Victor Products Corp.

National Labor Relations Board - Board Decisions

Jun 5, 1952

99 N.L.R.B. 516 (N.L.R.B. 1952)

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VICTOR, PRODUCTS, CORPORATION and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, CIO
VICTOR PRODUCTS CORPORATION and AMALGAMATED LOCAL 842, INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT' AND AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA, CIO. Cases Nos. 5-CA-
,319 and 5-CA-321. June 5,1952
Decision and Order
On October 4, 1951, Trial Examiner Ralph Winkler issuedk his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner found
further that the Respondent had not engaged in other unfair labor
practices alleged in the complaint and recommended that the com-
plaint be dismissed in that respect. Thereafter the Respondent, the
General Counsel, and the Union filed exceptions to the Intermediate
Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner' and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions, the briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions and modifications.
1. The complaint alleged that the Respondent had failed to bargain
in good faith with the Union in violation of Section 8 (a) (5) and
(1) of the Act. The Trial Examiner found that the record did not
support this allegation and recommended its dismissal. As no excep-
tions to this recommendation have been filed, we will dismiss the
complaint insofar as it alleges that the Respondent unlawfully re-
fused to bargain with the Union.
2. The complaint alleged further that on April 11, 1950, the Re-
spondent had discriminatorily discharged 31 employees in violation
of Section 8 (a) (3) and (1) of the Act. As found by the Trial
Examiner, these employees were discharged solely because of 'their
alleged participation in the so-called "Steeley" incident, detailed in
the Intermediate Report. This incident occurred on the first day of
the strike, April 10, 1950, at the main entrance to the plant, where
the pickets maintained a moving, circular, line of 25 men a few feet
' Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connection
with this case to a three -member panel [ Chairman Herzog and Members Styles and
Peterson].
99 NLRB No. 83.
VICTOR PRODUCTS. CORPORATION 517
from the plant door. When Steeley, Respondent's official, approached
the picket line about 9, a. m. that day to enter the plant, the pickets,
in, response to orders from their leader, Union Representative Bray-
ton, voluntarily massed-themselves against the door. Steeley was told
by,Brayton that "nobody was going in ,to work." A general melee
ensued,' with the result that Steeley withdrew.
It is clear from the, entire record, and we find, that Steeley was
effectively barred from entering the plant either by going through or
around the picket line .2 We therefore agree with the Trial Examiner,
and find, that the 13 employees who participated in the "Steeley"
incident and whose names appear in Appendix A of the Intermediate
Report were engaging in unprotected activity and that their 'dis-
charge for said activity was not violative of the Act.
3. With respect to the remaining 18 employees listed in Appendix
B of the Intermediate Report, the evidence is in conflict as to whether
they were in fact on the picket line at the time of the "Steeley" inci-
dent for which they were also discharged. After a careful appraisal
of the conflicting testimony, we find upon the record as a whole, in
agreement with the Trial Examiner, that they were not in fact on
the picket line during the "Steeley" incident. Accordingly, their
discharge for engaging in strike activity was violative of the Act, as
the Trial Examiner found.
The discharge of employees for engaging in protected concerted
activity violates Section 8 (a) (1) of the Act. Because such dis-
charge amounts to a discrimination in hire' and tenure of employ-
ment, thereby discouraging membership in the Union, it also violates
Section 8 (a) (3). Moreover, whether the discharges be regarded as
a violation of Section 8 (a) (1) or of Section 8 (a) (3), we find that
the same remedy of reinstatement with back pay is necessary in order
to effectuate the policies of the Act, and that the employees listed in
Appendix Bof the Intermediate Report did not engage in any conduct
which would warrant our withholding of this remedy.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Victor Products
Corporation, Hagerstown, Maryland, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United Au-
tomobile, Aircraft and Agricultural Implement Workers of America,
CIO, and its Amalgamated Local 842 or in any other labor organiza-
2 Under these circumstances we, unlike the Trial Examiner , need not and do not pass
upon the effect of the Board's decision in Standard Oil Co. of California, 91 NLRB 1540.
215233-53-34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of its employees, by discharging or refusing to reinstate any of
them because they have engaged in union or concerted activity, or by
discriminating in any other manner in regard to hire and tenure of
employment or any term or condition of employment.
(b) Interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist the aforesaid, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, to
engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all of
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to the employees listed on Appendix B, attached to the
Intermediate Report, immediate and full reinstatement to their for-
mer or substantially equivalent positions without prejudice to their .
seniority or other rights and privileges and make them whole for any
loss of pay suffered by them as a result of the discrimination against
them, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy.""
(b) Upon request, make available to the Board or its agents, for ex-
amination and copying; all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due and the right of
reinstatement under the terms of this recommended order.
(c) Post at is plants at Hagerstown, Maryland, and Berkeley
Springs, West Virginia, copies of the notice attached to the Inter-
mediate Report as Appendix C.4 Copies of said notice, to be fur-
nished by the Regional Director for the Fifth Region, shall, after
being duly signed by the Respondent, be posted immediately upon
receipt thereof and he maintained by it for sixty (60) consecutive
days thereafter in conspicious places including all places where notices
to employees are customarily posted. The Respondent shall take
reasonable steps to insure that such notices are not altered, defaced,
or covered by any other material.
8 However , contrary to the recommendations of the Trial Examiner, back pay for each
employee will be computed from the date of his unconditional request for reinstatement
after the strike, and not from the date of his discharge on April 11, 1950. See Kallaher
and Mee, Inc., 87 NLRB 410.
4 This notice shall be amended by substituting the words "A Decision and Order" for
the words ' The Recommendation of a Trial Examiner " in the caption therf of if this
Order is enforced by a United States Court of Appeals , there shall be substituted for the
words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order."
VICTOR PRODUCTS ' CORPORATION 519,
(d) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTIIER ORDERED that the complaint be, and it hereby is, dis-
missed in all other respects.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America, CIO,
(herein separately referred to as the UAW-CIO), and upon charges and amended
charges duly filed by Amalgamated Local 842, UAW-CIO, (both charging parties
are referred to as the Union unless otherwise indicated), the General Counsel for
the National Labor Relations Board by the Regional Director for the Fifth
Region (Baltimore, Maryland), conjoined both proceedings and issued a con-
solidated complaint dated November 13,'1950, against Victor Products Corpora-
tion, herein called the Respondent. The complaint alleges that the Respondent
discriminatorily discharged certain named employees in violation of Section
8 (a) (3) and (1) of the Act (Labor Management Relations Act, 1947, 61 Stat.
136), failed to bargain as required under Section 8 (a) (5) and (1) of the Act,
and by other specified conduct violated' Section 8 (a) (1) of the Act. Copies of
the complaint and charges were duly served upon the Respondent. The Re-
spondent filed an answer denying that it had committed the described unfair
labor practices.
Pursuant to notice, a hearing was held from January 15 until April 24, 1951,
at II4gerstown, Maryland, before, the undersigned Trial Examiner. The General
Counsel was represented by counsel and the Respondent by counsel and another
representative and both parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues.
The Respondent preliminarily moved to dismiss the proceeding for lack of
showing that the Union is in compliance with Section 9 (f), (g), and th) of the
Act. This motion was denied. See McComb Manufacturing, Compqznp et at.,
95 NLRB 596; Joseph J. Michalik, d/b/a Service Metal Industries, 96 NLRB 10.
Another preliminary motion of the Respondent would have dismissed the pro-
ceeding on the ground that the complaint included unfair labor practices antedat-
ing the filing and service of the charges by more than 6 months. This motion
was denied as it does not appear that the complaint included such ' unfair labor
practices. In any event, I make no finding of unfair labor practices beyond the
statutory 6-month period. The undersigned reserved ruling on other motions
of the Respondent to dismiss the complaint on the merits in its entirety and as
toeach separate allegation of unfair labor practices, and disposes of such motions
in accordance with the findings and conclusions to follow. An unopposed motion
of the Respondent to dismiss an allegation of discrimination as to Merle L.
Michael was granted. The usual motion to conform the pleadings to the proof
-was made and granted as to immaterial matters.
The parties were granted opportunity to present oral argument before the
'Trial Examiner, which they waived, and they were also granted permission to
file briefs and proposed findings of fact and conclusions of law. The General
Counsel and the Respondent have filed briefs which I have carefully considered.
Upon the entire record in the case, and from his observation of the demeanor of
witnesses, the Trial Examiner makes the following :
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
- The Respondent is a Maryland corporation with two plants in Hagerstown,
Maryland, and single plants at Ranson, West Virginia, and Berkeley Springs,
West Virginia, where it is engaged in the manufacture, sale, and distribution of
refrigeration equipment. The yearly purchases and sales at each of these plants
exceeds $100,000, more than half of which, respectively, involves interstate ship-
ments.
I find that the Respondent is engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATIONS INVOLVED
The charging Unions are labor organizations within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The principal questions involved in this case are whether the Respondent
bargained in good faith with the Union for separate units of employees at the
Respondent's Hagerstown and Berkeley Springs plants, respectively, and whether
the Respondent discharged the named employees discriminatorily or for engaging
in unlawful picketing conduct at the Respondent's Pope Avenue plant at
Hagerstown.
A. Alleged refusal to bargain-8 (a) (5)
The Respondent has recognized the Union as the exclusive bargaining repre-
sentative for a unit of its Hagerstown employees, at least since October 1947, and
for another unit of its Berkeley Springs employees, at least since 1948. No
question is raised respecting the appropriateness of these units, which are par-
ticularized in the record, or concerning the majority status of the Union to re-
present them. Accordingly, I find that the Union is the statutory representative
of such appropriate units within the meaning of Section 9 (a) and (b) of the
Act.'
The Respondent and the Union were parties to signed collective bargaining
agreements from October 1947 until October 1949, covering the Hagerstown unit.
These agreements included comprehensive and detailed provisions dealing,
among other things, with exclusive recognition of the Union, checkoff of union
dues, seniority in personnel matters, grievance procedure, hours of work and
overtime, vacations, wages, etc. Pursuant to the provisions of the last such agree-
ment (1948-49), the Union on August 17, 1949, notified the Respondent of its de-
sire to modify the terms of the contract in certain specified respects for the
following contract term. Meanwhile the Respondent gave the Union a notice of
contract termination as provided in the contract ; and it advised the Union that
the Respondent is "ready to enter into agreement with the Union at any time
suggested by the Union, and we look forward to a speedy settlement of our
negotiations for the forthcoming year."
Both parties were apparently eager to negotiate a contract to follow the then
operative agreement which was due to expire on October 17, 1949.
1 See Victor Products Corporation , Cases Nos. 5-RD-36 (Certification of Representa-
tives, dated January 13, 1950 ) and 5--R-1436 ( Report on Consent Election , dated Decem-
ber 2, 1943).
VICTOR PRODUCTS CORPORATION 521
The Negotiations
Bargaining meetings began on September 15, 1949, with each party repre-
sented by a negotiating committee, and approximately 10 meetings were held over
the following months until negotiations broke down in April 1950. A Com-
missioner of the United States Conciliation Service early entered the negotiating
scene when the parties did not seem able to resolve their differences 2
Meanwhile, the parties had also been conducting separate negotiations in be-
half of the Berkeley Springs unit-there had not been a contract covering this
unit-and on October 31, 1949, the Respondent accepted the Union's request that
Hagerstown and Berkeley Springs negotiations be consolidated in subsequent
meetings.
Roy S. Steeley, assistant to the chairman of the board of directors of the
Respondent, was the Respondent's principal witness concerning the negotiations.
Ernest L. Stine, head of the Union's Hagerstown unit, was the General Counsel's
principal witness in this respect. Testifying from notes which each of them
had made contemporaneously with the meetings, both witnesses gave an account
of each session , in addition to which there was received in evidence all relevant
-correspondence between the parties. Rather than set forth the details of each
meeting and thus approximate the length of the transcript, I believe the record
of the negotiations can be boiled down considerably without loss of essence.
At the outset of negotiations, the Respondent proposed that the new Hagers-
town contract be the same as the agreement then in effect except for the deletion
of the checkoff provision. The Union, on the other hand, desired various revi-
sions and additional monetary benefits in the new contract (e. g., paid vacations,
pensions and revised social security benefits, etc.) as well as a union-shop pro-
vision; and when the Berkeley Springs and Hagerstown negotiations were con-
solidated, the Union proposed identical contracts for both units. The Respondent
later acceded to the Union's request that the checkoff be retained and thus it
proposed a Hagerstown agreement identical to the terms of the old contract ;
the Respondent rejected, purportedly on principle, the union-shop proposals of
the Union and it also opposed all proposals exceeding the Respondent's financial
undertakings in the old contract. The Respondent, while opposing identical
contracts for Berkeley Springs and Hagerstown on the ground of alleged differ-
ence in operations and employee skills involved, submitted on October 3, 1949,
a proposed contract to the Union for the Berkeley Springs unit covering various
terms and conditions of employment, and on January 12, 1950, the Company
increased its wage proposals for Berkeley Springs which the Union rejected.
The principal issue in the negotiations was a monetary one. Throughout
the negotiations the Respondent stated that it was unable to grant the increased
financial demands of the Union and that it believed agreement on other issues
could be reached if the Union would withdraw these additional monetary pro-
posals. The parties discussed their financial differences many times and at
2 At a later phase in the negotiations the Union sought to arbitrate the matters in dis-
pute, but the Respondent was unwilling to accept this procedure.
8 A "union authorization" election in the Hagerstown unit was conducted by the Board
under Section 9 (e) (1) of the Act and won by the Union in October 1948 (Case No.
5-UA-683 ). Such election , however , was then ineffective to satisfy the statutory require-
ments for execution of a union -shop agreement , as the CIO, with which the Union is
affiliated , was not then in compliance with the filing and affidavit requirements of Sec-
tion 9 of the Act. See N. L. R. B. v. Highland . Park Manufacturing Company, 71 S. Ct.
758. In the Berkeley Springs unit, moreover, no such election has ever been conducted.
Accordingly„ I shall not further consider this aspect of the negotiations . There is no
obligation to grant a union-shop provision even to a union which is authorized by law to
enter into such an agreement , and 4n any, event I• do not consider , the Respondent 's refusal
to grant such provision as evidence of bad faith bargaining in the present case.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one point during the negotiations the Respondent stated its willingness to turn,
over to its employees all yearly profits in excess of 8 percent. In-connection
with the Respondent's financial condition as it relates to the rejection of the
additional monetary proposals, the record shows that one of the Respondent's
two Hagerstown plants had suspended all operations in the fall of 1949, that
the workweek at the other Hagerstown plant had been curtailed from July 1949
until spring 1950, and that there also had been additional layoffs during that
period.
Stine admitted that there never was a time, for example, with respect to
negotiations on October 5, October 13, November 21, 1949, and April 5, 1950,.
when the Respondent refused to discuss any item under negotiation.
The Union went out on strike on April 10, 1950, in support of its contract
demands, and the Respondent called off a bargaining meeting scheduled that day
because plant operations were discommoded. However, on April 12,'1950, the
Respondent advised the Conciliation Commissioner (who had been attending
the bargaining sessions) that it was "agreeable to attend any meeting that is
set up either by you or requested by the Union" and it several times advised the
Commissioner to a similar effect during the following weeks. The General
Counsel offered no substantial credible evidence that the Union was unaware of
the Respondent's continuing offer to resume negotiations.
On September 7, 1950, the Respondent advised the Union of its intention to
increase wage rates at Hagerstown and Berkeley Springs, to which the Union
responded, among other things, that it "has no objection " And on February
28, 1951, during the pendency of the hearings in this matter, the Respondent again
advised the Union of its intention to grant another increase in accordance with
a Wage Stabilization Board formula. The Union again replied that it did not
object to the increase, but it requested a meeting to discuss the afore-mentioned
formula and "other conditions of employment," following which a meeting be-
tween the parties was held on March 23, 1951. This was the Union's first step
at resuming negotiations since the April 1950 strike, more than 10 months before.
Further Findings and Conclusions
The statutory obligation to bargain toward the end that agreement be reached
requires that each party sincerely explore the avenues leading toward that goal.
In the negotiations under consideration, it was not a case of the Respondent's
unwillingness to reach an agreement. It was, rather, a situation where the
Union wanted substantially greater financial benefits than the Respondent was
willing to grant it. The Act does not compel an employer to accede to a union's
increased financial demands as a condition of good faith bargaining, as it corre-
spondingly does not require a union to withdraw or reduce such demands, and I
cannot say that the Respondent indulged in bad faith bargaining by refusing to
grant financial proposals of the Union in excess of the provisions of the parties'
last preceding contract. The negotiations covered a long period of time during
which the Respondent negotiated on all disputed issues and submitted its own
proposals. And, as far as this record is concerned, the Respondent was ever
available and, I believe, desirous to resolve the negotiations by agreement.`
4 On March 24, 1950, the Respondent advised the Union that It "is reserving unto itself
the right to determine the hourly rates of pay. ... ' Taken alone, this is the language of
unilateral determination, which is not the bargaining required by the Act. However,
considering the statement in the context of the protracted course of bargaining, Including
theRespondent's,willingness to adopt,the,terms of the old Hagerstown agreement, I believe
the fair purport of the statement is that the Respondent was unwilling to permit the
Union alone to determine what the wage scale should be.
VICTOR PRODUCTS CORPORATION 523
Under all the circumstances, I am unable to find a preponderance of evidence
to the effect that the Respondent failed to bargain in good faith with the Union.
Accdrdingly, I shall recommend dismissing the pertinent allegations of the com-
plaint.
B. Alleged dcserimtnation-8 (a) (3)
The Union instituted a strike at the Respondent's Pope Avenue plant in Ha-
gerstown on April 10, 1950, and continued the strike until April 17, 1950. Its
purpose was, as already indicated, to enforce the Union's bargaining demands.
Picket lines were maintained by the Union at various plant entrances during
the strike, beginning on April 10 at about 5: 30 a. in. On April 11, 1950, the
Respondent advised each of the employees involved in this proceeding that he
was discharged "for forcibly blocking entrance to the plant," and the Respondent
stated at the hearing that the conduct in question occurred at the so-called
Pope Avenue or main entrance of the plant on the morning of April 10.
The burden of proof in this case, as in all unfair labor practice proceedings,
is the General Counsel's ; this burden does not extend, however, to matters
recognized as affirmative defenses in this field. In cases like the present one,
for example, the General Counsel makes out his prima facie case upon proof
that an employer discharged employees for engaging or because the employer
thought the employees were engaging in strike activities ; the employer is then
obliged to show, as the Respondent must in this case in order to prevail, that
it actually predicated these discharges on conduct, albeit in connection with
strike action, beyond the protection afforded under the Act to union or concerted
activities
Respondent Official Steeley, Plant Manager W. D. Paxson, and Personnel
Manager C. L. Hartsock testified concerning the Respondent's reason for the
discharges. Steeley and Paxson testified in substance that written and oral
statements were obtained under Steeley's direction from supervisory and cler-
ical employees respecting the picket line activities of April 10; that on Tuesday
morning (April 11) Steeley and Paxson prepared a list of the employees to be
discharged, based upon a compilation of the information received as of that
time ; that this list of names or any other list did not specify particular inci-
dents of April 10 upon which the discharges were individually founded ; and
that the discharge notices, dated April 11, were prepared in Paxson's office and
then turned over to Hartsock for distribution to the affected employees. Paxson
and Steeley further testified that, while they discharged the employees for
debarring plant entry on April 10, they did not know at the hearing date what
particular incidents of April 10 caused them to terminate each of the individuals
in question.
The testimony of Hartsock, a Respondent witness, does not square entirely
with that of Steeley and Paxson. Thus Hartsock testified that, while he did,,
not participate in deciding which employees were to be discharged, as personnel
manager he was in a position to know, and that he did know "specifically" and
"definitely," why the men were terminated. He explained without substantial
credible contradiction that he had been "in consultation" with Paxson, Steeley,
and R . J. Bowers (the Respondent's vice president) at the time and that one of'
these named members of top management informed him when the list of dis-
5 Mid-Continent Petroleum Corporation, 54 NLRB 912, 933 ; Montgomery Ward cb Co.,.
,Inc.,, et at, 90 NLRB 1244, 1245; Standard Oil Company of California, 91 NLRB 783;.
Jefferson Standard Broadcasting Company , 94 NLRB 1507.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chargees was given him for processing on April 11 that the only reason for the
discharges was the debarment of Steeley °
Hartsock was a trustworthy witness in respect to his aforestated testimony
and I accordingly find that the Respondent discharged the employees in question
Solely because they allegedly debarred Steeley on April 10, 1950.7
The ultimate discrimination issue framed by the evidence, is therefore, whether
Steeley was debarred and by whom.' This does not mean, of course, that other
picket line incidents which were not the reason for the discharges are not material
to this issue of discrimination. They may be material, and I shall so consider
them, insofar as they relate to determining the nature of the picket line when
Steeley was allegedly debarred.
Approximately 100 witnesses testified in this matter, most of them giving their
accounts of the comparatively few happenings at the main entrance on the morn-
ing of April 10. It is quite understandable that even honest witnesses would
give varying testimony of events more than 9 months before.9 It is also a fact
that some individuals are endowed with powers of memory enabling them to
testify respecting minute details of events long past without need for even the
normal methods of refreshing memory. However, this case produced many
conflicts of testimony which I cannot attribute either to mistaken, though
honest, recollection or to unusual memory ; and, considering all the circumstances
under which some testimony was uttered, this case would be singularly note-
worthy if for no other reason than the feats of recollection of a surprisingly
large number of individuals, that is, if I were to credit their testimony. Then,
also, this case had witnesses whose testimony was demonstrably false because
of inherent inconsistencies and impossibilities; such as the witness who testified
in February 1951 that two indivduals named "Tiny" and "Burner" were on the
picket line about 6: 45 on April 10, 1950, and that "Tiny" weighed nearly 400
pounds but that "Burner" was about the size of the witness, who weighed approxi-
mately 162 pounds. The record shows, however, that "Tiny Burner" is' one and
the same individual. The faulty, though honest, recollection of some witnesses
and the dishonest testimony (sometimes only in part) of other witnesses com-
pound the difficulties of making fact findings in this matter, particularly in view
of the length of the record and the great number of witnesses involved. 'I shall
attempt to reconstruct the material historical facts as the record reveals them
to me, based, of course, upon a full consideration of all 'testimony and the
demeanor of the witnesses, the latter factor having no little significance in this
particular case.
The Picket Line
The Pope Avenue entrance where the events in question occurred is 8 feet
wide ; it borders as a sidewalk with a single doorstep leading from the sidewalk
8 Bowers testified that he did not recall having any conversation with Hartsock con-
cerning the employees to be discharged and he denied giving a list of dischargees to Hart-
sock. Neither Paxson nor Steeley credibly denied having the afore-mentioned conversation
with Hartsock. In evaluating the credibility of these respective witnesses in ascertaining
the reason for the discharges, I have also considered, among other factors, the circumstance
that Hartsock's testimony was given comparatively early in the proceeding at a time
when, in my opinion, his testimony in this respect was much more entitled to belief, than
that of Paxson and Steeley who testified later.
7I must therefore reject the Respondent's contention, as unsupported by substantial
credible evidence, that it discharged the employees involved for various other incidents
as well.
$ The General Counsel withdrew a condonation contention which he had earlier made
respecting the discrimination phase of this case.
9 There were material discrepancies even in the testimony of the three police officers as
to whom, as the Respondent asserts, there was no showing of bias or prejudice.
VICTOR PRODUCTS CORPORATION 525
up to the entrance. This entrance consists of three panels, the middle panel
being the actual door and also being slightly wider than the two end panels.
(I estimate this door to be about 3 feet wide.) An arch covers an area 201/2
feet by 14 feet immediately in front of this entrance and extends from the build-
ing to two supporting columns located at the point where the sidewalk meets the
street. There are thus three approaches to the entranceway, one on each side
of the arch and the third (which I shall call the center arch and is 8 feet wide)
fronting on the street. That portion of the building where the entranceway is
located is somewhat recessed and gradually widens out at a point beyond the
archway to permit normal sidewalk width.1° This particular entrance is prin-
cipally used by clerical and managerial personnel.
The strike and its related activities at the main entrance were under the prin-
cipal direction of Ernest Stine, one of the dischargees and head of the Union at
Hagerstown , and Glen R. Brayton, an international representative of the UAW-
010. The picket line at the main entrance formed a moving circle, oval in shape,
of approximately 25 pickets with a constantly changing picket complement.
Some of the pickets carried picket signs and a few others carried hickory or
dogwood sticks which "they would use . . . as a cane ." 11 There were members
of the local police force in attendance at all times.
The Respondent contends in effect that ingress was completely blocked at the
main entrance during the entire morning of April 10, even to those individuals
who may have desired to enter by going around the picket line, and it also asserts
that there was a definite plan to such effect. The General Counsel denies the
existence of such a plan and claims, moreover, that "There was room for persons
who so desired to enter the plant by walking around the picket line."
Many witnesses testified that it was possible for an individual to enter the
plant by going around the picket line, whereas many other witnesses testified
that the picket line was too close to the building to prevent such manner of entry,
particularly when individuals approached the line to enter the plant. I find it
impossible to state with certainty how closely the inner portion of the picket line
circle approached the door or exactly what distance there was between the re-
spective pickets in the line. However, the consensus of trustworthy testimony
would estimate, and I find, that the inner portion of the picket line was generally
about 3 feet from the doorstep as it moved at that point and that there was an
approximate 3-feet distance between the pickets in the line. I also find that as
the moving circular picket line was maintained on the morning of April 10, no
individual could go through (as distinguished from around) the picket line with-
out humping or being bumped by pickets in their normal progress in the line.
The Respondent adduced evidence concerning incidents on the picket line that
Monday morning which shows, according to the Respondent, the debarring
character of the line.
Sometime that morning Police Chief Jesse Brown asked Brayton in the
vicinity of the picket line, whether Brayton had any plans for the admission
of supervisors and maintenance men into the plant. Brayton replied, according
to the uncontradicted testimony of Brown, that "there is nobody going in the
plant until we get a contract." Brown thereupon advised Brayton that he,
Brayton , could not "legally restrain anyone from going into the plant."
About 8: 15 that morning while some office girls were congregated across
the street from the main entrance , W. L. Currie , the Respondent 's chief sales
engineer , asked Brayton whether "there was any chance of the office help going.
10 The reader is referred to those exhibits containing pictures and a diagram of this
entranceway for a better understanding of the premises.
11 Testimony of Police Chief Jesse Brown , a Respondent witness. A
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In." Brayton replied that "nobody is entering this plant today" and that Currie
should send the girls home. J. K. Wheeler, another company official, made a
similar request of Brayton, whereupon Brayton replied in substance that "no
one would be permitted to enter the plant or the office until the meeting." (A
negotiating meeting had been scheduled to be held later that morning.) Neither
the office help nor these company officials entered the plant.
Also that morning, the Respondent's general counsel, James E. Ingram, (not
the counsel of record in this case) approached within several feet of the en-
tranceway and stated his desire to enter the plant. Brayton declared that "no
one is going to go into this plant today" ; and when Ingram, a slightly built
individual of 76, announced that his business in the plant was of a personal
legal nature, Brayton replied that Ingram could not enter either in a "private
law capacity" or in "the capacity of counsel of the Company." Stine also told
Ingram something to the effect that Ingram "need[s] a week's holiday, anyhow,
and this is just about as good a time as any for you to take it." Ingram did not
enter. About 2 or 3 minutes later, Brayton walked across the street from the
archway and told Ingram, according to Ingram's undenied testimony, that
"We will let you and Mr. Wheeler go in, but no one else," whereupon Ingram re-
plied that this was "not satisfactory" and that "if one went in, all of them
went in." "
Personnel Manager Hartsock approached the entranceway with a pouch of
mail about 7:30 that Monday morning. Either Brayton or dischargee Gardner
Myers, or both, told Hartsock, in substance, that "you can't get into the plant" ;
and being then advised that Hartsock was bearing mail, Brayton said, "Well, you
have got Uncle Sam's mail, and let Uncle Sam's mailman carry it." One of the
police officers in attendance, Christian Bickle,u then offered to escort Hartsock
into the plant, but Hartsock rejected the offer and shortly afterward gave the
mail to a United States mail carrier who went through the line, which opened
up for him, and entered the plant without incident.
Employee Frank Beyard also approached the picket line that morning, to be
advised by Stine, in substance, that "nobody is going to be allowed to enter the
plant this morning." Beyard did not enter the plant.
The record shows that other employees and company officials individually ap-
proached the archway to enter the plant, but left without entering upon being
told, in substance, either by Stine or Brayton that "no one was going into the
plant today" or that "no one-is going to be •allo4ved'to enter the' plant;" "wi`th'the
phrase also occasionally added to the effect that "you might as well -go home."'"
Other employees 15 gave general testimony to a similar effect, but which under
" This Ingram event occurred shortly after the Steeley Incident.
"Sickle and another police officer , Kiser , testified that the line tightened up closer to
the wall as Hartsock approached, which other witnesses deny. I cannot, in good con-
science , resolve this particular conflict.
14 Superintendent Harry L. Hull, Charles Hutzell , Foreman Clyde Ingram, Kenneth Stig-
berg ( a plant manager ), John Minnich , James Rose ( assistant to Respondent 's president),
Irving Taber, Charles Miller , Foreman Harry Mason , Preston Daley.
Another striker , Thomas Kunkleman , also made a similar remark to employee Cecile
(or Estelle ) Gardner, stating , as well, that "We are keeping them out until later ." Gard-
ner testified that she "was afraid to go in."
I do not credit that portion of Harry Mason's testimony , denied by Gardner Myers,
that Myers told Brayton that they would "clean away" the bystanders across the street.
Nor do I credit that portion of the testimony of Charles Miller , whom I regard as evasive
and to be believed only with credible corroboration , that when Brayton or Stine told Mason
and Miller that "no one was entering the plant" Brayton also said that "he didn't want
anybody to try to enter, because he didn't want anybody to get hurt "
15 Reuben Darby ( a director of the Respondent ), Ralph Ford , Foreman H . E. Wharton,
William Doflemyer , Virginia Hook.
VICTOR PRODUCTS CORPORATION 527
the circumstances of this case, I cannot accept for the reason, among others, of
lack of identification of the individuals making the alleged statement (but which
is cumulative in any event), or as to which I cannot base findings for an inability
to resolve a conflict of testimony10 (also cumulative), or because I consider
the witnesses 14 wholly unworthy of belief on critical issues.
Also that morning Brayton addressed the group of office personnel which had
gathered across the street from the archway. Employee William Bonner testi-
fied without credible contradiction that Brayton stated in effect that "we are
trying to run a peaceful picket line here. If you all would care to join it, you
may do so. What we gain or win by this you all also will benefit by it, but if
you don't want to join the picket line, you may as well go on home, because
nobody is going to get in here this morning." 16
The record also shows that some office girls "' had been conversing with several
pickets in the vicinity of the archway. One of the strikers, Harold Aycoth, re-
plied to a question from Helen Bowman, that if she tried to enter the plant, "he
would very politely or gently pick me up and toss me into the street." Another
office girl, Betty Johnson, asked Aycoth "Why can't we go in," whereupon Ay-
coth replied that "We don't get paid by letting you in." The record shows, how-
ever, that the afore-mentioned girls were making no attempt to enter the plant at
the time and that the Bowman conversation was carried on in a jocular vein.
I therefore attach no significance to these incidents insofar as the debarment
issue is concerned.
The Respondent also adverts to the testimony of one of the strikers, Harry
Hammond, that "I guess we tried to keep them all out the best we could .. .
kept going around in a ring to keep them out." David Myers, another striker,
also testified that the purpose of the picket line was "to keep people from getting
into the plant that day [but not by] forc[ing] nobody from going through."
Only three employees entered the plant that morning and the General Counsel
contends that the circumstances under which they did so shows that the picket
line was not conducted in a fashion to restrain entry into the plant. Thus,
Michael Maley and Plant Manager Paxson individually entered the plant by
going around the picket line about 6: 30 that morning. According to the testi-
mony of Maley, Stine stepped out of the line and told the approaching Maley
that "no one is going to be allowed in here today." Maley further testified that
he nevertheless "walked by him [Stine] and around the picket line" and that
Stine "made no move whatsoever." 10
Clarence Smeek , one of the;Respandent ' s 'engiiieers ,, testified that as he ap-
proached the archway carrying some mail, someone under the archway said
he could not take anything into the plant. Smeek then spoke to Police Officer
Bickle who in turn asked Brayton, "How about letting this fellow in with this
mail?" According to Bickle's credible testimony Brayton thereupon said , "Okay,
fellows, open up and let him in," and Smeek entered.
16 Hollis Barnes, James Leffier.
17 Louis S. Daugherty , Nelson Weaver , Merle Poffenberger, Albert Scott.
Another summary of Brayton's remarks, according to the testimony of Police Officer
Harold Riser , was that "they might as well go home ; that there was nobody going to enter
this plant ; that what they were striking for was for their benefit as well as those that
were on strike "
16 Helen Bowman , Ellen Reed , Virginia Hook.
10I do not credit that portion of the testimony of Paxson and Maley to the effect that
E. C Michael , president of the Local Union , attempted to close the door as each of them
entered the plant ; and I do not credit Paxson's testimony that Stine shouted to Michael,
on the occasion of Paxson 's entry, "Why did you let him in?" Stine and Michael credibly
denied this testimony . Nor do I credit that portion of Maley's testimony that Stine
stepped out of the line during the incident recounted in the text.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel refers to other circumstances , in addition to the entry
of the three afore-mentioned employees, as negating the inference of debarment
which the Respondent would ascribe to the picket line. Thus the record shows
that during a strike by this same Union at the Respondent's plant in 1948 the
Union maintained a circular picket line similar to the line operated on April 10,
that the Respondent and the Union had agreed that firemen and watchmen
would enter the plant during the 1948 strike, and that whoever else desired
to enter the plant did so by going around the picket line without obstruction by
the Union. The Respondent refused to enter into such arrangement either be-
fore or during the strike under consideration here. Stine testified that the
reason for such arrangement from the Union's point of view was not to keep em-
ployees not covered by the arrangement from entering the plant but merely
to enable the covered classifications to enter the plant without being considered as
scabs by the picket line.
The General Counsel also adverts to the fact that, upon being questioned at this
hearing, the employees uniformly disclaimed knowledge of any plans or instruc-
tions to them to restrain entry into the plant. So far as the record shows,
the only union instruction to the pickets was to keep the line moving. And in
further support of the General Counsel's contention respecting the alleged peace-
able nature of picketing activities, the General Counsel also refers to the fact,
supported by the record, that Police Chief Brown only once issued instructions to
the pickets concerning their conduct 23 Brown (a Respondent witness) testified
in this connection that on an occasion when individuals were gathered across the
street from the entranceway, the picket line stopped "momentarily" while Bray-
ton requested Brown to move these persons. Brown advised Brayton that he,
Brown, would. take care of the matter and that he didn't feel the mentioned
individuals were going to molest the picket line, and he instructed Brayton to
resume operation of the picket line. Brayton complied promptly, and Brown
dispersed the crowd across the street. Brown epitomized the situation to the
effect that "He [Brayton] cooperated with me, and I did with him."
Brown also testified that he heard shouts from underneath the archway
addressed to the people across the street to the effect that they should "go back
home ; you are not going to go to work today." Brown testified that he didn't
"construe" the shouts as a "direct order" from those who were shouting. Brown
further testified that "there was nobody molested, or anything of that kind,
that morning," and he saw no pickets "threaten anybody," and that none of his
officers present at the plant that day had reported to him that on April 10
"any individuals approached the picket line and could not get into the plant."
The Steeley Incident
Thus we have the setting for Steeley 's appearance at about 9 a. m. At that
time there was a sizeable number of office and supervisory personnel (non-
strikers) congregated on the sidewalk directly across the street from the arch-
way in addition to onlookers, including nonstrikers, at all sides of the entrance-
way. After speaking privately with some of these individuals, Steeley came
across the street, advancing toward the center arch with "quite a few people
[supervisors and office staff]" following "directly in back of him."" Someone
in the picket line shouted "Here comes Steeley." Steeley approached the center
21 Brown testified that he was in the plant vicinity from about 6: 30 a . in. until about
1 p. m. and that during this period he was in the vicinity of the main entrance except
for visits "at different intervals" to picket lines at other entrances of the plant.
22 Testimony of Police Officer Kiser, a Respondent witness.
VICTOR PRODUCTS CORPORATION 529
arch "walking rapidly and with long strides" 2' and with sufficient momentum
to bump one of the striking onlookers , David Myers, who was standing at one of
the columns , and to propel Myers, staggering and injured , into the picket line.
The line was operating in its normal circular fashion, with its inner portion
about 3 feet from the doorway at the time.
As Steeley stepped over the curb at the street side of the archway 2 police
officers fell in beside him, 1 on each side, and "all three went under the archway
beside one another." 24 The situation under the archway then became "just
one big congestion" as "office people . . . started to come in on all sides [of
the archway]" and such male personnel as had followed Steeley were "push[ing]
and crow[ing] under the archway in back of [Steeley]." 25 Steeley, with the
office personnel thus pushing behind him,2° reached and "made contact" with
the outer portion of the picket circle and tried "to break ... through the line." 27
And "that is when they all ganged up," Bowman credibly testified further.
"Everybody behind him [Steeley] pushed through, too." Brayton shouted
something to the effect that the pickets should "close up the line. Don't let
him through," and, as Bowman further testified, the pickets "that were closest
to the, door got right up to the door, and they went up the stairs and lined up
against the door." About this time Steeley told the pickets either that they
were discharged or subject to discharge if they didn't let him in. (I estimate
there were no less than 40 individuals including pickets, milling about in the
archway at the time.)
Brayton forced himself through the crowd to Steeley-this was the "only
way" he could have gotten to Steeley in view of the "awful crowd of people
there at that particular time" "-and Brayton told Steeley, according to
Steeley's uncontradicted testimony,28 that "nobody is going in to work." 70
During the short period of congested movement under the archway, Steeley
and Stine came face to face, separated by a few inches, with Steeley standing
in the direction of the door. At this point pickets were lodged on the doorstep
leading into the plant with other pickets, several men deep, back up against
them as well as against the plant wall on each side of the doorway. (The
Respondent asserts that the pickets purposely placed themselves in such posi-
tion," while the General Counsel claims that they were forced there and that
some pickets drew back instinctively in self-protection.) Stine was in this
mass of pickets in front of the doorway when Steeley told Stine he would like
to enter the plant. Stine replied that he couldn't move, that he was pinned in,
28 Testimony of Police Officer Bickle, a Respondent witness.
24 Testimony of Police Officer Kiser.
28 Testimony of Helen Bowman , a Respondent witness.
20 Hollis Barnes , one of the individuals following Steeley, had told Harold Angle and
Daniel Phillips earlier that morning that they were "going through . . . whenever they
got the word."
27 Testimony of Helen Bowman.
28 Testimony of Officer Bickle.
29 Uncontradicted at least by Brayton who did not testify at the hearing.
8° Officer Bickle took hold of Brayton at about the time Brayton forced his way to Steeley ;
Bickle testified that he did not arrest Brayton because he "did not know what Brayton
intended to do."
81 The Respondent refers in this connection to the testimony of Chester Jones, a striker
who was in the vicinity of the archway but not on the picket line during the Steeley
incident , Jones testified in effect that the pickets "pushed up" against the door in order
to keep Mr. Steeley from "going through the outer side of , the line." It appears from Jones'
further testimony that Jones did not see what happened under the archway until the
pickets were already massed against the door and that his opinion that the pickets
intended to keep Steeley out was based on the statement which Bowers had allegedly made
to Steeley , •as recounted below , that "they had all the evidence they needed."
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Steeley testified that Stine was "pinned in from the side, but he [Stine]
could have stepped forward, because there was a space between Stine and
myself." (The General Counsel states in this connection that Stine was well
advised not to have stepped toward Steeley lest such move "be considered a
threatening gesture" ; the Respondent on the other hand, asserts that Stine
should have stepped forward to get out of Steeley's way.)
Stine had no sooner answered Steeley, as stated above, when Bowers sug-
gested to Steeley that he withdraw from the archway, which Steeley promptly
did.32 The picket line re-formed in its normal fashion and immediately after
this Steeley incident-which I estimate to have lasted no longer than a minute
or two-Brayton and Stine requested Police Officer Kiser to advise Steeley that
he could enter the plant if he wanted to do so and that the Union still desired
an arrangement under which certain employees would enter the plant, as
described above, in connection with the 1948 strike. Kiser commented to Bray-
ton • and. Stine that their proposal, was a "fair" one, referring at least to the
admittance of Steeley, and then crossed the street and delivered the message
to Steeley. Steeley's answer to Kiser was "indefinite,"" according to Kiser.
Steeley testified that he would have entered the plant "if it had not been for
what Mr. Brayton and the other pickets said to [him] . . . in the presence
of the pickets that morning." He did not testify that he was unable to enter
the plant by going around instead of through the picket line.
Ingram , the Respondent's attorney, testified that later that morning the Con-
ciliator advised him that he, the Conciliator, was authorized and requested by
Brayton to inform the Respondent that the picket line "would open up and per-
mit all of the office help to enter and go to work, but that . . . no production
employee should be permitted to enter the plant." The Respondent declined
the offer, stating that "if any went in all must go in."
The following morning employees entered the main entrance when a large
number of policemen broke up 34 the picket line. The line re-formed, however,
and during the rest of the week it continued to operate in the same moving
circle, except for fewer pickets, and the employees entered the plant without
further incident by going around the picket line under the Respondent's in-
structions.
The Respondent issued its discharge notices on April 11, as already stated.
It did not, however, discharge all the strikers who were on the picket line at
the office entrance on April 10 or even all the strikers who were in the vicinity
of the picket line during the Steeley incident.
32 The General Counsel adduced testimony to the effect that Bowers also told Steeley on
this occasion , "Roy, we have all the evidence we need" ; whereas Steeley and Bowers deny
such testimony and their own testimony concerning Bowers' statement is to the effect that
he said "it was apparent that we could not get in."
3a Kiser was unable to recall exactly when he delivered the message to Steeley, although
he did remember going across the street to do so ; Stine credibly testified that Kiser "went
across the street to contact [Steeley]" after receiving the proposal. Steeley did not
testify at all concerning the incident As stated in the text, I accordingly find that the
message to Steeley was delivered immediately upon its receipt by Kiser which in turn
followed right after the Steeley incident.
94 The General Counsel contends that the Respondent violated Section 8 (a) (1) of the
Act by this action against the picket line. However , I am unable to find on the basis
of this record , that the conduct of the police officers is attributable to the Respondent.
This particular phase of the case was insufficiently developed , even assuming arguendo
the Respondent 's responsibility for the police 'officers' action , to permit me to determine
why the police officers took such action on April 11 and whether such action was justified
under the 'circumstances.
VICTOR PRODUCTS CORPORATION -531
Concluding Findings
The principal disputants in the controversy under consideration here are
the Respondent , with its right of access to its plant , and the striking employees,
with their right to engage in picketing activities . Neither of these rights,
even that of peaceful picketing with its free speech aspects , is absolute under
all circumstances ; for conflicts do arise between them, as happened in the
present case , and ordinarily are to be resolved on the basis of their reasonable
accommodation one to the other.'
Debarment arises where striking employees block entry into a plant, and the
obstruction is no less real when individuals are deterred from attempting in-
gress by "an effective implied threat of bodily harm . . . should they risk
entering the plant ." a7 Mass picketing , however , does not itself necessarily
constitute debarment although the circumstance of such mass is relevant to
determining the "potential or calculated restraining or coercive effect" of the
pickets on nonstriking employees desiring entry 38 And a plan to debar also
will not itself validly support a discharge , in the absence of overt conduct on
the picket line effectuating such plan; 39 similarly , the "motives (or good in-
tentions )" of pickets not to debar also are not controlling where their "words
and acts" on the picket line otherwise justifies the employer 's belief that he
could not enter "save through a fight." N. L. R. B. v. Perfect Circle Company,
162 F. 2d 566, 573 (C. A. 7).
In the main , these are the established principles generally governing alleged
debarment situations . The Respondent contends , however, that Steeley had a
right to enter the plant by going through as distinguished from around the picket
line, and in this connection it cites Standard Oil Company of California (El
Segundo Refinery ), 91 NLRB 1540 . In that recent case one Leslie became in-
volved in a picket line altercation with one of the pickets when Leslie went
through the picket line in question . Members Houston and Styles found in their
dissent that "Leslie invited whatever `bumping or jostling' he received when,
instead of walking around the picket line, he deliberately went through it and
provoked Rice [the picket whose discharge was in issue ] to strike him by his
obscene remark to him." In concluding that Rice 's conduct was unprotected, the
majority observed that "we cannot agree with the theory apparently suggested
by our dissenting colleagues that Leslie was under some obligation to walk
around the picket line and not through it."
The General Counsel claims that the Standard Oil case does not support the
proposition advanced by the Respondent and that the facts of that case are in
as Hughes v. Superior Court, 339 U S. 460, 464-465 ; Building Service Union v. Gazzan,
339 U. S. 532, 536-537; Teamsters Union v. Hanke, 339 U. S. 470, 474-475
as Teamsters Union v. Hanke, 339 U. S 470, 474-478; Niemotko v. Maryland, 390 U. S.
268 (see particularly the concurring opinion of Justice Frankfuzter, pp. 273-289) ; Local
#1150, United Electrical, Radio & Machine Workers of America (Cory Corporation),
84 NLRB 972, 977.
37 Socony Vacuum Oil Company, 78 NLRB 1185, 1186. See also, The International
Nickel Company, Inc., 77 NLRB 286, 287 (where the Board spoke in terms of a "clear
and present danger of bodily harm if they [the nonstrikers] had elected to enter the
plant") ; N L. R B v. Perfect Circle Company, 162 F. 2d 566, 573 (C. A. 7),
38 Local #1150, United Electrical, Radio & Machine Workers of America, et at., (Cory
Corporation), 84 NLRB 972, 977. See also Standard Oil Company of California, 91
NLRB 783; Hughes v. Superior Court, 399 U. S. 460, 466. Compare Dearborn G14ss
Company, 78 NLRB 891, 892, and Socony Vacuum Oil Company, 78 NLRB 11$5, 1186.
3e Standard Oil Company of California, 91 NLRB 783 (page 5, footnote 11) ; cf. Socony
Vacuum Oil Company, 78 NLRB 1185, 1186.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any event distinguishable from the situation under consideration 40 The basic
position of the General Counsel is that "the pickets had a right to picket in an
orderly, peaceable fashion, so long as the Respondent was provided with a rea-
sonable means of ingress and egress" and he also asserts that "the proper
accommodation of the rights of the parties in this situation required that the
Respondent not insist upon an alleged right to interfere with the picket line."
Thus the General Counsel contends that the right of an employer is to enter
its plant but that it does not have a right to break through a picket line where
another convenient mode of ingress, by going around the line, is available at
the same plant entrance. I would accept this argument were it not for the
Standard Oil case, which I consider as representing a departure from the other
established principles set forth above. However, the Board Members in that
case joined issue on the proposition of law now advanced by the Respondent
and I conclude that the majority opinion sustains that proposition.
Steeley was therefore entitled to go through the picket line free of jostling,
which I do not believe he could have done.41 Accordingly, I conclude that the
employees on the picket line at the time of the Steeley incident were engaging in
activity unprotected within the meaning of the Act as interpreted by the
Standard Oil case and that their discharge by the Respondent was not dis-
criminatory. I shall recommend that the complaint be dismissed as to these
individuals, whose names are set forth in Appendix A. However, I am unable
to find substantial trustworthy evidence that the other employees (see Ap.
pendix B) named in the complaint, who also were discharged solely because
of their alleged picketing activity during the Steeley incident, were on the
picket line at that time 42 By discharging these employees, therefore, the
Respondent violated Section 8 (a) (1) and 8 (a) (3) of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described in Section III, above, occurring
in connection with the Respondent's operations described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to constitute
unfair labor practices tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor
practices, I shall recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
90 The General Counsel also mentions the fact that the Standard Oil case was decided
by a divided Board. This lack of unanimous Board action does not make the majority
opinion any the less binding.
91 Stine had testified as follows at a hearing In May 1950 before the Department of
Employment Security, Division of Unemployment Compensation, Baltimore, Maryland:
"Sure we closed up [ranks] when he [Steeley] forced through with the rest of his gang
following him. What else could happen when the picket line was revolving and some-
body with a group of employees bust through the picket line. What are you going to do?"
49 The testimony placing various of these individuals on the line during the Steeley
Incident was particularly unreliable ( see my observations on this matter earlier in the
Report) and was otherwise lacking in the circumstantial guarantee of trustworthiness
which I have attempted to apply to my findings respecting all phases of this case.
42 Montgomery Ward h Co. Inc., 90 NLRB 1244, 1245, and other cases cited in footnote
5, supra.
VICTOR PRODUCTS CORPORATION 533
I shall recommend that the Respondent offer to the employees listed on
Appendix B immediate and full reinstatement to their former or substantially
equivalent positions" without prejudice to their seniority or other rights and
privileges and make them whole for any loss of pay suffered by them as a
result of the discrimination by payment to them of a sum of money equal to
the amount they would have earned from the date of their discharge to the
date of offer of reinstatement less their net earnings40 to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-294. Earnings in one particular quarter shall
have no effect upon the back-pay liability for any other such period. It will
also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of
back pay due 48
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
J. Lawson Burner
Robert S. Desmond
Harry D. Hammond
Charles E. Hardy
Edward M. Miller
Paul D. Miller
Gardner L. Myers
Harold N. Aycoth
Howard I. Bitner
Leo Bober
R. C. Douglas
Charles W. Fraley
Marvin Gay
Laurel J. Griffith
Ray Holland
Jesse A. Ingram
Appendix A
Daniel W. Phillips
Edgar Rhoe
Albert W. Row
Daniel C Shank
Ernest L. Stine
Bruce O. Woodring
Appendix B
John T. Ingram
Chester C. Jones
James E. Kline
Thomas B. Kunkleman
George A. Kyne
Oliver W. Mowen
David A. Myers
Joseph P. Rogers
Samuel J. Rowland
Appendix C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
4' The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 05
NLRB 827.
41 Crossett Lumber Company, 8 NLRB 440, 497-8.
46 F. W. Woolworth Company, supra.
215233-53-35
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in, or activities on behalf of, INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS ' OF AMERICA , CIO, and its AMALGAMATED LOCAL 842, or in any ,
other labor organization , by discriminating in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT interfere with, restrain, or coerce our employees in • the
exercise of their right to self-organization , to form labor organizations,. to
loin or assist any labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza
tion as a condition of employment as authorized in Section 8 (a) (3) of the
Act.
WE WILL offer to the following named employees immediate and full rein-
statement to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges enjoyed and make them
whole for any loss of pay suffered as a result of the discrimination against
them :
Harold N . Aycoth John T. Ingram
Howard I . Bitner Chester C. Jones
Leo Bober ( Berkeley Springs ) James E. Kline
R. C. Douglas Thomas B. I!Cunkleman
Charles W. Fraley George A. Kyne
Marvin Gay Oliver W. Mowen
Laurel J. Griffith David A. Myers
Ray Holland Joseph P . Rogers
Jesse A. Ingram Samuel J. Rowland
VICTOR PRODUCTS CORPORATION,
Employer.
Dated -------------------- By ----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.
CHARMAN SERVICE CORPORATION and FRANCIS X. FL ORIO. Case No.
2-CA-941. June 6,1950
Decision and Order
On December 6, 1951 Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report.
99 NLRB No. 95.