent matters would have been
scuttled had the unit description been accurately tran-
scribed at every turn. But more compelling is the fact
that Respondent elected not to communicate with the
Union in response to the latter's demand for recognition
and took a strike in two plants rather than seek clarifica-
tion of any extant ambiguity which it apparently claims
to have influenced its course of action.
The employees in this case had designated the Union
in a secret-ballot election. The National Labor Relations
Board reviewed the Union's conduct during the preelec-
tion period and in effect concluded that said election was
conducted in an atmosphere devoid of coercive influ-
ences. At the time of the certification, I infer, on the
total record, that Respondent was fully mindful that the
unit discrepancy was inadvertent, that the Union was not
seeking representation of sales, technical, and profession-
al employees, that the Board was not seeking sua sponte
to compel such representation, and that the Union's
demand merely entailed assertion of representational in-
terests within the confines of the employee grouping
which provided the overwhelming mandate at the polls.
To find otherwise would defy reality. Accordingly, I
find no merit in Respondent's claim that the inadvertent
" See G C Exh 5
11 See, e g American Broadcasting Co., 134 NLRB 1458 (1961)
TOP FORM MILLS 1251
omission of sales, technical, and professional classifica-
tions from the exclusionary section of the unit definition
furnished a defense to its conduct beginning in June
1979, and thereafter continuing through a 4-month strike,
and this unfair labor practice proceeding.14
Based on the foregoing, I find that since June 6, 1979,
the Union has represented a majority of Respondent's
employees in the appropriate unit and by refusing to ,rec-
ognize and negotiate with the Union in such capacity,
Respondent has since June 20, 1979, violated Section
8(a)(1) and (5) of the Act.
2. The strike and its nature-
Following the aforesaid refusal to bargain, employees
on July 24, 1979, commenced a strike against Respond-
ent. The complaint alleged that klonaker employees par-
ticipating therein were unfair labor practice strikers, be-
cause the strike was caused and prolonged by Respond-
ent's unlawful refusal to bargain. The strike ended in
mid-November 1979, and the parties stipulated at the
hearing that all strikers who sought reinstatement were
reinstated to their former positions upon cessation of
their individual strike action. As alleged in the complaint
it is concluded, based on the credible testimony of Wil-
liam Dennison" and the entire record, that the sole
cause of the strike from inception to terminus was Re-
spondent's refusal to recognize the Union. Hence, I find
that it was an unfair labor practice strike at all times ma-
terial.
3. The Laura Modes issue
As should be apparent, this proceeding presents a fur-
ther hurdle in an organizational effort which began in
December 1977. In August 1978, it seemingly culminated
when in a Board election a substantial majority opted for
union representation. However, litigation of the Employ-
er's objections to the election deferred certification until
-June 1979. This refusal to confer recognition and bargain
in 1979 has been deemed unlawful. Yet, it is now 1981,
and almost 4 years after the Section 7 rights were first
asserted at Honaker; the question still exists as to wheth-
er employee choice will be enforced by a Board remedy.
Ordinarily, an employer's dishonor of such a certifica-
tion is speedily resolved through a summary enforcement
proceeding. Here, the Board deemed such a course of
action inapropriate, on the basis of assertions that "the
Charging Party . . . has committed numerous coercive
acts of violence and intimidation against Respondent and
its supervisors and employees during a strike against the
Respondent at its plant in Honaker, Virginia." This claim
was viewed as raising material issues of fact under the
principle set forth in Laura Modes Co., 144 NLRB 1592
(1963). Prior to Laura Modes, the regulation of miscon-
duct on the part of a labor organization by the Board
was effected exclusively under Section 8(b)(1)(A) of the
14 Cf. H.M. Patterson & Son, Inc., 245 NLRB 1412 (1979), where the
Board's correction of a unit description in a certification was followed by
a new demand, charge, and 8(a)(5) complaint.
15 During the period relevant to this proceeding, Dennison was an or-
ganizer for International Ladies Garment Workers Union, Upper South
Department.
Act, and through the statutory policy of permitting em-
ployers to decline lawfully to reinstate striking employ-
ees who engaged in serious misconduct. In addition, non-
administrative relief included civil and criminal restraints
and restraining orders available through the courts in the
interest of maintaining peaceful and violent-free picket-
ing. In Laura Modes, the conventional arsenal was aug-
mented by a new concept whereby the Board would de-
cline relief under Section 8(a)(5) to labor organizations
which exhibit "a total disinterest in enforcing. . . repre-
sentation rights through the peaceful legal process pro-
vided by the Act," but instead resort "to and/or encour-
age . . . the use of violent tactics to compel their
grant." 16 Thus, in appropriate circumstances, notwith-
standing that a pattern of violence was set in motion by
an employer's own illegal conduct, no remedy is afford-
ed to impel bargaining, but the statutory representative
instead is required to again demonstrate "its majority
among . . . employees to the Board's election proce-
dures."
Prior findings herein make it clear that in the instant
case the Laura Modes issue arises on the heels of a certi-
fication, a Board election, and a strike which began a full
month after the Union's demand for recognition had
gone unheeded, with Respondent failing to reply as to
whether it would or would not confer recognition.
Nonetheless, by direction of the Board herein, the mis-
conduct properly attributable to the Charging Party and
its agents must be balanced against the unfair labor prac-
tices which provoked the strike and its consequences, as
basic to the determination of whether the results of the
election will finally be enforced by Board remedy.
Before assessing the facts offered in substantiation of
Respondent's contention it is necessary to point out my
agreement with Respondent that misconduct, in connec-
tion with a strike and picketing at another nearby operat-
ing division of Respondent, herein called the Russell
plant, is relevant to the inquiry. The latter was located in
Lebanon, Virginia, about a half hour's drive from Hon-
alter. Since 1978, the Charging Party had been actively
engaged in an organizational drive at the Russell plant.
In support of the effort at Honaker, the Charging Party
initiated a strike at Russell on July 25, the day after the
strike began at the former. The Russell picketing was
part and parcel of a concerted effort in furtherance of
the dispute at Honaker as evidenced by the movement of
pickets on a regular basis from one location to the other,
unified demonstrations and common responsibility exer-
cised by union representatives with respect to both
sites. 17 Indeed, Bill Dennison, the union organizer,
charged with immediate responsibility for both picket
lines, described the overall effort as a "coordinated strike
. . . for the purpose of putting pressure on the Honaker
plant."
Respondent attempted to substantiate its Laura Modes
defense through almost 50 witnesses, who testified to
their experiences both proximate to and away from each
of the picket lines. A detectable tendency to exaggerate
IS 144 NLRB at 1596.
17 See stipulated testimony of Cecille Vest.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was reflected on the part of certain of these witnesses.
At the same time, those presented by the General Coun-
sel seemed prone to mitigate certain aspects of the con-
duct under scrutiny. In any event, an overview of the
facts shows that the strike continued for almost 4
months, ending in mid-November. Both plants continued
to operate throughout and there is no evidence of signifi-
cant disruptions in production. At no time during the
strike did Respondent seek to quell untoward conduct on
the part of strike participants through temporary re-
straining orders. In addition, no charges were filed
against the Union under Section 8(b)(1)(A) of the Act.
Despite the wealth of evidence adduced on behalf of Re-
spondent, there is no direct proof that company property
was violated by trespass on the part of any union official
involved," striker, or strike sympathizer, or that compa-
ny property was vandalized or damaged in any fash-
ion." Indeed, although nonstrikers during the course of
the strike crossed the picket lines from two to four times
daily, it does not appear that weapons, clubs, or other
paraphernalia of harm were brandished by those support-
ing the strike or that those continuing to work were the
object of any form of physical assault. There was no
clear evidence that pickets engaged in mass picketing,
blocking ingress and egress at either plant. Testimony
does persuasively establish that the strikers and others on
the picket line expressed their displeasure at the fact that,
as the strikers withheld their labor and sacrificed their
earnings, others took their jobs. This often took the form
of name calling, which from time to time included pro-
fanities and threats. 2 ° The more serious trepidations at
the picket line consisted of a single incident in which a
tire was flattened when a striker threw tacks under a
nonstriker's vehicle, the attachment of a sticker on a ven-
dor's vehicle, and the "tailing" of nonstrikers under con-
ditions which, with one exception, was lacking in inde-
pendent manifestation of harassment.
The most compelling evidence offered in support of
the Laura Modes issue consists of serious offenses of
anonymous origin to property visited upon nonstrikers at
locations remote from the picketed sites, but occurring
during the course of the strike. However, no clear credi-
ble evidence exists linking such offenses to union repre-
sentatives, strikers, or their allies.
12 There was evidence that an individual suspected as a "union repre-
sentative," apparently employed by an ILGWU shop, accompanied a
truckdnver from that firm to the property of Respondent When his pres-
ence was discovered, the individual was asked to leave, and did so with-
out incident
12 There was testimony that in the course of the strike, shots were
fired at a water tower at the Russell plant The evidence that damage
was done to the water tower was in the form of uncorroborated hearsay
Further, testimony offered in connection with this entire incident is sus-
pect insofar as it represents an attempt to link the incident with the stnke
action
20 Witnesses for the General Counsel testified that curse words were
not used In the total circumstances, this testimony was a bit too cleans-
ing and, considering the emotional nature of the conduct under scrutiny
herein, was regarded as inhuman and implausible
a. Conduct at the picket lines
(1) By nonemployee union representatives
John Downing was an organizer for the Upper South
Department of the ILGWU. He was not present on a
regular basis in the Honaker-Lebanon area during the
strike. He was implicated in alleged misconduct by two
witnesses for Respondent. Nonstnker Fayne Rhea testi-
fied that on the first day of the strike Downing, as a ve-
hicle in which she was riding approached the picket
lines, "got out in the road . . . waving his hands and
hollering 'stop." Nothing improper is suggested by this
description of Downing's conduct. Although Rhea testi-
fied vaguely that Downing "got out in the road," the ve-
hicle in which Rhea was riding passed without incident,
and her testimony does not clearly establish that Down-
ing assumed a position on the road calculated reasonably
to block Rhea's access.
The only other incident pertaining to Downing was an
effort to link him circumstantially with the discovery of
roofing nails in the driveway of a resident of a trailer
park situated across the road from the Honaker plant. In
this regard, Edna Lester, a nonemployee and the opera-
tor of the trailer park, claimed that in late July or early
August she discovered roofing nails behind her car.
Lester testified that about a week later she observed
Downing and 10 or 12 other pickets passing through her
dnveway inside the trailer park. According to Lester, "I
figured that they had more nails, so I . . . [followed]
them." The group was in route to the Union's trailer
which was located on property adjacent to the trailer
park. Patsy White was another resident of the trailer
park and a nonstriking Honaker employee." According
to Lester, she observed roofing nails in White's driveway
identical to those that she had removed from her own
driveway during the prior week. Lester asserted that she
later observed two women in Downing's group returning
through the trailer park. She claimed to have hollered to
them "don't come back over my property . . . this is pri-
vate property and you already threw enough nails on my
property and don't come back." 22 Her testimony implies
that she failed to identify those responsible for the strew-
ing of tacks in her driveway. Although she admitted to
having followed Downing and the others prior to her
discovery of tacks in the driveway of White, she ac-
knowledged that she did not observe how those tacks
got there." Although I have serious reservations con-
22 Lester testified that her daughter who lives in a different trailer but
rents that trailer space from Lester was an employee of Honaker who
continued to work throughout the strike No tacks or nails were placed
in her daughter's driveway
22 Mary Charles, a striker at Honaker, testified that certain pickets and
Downing did in fact cut across the trailer park that day to attend a Hard-
ship Committee meeting at the Union's trailer She testified that after the
meeting, as several of the pickets returned through the trailer park,
Lester reached down and picked up a rock, stating, in reference to
Downing, who apparently was not present, "if that black son-of-bitch
comes back up through here, I'll kill him" Lester did not squarely con-
tradict Charles in this regard
22 Patsy White confirmed that tacks were in her driveway on the day
in question
TOP FORM MILLS 1253
cerning the credibility of Lester, even assuming that the
facts were as she related, her account does not persua-
sively implicate Downing in any misconduct. While on
balance, since she was corroborated by White, I accept
her testimony that nails or tacks were scattered on the
driveway of the latter, the identity of the individual or
individuals responsible for this act is not established, and
no reasonable basis exists for imputing responsibility to
an employee or nonemployee representative of the
Union. It is noted that, except for this single instance,
there was no repetition of any violation of the property
or persons of the nonstriking employees who resided in
the nearby trailer park.
Bill Dennison was the ILGWU nonemployee organizer
in charge of both Honaker and Russell plants. He regu-
larly served in the area during the strike. Dennison was
implicated by Respondent in no less than 10 incidents
during the 16-week period of the strike. Thus, Kenneth
Sword, a truckdriver, assigned to the Russell plant, testi-
fied that beginning in early August, on two occasions,
Dennison followed him on trips. There is no evidence
that this occurred under menacing conditions or that a
breach of the peace resulted.24
Rhonda Helton, a nonstriking employee at the Russell
plant, was hired in August 1979. She thereafter worked
regularly for the duration of the strike and crossed the
picket line four times daily during the course thereof.
Nonetheless, she testified to a single incident involving
Dennison. Thus, she claimed that in August as she was
leaving work she stopped at the intersection leading
from the plant to the main road. Dennison approached
her automobile as she was waiting for the traffic, put his
arms on the window, and asked how long she had been
working and why "was we there taking somebody else's
jobs." Dennison added that they "couldn't get by with
taking somebody else's job." According to Helton,
Dennison, referring to the car in which Helton was a
passenger, stated that the driver "didn't need a job work-
ing down there anyway with a car like that." Helton
went on to testify that unidentified individuals on the
picket line simultaneously were "talking about how good
her car would look with flat tires and a different color."
Dennison apparently did not repudiate such remarks."
Fayne Rhea testified that she and her daughter Debby
Grubb were reporting to work on August 31 when, as
they turned off the main road into that which leads to
the factory, Dennison "reached out and hit the left front
fender of her daughter's car." No damage resulted, and
while, presumably, the hand or arm of Dennison came in
to contact with the car, the degree of force he employed
was undefined.
Charlotte Foleno, during the strike, was office manag-
er at the Honaker plant. She testified that it was her
practice to cross the picket line several times daily and
that on one such occasion, she stopped at the stop sign at
the intersection leading to the plant. Dennison and Diane
Harris, another nonemployee union agent, were standing
24 Sword also testified that Connie Hopson, a striker and member of
the orgamzing committee at the Russell plant, followed him under similar
otherwise tranquil conditions on two other occasions.
25 I credit Helton who was not employed by Respondent at the time
of the instant hearing.
in the road. Foleno claims that she motioned for them to
move, but that Dennison and Harris failed to respond.
Foleno was able to pass the car without hitting the latter
or the oncoming vehicle. Foleno further testified that, as
she passed, Harris called her a "bitch." Beyond that, it is
noted that Foleno's testimony does not, with certainty,
establish that Dennison and Harris actually blocked 'pas-
sage of her vehicle.
Honaker Plant Manager Jerry Couch testified that on
August 22 he observed Bill Dennison taking pictures of
the plant. Couch attempted to describe the objects pho-
tographed in the following terms: "From where I was
standing, it looked like . . . the factory and possibly
some of the vhicles that was parked in the parking lot."
The conjecture of Couch as to whether photographs
were taken of vehicles, was deemed speculative and un-
reliable. Further, there is no evidence that striking or
nonstriking employees were present at the time of this
early morning incident.
The most serious incident involving picket line mis-
conduct on the part of Dennison was admitted by the
latter. James Wolford was not employed by Respondent,
but by Kwik Kafe Company. Apparently, Wolford
crossed the picket line regularly during the strike to
vend refreshments to employees at the Russell and Hon-
alcer plants. He testified that in late August, as he was
passing through the picket line in route to the Russell
plant, "they . . . wanted to put a sticker on the truck."
Wolford claims that he shook his head "no" and contin-
ued. On leaving the plant, as Wolford pulled to the stop
sign, Dennison walked behind the truck and placed a
sticker on the vehicle. When asked to remove it, Denni-
son refused. In consequence, Dennison was subsequently
convicted in the local court of "defacing private proper-
ty."
Dennison was also linked to an altercation with plant
guard Will Ireson which allegedly occurred at a local
eating establishment. Ireson testified that on September
30 he, together with another plant guard, went to a res-
taurant where Dennison and Diane Harris appeared and
started "bad mouthing" the guards at the restaurant.
After words were exchanged, according to Ireson,
Dennison took a swing at him. Ireson's testimony was
uncorroborated. Harris and Dennison denied any such
incident. There is no other evidence of hostility between
Dennison and plant security personnel or indeed between
supporters of the strike and such individuals. Nor does it
appear that Dennison, during the strike, engaged in any
sort of physical altercation or assault on any person. I
did not believe Ireson. At the time of the incident, Ireson
was 6 foot, 6 inches tall and weighed 230 pounds. Denni-
son, on the other hand, was of moderate size and was de-
scribed by Ireson as small. He stood about 5 feet, 8
inches tall and weighed about 160 pounds. The guard al-
legedly in Ireson's presence at the time was described as
weighing 110 pounds but, as Ireson's account goes,
Dennison laid no challenge to the smaller man.
In addition to the above, I fmd that Dennison, in what
appears to have been an August press conference, articu-
lated to a reporter for the "Bluefield Daily Telegram"
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
words to the effect that "the Company would have a
hard time hiring scabs."
Considering the duration of the strike and the testimo-
ny of a credible nature indicative of Dennison's role
therein, convincing evidence does not warrant a conclu-
sion that he contributed directly to any overall pattern of
violence and intimidation.
Connie Brown was a nonemployee union organizer
who, though primarily involved in the picketing at Hon-
aker, also participated regularly at Russell. Several of
Respondent's witnesses identified her as having engaged
in picket line misconduct. Thus, Pat Price, a nonstriker
at the Honaker plant, related that on the first day of the
strike, as she turned off the main road, "Connie Brown
jumped out in front of me and was hollering stop, Pat."
Price claims that she had to put on her brakes to keep
from hitting her. To me Brown's action on that occasion
quite possibly was no more than a temporary, instantane-
ous effort to gain attention. Ethel Herndon, another non-
striking employee, testified that on July 30, at the Hon-
aker picket line, Connie Brown stated as follows, "Why,
you dirty low down scab. . you had better work while
you can . . . we are closing that god damn place
down." 26 Priscilla Dell testified to an incident occurring
at the Honaker picket line after she had applied for a
job. According to Dell, she was asked by a picket if she
had obtained a job and responded in the affirmative. Dell
went on to testify that Brown then asked her not to
cross the picket line. However, when Dell said she
would, according to Dell, Brown stated "if you do, we
will throw this car down the hill."27
Diane Harris was a nonemployee union organizer who
had primary responsibility at the Honaker picket line.
Harris was a former employee of Honaker Mills, but was
terminated on December 11, 1978. Prior to her termina-
tion, Harris was chairlady of the steering committee, an
organization of employees committed to the support of
the Union." Charlotte Perkins was a nonstriking em-
ployee at the Honaker plant Her brother Edgar Phillips
testified that Diane Harris in late August asked if he was
Perkins' brother. When he responded that he was, Harris
allegedly said, "Why don't you go down to the plant and
. . . tell Charlotte to get her god damned ass out of
there she don't below [sic] in there."" Jane Smith was
hired at the Honaker plant during the strike. Spencer
Burke was her boyfriend. Burke had purchased a "Cor-
vette sport car" for Smith which was the object of van-
26 Theresa Boyd, who applied for a job during the strike at Honaker,
but never worked there, testified that as she left the plant, 10 pickets
crossed in front of her but dispersed as she accelerated her automobile
She claims that someone from within that group twice told her "not to
come back no more" Boyd described the individual to her mother, who
opined that it was "Connie Brown" It is noted in this connection that
the attempt to impute said statements to Brown was predicated on uncor-
roborated, incompetent hearsay It is also noted that the testimony of
Boyd does not clearly establish that there was any attempt on the part of
the pickets on that occasion to obstruct her access to the main highway
27 Brown denied stating she would "tear the hell out of this car," or
using words to that effect On balance, I am willing to give Dell the ben-
efit of the doubt
28 See R Exh 13
29 A few days after this conversation, two tires were slashed on Char-
lotte Perkins' car The identity of those responsible was not established
on the instant record by direct evidence
dalism on Thursday, September 7. Burke claims to have
witnessed the incident and to have identified Connie
Brown and Diane Harris as the individuals responsible."
Smith and Burke pressed charges against the latter. The
matter never came for trial. Subsequently, however, after
Smith had terminated her employment at Honaker, the
couple confronted Diane Harris and others at a night
club in Bristol, Virginia. Smith and Burke testified that
the Harris party followed them 4 to 5 miles, cutting off
Smith's car twice. Harris testified that her group did in
fact encounter Smith and Burke at the night club, but
that they entered the club as Smith and Burke were leav-
ing and remained there until the early hours of the morn-
ing. Harris denied following Smith and Burke on that oc-
casion. I did not regard Smith and Burke as credible wit-
nesses. The version offered by Harris is viewed as the
more truthful.
Cecille Vest was the last of the nonemployee organizers
to be implicated in misconduct. Thus, Audrey Gilbert, a
nonstriking employee at the Russell plant, testified that
on two occasions in August as she was leaving the plant,
Cecille Vest, "set and blocked me for about 2 minutes,"
while pickets in Vest's car "snickered and laughed" and
called Gilbert names After this, according to Gilbert,
Vest simply returned to her parking space. Vest testified
to a single incident in which she backed out of her park-
ing space onto the road as Gilbert was exiting from the
plant. According to Vest, on observing Gilbert coming
down the road, she pulled back into the lot as quickly as
she could shift gears to allow her to pass. I was inclined
to believe Vest. Gilbert did not impress me as a trust-
worthy witness. Her attempt to attribute identical con-
duct and scenario on two separate occasions was viewed
as suspect. I prefer the testimony of Vest.
(2) Conduct attributed to identified strikers alleged
to be employee agents of the Union
From the advent of the union activity at the two
plants, various committees were established by the Union
in aid of its objectives at those sites. At the Honaker
plant, an employee organization committee was first es-
tablished in 1977 Apparently in September 1978, follow-
ing the election, a steering committee was elected com-
posed of Honaker employees with Diane Harris as its
chairlady. At the outset of the strike on July 24 at Hon-
aker, picket captains were designated and also during the
strike, a hardship committee was established. In addition,
following the election, a negotiation committee com-
posed of Honaker employees was formed.
At Russell an organizing committee was formed in
August 1978. After the strike began, picket line captains
were designated to police the conduct of the Russell
strikers.
There is no evidence that the organization committee,
steering committee, or negotiating committee functioned
at the time of, or had any responsibility with respect to
the picketing at Honaker. From all appearances on the
record, including the credible testimony of Bill Denni-
3° This issue is treated infra as anonymous conduct occurring away
from the picket line
TOP FORM MILLS 1255
son, I find that the only employees with responsibility
toward the conduct of the strike were the picket line
captains, the hardship committee, and the organization
committee at Russell. Indeed, since it does not appear
that strikers on the hardship committee had any responsi-
bility other than cushioning the impact of the strike upon
those individuals allied in common cause, serious ques-
tion exists as to responsibility of the Union for conduct
of those so engaged. Nonetheless, the following reflects
my findings with respect to conduct attributed to various
employee members of these committees.
Eva Mae Reynolds, a nonstriking employee at the
Russell plant, testified that on the first morning of picket-
ing at that location as she crossed the picket line, strikers
Catherine Whithed and Juanita Perkins called the non-
strikers "jaw suckers and scabs and pigs." According to
Reynolds, that same afternoon, she was told by strikers
Barbara Wise and Betty Fields that if she crossed the
picket line "they'd throw rotten eggs in my face." Fur-
ther, Reynolds claims to have been informed that be-
cause she signed a union card she could not cross the
picket line. Whithed and Wise were picket captains at
Russell. It is noted that the testimony of Reynolds does
not isolate with clarity whether the statements were ac-
tually made by the picket captains or others in their pres-
ence. Though possible, it is difficult to believe that the
statement attributed to Wise and Fields was made in
chorus.
Rita Hess, a nonstriker hired at the Russell plant the
day after the strike began, testified that on July 31 as she
was leaving work Connie Hopkins" yelled at those
crossing the picket line calling them "bitches . . .
whores. . . job suckers. . . scabs and fags."
Hazel Street, a nonstriking employee at the Honaker
plant, testified that in the course of the strike, prior to
September, striker Debby Justice and her husband, who
was driving the Justice automobile, harassed her while
she was in her vehicle. According to Street, while she
was getting gas Mr. Justice pulled into the station and
swerved as if he were going to hit her. As I understand
her testimony, as she left the gas station, he followed
her, tailgating closely behind. She goes on to claim that
Mr. Justice tried to run her off the road, and when she
pulled over to let them pass the Justice car took the lead
and threw its brakes on, while Debby Justice cursed
Street. Charges were filed and, although the reckless
driving charge was dropped, Debby Justice was found
guilty and fined $25 for cursing and abuse. It is noted
that Street admitted on cross-examination that, contrary
to her insinuation on direct, Mr. Justice did not try to
run her off the road. While willing to acept her testimo-
ny that she was followed by the Justices and cursed by
Debby Justice, her characterizations of the incident
beyond that are rejected. Street impressed me as prone
31 The record indicates that Connie Hopson was a picket line captain
at Russell. It is entirely possible that Hess in this instance was referring to
the latter. Although the record is unclear, I am willing to give Respond-
ent the benefit of the doubt and assume that this was the case.
to exaggerate and unreliable with respect to such mat-
ters. 3 2
Charlotte Hensley, a nonstriker at the Russell plant,
testified that in mid-September as she and other non-
strikers were returning from lunch, Sue Datsun, a strik-
ing employee, walked in front of them across the road,
stopped, and said, "Hit me by God, I'm paid for." An-
other nonstriker, Debbie Jones, was the driver of the ve-
hicle. Hensley's description of this incident was not cor-
roborated. In any event, although Hensley testified that
she thought that Datsun was with the union committee
at Russell, I am unwilling to credit her testimony in this
regard as no foundation is laid for her belief, and there is
no suggestion elsewhere that Datsun played any formal
role in the campaign.
Sue Wilson, a nonstriker at Russell, testified that on
August 21 she drove a company car to a gas station. She
claims that as she passed through the picket line, strikers
Lou Huffman and Connie Hopson entered a car. As
Wilson went into a gas station, Huffman and Hopson
went into a "Tastee Freeze" located on property adja-
cent to the gas station. According to Wilson, the strikers
ate, but after Wilson got gas they followed her as she re-
turned to the factory. Wilson admitted that there was no
attempt to communicate with her by either Huffman or
Hopson on this occasion. Huffman was a member of the
organizing committee at Russell and Hopson was a
picket captain and a member of the organization commit-
tee at Russell.
(3) Conduct attributed to nonagent, but identified
strikers
Nonstriker Sue Wilson further testified that on August
23 she, with her daughter, went to a nearby Montgom-
ery Ward outlet to pick up a package. She claims to
have observed striker Vaney Laney reach on a table and
pick something up. Observing this and believing that
Laney would come after her, Wilson went into the outlet
seeking assistance. When she returned, Vaney Laney was
across the road. He called her a "fat scab and a scaredy
cat." Wilson indicated that she was not afraid and was
not a "scaredy cat." Laney then allegedly said,"Now, I
got a job over there waiting on me, even a job over
you." Her daughter then returned to the car and they
left without incident. Although Wilson testified that she
guessed that Vaney Laney was on the union committee
there is no evidence to support her surmise."
Charlotte Hensley testified to a further incident at the
Russell picket line involving Vaney Laney. She claims
that during the course of the strike, as she was returning
to the plant from lunch, Laney stepped out into the road
in front of her car, yelling for Hensley to stop. She
claims that she swerved to the other side of the road and
ran off on the gravel to avoid Laney, but then continued
on to the plant.
32 Debby Justice was a member of the steering committee and negoti-
ating committee at the Honaker plant. It does not appear that she was
either a member of the hardship committee or a picket captain.
33 Although Wilson testified that Cecille Vest and Bill Dennison were
in the area, she admitted on cross-examination that they were not in a
position to overhear the conversation with Vaney Laney.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shirley Brown, a nonstriking employee at Honaker,
testified that a few days prior to her car being vandal-
ized, Debbie Mays hollered to Brown as she was passing
through the picket line, "You're going to get it." Debbie
Mays was not an employee of the Company, but she was
the sister-in-law of Joyce Mays, a strike captain.
Nonstriker Doris Stensen testified that as she was leav-
ing the Russell plant on October 12 the traffic officer
stopped her at the intersection, when Vaney Laney
yelled, "You god damn bitch, go to hell." According to
Stensen, Laney started to walk toward the car, and took
hold of the door handle. However, when the police offi-
cer signaled that Stensen move on, she proceeded. At
home, Stensen informed her husband of the incident.34
On cross-examination, it was developed that Stensen re-
turned to the picket line with her husband, who asked
Laney why he used abusive language to Doris Stensen.
As I understand her testimony, her husband wanted
Laney to cross the road and fight. Laney, according to
Stensen, "hid behind two women." 35 Laney's version
sharply conflicts that of Stensen. As to their initial con-
frontation, he admits to calling Stensen a "scab," at
which point Stensen called him a "son-of-a-bitch," while
raising a box containing a small revolver, showing it to
Laney, and stating, "I'll blow your damn head off." Ac-
cording to Laney, when Stensen returned to the picket
line with her husband that afternoon, the latter jumped
out of the car with a "T-bar," and while swinging it
asked Laney, "What have you been saying to my wife?"
Shortly thereafter the chief of police arrived and the in-
cident abated. Later the matter went to court and both
Stensen and Laney were found guilty of "curse and
abuse." As between the uncorroborated testimony of
Stensen and that of Laney, I prefer the latter's version. It
seemed the more probable, and I did not believe that
Laney, with a police officer present, would have grabbed
the door of the nonstriker's vehicle. Furthermore, his tes-
timony as to the second confrontation was corroborated
by Connie Brown.
Arbutus Forester was a striker at the Honaker plant.
Charlotte Foleno, the office manager, and Kathleen
Harris, Foleno's mother, who was also the engineer at
the Honaker plant, afforded mutually cooperative testi-
mony that Forester appeared to have thrown something
under Foleno's automobile as she crossed the picket line
on July 31. When she arrived at the plant, Foleno dis-
covered that a tire on the automobile had roofing nails in
it. Forester, though admitting that she had nails in her
possession that day, denied throwing them under the
Foleno automobile. I believe the testimony of Foleno
and Harris, and infer from their mutually corroborative
accounts that Forester did throw nails under the vehicle
that day.
34 Stensen's mother-in-law Juanita Pickett, a supervisor at the Russell
plant, was in the car with her Pickett did not testify
35 Stensen denied that her husband had a tire iron at the time, and she
also denied placing a handgun on the dashboard in the course of the inci-
dent and threatening to shoot Laney's brains out However, she admitted
that a firearm was kept at all times in an open box on the seat of her
automobile My disbelief of Stensen is so strong as to warrant rejection of
her further testimony that on July 26 someone on the picket line verbally
threatened her
Pat Price, a nonstriker at Honaker Mills, testified that
on a Saturday during the course of the strike her hus-
band was repairing her car at the plant. Only she, her
husband, the security guard, and her children were at the
plant that day. She claims to have observed Forester
going up and down the road adjacent to the plant ser-
veral times. Later, according to Price, the security guard
found a handful of tacks in the vicinity of the plant gate.
Price admitted that she did not see Forester throw the
tacks. However, she offered that the tacks were not
there when she came on to the plant property that morn-
ing. Forester's daughter lives on the road in question.
While I have taken into account the fact that Forester
did throw tacks under the Foleno automobile, I am un-
willing to find on the basis of Price's testimony that she
was responsible for tacks appearing on plant premises as
related by Price. It is noted that Forester was not a
member of any committee established to aid the organi-
zational effort at the Honaker plant.
Charlotte Foleno testified that as she was leaving
work during the course of the strike striker Debby
Wilson yelled, "Hey Charlotte, you might not ought to
leave here by yourself . . . you might not get back if
you know what is good for you . . . you won't be out
running around by yourself."36
(4) Picket line conduct attributed to the unidentified
With respect to conduct originating at the picket line,
it is noted that the record indicates that in addition to
strikers the picket line was manned by others, including
relatives, children and friends of strikers. Thus, some of
the evidence offered in this respect, could conceivably
have originated with nonstriking sympathizers. For ex-
ample, while uncontradicted testimony establishes that
there were no striking male employees at the Honaker
picket lines," Charlotte Foleno testified that in the
course of the strike when she went to lunch she was fol-
lowed by "two boys." Though Foleno was the office
manager at the Honaker plant, she could not identify
them. According to Foleno they simply followed her to
the restaurant, sat down across from her, and when
Foleno left, the boys returned to the picket line.
In addition, nonstriker Loretta Cooke, an employee at
Russell, testified that as she was crossing the picket line
and engaging in a conversation with Cecille Vest con-
cerning the identity of newly hired employees in the
plant someone from the picket line stated that they knew
where Cooke lived Doris Stensen claimed that on July
26, a woman on the picket line told her that if she "knew
what was good for my health, I'd better stay home the
next day." 3 8
38 Although Foleno testified that Connie Brown was on the picket line
that day, no foundation was laid tending to support a finding that Brown
would have heard the remarks attributed to Wilson
37 See testimony of Connie Brown
38 Bill Dennison was placed on the picket line at the time, but only
through prejudicially leading examination by Respondent's counsel Any
implications that Dennison condoned this conduct is weakened further by
the absence of any foundation whatsoever which would reasonably war-
rant an inference that he would have overheard the comment Dennison
denied that any such threat was made in his presence
TOP FORM MILLS 1257
Sue Wilson testified that on August 17 she left work
early only to have 12 to 14 pickets gather "around" her
car, calling her names, and waving their signs at her."
Respondent called several witnesses who testified as to
coercive language originating at the Honaker picket line.
Thus, according to James Wolford, an employee of a
vendor which sold refreshments to employees of Hon-
aker, someone from the picket line called "do you value
your life" as he passed. Pat Price testified that on July 24
someone in a crowd of 30 to 35 on the picket line hol-
lered that they "was going to beat my ass . . . and
they'd meet me up the road." 4 ° Jane Smith, who worked
briefly during the strike at Honaker, testified that when
she put her application in with the Company during the
strike Connie Brown and another girl from the picket
line were explaining the reason for the strike. While this
was going on a girl on the other side of the picket line
came over to the passenger's side of the window and
said, "You'd better not go to work if you know what is
good for you." 4 1
(b) Anonymous offenses to persons and property
occurring away from the picket line
The most serious of the offenses registered on this
record pertained to conduct occurring at locations re-
moved from the picketing. Thus, nonstrikers were sub-
ject to anonymous telephone calls of a threatening nature
and damage to their automobiles. Although there was
testimony as to shootings, in this respect, the evidence
was either viewed as incredible or as devoid of convinc-
ing link with the labor dispute. A.s for property damage,
it appears that in late July, a rash of such incidents oc-
curred in connection with vehicles parked at the homes
of nonstrikers. Thus, Rita Fields, a nonstriker at Hon-
aker, testified that on July 31, paint stripper was placed
on her car causing discoloration and damage An offer of
proof was entered to the effect that Fatema Rush, a non-
striker at the Russell plant, would testify that also on
July 31 her right rear tire was slashed.'" In a similar in-
32 This occurred when Wilson had stopped her car at the intersection
to the main highway and her testimony fails to convince that her access
was physically blocked by the pickets
40 Although Connie Brown and Diane Harris were named as present
on the occasion in question and also Diane Harris was identified as
having engaged in name calling, there was no evidence that Harris or
Brown were in a position to overhear the above threat
41 Although Connie Brown was presumably on the other side of the
car, and Smith testified that she said nothing after the remark was made,
the scenario is not developed to the point of permitting clear inference
that Connie Brown overheard the threat In any event, I have grave mis-
givings as to the credibility of Jane Smith and am unwilling to accept her
uncorroborated testimony Although Smith testified that her sister-in-law
was present at the time, the latter did not I estify Spencer Burke, Smith's
boyfnend, testified to another occasion in which he was crossing the
Honaker picket line and told "we'll get you" by an unidentified picket
Burke was an incredible witness, whose uncorroborated testimony is re-
jected
42 The offer of proof indicates that when Rush, together with her hus-
band, took the tire to the plant on August I, Vaney Laney volunteered,
"It wasn't a knife, it was an ice pick" Laney denied making such a state-
ment Rush's husband did not testify Laney indicated that he did have a
conversation with the husband of Rush, when the latter brought the tire
to the plant, but that said conversation was limited to an inquiry as to
whether Laney knew who had damaged the tire, and Rush's expression
of pique at having lost a day's work and wages in consequence of the
slashing I credit Laney
cident, Helen Russell, a nonstriker at the Russell plant,
testified that in late July a tire was slashed on her hus-
band's automobile Also Mildred Hubbard, a nonstnker
at Russell, testified that within that same time frame a
tire was slashed on her car. Another Honaker nonstriker,
Sandra Wallace, testified that in late July acid was
thrown on her car. Finally, Barbara Warden, a non-
striker at the Russell plant, related that in late July a tire
was flattened on her car and the word "union" was
scratched on its surface, and Audrey Gilbert, a non-
striker at the Russell plant, testified that at some point in
the strike, tacks were thrown in her driveway, causing
three flat tires."
Hazel Street, a nonstnker at Honaker, testified that in
September, at approximately 2 a m., the windshields
were broken in her husband's car, her son's car, and her
car. She further testified that having been awakened by
the crash she and her husband identified two vehicles
leaving the scene, namely, a blue car with a white stripe
and a pickup truck of undisclosed color. Street testified
that they obtained the tag number off of the pickup
which was traced to a "Larry Hagey." No evidence is
cited by Respondent linking Larry Hagey with the pick-
ets or the strike at either location. An independent can-
vassing of the record fails to confirm any such connec-
tion. Respondent's Exhibit 22 has not been overlooked.
Thus, this document was prepared by Jerry Couch, plant
manager at Honaker and is a listing of union representa-
tives and pickets whom he observed as being on the
picket line during the course of the strike, together with
a description of their vehicles and tag numbers. Included
on that list is a Betty Hagey. Although it appears that
Hagy was listed as having a maroon "P. U.," a descrip-
tion which I assume to be pickup, her name is spelled
differently from that which appears in the official steno-
graphic transcript for Mr. Hagey, and there is no inde-
pendent evidence suggesting a relationship between the
two. In the circumstances to link Larry Hagey with the
picketing at either plant would be an act of raw specula-
tion. Finally, it is noted that though the incident was re-
ported to state police, no charges were levied against
any individual in connection therewith
Charlotte Perkins, a nonstriking employee at Honaker,
testified that on August 22 a few days after Diane Harris
inveighed on her brother, Edgar Phillips, to dissuade
Perkins from crossing the picket line, she had two tires
slashed on her automobile Shirley Brown, also a non-
striker at Honaker, testified that on September 21, after
the sister of a picket captain at Honaker had warned that
43 I did not regard Audrey Gilbert as a particularly credible witness
However, I am willing to accept that her car was damaged during the
strike Another aspect of her testimony is rejected Thus, she claimed that
on the evening of July 29, four shotgun pellets struck the roof of her
home, leaving dents It was my impression that in that respect Gilbert
was testifying from personally held unconfirmed suspicion and deduction,
rather than direct knowledge of the facts and, accordingly, her testimony
was deemed unreliable But even were her testimony to be believed, this
record attests, through Respondent's witnesses, that the possession of
weapons was not an unfamiliar phenomenon in this particular area, and I
am not willing to conclude that simply because shots were fired at a time
contemporaneous with the strike, the supporters thereof may fairly be
deemed responsible Such a conclusion would be unduly speculative
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she would get it, had the word "SCAB" spray painted
on her car
Rita Hess, a nonstriker at the Russell plant, testified
that during the strike, she was awakened at approximate-
ly 1 a.m. by sounds coming from her driveway. She ob-
served persons in her driveway preparing to cut her
tires. The latter assertedly got into their car and departed
when discovered. Hess testified that the automobile was
a 1968 "Ford Galaxy car" and that the person on the
passenger side had long, light-colored hair. Hess' testi-
mony fails to disclose the color of that vehicle. Though
she claims that her own automobile was damaged as the
Galaxy left the driveway, she acknowledges that the in-
cident was not reported to the police. Elements of Hess'
testimony were viewed as suspect. The fact that Diane
Harris drove a Ford Galaxy, and had shoulder length,
long blonde hair would have been commonly known by
nonstrikers. Although it is possible that Hess, in the
middle of the night, could have picked out details sug-
gesting the possibility that Diane Harris was involved,
her testimony in this respect struck as too pat and,
indeed, I have reservations concerning her description of
the entire incident.
Brenda Dye, a nonstriking employee at Honaker, testi-
fied that on September 21, she discovered that her auto-
mobile had its bumper and tail lights painted red, with
the work "SCAB" painted in red letters across the trunk
At the time, according to Dye, she was living with her
sister. She testified that the night before, striker Betty
Hagy visited her sister to borrow a "pattern" at the same
residence where her automobile was damaged. She
claims that on that occasion Hagy looked at her "real
hard."
Bobby Hughes was not employed at either plant.
However, his daughters worked at Honaker during the
strike. He testified that on the last Saturday in August
paint and acid was thrown on his truck, resulting in per-
manent damage to the vehicle This occurred at the
Hughes' residence. Hughes further testified that on a
second vehicle, a broom handle or similar object was
used to poke a hole in the radiator of his car while
parked on the lot at the Honaker plant. This latter aspect
of the testimony of Hughes is deemed incompetent, as
plainly based on hearsay and personally held opinion.
Scrutiny of his testimony discloses that his daughters
used the car to drive to work that day, and that he dis-
covered the radiator problem when they returned that
evening, because the car was heating up. As his examina-
tion continued it became apparent that Hughes had
simply deduced that the damage must have occurred at
the plant. Hughes testified that his daughters did not
know how the damage to the radiator occurred. Neither
of his daughters was called to afford primary evidence as
to their experience with the vehicle that day. Although
Hughes testified that the vehicle was parked at the plant
parking lot between 6:45 a.m. and 3:30 p.m on the day
in question, no foundation for his knowledge of this fact
was offered.
William Ireson, a security guard, testified that while
his vehicle was parked at the Russell plant his windshield
was broken. At the time, Ireson claims to have been on
duty and that his van was parked lengthwise within com-
pany property at the main entrance to the plant. No
other incident of property damage within plant premises
is disclosed by acceptable proof herein. The record does
not include a photograph of the alleged damage done to
Ireson's vehicle, and he failed to identify the date of this
incident. Ireson as heretofore indicated was regarded as
an unreliable witness. My mistrust is sufficiently deep to
discredit the entirety of his testimony to the extent un-
corroborated. 4 4
Serious question exists as to credibility of testimony
surrounding damage to an automobile of Jane Smith.
The latter, for a brief period in September, crossed the
picket line to work at Honaker. 45 Smith owned a "Cor-
vette" automobile which was purchased for her by her
boyfriend Spencer Burke Jr. On Thursday, September 7,
in the middle of the night, the air was let out of two of
her tires, there were cuts in the body of the car around
the taillights, the hood was warped apparently due to
being forced, the passenger door had been kicked and
had a large scratch in it, and the carburetor had been
filled with soap powder. In consequence of this incident
warrants were sworn out agaisnt Connie Brown and
Diane Harris." The only evidence linking these nonem-
ployee, union representatives with the incident appears in
the testimony of Spencer Burke.
The vandalism occurred at the home of Smith in Rich-
lands, Virginia, approximately a one-half hour drive from
the Honaker plant, Smith testified that she first noticed
the damage to the car the next morning when she woke
up to go to work. According to Smith, she left the car
that evening at approximately 11:30 p.m. before going to
bed. Smith and Burke testified that that evening, Burke,
together with a friend, were rehabilitating a second car
owned by Burke which Smith intended to use in driving
back and forth from the plant. The repair work was to
be done at a garage in Swords Creek, which is located
between Honaker and Richlands.
Burke, who at times material, had his license revoked,
and who did not live at the same residence of Smith, tes-
tified that at approximately 2 or 2:30 a.m. as he and his
friend were returning the second car to Smith, they
turned down the hill leading to Jane Smith's home and
observed that the hood was up on the "Corvette," the
interior light was on, and two people "were in it." He
44 Also noteworthy is the testimony of Phillip Lawson, cocounsel for
Respondent, that several months before July 24, there were rumors that a
strike was possible As the rumors emerged, according to Lawson, he
met with Jerry Couch and Fayne Farmer, a management official at Rus-
sell Both were informed by Lawson to photograph property damage in-
cluding "tire slaslungs, windshield—whatever happened," and to take a
statement from the person affected and a photograph of the situation Al-
though Lawson testified that there were photographs in addition to those
that were placed in evidence by Respondent, there is no indication that
such a photograph was taken of the Ireson windshield, nor is there expla-
nation as to why no such photograph was placed in evidence The failure
of Ireson to identify the date of the incident suggests that no report was
made as per Lawson's instructions
45 I have heretofore discredited testimony that Smith had been warned
by someone on the picket line that she had better not go to work if she
knew what was good for her
46 Although the charges were scheduled for court hearing on several
occasions, they were not pressed An alleged eyewitness, who ostensively
would have corroborated Burke in identifying Brown and Hams, de-
clined to testify
TOP FORM MILLS 1259
testified that as he had two collectors' model Smith &
Wesson pistols in the car, his first instinct was to go to
the "Corvette" and see if the guns had been stolen. 47 He
testified that he noticed that the tires were flat, and that
because the guns were in the "Corvette," he returned to
the second car and without success he and his friend pur-
sued the vandals.
A shift in Burke's testimony appeared when he was
again questioned by Respondent's counsel as to what he
observed when he first arrived at Smith's home that
evening. The colloquy is set forth as follows:
Mr. Lawson: Okay, I would like you to go back
to where you first came up on them. How did you
see him?
Burke: Well, there was a street light at the house
and the interior light was on in the car too and our
headlights too. I got a real view of one of them
and—
Mr. Lawson: All right. I would like you to de-
scribe what you saw when you say you saw them in
your headlights in the street.
Burke: At the time, one was standing. The hood
was on the car. The one in the back was huddled
down about knee high to the rear right tire.
As soon as we turned the corner they ran. I don't
know what kind of car it was. The guy that was
driving said it looked to be a green Gremlin or
Pinto.48
In the darkness, and the quickness with which those
responsible would have left the scene, Burke claims that
he made a certain identification from 75-100 feet away
of Brown and Harris. He claims that one was tall, husky,
with long blonde hair, and the other had long, medium-
length hair. He admittedly had never seen Harris before
in his life." The precise identification came the next day
when Burke allegedly picked Harris and Brown out of
the Honaker picket line. When again questioned as to
how long .he observed the two individuals at the car,
Burke responded as follows: "When the lights turned the
corner, they ran around the side of the hedge and went
47 Jane Smith, in recanting what she apparently had been told by
Burke, made no reference to any pistols in the Corvette. Indeed, she testi-
fied that when Burke came down the hill Diane and Connie were ob-
served, with one at the tire and the other at the end of the hood. She
relates that "then they ran and Rick got out and got in the Corvette to
chase them. . . . It wouldn't start. . . so he got Lawrence to take them
[sic]." This phase of Smith's testimony is more consistent with a second,
contradictory version afforded by Burke as to what he first observed in
arriving at her house that evening.
48 Note also that while Smith testified that Burke did not alone take up
the chase in the "Corvette," because that car would not start, Burke testi-
fied that he went to the "Corvette," "took a look," and returned to the
second car to begin the chase because he "didn't have no license to
drive."
49 Interestingly enough, Burke testified that on a previous occasion,
when he visited the plant, Connie Brown and a bunch of pickets cursed
him, with an unidentified individual hollering "We'll get you, I'll get
you." Note the similarity between this incident and that which has been
discredited as described by Jane Smith. However, Jane Smith does not
corroborate that she was in Burke's presence when such a statement was
made. Smith testified that she was with her sister-m-law when she was
threatened. One wonders what Burke was doing in the vicinity of the
picket line without Jane Smith, when he had no license to drive and lived
quite a distance from the plant.
in the car . . . I had a pretty good look at them, espe-
cially a good look at the one on the right side of the
car."
A further interesting aspect of the testimony of Burke
pertains to the explanation that the second car was being
repaired because Smith held concern as to the propriety
of using the Corvette because of fears that it might be
damaged. However, on the evening in question, the Cor-
vette was admittedly left unlocked, with the keys and the
Smith & Wesson revolvers in it, which Burke valued at
$2000.
Diane Harris and Connie Brown deny being in the
area on September 6 or 7 or having had anything to do
with the damage of the Corvette." I credit their testi-
mony.
A further incident of anonymous conduct relates to
nails, thrown in Patsy White's driveway in the trailer
park located across the road from the Honaker plant.
White confirmed the testimony of Eva Lester that nails
were discovered in her driveway.
The only evidence of personal battery in the course of
the strike involved Ireson. Thus, he testified that on Sep-
tember 8, at approximately 12 midnight, he received a
black eye while struck in the head with a rock at the
Honaker plant. Ireson could throw no light on the identi-
ty of the individual that threw the rock. A somewhat
strained attempt to link this incident with the Union is
based on the admitted fact that Connie Brown and Diane
Harris frequented the top of the hill to the rear of the
plant during the day to observe trucks unloading. In this
respect, Jerry Couch testified that on September 18 he
observed Connie Brown and an unidentified individual
on the top of the hill, and again on the following day.
This, however, furnishes no basis for inferring that either
they or any other agent of the Union were involved in
the rock throwing incident in question.
c. Other anonymous conduct
Several witnesses called by Respondent testified that
they were victims of anonymous phone calls during the
strike. Nonstrikers Charlotte Perkins, Julia Cooke, Sally
Breedlove,51 and Rita Fields all testified that they began
90 Diane Harris admittedly changed the color of her hair, but neither
the length nor style at some time during strike. Although Harris initially
testified that this occurred some time between the start of the strike and
her going to court on the complaint of Jane Smith, she subsequently testi-
fied that she could not recall whether this occurred before or after her
first court appearance. Harris denied knowledge as to where Jane Smith
lived at the time of the incident. She denied doing any damage to the car
of Jane Smith on September 7, or having been with Connie Brown that
morning. Brown did nothing to change her appearance. Although the
change in Harris' appearance is suspicious, it fails to offset my strong dis-
belief of Burke and my impression that he was a thoroughly unreliable
witness. To the extent that this anonymous act of vandalism is claimed to
have been the work of Harris and/or Brown, I find that the credible
proof does not exist substantiating any such conclusion. I would also note
that the damage described here far exceeds that inflicted on property of
any other nonstriker.
91 Breedlove testified that in the first such call, though she could not
identify the caller, she was referred to as a "scrawny ass." She claims
that Charlotte Vance is the only person who had ever called her such a
name. I am unwilling to infer on that isolated basis that Charlotte Vance,
a picket captain, was responsible for the call.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receiving threatening, anonymous phone calls during the
period between July 31 and early September.
In another incident, Jerry Couch, the plant manager at
Honaker, testified that before employees reported for
work on the morning of September 26, oil was on the
pavement at the intersection leading to the Honaker
plant. The oil was not absorbed until 9:30 p.m. Although
Couch could not identify who was responsible for the
above, he testified that Diane Harris and steering com-
mittee member Shirley Honaker were on the picket line
that morning. In my opinion the evidence is insufficient
to link the incident with the Union or any of its agents.
Testimony adduced by Respondent indicates that two
bomb threats were made at the Honaker plant. The first
occurred on August 1 at 1 p.m. Iona O'Quinn, an office
employee, testified that she answered the phone and was
told that a bomb was planted in the factory and set to go
off at 1:45 p.m. The employees were evacuated to the
parking lot where they remained outside for some 30 or
35 minutes. The threat occurred in the context of an un-
usual demonstration by the strikers. According to the
credited testimony of Plant Manager Couch, while pick-
ets in the past in small numbers had repaired from the
intersection to the front of the plant at no time prior to
August 1 had this occurred en masse. Union representa-
tive Dennison acknowledged that a press conference had
been arranged previously for 1:30 p.m., on August 1, at
the picket line. It appears that prior thereto a large
group of pickets marched to the plant itself where they
conducted a brief demonstration at times reasonably con-
temporaneous with the bomb threat. Connie Brown, ac-
cording to Couch, was on the picket line when the bomb
threat was received, but prior to that had left the picket
line with another unidentified individual who did not
return.
Couch testified to a second bomb threat on September
5. In this regard, Couch testified that Connie Brown was
not on the picket line when the second threat was re-
ceived, but that she arrived shortly thereafter.
In addition to bomb threats, two plant security guards
testified that they detected separate shooting incidents in
the vicinity of the Russell plant during the strike Thus,
Larry Browning testified that shortly before termination
of the strike, on November 12, while he was on duty at 8
p.m. he heard three shots fired from a field directly in
front of him as he was sitting in his car near the main
gate to the Russell plant. He claims to have seen a
muzzle flash on two such shots, and that in all 8 to 10
shots were fired, which he approximated to have struck
the ground within 10 feet of him. 52 It was the sense of
52 Serious question exists as to whether this act related to the strike
The strike ended in mid-November, and despite the plethora of incidents
litigated on this record, apart from the discredited testimony as to an in-
cident occurring in Bristol, Virginia, as described by Jane Smith and
Burke, the most recent incident occurring in connection with the strike at
the Russell plant was on October 12 and Involved the picket line con-
frontation involving Vaney Laney, Doris Stensen, and the latter's hus-
band Furthermore, no employees or pickets were present at the time of
the incident described by Browning There unquestionably would be a
tendency to attribute to the strike every anonymous act of vandalism
which occurred in areas proximate to the plant at times contemporaneous
with the strike Ordinary experience reflects the danger of endorsing such
conjecture
Browning's claim that he immediately telephoned the
Lebanon police and they responded in about 3 minutes.
The police neither saw anything nor found anything.
Plant guard Ireson, who previously has been deemed
incredible, testified to two incidents involving shootings
in the area proximate to the Russell plant. Ireson testified
that in August, at dusk, when he first started working
there, "three shots were fired at me from an old house
on the top of the hill near the Russell plant." Ireson did
not know who fired the shots but claimed that he called
the police. Ireson related that the shots hit "two or three
feet in front of him." He asserted that although the
police officer "dug around" to try and find the bullets
none were located
Ireson testified to another occasion, when shots were
fired at the Company's water tower. Although two other
guards were described as on duty at the time, neither
was called as a witness. Ireson declared that 10 to 12
shots were fired. While Ireson claims that the incident
occurred "one evening late," he incredulously asserted
that one of the security guards took a pair of binoculars
to see if there were any holes in the water tank while
Ireson called the police. According to Ireson, the police
found holes in the water tower and also discovered
"three weapons in the house" on the hill. No search of
the house ensued, according to Ireson, as the police ex-
plained that a warrant would be necessary. No indication
exists that Respondent attempted to secure a warrant or
the identity of the occupants or owners of the house on
the instant record. These omissions are somewhat curi-
ous. In addition, while untoward events during the
course of the strike were to be made the subject of a
report, here again Ireson could not isolate the incident as
to time I am not convinced that these shootings had
anything to do with the union campaign.
d. Concluding analysis
To my knowledge, this is the first case in which the
Laura Modes defense has been recognized as viable in the
context of a strike for the sole objective of securing rep-
resentational rights gained by employees through an
election conducted under the auspices of the National
Labor Relations Board. Before considering the prece-
dent, it is noted that the injection of this issue in this
type of proceeding and at this point in the course of
struggle for representation collides with the general
charge that questions concerning resolution be expedi-
tiously resolved. Certainly, there is a technical legal dis-
tinction between the procedures through which the
Board polices the atmosphere in which votes are cast
and results determined pursuant to election petitions, and
the unfair labor practice procedure through which those
results are enforced by Board remedy. Nonetheless,
working men and women who have struggled long and
hard to secure the Section 7 right to bargain through an
agent of their own choosing would naturally find it diffi-
cult to perceive of such distinction. Their confidence in
the peaceful procedures of the National Labor Relations
Board is hardly enhanced by delays inherent in litigation
of complex issues, which might be disposed of elsewhere.
This is not to say that the Laura Modes doctrine is un-
TOP FORM MILLS 1261
sound generally. However, the problem with that princi-
ple, when invoked to an ongoing postelection dispute
over representation, is the wealth of litigation invited by
standards so vague as to hinder: (1) rejection of the de-
fense as insubstantial before hearing, (2) exclusion of time
consuming trivia at hearing, and (3) distillation of an un-
certain policy into legal conclusions after the record is
made. For, the dimensions of this doctrine transcend
qualitative assessment or rational explication. Ultimately,
the result will turn upon feel and personal reaction, judg-
mental factors which themselves nurture the delaying in-
fluences of extended deliberation, indecision, and division
within the the decision-making process. Concern exists in
this quarter as to whether the statutory policy encourag-
ing employees to utilize Board election procedures will
suffer disproportionately to the gains to be realized by
application of Laura Modes to conduct occurring after an
Board election and in furtherance of a dispute limited in
objective to employee efforts to enforce the choice made
pursuant to the statutory scheme.
Strike violence, apart from Laura Modes, has always
been regulated through civil, criminal, and statutory
sanctions: Rather than inject the former as a further ob-
stacle to summary enforcement of certifications under
Section 8(a)(5), misconduct related thereto could be rel-
egated to 8(b)(1)(A) proceedings, in which event, should
the evidence reflect an established pattern of intimidation
and violence, conventional redress could include an ad-
monition that the fitness of the statutory representative
would be subject to future review in the event of re-
emerging substantial misconduct."
As matters now stand, however, the procedural histo-
ry of this case demands that findings be made with re-
spect to the above misconduct on the basis of extant
precedent. Regrettably, this determination can only be
made by reconciliation of the above fmdings against di-
verse fact patterns, with final analysis turning more • on
my perception of trend than logically communicated as-
sessment of factors which, though deemed relevant, since
Laura Modes have been the object of shifting values and
dispositions more aptly described as conclusionary than
elaborately rationalized.
First, the landmark case of Laura Modes, the bargain-
ing order was withheld in the face of overt acts of mis-
conduct by nonemployee union representatives in the
course of an initial organizational campaign. However,
unlike the instant case, a Board election was not in-
volved, and the union established its majority on the
basis of signed authorization cards. During the course of
that campaign, the employer reacted with serious unfair
labor practices undermining the union's majority. Indeed,
on the day after the employer assembled its employees,
advising them that it had no intention of meeting with or
entering an agreement with the union, a union business
agent, together with eight nonemployee union members
invaded the plant, assaulting one of the owners of the
business and jostling others. On the following day a
strike began. During the course thereof, a striker pointed
out a second owner of the business to four to nine un-
53 See, e.g., Great Chinese American Sewing Co., 227 NLRB 1670, 1671
fn. 6 (1977).
identified individuals, who thereafter assaulted and beat
the latter. The Board, while concluding that, in the cir-
cumstances, the employer's refusal to confer recognition
violated Section 8(a)(5), viewed the "atmosphere of vio-
lence and intimidation" inspired by the Union as preclud-
ing the grant of an affirmative bargaining order. In doing
so, the Board stated:
[W]e cannot, in good conscience, disregard the fact
that, immediately before and immediately after it
filed the instant charges, the Union evidenced a
total disinterest in enforcing its representation rights
through the peaceful legal process provided by the
Act in that it resorted to and/or encouraged the use
of violent tactics to compel their grant. Our powers
to effectuate the statutory policy need not, we
think, be exercised so single-mindedly in aiming for
remedial restortation of the status quo ante, that we
must disregard or sanction thereby union enforce-
ment of an employer's mandatory bargaining duty
by unprovoked and irresponsible physical assualts of
the nature involved here. We recognize, of course,
that the employee's right to choose the Union as
their representative survives the Union's miscon-
duct. But we believe it will not prejudice the em-
ployees unduly to ask that they demonstrate their
desires anew in an atmosphere free of any possible
trace of coercion. . . . We conclude that, in the
particular circumstances of this case, the Policies of
the Act and the legitimate interest of the public and
the parties will best be served by denying to the
Union the right to invoke our statutory processes in
aid of a demand for recognition as bargaining repre-
sentative of Respondent's employees unless and
until it demonstrates its majority among those em-
ployees through the Board's election procedures.54
The newborn doctrine was again considered in United
Mineral & Chemical Corp., 155 NLRB 1390 (1965),
where the Board, in discounting serious misconduct on
the picket line during a 65-day strike, distinguished
Laura Modes. The Board reasoned that, there, the union
persisted in efforts to enforce its statutory rights through
the Board processes, and further observed that the four
to five incidents of serious misconduct were attributable
to only two strikers, and all took place "in the heat of
picket line tensions, and do not appear to be part of a
plan of intimidation." Accordingly, the Board having
also found that the union obtained a majority on a basis
of signed authorization cards, and that the employer en-
gaged in unfair labor practice undermining the union and
evidencing a rejection of the principles of collective bar-
gaining, entered an affirmative bargaining order. Howev-
er, that order was not enforced by the Court of Appeals
for the Second Circuit. 55 The court disagreed with the
Board's evaluation of the misconduct, indicating disap-
proval of the Board's conclusion that the evidence failed
to reveal that the strike misconduct was "part of a plan
of intimidation." The court, after weighing such miscon-
54 144 NLRB at 1596.
55 391 NLRB 829 (2d Cir. 1968).
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct against the employer's unfair labor practices, denied
enforcement of the bargaining order.
Later, the Board itself applied Laura Modes to picket
line miscondcut in Aircraft Mantel & Fireplace Co., 174
NLRB 737 (1969). In that case there had been no bar-
gaining history, but during an initial organizational cam-
paign, the union obtained signed authorization cards
from a majority. As in Laura Modes there was no Board
election. However, a strike was called under conditions
in which the employer would clearly have been apprised
of the extent of the Union's representative status. Al-
though the employer's refusal to extend recognition was
not accompanied by independent unfair labor practices
calculated to undermine the union's majority, an 8(a)(5)
violation was found on the, since beclouded, theory that
the employer was not free to assert "a genuine or sincere
doubt that the Union did have majority authorization"
The Board adopted the trial examiner's conclusion that
redress of this 8(a)(5) violation would be withheld be-
cause of numerous acts of violence and misconduct on
the picket line, including vandalism to respondent's
premises, the placement of nails under vehicles entering
said premises, mass picketing, threats of bodily harm, the
paint bombing of the homes of nonstrikers, and the
throwing of a cup of coffee by a nonemployee union rep-
resentative into the face of the employer's owner. In that
case, the Board affirmed the conclusion that the intimi-
dating misconduct was part and parcel of a "plan of in-
timidation" unprovoked by the employer, and occurring
in a context in which the employer's refusal to bargain
was the sole unfair labor practice, and did not itself re-
flect ". . . the basis for finding antiunion animus." The
trial examiner, in applying Laura Modes and withholding
a bargaining order, stated:
. . . I find nothing from which I would assume in
the light of everything else that happened that the
Union in this case had a genuine and continuing in-
terest in having its statutory right to recognition en-
forced or determined by the Board's process.56
In Allou Distributors, 201 NLRB 47 (1973), Laura
Modes was followed in the context of an established bar-
gaining relationship. There, the employer had unlawfully
induced decertification activity by promising benefits to
induce withdrawals from the union and by its direct in-
volvement in the preparation and circulation of a petition
in support of decertification. In consequence of that ac-
tivity, a decertification petition was filed with the Na-
tional Labor Relations Board. By virtue of these unfair
labor practices, the company's refusal to recognize on
the basis of the doubt of the union's majority was found
to be a violation of Section 8(a)(5). However, the facts
also revealed that the union, during the decertification
activity, was informed by an employee that he alone had
remained sympathetic to the union, and that all others
had signed a petition to leave the union. The next morn-
ing the union responded with six nonemployee union
representatives who literally invaded the company's
premises, confronting, in full view of others, employees
responsible for the decertification activity and threaten-
ing them and their families with reprisals if they persisted
in their efforts to withdraw from the union. In addition,
one of the owners was physically assaulted by two union
representatives. The conduct of the union representatives
was described by the administrative law judge as ". . .
the invasion of the Company's warehouse . . . by a rela-
tively large number of union representatives, who ig-
nored the protest of the employer, who effectively dis-
rupted the employees' normal work activities, and who
behaved as if they were in control of the premises, cre-
ated a potential for violence and placed the employees in
fear of physical harm and loss of employment"
In another case of overt violence by nonemployee
union officials, the Board revoked a union's decertifica-
tion. See Union Nacional de Trabajadores (Carborundum
Co.), 219 NLRB 862 (1975). In that case, though the
union had been recently certified in a Board-conducted
election, the violence erupted in consequence of matters
unrelated to a continuing recognitional dispute or to any
other unlawful conduct on the part of the employer. The
Board in revoking the certification relied not only on the
"brutal and unprovoked physical violence" established
on the record before it but also on the basis of that par-
ticular labor organization's "extensive record of similar
aggravated misconduct in other recent cases" both of
which "evinced an intent to bypass the peaceful methods
of collective bargaining contemplated in the Act and
commonly accepted and practiced by labor organizations
and employers throughout the country."57
The reluctance of the Board to apply Laura Modes to
strike misconduct, where provoked by serious unfair
labor practices on the part of the employer, was plainly
suggested in Grede Foundries, Inc., 235 NLRB 363, 364
(1978). The labor organization in that case had enjoyed
an established bargaining history dating back some 15
years. The Board granted a bargaining order, stating:
"[lit is beyond peradventure that but for the Company's
antecedent unfair labor practices the Union would not
have engaged in a strike to protest the Company's un-
lawful acts, and thus would not have been in a position
to commit the violations . . . which accompanied its
strike." As further observed by the Board:
[I]t was the Company that set in motion those
events which ultimately resulted in the multiplicity
of violations of the Act found herein, and which
were begun for the express purpose of undermining
the collective-bargiamng process by unlawfully at-
tempting to deny to its employees the right to rep-
resentation by their collective-bargaining agent
which had represented them continuously for
almost two decades
The trepidations by the union dunng the course of the
strike in that case included mass picketing and physical
obstruction of access to the plant. Threats were made by
a nonemployee union representative and, in one instance,
that same union representative threw a brick from the
picket line, in the presence of other strikers, after which
56 174 NLRB at 744 57 219 NLRB at 863
TOP FORM MILLS 1263
a nonstnker was followed by him and other strikers with
tailgating so close as to actually make contact with the
bumper of the nonstriker's vehicle. It also appeared that
threats of physical harm to nonstrikers and their families
were continuous, property was vandalized, nonstrikers
were physically assaulted, and roofing nails were scat-
tered by nonemployee union representatives. On one oc-
casion, the tailgating of an automobile of a nonstnker
was accompanied by the use of a slingshot against it. A
nonemployee union representative was identified as in-
volved in the throwing of a board with steel spikes
under the front tires of a truck crossing the picket line
and in spraying an Irritating substance into a car carrying
nonstrikers, as well as the placement of a firecracker on
the side of a nonstnker's autombile as it passed through
the picket line. A nonemployee union representative was
also found to have shot pellets at automobiles of non-
strikers. 5 8
In applying Laura Modes and withholding an 8(a)(5)
remedy, the administrative law judge concluded:
. . that this is a case in which, soon after the issu-
ance of the complaint against the company, the
Union lost interest in enforcing employee rights by
lawful means and called the strike with a deliberate
plan of intimidation and violence which continued
for over a month and resulted in a multiplicty of
violations of the Act by the Union hardly less grave
than the company unfair labor practices which gave
rise to the strike
A Board panel, Chairman Fanning and Member Jenkins,
with Member Murphy dissenting, reversed as to this
issue. The majority agreed with the administrative law
judge that five factors are releN ant to consideration of
whether to deny a bargaining order because of miscon-
duct in the face of an 8(a)(5) finding They are as fol-
lows:
1 The extent of the Union's interest in pursuing
legal remedies
2. Evidence of deliberate planning of the acts of
violence and intimidation attributable to the Union.
3. Whether assaults by union advocates were pro-
voked.
4. The duration of the Union's misconduct; and
5. The relative gravity of the Union's misconduct
as opposed to that of the Company.59
The Board majority nonetheless disagreed with the result
reached by the administrative law judge in applying
these standards to the facts involved and granted the
8(a)(5) bargaining order.
In New Fairview Hall Convalescent Homes, 206 NLRB
688 (1973), the administrative law judge withheld a bar-
gaining order under authority of Laura Modes in the face
58 In addition to the foregoing, the Union was found not responsible
for extensive damage of an anonymous nature expenenced by nonstnkers
with respect to their property away from the picket line Thus, one night
three nonstrikers discovered that their cars had been damaged by fire
Later, another nonstnker awoke to find the porch of her apartment on
fire which resulted in an explosion and complete destruction of her apart-
ment
59 See also Livingston Shipbuilding Co, 244 NLRB 119 (1979)
of what he considered to be "serious acts of misconduct"
during a strike. He relied on the following incidents of
misconduct perpetrated in the main by acknowledged
union representatives.
. . . I find and conclude that Union Representative
Brown accompanied by striking employees forcibly
entered the Employer's nursing home during the
strike; Union Representative Brown accompanied
by striking employees and others followed nonstrik-
ing employees to and from work and repeatedly
threatened them with physical harm and property
damage; striker Dean, also picket captain for the
Union, called in a bomb scare to the nursing home
during the strike; Union Representative Ciulla
threatened nonstriking employee Rich with proper-
ty damage; Union representatives participated in
mass picketing, blocking the ingress and egress of
nonstrikers and banging on cars: Union Representa-
tive Monco kicked a car and cursed at and threat-
ened management and, thereafter, attempted to run
one of the Company's representative off the road
during the strike; striker Dean threw small rocks or
pebbles at a supervisor's car attempting to leave the
facility during the strike; strikers Mary J. Fazzmo
and Linder Alger assaulted a representative, non-
striker, and damaged her property; and union repre-
sentatives threatened, followed and harassed man-
agement's representatives as they attempted to enter
and leave the facility. And, as found supra, . .
even before the strike union representatives repeat-
edly attempted to enter the Employer's facility
without permission. 6 6
The Board found that the employer violated Section
8(a)(5) by rejecting the Union's demand for recognition
in the face of designation by a majority through signed
authorization cards and thereafter engaged in pervasive
and extensive acts of coercion and restraint and interfer-
ence with employee rights so as to undermine their sup-
port of the Union. The Board reversed the administrative
law judge's conclusion that a bargaining order was Inap-
propriate in the face of the aforedescnbed strike miscon-
duct In rejecting Laura Modes, the Board stated as fol-
lows:
We do not condone any picket line violence, and
the processes of this Board are available to prevent
its recurrence, as is evidenced by the 8(b) proceed-
ing herein. But we also are reluctant to deprive a
substantial group of employees of the benefits of
collective bargaining because of the misconduct of a
few miscreants. Here, looked at in perspective,
there were but few instances of misconduct by a
relatively small proportion of strikers, which oc-
curred only sporadically in the context of a 4-month
long stnke and against the background of Respond-
ent's frequent and recurring unfair labor practices.
Viewed in that light, while recognizing that the
matter is not altogether free from doubt, we have
6 ° 206 NLRB at 752
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluded that the extraordinary sanction of with-
holding an otherwise appropriate remedial bargain-
ing order would not best effectuate the policies of
the Act.61
In Great Chinese American Sewing Co., 227 NLRB
1670 (1977), the Board found that strike misconduct did
not reflect a sufficiently total disinterest on the part of
the union in pursuing the "peaceful legal process provid-
ed by the Act. . . and hence, did not warrant withhold-
ing an otherwise appropriate remedial bargaining order."
The Board indicated, however, that "a further repetition
of conduct attributable to the Union in cases coming
before the Board will be scrutinized with a view to with-
holding our remedial process."
Under the above holdings, I am not convinced that
Laura Modes affords relief to Respondent herein. The
strike herein did involve serious misconduct, but the
latter for the most part was anonymous and effected
away from the picket line and inferentially linked to the
strike by virtue of timing and the fact that nonstrikers
had been victimized. Any finding that union representa-
tives contributed to an atmosphere of violence or intimi-
dation is handicapped by the fact that direct evidence
links their misdeeds to sporadic incidents and that which
could not be viewed as extraordinary in the tense atmos-
phere created by a strike at two locations in the face of
an employer's continued operation transpiring over a
period of almost 4 months. In contrast to the anonymous
conduct, the conduct of strikers and their supporters at
the picket line was, for the most part, tranquil and, de-
spite abusive language and threats, it is noted that the
threats were scattered. Thus, threatening language was
attributed to unidentified strikers on only four occa-
sions, 62 by a nonemployee union representative on one
occasion," a picket captain on one occasion, 64 and only
one instance where a threat was uttered by an identified
striker." Beyond the foregoing, aggravated vandalism
was experienced by nonstrikers who were victimized by
anonymous phone calls and damage to their automobiles.
Also of unknown origin, was an oil spill and two bomb
threats. At the same time, however, the property of Re-
spondent was respected, physical assaults upon non-
strikers were absent, and there was no mass picketing
foreclosing ingress and egress to the plant.
With respect to the anonymous conduct, it would be
difficult to conclude that all was totally divorced from
the strike action. At the same time, however, it does not
necessarily follow that every act of vandalism sustained
by a nonstriker during a lengthy strike was at the hands
of strikers, union representatives, or others subject to
control of the latter. Reliance on anonymous conduct to
influence a hard fought representation dispute is always
hazardous and may well encourage sinister behavior on
the part of elements in a community that may, perhaps,
oppose unionization. In any event, vandalism is often
61 206 NLRB 688, 689 (1973), affd 520 F 2d 1316 (2d Cir 1975) See
also General Iron Corp, 224 NLRB 1180 (1976)
62 See testimony of Wolford, Stensen, Cooke, and Pnce
62 See testimony of Dell
64 See testimony of Shirley Brown
65 See testimony of Foleno
senseless and without ulterior motive, and the possibility
is ever present that at least some of the malicious mis-
chief of an anonymous nature herein was a matter of co-
incidence. There is also the possibility in a case such as
this where relatives, friends, and children are actively en-
gaged in support of the strikers, that forces are unleased
which are beyond the knowledge and control of the
union, or indeed, even the strike participants. In short,
third party conduct is a dangerous predicate for applica-
tion of the remedial disqualification envisioned by Laura
Modes.
In any event, even if the third party conduct evi-
denced on this record by credible proof were attributable
to the Union, the Board has heretofore etched its con-
cern as to the applicability on Laura Modes to strike mis-
conduct. Only once has the Board withheld remedy in
connection with a recognitional strike. 66 In that case,
however, there was no Board election and the refusal to
bargain charges were not filed until some 5 months after
the violent strike began. Furthermore, the employer had
engaged in no unfair labor practices reflective of animus,
and, indeed, might not even have been guilty of a refusal
to bargain under the present state of law. 67 In stark con-
trast to Artcraft Mantle, the Board declined to follow
Laura Modes in Grede Foundries, supra, and Fairview
Nursing Home, supra." This misconduct involved here
did not measure up to the atmosphere of intimidation
presented in either of the latter cases. The evident trend
away from a withholding of remedial processes in conse-
quence of strike violence is not only consistent with the
fact that the "fitness" of the exclusive representative is
the focal point of Laura Modes, but comports with re-
sults in other areas where the Board has been called
upon to exercise its discretionary remedial authority
Thus, in Union de Tronquistas Local 901 (Lock Joint Pipe
Co.), 202 NLRB 399 (1973), the Board declined to direct
a union to afford backpay to employees who sustained a
loss of work as a result of strike violence. The Board
stated as follows.
The extension of backpay liability to a situation
where, as here, only picket line misconduct has oc-
curred involves important considerations going to
the heart of the right to strike under Sections 7 and
13 of the Act. Those sections of the Act have been
called the safety valves of labor management rela-
tions. Emotions run high among those for and those
against the union. Regrettable [sic], sometimes there
is violence and the threat of violence. This we de-
plore and in no way condone. However, adequate
remedies under the Act other than backpay exist to
prevent the occurrence of violence without interfer-
ence with the right to strike.
. . . .
To do more, in our opinion, runs the risk of in-
hibiting the right of employees to strike to such an
66 Artcraft Mantle & Fireplace Co, supra
67 See NLRB v Gissel Packing Co, 395 U S 298 (1969)
66 See also World Carpets of New York, 188 NLRB 122 (1971), Pacific
Abrasive Supply Co. 182 NLRB 329, 331 (1970), Martin Arsham Sewing
Co , 244 NLRB 918 (1979)
TOP FORM MILLS

1265
extent as to substantially diminish that right. For the
misconduct of a few pickets may be sufficient to
find the Union in violation of Section 8(b)(1)(A)
and enough to intimidate many employees . . .
Faced with this financial responsibility, few unions
would be in a position to establish a picket line. In
our opinion, union misconduct of this nature, while
serious, does not warrant the adoption of a remedy
so severe as to risk the dimunition of the right to
strike, a fundamental right guaranteed by Sections 7
and 13 of the Act.
Whether the withholding of access to the remedial
process of the Board under Laura Modes would serve to
impede the statutorily protected right to strike may well
be debatable. But the thinking of Lock Joint Pipe, may
come into play more directly when one considers the
impact of Laura Modes upon employee resort to the
peaceful representation procedures of the Board. Here,
for example, the employees rather than resort to other
forms of pressure elected to secure union representation
through those processes. Thus, the representation peti-
tion was filed in June 1978 and the election conducted in
August 1978. Despite overwhelming designation of the
Union, a certification of representative did not issue until
June 1979. The Union demanded negotiations on June 20
and, not having been extended the courtesy of a clear ex-
pression of position by Respondent, finally struck on
July 24. 69 To date, employees have not reaped any of
the benefits of their freely expressed choice, and it is pre-
dictable, in the most absolute terms, that no final answer
will be afforded in the near future. Although the Em-
ployer's refusal to bargain in this case did not occur in
the context of collateral unfair labor practices, and itself
was free from union animus, its conduct in that regard
contributed to delay, prejudiced employee choice, and
contributed exclusively to the determination of employ-
ees to resort to self-help. In my opinion, Laura Modes, if
at all relevant to postelection strikes which merely seek
employer compliance with a certification, should stand
on no different footing than recognitional stnkes pro-
voked by egregious, pervasive, or other employer unfair
labor practices precluding the conduct of a fair election.
In the latter, application of Laura Modes has no impact
upon, and does not render futile, the pursuit of represen-
tation claims through Board procedures. In the former,
however, the dishonor of a certification, whether or not
in good faith, also creates a volatile condition suggesting
to employees that time expended in the representation
proceeding was futile. The resulting unrest in either type
of recognitional dispute carries the potentional for strike
action with its inherent proclivity for violence. To apply
Laura Modes to such postcertification strikes is to send a
clear message to employees that patient adherence to Na-
tional Labor Relations Board representation procedures
has produced a nullity. At a minimum, that result ought
89 Although Respondent claims that the Union's delay in filing the In-
stant 8(aX5) charges til August 15, some 3 weeks after the strike began,
evidenced a disinterest in utilizing the peaceful processes of the Board,
any such view must be considered in the light of Respondent's persistent
and continuing failure to afford the Union the benefit of direct communi-
cation as to whether or not it would honor the certification
to be reserved to unmistakably extreme, egregious con-
duct, which is directly traceable to the designated union.
Only in such circumstances should employees, several
years later, be required to climb that ladder anew.
Based on the foregoing, I am convinced that in order
to preserve the integrity of the Board's election proce-
dures, union excesses in the course of the strike to en-
force a certification should be judged with no greater
stringency than applied where the union's claim for rep-
resentation is based on NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), and more serious offenses to the Act by
employers Here, the misconduct attributable directly to
union representatives, its agents, and the picket line was
more sporadic and less drastic than the pattern which
confronted the Board in New Fairview Hall Convalescent
Home, 206 NLRB 688, enfd. sub. nom. Donovan v.
NLRB, 520 F.2d 1316 (2d Cir. 1975). Furthermore, even
if the Union be deemed vicariously responsible for the
entirety of the anonymous conduct established by credi-
ble evidence herein, the totality of the misconduct would
fall short of the oppressive pattern which faced the
Board in Grede Plastics, 235 NLRB 363 (1978). In neither
case was Laura Modes deemed controlling, and in each
the Board remedied the employer's 8(a)(5) violation by
affirmatively ordering the employer to recognize and
bargain with the Union. A similar result is warranted
here.
CONCLUSIONS OF LAW
1. Honaker Mills, Division of Top Form Mills, Inc. is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Ladies Garment Workers Union,
Upper South Department, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed at the employer's Honaker, Virginia location; but
excluding office clencal employees, technicians, sales
people, profesional employees, guards, 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.
4. Since June 6, 1979, the above-named labor organiza-
tion has been and is now the certified and exclusive rep-
resentative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing, during June and July 1979 and at all
times thereafter, to recognize and bargain collectively
with the above-named labor organization as the exclusive
bargaining representative of all employees in the appro-
priate unit, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent had engaged in and is
engaging in unfair labor practices within the meaning of
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(5) and (1) of the Act, it shall be recommend-
ed that it be ordered to cease and desist therefrom and,
on request, to bargain collectively with the Union as ex-
clusive representative of all employees in the appropriate
unit and, if an understanding is reached, to embody such
understanding in a signed agreement.
In order to assure that the employees in the appropri-
ate unit will be accorded the services of their selected
representative for the period provided by law, the initial
period of certification shall be construed as beginning on
the date Respondent commences bargaining in good faith
with the exclusive representative in the appropriate unit.
See Mar-Jac Poultry Co., 136 NLRB 785 (1962), Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
As indicated, the General Counsel claims extraordi-
nary relief in the form of partial reimbursement to the
Board and the Union of reasonable counsel fees, salaries,
witness fees, transcript and record costs, printing cost,
and other costs and expenses to be determined at the
compliance stage. The relief sought by counsel for the
General Counsel is limited, however, to the cost incurred
with respect to only two of Respondent's defenses both
of which are characterized as "frivolous attempts to
avoid its bargaining obligation." The first such defense
relates to the claim founded upon the erroneous descrip-
tion of the unit in the certification issued by the Board
The second relates to Respondent's attempt during the
hearing to litigate evidence regarding an investigation by
the United States Department of Labor of certain activi-
ty regulated by the Landrum-Griffin Act. This proceed-
ing was concerned in its essential respects with Respond-
ent's defense based on Laura Modes. Other matters, even
if viewed as frivolous, did not burden the record beyond
the de minimus. It is also a fact that Respondent's coun-
sel, on being cautioned by me that unnecessary delays
would not be countenanced, reacted thereafter in a coop-
erative vein, while contributing positively to the expedi-
tious conclusion of the hearing. Accordingly, having first
hand knowledge as to the manner in which this cause
was litigated, it is the opinion of the undersigned that the
General Counsel's request for extraordinary relief in the
present circumstances would neither enhance the admin-
istrative process nor effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7°
ORDER
The Respondent, Honaker Mills, Division of Top
Form Mills, Inc., Honaker, Virginia, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
70 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with International Ladies Garment Workers
Union, Upper South Department, AFL-CIO, as the ex-
clusive bargaining representatives of its employees in the
following appropriate unit:
All production and maintenance employees em-
ployed at the employer's Honaker, Virginia loca-
tion; but excluding office clerical employees, techni-
cians, sales people, professional employees, guards
and supervisors as defined in the Act
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the above-named labor
organization as the exclusive representative of all em-
ployees in the appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its Honaker, Virginia facility, copies of the
attached notice marked "Appendix." 71 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
71 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights.
To organize
To form, Join, or assist any union
To bargain collectively through representatives
of their own choice
TOP FORM MILLS 1267
To act together for other mutual aid or protec-
tion
To chobse not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours and other terms and con-
ditions of employment with International Ladies Gar-
ment Workers Union, AFL-CIO as the exclusive repre-
sentative of the employees in the bargaining unit de-
scribed below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the above-named
union, as the exclusive representative of all employees in
the bargaining unit described below, with respect to rates
of pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees em-
ployed at the employer's Honaker, Virginia loca-
tion; but excluding office clerical employees, techni-
cians, sales people, professional employees, guards
and supervisors as defined in the Act.
HONAKER MILLS, DIVISION OF TOP FORM
MILLS, INC.