Elsing Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 4, 1974

209 N.L.R.B. 1089 (N.L.R.B. 1974)

ELSING MFG. CO.
Elsing Manufacturing Co. and International Ladies'
Garment Workers' Union, AFL-CIO. Case
16-CA-4100
April 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On July 24, 1973, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter. Respondent filed excep-
tions and a supporting brief; Charging Party filed
exceptions and a supporting brief; Respondent filed
a motion to strike the Charging Party's exceptions
and to adopt the Administrative Law Judge's
Decision; Charging Party filed a response to Respon-
dent's motion to strike the Charging Party's excep-
tions and to adopt the Administrative Law Judge's
Decision; Respondent filed an answering brief to the
Charging Party's brief; and the Charging Party filed
an answering brief to Respondent's brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Elsing Manufactur-
ing Co., McAlester, Oklahoma, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at McAlester, Oklahoma, on February
I The original charge was filed on September 3, 1970
2 The General Counsel refused to issue complaint and the Union's
appeal was denied with respect to the dismissal of other allegations of the
instant charge alleging approximately 97 other striking employees had been
unlawfully denied their recall rights, the reinstatement plan was unlawful
per se, and the returning strikers were subjected to discriminatory working
conditions Further allegations under the charge that the discharges of Ruth
Silsbee, Zampa Hancock, Carolyn Eakle. and Kennith Fratzer were
discriminatory were also dismissed.
1089
13-16, 1973, and April 9-13, and 17-19, 1973, pursuant to
a sixth amended charge' filed on April 26, 1971, by the
International Ladies' Garment Workers' Union, AFL-CIO
(herein referred to°as the Union) and a complaint issued on
December 27, 1972, and amended on February 21, 1973.
The amended complaint alleged that Elsing Manufactur-
ing Co. (herein referred to as the Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations Act
as amended (herein referred to as the Act) by refusing to
reinstate the following 31 named employees (herein
referred to as the discriminatees) who had ceased work
concertedly and engaged in a strike called by the Union to
their former or other available positions of employment to
which they were entitled: Lois Barham, Arlene Boatright,
Oral Bowen, Edith Chitwood, Helen Darnel, Rebecca
Drake, Carolyn Eakle, Kennith Fraizer, Lennie Goddard,
Zampa Hancock, Anna Holt, Billie Holt, Manilla Huff-
man, Mary James, Laura Jameson, Patricia Johnson,
Luella King, Lauretta Lambert, Melba McNally, Virgie
Moseley, Nettie Motes, Sandra Painter, Winnie Powell,
Ruth Silsbee, Carol Smith, Ruby Smitherman, Irene Stark,
Nellie Turner, Merle Watkins, Billie White, and Wanda
Yates.
The Respondent in its answer filed on January 3, 1973,
and amended on February 2 and 23, 1973, denied having
violated Section 8(a)(1) or (3) of the Act.
The issue is whether Respondent violated Section 8(a)(1)
or (3) of the Act by discriniinatonly refusing to reinstate
the discriminatees to their former or other available
positions of employment to which they were entitled.2
At the hearing the parties were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs.3
Upon the entire record4 in this case and from my
observation of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Charging
Party, and the Respondent, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Oklahoma corporation, with its principal
office and place of business located at McAlester,
Oklahoma, which is the only facility involved in this
proceeding, is engaged in the manufacture, sale, and
distribution of ladies' sportswear, skirts, blouses, and
related products. During the 12-month period preceding
December 27, 1972, Respondent in the course of its
operations sold and shipped products valued in excess of
$50,000 from its McAlester, Oklahoma, facility directly to
customers located outside the State of Oklahoma.
Respondent admits, and I find that it is engaged in
3 Respondent's motion to file a reply brief is hereby denied inasmuch as
the Board 's Rules and Regulations do not expressly provide for the filing of
reply briefs to the Administrative Law Judge , and in the absence of any
showing a reply brief is necessary.
4 General Counsel's unopposed motion to correct the record is hereby
granted except for those corrections on p. 1676, I. 19 which is worded for as
rather than for a as represented by General Counsel and on p . 2177, 11. 12
and 13, which answer is attributed to the witness rather than to General
Counsel as represented.
209 NLRB No. 176
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. '1 HE LABOR ORGANIZATION -INVOLVED
Respondent admits, and I find that the International
Ladies' Garment Workers' Union , AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THi : UNFAIR LABOR PRACIICES
A. Background
Respondent's operations are divided into the cutting,
sewing, finishing, shipping. sample, and maintenance
departments. Included among its job classifications are
machine operator, floor girl, bundler, spreader, truckdriver,
utility girl, folder, trimmer, and presser. The trimmers and
pressers also fold and inspect. The employees in these
classifications are paid the same basic hourly wage rate
and in addition machine operators, trimmers, folders, and
pressers are also subject to a piece rate.
Among Respondent's officers are Herbert Elsing, Jr.,
president, Thomas Steidley. treasurer, Herbert Elsing, Sr.,
chairman of the board, and Mrs. Jewell Elsing, Sr., vice
president.5 Those persons stipulated to be supervisors were
former Personnel Director Bill San Millin, Production
Superintendent Leon Bernard, Floorlady Arberie Sullivan,
and Supervisors Buena Hardin, Katherine Carlton, Ellen
Whitfield, Delbert Owens, Bonnie Herreld, Kennith Sikes,
Marion Capehart, Bill Bunch, Jurline Justice, and former
Supervisor Joyce Chambers (formerly Lee).
General Counsel present several witnesses who testified
to conduct engaged in by Respondent's officials and
supervisors during the Union's organizing campaign
among Respondent's employees.
Ruby Eldridge testified about the first week of March
1969, Supervisor Whitfield during a discussion with her
and several other employees concerning signing union
authorization cards stated they were going to keep on until
they closed the plant. Ima Little stated about the latter part
of January 1969 she overheard Supervisor Whitfield tell
another employee, Inadean Meltabarger, if the Union
came in Mrs. Elsing would close the plant. Although
Supervisor Whitfield testified and denied asking employees
whether they had signed union cards she did not deny
making the statements attributed to her by either Eldridge
or Little, whom I credit.
Brenda Scherman stated the early part of February 1969,
Supervisor Capehart asked her if she had signed a union
card. Ima Little testified between the middle of February
and the end of April 1969, while she and two other
employees were talking about getting union authorization
cards signed, Supervisor Capehart asked them why didn't
they find another job instead of getting the Union started.
Adel Keller testified about March 20, 1969, Supervisor
Capehart asked her in the presence of another employee if
she had signed a union card remarking she hoped the
Union didn't go in because if it did they would all be out of
a job. Supervisor Capehart did not deny the statements
attributed to her by Scherman. Little, or Keller, whose
testimonies I credit.
Lillian Baker testified about the latter part of January
1969 Supervisor Carlton in Supervisor Whitfield's presence
asked her if she had attended the union meeting the night
before and how many employees were present. When
Floorlady Sullivan, who was walking by, asked Carlton
what Baker had said, Carlton informed her they had a
good turnout. I credit Baker's testimony which was
undenied by either Carlton, Whitfield, or Sullivan.
Karen Stone stated about the first part of February 1969
she overheard employee Maimi James ask Supervisor
Carlton if the Union got in whether the Elsings could
afford it, whereupon Carlton replied if the Elsings went
Union the plant would close. I credit Stone's undenied
testimony.
Ima Little testified about the first part of February 1969
Supervisor Chambers informed her the Elsings knew about
the Union and Mr. Elsing had said they were going to let
her cousin, Ann Smith, go because she was related to Little
and they thought she would be for the Union since Little
was for the Union. I credit Little's undenied testimony.
Louise Hall stated in January or February 1970
following a speech by Treasurer Steidley to the employees
about how to conduct themselves while crossing a picket
line, discussed infra, she asked him whether they were
going to work with the girls who were on strike again,
whereupon he replied they would not be back in the plant
and he would give her his word. Steidley denied making
such remarks. His version of the conversation was, when
Hall asked him whether the people at the plant were going
to have to work with those employees on strike, he told her
not to worry about them. I credit Steidley's version of the
conversation; he impressed me as a more credible witness
than Hall. Further, when the strike ended in April 1970,
Respondent did not refuse to reinstate the striking
employees.
Former Supervisor Chambers testified after about
January 22, 1969, when Production Manager Bernard
solicited her to find out from her daughter-in-law, Marlene
Lee, an employee of Respondent, about the union meetings
Lee attended, she questioned Lee who informed her they
were trying to organize the Union and get employees to
sign cards. Chambers stated about the middle of February
1969 Production Manager Bernard informed her the
Company planned to move all of the union employees into
the pants department to keep them from discussing the
Union with the other employees. Chambers stated the
latter part of February 1969 Bernard told her there was
going to be a layoff in the finishing department and
wanted her to lay off first those employees who she
thought were for the Union except for Mary Rippe and
Sybil Hamner, whom Mrs. Elsing knew to be against the
Union. When Chambers protested, Bernard replied those
were instructions given to him which she was to do.
Chambers refused whereupon Bernard informed her he
would get back in touch with her later that day to discuss it
again. When Bernard later reaffirmed his instructions,
Chambers again refused informing Bernard if it was to be
',
While the last election of officers occurred in September 1969. those and an admitted supervisor, previously held offices.
individuals named with the exceptions of Steidley, who was office manager
ELSING MFG. CO.
done she wanted a list from the Company stating which
employees were to be laid off and wanted it understood by
the employees it wasn't her idea. Bernard told her he would
get back in touch with her later, whereupon he subsequent-
ly advised her he had talked to the Company and they had
agreed to lay them off as they always had. I credit
Chambers' undenied versions of these conversations with
Bernard.
Chambers testified between about January 22 and
March 14, 1969, she had several conversations with Vice
President Jewell Elsing , Sr., concerning the Union , during
which Mrs . Elsing, Sr., informed her she wasn 't happy
because Chambers wasn't doing enough talking against the
Union to the employees, trying to prevent them from
Joining the Union, or keeping a list of those employees who
were for the Union and turning it in to her. Chambers
stated on one occasion about February 22, 1969, Mrs.
Elsing, Sr., informed her she wanted employee Alene
Boatright to be one of the first employees laid off. Later
when Chambers informed Elsing she was mistaken if she
thought Boatright was for the Union, Elsing replied she
was not wrong stating she knew Boatright was for the
Union and wanted her laid off. However, according to
Chambers, Boatright was not included in the subsequent
layoff. I credit Chambers' undenied versions of her
conversations with Vice President Jewell Elsing, Sr.
Chambers testified between about January 24 and
March 1, 1969, she attended three supervisory meetings
held by Respondent. Those persons attending these
meetings included Chairman of the Board Elsing, Sr.,
President Elsing, Jr., Vice President Jewell Elsing, Sr.,
Treasurer Steidley, Production Manager Bernard, and
Supervisors Hardin, Capehart, Whitfield, and Carlton.
Chambers testified at the first meeting Mr. Elsing, Sr.,
inquired whether they had heard about the Union trying to
organize the plant . When no one replied he informed
Chambers he understood she knew about it. Chambers
acknowledged she did from Marlene Lee. Mr. Elsing, Sr.,
then inquired if they had any idea how the employees
thought about it, whereupon no one replied. He mentioned
he had talked to a lawyer stating he couldn't make any
offers then but when the Union was out he thought he and
the employees could get together and straighten things out
between them.
Chambers testified at the second meeting held between
the first and middle part of February 1969, Mr. Elsing, Sr.,
informed them he was upset because they weren't trying to
keep the employees from signing union cards by talking
against the Union and told them he wanted them to keep
the employees from signing union cards as much as
possible and to talk against the Union and discourage it.
Mr. Elsing, Sr., told Chambers he was put out with her
because Marlene Lee had signed a union card the night
before at a union meeting and she had not stopped it.
Chambers' response was there wasn't anything she could
do about it because Lee had a mind of her own. He then
told Carlton she wasn't doing enough either about talking
against the Union or keeping the employees from signing
union cards . Mr. Elsing, Sr., informed them he wanted
them to stop the employees from getting together in groups
discussing the Union and if they thought the employees
1091
were getting together to talk regardless of whether it was
for the Union to break it up anyway they could. They were
instructed to tell the employees it was their own idea so
their conduct. could not be used against the Company. Mr.
Elsing, Sr., further informed them he wanted a list kept on
the employees ' activities including whether they were for
the Union , who they talked to and what groups they were
in.
Chambers testified at the third meeting held about
March 1 , 1969, Vice President Jewell Elsing , Sr., appeared
upset and accused them of not doing anything to keep the
Union out of the plant . She called Chambers a Judas and
when Chambers inquired why, Mrs . Elsing replied because
Chambers' whole family was working for the Union which
Chambers denied . Mrs. Elsing then accused her daughter,
Linda Lee, also employed by Respondent, of being a
ringleader between Chambers and the Union, which
Chambers also denied stating she had told Linda Lee to
stay out of the Union. Mrs. Elsing told Carlton she was put
out with her too because she wasn 't doing anything either
to keep the Union out of the plant. Chambers stated Mr.
Elsing, Sr., inquired about the percentage of employees in
each department they thought were for the Union. Upon
asking Capehart she replied she felt practically everyone in
her department was for the Union because all of the
employees they knew were for the Union had been moved
into her department except 2 or 3 employees she wasn't
sure about . Hardin replied since one employee in her
department ran around with two of the other employees
they were talking about she assumed all three of them were
for the Union . Mr. Elsing, Sr., commented to Chambers he
thought she had more union employees in her department
than in any of the other department , whereupon she
replied she didn 't know how many were for the Union.
Treasurer Steidley , the only witness presented by
Respondent to testify to what transpired in these supervi-
sory meetings , while acknowledging Mr. Elsing, Sr., had
inquired if anyone knew about the Union and had asked
them to keep the list of the employees who they felt were
prounion , noncommittal, and against the Union, was
unable to recall any of the other statements attributed to
either Mr. or Mrs. Elsing, Sr., by Chambers and displayed
limited knowledge of what had occurred at these three
meetings.
Since the officials and supervisors to whom these
statements were attributed by Chambers did not deny
making them and in the case of Mrs. Elsing , Sr., were
consistent with other undemed conduct engaged in by her
and the limited recall of Treasurer Steidley concerning
what transpired at these meetings , I credit Chambers'
version of the meetings who at the time of the meetings was
an admitted supervisor herself.
While Chambers further testified they were suppose to
use the lists against these employees who were not making
their quotas to force them to stay out of the Union , she did
not testify whether Mrs. Elsing or any other official or
supervisor had specifically given her such instructions.
The above conduct engaged in by Respondent 's officials
and supervisors offered by General Counsel to establish
union animus and a discriminatory motive in devising and
implementing the reinstatement plan, discussed infra, was
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subject of unfair labor practice charges resulting in an
informal settlement agreement approved by the Regional
Director for Region 16 on November 6, 1969. Respondent
contended the informal settlement agreement and a
subsequent formal settlement agreement involving an
incident occurring on the picket line precluded the
evidence offered from consideration.
On November 19, 1969, the Union, which has never been
established as the bargaining representative for Respon-
dent's employees, following an unsuccessful demand for
recognition and bargaining engaged in an economic strike
against Respondent and began picketing its premises.
The strike during which the Union was found to have
engaged in certain unlawful strike misconduct,6 including
violence and mass picketing,7 continued until April 13,
1970.
subsequently reduced to writing in the form of a letter from
Attorney Lyne to Respondent dated April 15, 1970,
provided in pertinent part as follows:
This will serve to summarize our conference today in
connection with the Monday application of the striking
Elsing employees to return to work. Each such
employee filed with you, at the time of application, an
identical written statement reading:
"I hereby apply unconditionally for reinstatement
to my oldjob, or, if my old job is unavailable, for
employment on any job. This is a continuing
application for employment."
s s * s
B. Reinstatement Plan
On April 10, 1970 the Union by telegram notified the
Respondent as follows:
YOU ARE HEREBY NOTIFIED THAT THE STRIKE OF THE
EMPLOYEES OF YOUR MCALESTER OKLA OPERATIONS
UNDER THE AUSPICES OF THE ILGWU IS TERMINATED
EFFECTIVE APRIL 13, 1970. ON BEHALF OF ALL STRIKING
EMPLOYEES, rHL UNION HEREBY APPLIES FOR
REINSTATEMENT TO THEIR JOBS, OR, IF THEIR JOBS ARE
UNAVAILABLE FOR ANY JOBS. THIS IS A CONTINUING
APPLICATION FOR EMPLOYMENT. WE OFFER OUR
ASSISTANCE IN ARRANGING THE RETURN TO WORK OF
ANY AND ALL EMPLOYEES
Beginning on April 13, 1970, as each of the approximate-
ly 131 employees including the discriminatees who were
not working when the strike ended reported to Respon-
dent's plant to sign the application for reinstatement roster
used by Respondent for reinstating them, they each
presented statements signed by them on forms furnished
by the Union which provided as follows:
I hereby apply unconditionally for reinstatement to my
old job, or, if my old job is unavailable, for employ-
ment on any job. This is a continuing application for
employment.
Based upon the reinstatement applications submitted by
the discriminatees and the Union on their behalf, I find
that they each made unconditional offers to return to work.
According to the unrefuted testimony of Treasurer
Steidley, whom I credit, because of the striker replace-
ments who had been hired and the pending orders which
determines Respondent's fluctuating work force, there
were no immediate job openings on the day the strike
terminated. However, Respondent began reinstating the
returning employees on April 16, 1970.
Respondent's plan for reinstating the employees, includ-
ing the discriminatees who were not working when the
strike ended,s which was devised by its Attorney Lyne and
All persons applying to return to work have been asked
to sign a master list giving their correct address,
telephone number and the date and time of their
application to return to work. We have concluded to
recall employees in the chronological order that they
applied to return. We decided to use this method rather
than seniority because seniority has never been a
significant factor in the past with respect to layoff or
recall.
You have advised that your immediate needs for
additional employees is slight because of a seasonal
decline, and because the teamster wildcat strike has
held up ordered and shipped material to be used to fill
existing orders.
We have concluded that no new employees will be
hired until the list of employees applying to return to
work has been exhausted by returning them to work or
by their declination to return when called and given
reasonable notice to return.
In view of the wording of the respective applications to
return to work, we have agreed to go straight down the
list in chronological order irrespective of the require-
ments of the job opening or the past experience of the
applicant. If an applicant who is called declines to
accept the proferred job, the next person on the list
shall be contacted. If an applicant declines a proferred
job and then makes a subsequent application for a
specific job or classification their name shall be
transferred to a second list, which second list shall be
used as job openings occur after everyone on the
existing list, except those deleted for misconduct, has
been offered a job before any new employees are hired.
Any employee who declines a proferred job and does
not make a limited application shall be treated as
having quit. However, if they should later make
application for re-employment they shall be treated as
a new applicant with no discrimination for having
participated in the strike. Any employee who accepts a
job and returns to work, and who cannot perform such
6 See International Ladies' Garment Workers' Union, AFL-CIO (Elsing employees from working during the strike.
Manufacturing Co), 186 NLRB 342, of which decision 1 have taken official s The evidence did not establish whether all of those employees who did
notice as requested. not work during the strike actually participated in the strike
7 Respondent contends the picket line violence may have prevented
ELSING MFG. CO.
job after being afforded a reasonable opportunity to do
so shall be layed off and the job shall be offered to the
next person or persons on the first list until it is
exhausted, and then to anyone on the second list who is
qualified. After both lists have been exhausted new
applications may be accepted.
One new applicant who had never before worked for
the Company, applied on April 13th, and was included
on the above described list. She shall be deleted and
not included in the above procedure.
Based upon the testimony of Treasurer Steidley and
corroborated by various discriminatees the employees
upon applying for reinstatement were informed there were
no openings at the time but they would be called in the
order as their names appeared on the reinstatement roster,
which they were asked to sign , if they were interested in
returning to work , including their addresses and telephone
numbers, whereupon Steidley entered the time of day they
appeared . Treasurer Steidley, who was responsible for
administering the reinstatement plan, testified the proce-
dure utilized in implementing the plan was , upon being
informed by Production Manager Bernard or Floor Lady
Sullivan that additional employees were needed, he then
notified those employees in the chronological order as their
names appeared on the reinstatement roster either by letter
or telephone to report to the plant for an interview at
which time they were offered the jobs available. When
more than one job vacancy occurred at the same time, an
equal number of employees on the list required to fill such
vacancies were notified simultaneously to report to the
plant, and those employees who arrived first would be
given a choice of the jobs available or in those cases where
employees arrived together they would be considered in
the order their names appeared on the reinstatement roster.
The employees were informed they had the right to wait for
specific jobs rather than ' to accept the jobs being offered.
For those employees who declined the jobs offered , if they
requested to be considered for specific jobs their names
were entered on a second list.
The reinstatement roster was exhausted around March
1971 whereupon the second list was then utilized until it
was also exhausted about the latter part of July 1971.
No new employees were hired for jobs ahead of those
employees whose names were contained on the reinstate-
ment roster and second list and no evidence was offered to
show the reinstatement lists were not strictly followed as
Steidley testified.9
General Counsel relying primarily upon the testimony of
former Supervisor Chambers contended that in layoffs
occurring prior to the strike seniority had been used as a
criteria in selecting those employees for layoffs . However,
there is no evidence contained in the record to establish
how such alleged seniority was computed . Treasurer
Steidley not only denied seniority was ever used prior to
the strike as a basis for treating with employees , but denied
Respondent maintained records from which seniority
could be computed . An examination of the information
I do not find persuasive the argument that allowing an employee who
was pregnant when offered a job to return when her baby was born
1093
elicited by General Counsel from Respondent's records at
the hearing supports Steidley's testimony, which I credit.
For example, periods of employment as reflected by
Respondent's records were incomplete for the following
employees : Deloris Bennett , Patricia Boyd , Lucille Dal-
poas, Josephine Davis, June Dill, Oma Glenn, March
Harbison , Thressia Haws, Watsie Holt, Madie Howard,
Thyra Johnson, Ora Jones, Mary Lewis, Aline Nace, Helen
Nobel, Delphia Peppers, Gertrude Pippin, Ruby Rose,
Willa Rose , Juanita Smith , Karen Stone, Betty Warren,
and Carlene Young. Further, the employment records for
the following discriminatees were also incomplete: Louis
Barham, Edith Chitwood, Lennie Goddard, Mary Jones,
Nettie Motes, Sandra Painter , Winnie Powell , and Ruth
Silsbee. While Respondent 's records would show the
original date of hire of each employee inasmuch as those
records adduced during the hearing disclosed in many
instances prolonged periods of absences , terminations, and
rehires, the original date of hire would bear no relation to
the time the employee had actually been employed and
therefore could not be used as a valid basis upon which to
establish seniority . Additional evidence offered to establish
that Respondent recognized seniority was the testimony of
Lucille Slatta that Steidley pursuant to her inquiry had
informed her they would have their seniority when they
returned , and admissions by Steidley that pens and
certificates in recognition of service were awarded by
Respondent in September 1971. However , Steidley's
undisputed testimony established these awards were only
made on that one occasion and were based upon
unauthenticated information furnished by the employees
themselves for insurance purposes and not from Respon-
dent 's records.
Based upon Treasurer Steidley 's testimony , corroborated
by Respondent's records , I find such records maintained
by Respondent prior to the strike were not sufficient for
the purposes of determining seniority.
Although not included as a part of the reinstatement
plan, the transfer policy affected all of the employees
including those being reinstated.
Respondent's transfer policy prior to the end of the strike
was to transfer employees and honor their requests for
transfers according to Respondent's needs. However,
Treasurer Steidley testified after the strike ended and
following the first transfers of four employees including
discriminatees McNally and Motes about July 14 , 1970, by
Respondent , made without their requests , several other
employees then requested transfers . Steidley, who felt to
permit transfers would discriminate against those remain-
ing employees on the reinstatement roster because it might
deprive them of available jobs which they had performed
before the strike , after consulting with Attorney Lyne
stopped all transfers until the lists were exhausted. The
evidence does not establish any other employees were
transferred during this period or that when transfers were
subsequently resumed the discriminatees were discriminat-
ed against with respect to transfers.
establishes the list was not followed
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discriminatees
Each of the discriminatees with the exception of Bowen,
Hancock, Stark, Watkins, and White, who did not testify,
testified they participated in the strike activities. Apart
from Respondent's amended answer which admitted the
discriminatees ceased work concertedly and went out on a
strike called by the Union. Treasurer Steidley admitted
having knowledge that Boatright, Daniel, Drake, Billie
Holt, and Yates had participated in strike activities.
President Herbert Elsing, Jr., also admitted having knowl-
edge that Drake and Billie Holt had participated in strike
activities.
Moreover Barham , Boatright, Chitwood, Daniel, Drake,
Fraizer, Anna Holt, Billie Holt, Huffman, James, Jameson,
Johnson, King, Lambert, McNally, Moseley, Motes,
Painter, Powell, Silsbee, Smitherman, Turner, and Yates all
testified while they were engaged in picketing, various
officials and supervisors of Respondent who crossed the
picket lines either observed them or were in a position to
have observed them engaging in the strike activities. Eakle
also participated in picketing and Goddard and Smith
appeared at the picket line. The officials and supervisors
alleged to have observed them did not deny having
observed them picketing or at the picket line.
General Counsel also attempted to establish Respondent
had knowledge that certain employees including some of
discriminatees were on the Union's organizing committee
because of a letter 10 sent by the Union and received by
Respondent on February 26, 1969. However, I credit the
testimonies of Attorney Lyne, corroborated by President
Elsing, Jr., and Treasurer Steidley that on Lyne's instruc-
tions the letter was forwarded to him unopened and the
names contained therein were not disclosed to Respon-
dent. In so finding I discredit the testimony of Lillian
Baker that about January or February 1969 President
Elsing, Jr., while making a speech to the employees had the
Union's letter in his possession,ii and the testimony of
Lucille Dalpoas that in February 1969 Vice President
Jewell Elsing, Sr., showed her the Union's letter. Both
Dalpoas and Baker were unable to positively identify the
document as being the letter.
The evidence with respect to the reinstatements of each
of the discriminatees disclosed as follows:
Lois Barham, employed as a presser prior to the strike,
did not return to work following the strike. Barham
testified about September 22, 1970, Treasurer Steidley
offered her a job (as a spreader in which she had no prior
experience (stating he would not recommend the job for a
woman)) which she could refuse and wait for an opening in
her previous job.12 Barham declined and asked Steidley for
a leave of absence because she had a job which she didn't
want to quit. When Steidley inquired whether she would be
ready to return to work when he called her she replied she
10 The letter which contained 63 names included those names of 12
discrimmatees
11 Treasurer Steidley also denied Baker's testimony
12 While male employees had previously held this position. Loyce Lott,
another striker alleged as a discriminatee under the charge. whose allegation
was dismissed, was reinstated as a spreader on October 15, 1970, and in
addition Kennith Fraizer who held the position prior to the strike testified
before the strike whenever they got behind in their work women helped
would. Barham's name was then placed on the second list
but without specifying any position as none had been
requested. On March 20. 1971, Barham was informed by
letter her name was up for consideration again and
requested her to come to the office regarding her
reinstatement request. Barham testified upon reporting to
the plant about March 23, Steidley informed her the only
jobs open were spreader or truckdriver.13 Barham who
expressed uncertainty over what she told Steidley about the
jobs offered or her reasons for rejecting them stated she did
tell him she had another job she didn't want to quit
whereupon Steidley informed her when she was ready for a
job she could come down and put in her application.
Steidley testified Barham had quit because after being
placed upon the second list she had declined her old job
when offered because she had another job. Regardless of
which jobs were offered, Barham who had not specified a
particular job admitted she had rejected offers on both
occasions because she was working elsewhere.
A lene Boatright employed as a presser prior to the strike
did not return to work following the strike.
On August 20, 1970, Respondent notified Boatright by
letter regarding her request for reinstatement to come to
the office for an interview suggesting she come prepared to
go to work. Boatright who received the letter on August 22,
and was working elsewhere testified on August 26 she
called Treasurer Steidley informing him she couldn't come
back to work then and requested to wait a while. Steidley,
who consented, informed her they needed machine
operators and that the names of employees who couldn't
come back to work when called would be put on another
roster to be called later. Boatright's name was placed on
the second list with the notation she would like to be
considered later. Respondent on March 20, 1971, sent
Boatright a registered letter received by her on March 22
mforming her that her name was up for consideration
again and for her to come to the office with regard to her
request for reinstatement. Boatright testified she was still
working on the same job she held when previously
contacted, and while she initially testified she did not
respond to the letter, subsequently indicated she was
uncertain whether she had responded. Steidley denied
Boatright responded to the second letter and I credit his
denial.
Oral Bowen, who did not testify, was performing
trimming duties the day preceding the strike and was
reinstated by Respondent on September 2, 1970, as a
machine operator. Preceding her reinstatement Respon-
dent by letter dated August 28, 1970, had notified Bowen
that regarding her reinstatement request it wanted to
interview her at the office. No additional evidence was
submitted concerning Bowen 's reinstatement.
Edith Chitwood, employed as a machine operator (single
needle) prior to the strike, was reinstated on September 28,
perform work as spreaders
13 While pnor to the strike no woman had ever been employed as a
truckdriver the record does not further define the position , what type
vehicle would be involved, or whether only men were qualified to perform
the job According to Steidley, whom I credit, the jobs were offered both for
the purpose of complying with the reinstatement plan and to prevent sex
discrimination.
ELSING MFG. CO.
1970, as a trimmer. Respondent by letter dated September
25, 1970, notified Chitwood, who received the letter about
September 26, it had four job openings and of the four
employees being notified they would have their choice of
jobs in the order they arrived at the plant unless employees
arrived together, whereupon they would be considered
according to their names on the roster. Chitwood testified
upon reporting to the plant on September 28, 1970, another
employee who had arrived before her was given first choice
and of the remaining jobs of trimmer, truckdriver, and
spreader offered her by Steidley who informed her there
were no machine jobs available she selected the trimmer's
job. Chitwood began work that day as a trimmer and
continued until about October 1 or 2, 1970, when she
became ill informing Steidley she was unable to continue
unless she was permitted to work while sitting down,
mentioning her legs had been injured in an automobile
accident which had occurred in January 1965. Steidley
after checking informed her she would not be permitted to
sit down since none of the other trimmers did. Her request
the previous day to be transferred to a sewing machine had
been denied by Supervisor Capehart and Steidley also
refused to transfer her. Chitwood testified she then took a
leave of absence to go to the hospital whereupon Steidley
informed her about October 5 to return when released by
the doctor. When Chitwood gave Steidley a release from
the doctor he informed her he would put her name on a list
to be put back to work. The doctor's release dated April 30,
1971, limited Chitwood's employment to a job which could
be performed in a sitting position. Chitwood further
testified without contradiction about a month later when
she again asked Steidley to come back to work he informed
her she had a bad work record or too much makeup pay
and would not be called back. Although prior to the strike
Chitwood had also been off work for medical reasons
including once for an acute anxiety reaction and after her
leave of absence the doctor had placed restrictions on her
job when she attempted to return to work, the undisputed
reason given her which I credit for not recalling her was
because of the work record or makeup pay.
Helen Daniel, employed as a machine operator (blind
stitch) prior to the strike, was reinstated as a machine
operator on May 11, 1970. Respondent sent Daniel a letter
received by her about May 7, 1970, informing her to report
to the office concerning her application for reinstatement.
Daniel testified when she went to the plant on May 11, she
was informed by Steidley they needed single-needle sewing
machine operators which job she accepted, starting to work
that same day. Daniel at the time of the hearing was still
working as a single needle sewing machine operator except
for approximately 15 percent of the time when she also
performs work as a blind stitch machine operator. Daniel
acknowledged prior to the strike on occasions she had
operated a single needle sewing machine . Daniel stated
about a year after she was reinstated she asked Production
Manager Bernard to put her on a blind stitch machine
where she thought she could put out more work, whereup-
on he replied it wasn't the quantity that counted but the
quality. Three or four months later when she asked
1095
Supervisor Hardin about transferring to a blind stitch
machine , Hardin replied it wasn 't up to her . Although
Daniel experienced difficulty making her quota after her
reinstatement her earnings now compared to her former
earnings vary.
Rebecca Drake, employed as a presser prior to the stake,
was reinstated on August 25, 1970, on a job trimming and
mspecting.
Respondent by letter dated August 20 , 1970, informed
Drake , who received the letter about August 21, it wanted
to interview her regarding her request for reinstatement.
Drake testified upon reporting to the plant on August 25,
Steidley who advised her there were no openings for
pressers but offered her a job trimming and inspecting
which she accepted and began work that same day.
Drake testified when 2 or 3 days later she asked
Supervisor Herreld about putting her on pressing, Her-
reld's response was it wasn 't up to her . Since being
reinstated Drake on occasions has been assigned pressing
work to help the employees catch up during which she has
unsuccessfully asked Supervisors Whitfield and Herreld to
leave her on pressing.
Drake continued working until about August 17, 1971,
when she took an indefinite leave of absence and did not
return . According to Drake the reason for taking the leave
of absence was because there had been some layoffs and
Vice President Jewell Elsing had been criticizing her work.
Although Drake on direct examination had testified she
had difficulty performing the job and was slow at it upon
being confronted with her affidavit admitted having stated
the job was not more difficult for her than the job which
she did before the strike . The only reason given Respon-
dent by Drake for taking the indefimte leave of absence
effective August 20 , 1971, was listed as personal reasons.
Carolyn Eakle, according to Respondent 's records, was
classified as a machine operator when the strike began and
was reinstated on August 26, 1970 , as a machine operator.
However , Eakle claimed from about April or May 1969 up
until the time of the strike she was assigned as utility girl
but spent most of her time dying , bagging , and preparing
dresses for shipment . Respondent by letter dated August
20, 1970, notified Eakle , who received the letter about
August 22 , to report to the office regarding her reinstate-
ment request suggesting she come prepared to go to work.
Eakle testified upon reporting to the plant on August 26,
Steidley offered her the job as single needle sewing
machine operator , 14 a job she had never performed before
or been trained to do, which she accepted and started work
that same day . Steidley admitted informing Eakle when he
hired her she would be expected to perform as efficiently as
if she had had prior experience on the job. She continued
working on the job until her termination on September 3,
1970. Eakle stated during this period she experienced
difficulty operating the machine and on two occasions was
assigned to other sewing machines . Eakle testified about
September 1, Steidley informed her because of her makeup
she would have to do better but she would be given a
couple more days. On September 3, Steidley informed her
she wasn't making production and gave her her check.
14 Eakle's employment application dated September 9, 1968, indicated
she desired work as sewing machine operator
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Eakle protested that her requests to him and
Floorlady Sullivan to be transferred to the finishing
department had been denied while another employee, Oral
Jones, had been hired in that department for pressing, a
job which she had previously performed on occasions, she
rejected Steidley's offer of an explanation. Respondent's
records show Eakle was terminated on September 3, 1970,
for excessive makeup pay. Although Eakle was terminated
on September 3, her name was entered on the second list
with the notation she could make it on a job in the
finishing department. According to Steidley, Eakle's name
was entered on the second list because she had expressed
an interest in a job in the finishing department. On or
about July 13, 1971, Steidley contacted Eakle who was
working elsewhere offering her a pressing job which she
refused telling him she wasn't interested although this was
the type job which she had stated she wanted.
Kennith Fraizer, employed as a spreader prior to the
strike, was reinstated on September 2, 1970, as a sewing
machine operator.15 Respondent by letter dated August 20,
1970, notified Fraizer, who received the letter to report to
the office regarding his reinstatement request. Fraizer
testified about August 31, 1970, when he reported to the
plant Steidley informed him the only opening was for a
sewing machine operator which he accepted after advising
Steidley he had never operated one before. Fraizer stated
Steidley informed him if he couldn't do the work he would
have to discharge him, and Steidley acknowledged having
informed Fraizer upon his reinstatement he would be
expected to perform as efficiently as if he had had prior
experience on the job. Fraizer, who had never operated a
sewing machine before, began work on September 2 and
the first day was assigned to sewing collars. Fraizer
testified the third day Steidley informed him he had talked
to his supervisor learning he had not turned in a bundle
that day and informed him he was not going to be able to
make it as a sewing machine operator and they had to
dismiss him. Steidley, who acknowledged he had only
personally observed Fraizer's work for a few minutes, then
gave him his check. Respondent's records show Fraizer
was discharged on September 4, 1970, for excessive
makeup. While according to Steidley the reason Fraizer's
name was not included on the second list was because he
did not apply, the evidence shows Fraizer was discharged
and never informed his name could have oeen placed upon
a second list.
Lennie Goddard, employed as a presser prior to the strike,
was reinstated on March 17, 1971, as a machine operator.
Respondent by letter dated March 13, 1971, notified
Goddard who received the letter about March 15 to report
for an interview with regard to her application for
reinstatement. Goddard testified upon reporting Steidley
informed her the only jobs available were for a sewing
machine operator and truckdriver whereupon she accepted
the sewing machine operator's job and reported for work
the next day. Goddard acknowledged under cross- exami-
nation she was hired on March 10, 1969, as a single-needle
machine operator and after 6 weeks training worked in that
capacity until she was laid off in August 1969 thereafter
being recalled as a presser on November 11, 1969.
Goddard continued in this capacity according to her
testimony until March 24, 1972, when she became ill and
took a leave of absence. Goddard stated she thought her
illness had to do with her job claiming she was under
pressure and nervous and her supervisor had insisted the
employees get their quotas and had informed her she
wasn't doing enough and should work harder. Contrary to
her contentions however Respondent's records which
Goddard acknowledged show she took a leave of absence
effective April 3, 1972, to enter the hospital for tests for
reasons other than nerves. Goddard on direct examination
testified on September 6, 1972, when she asked Betty
Gillabrew for a job as a single-needle machine operator,
she was told there were no openings at the time but she
would be notified if they had one available and on January
30, 1973, she was informed by Debby Owens they weren't
hiring anyone at the time. Under cross-examination,
however, it was established on May 26, 1972, Goddard had
resigned her employment with Respondent because of
reasons of ill health which she stated were related to the
problem over which she had been hospitalized.
Zampa Hancock (deceased),16 employed as a trimmer
prior to the strike, was reinstated on September 2, 1970, as
a machine operator. Respondent by letter dated August 28,
1970, notified Hancock to report to the office for an
interview regarding her reinstatement request. Steidley
testified when Hancock reported to the plant on September
2 he informed her they only had openings for a presser and
sewing machine operator. Hancock, who had experience as
a presser, informed him because of kernals under her arms
she was unable to press which was the reason she had been
transferred to trimming. When Hancock informed Steidley
she would take the sewing machine operator's job he stated
he explained to her she would have to produce like an
experienced operator although to his knowledge she had
never sewed for Respondent before. Pursuant to her
inquiry he also informed her she would not have over 3
days to come up to the other operators' production.17
Steidley testified later that same day he informed Hancock
according to her supervisors and Floorlady Sullivan, she
would not be a machine operator because she couldn't
learn to control the machine and he would have to let her
go. Upon her asking if she was fired he informed her she
was. Respondent's records show Hancock was terminated
on September 2, 1970, for the reason she was unable to
sew. Steidley did not personally observe Hancock's work
although he saw samples of her work. When Hancock at
the time of her discharge asked for a tnmmer's job Steidley
informed her they would be glad for her to have it when it
became available and her name was placed on a second list
with a notation to that effect. Steidley testified on July 14,
1971, Hancock was rehired as a trimmer but was
subsequently terminated on August 20, 1971, for excessive
makeup pay.
15 President Elsmg, Jr, testified without contradiction which f credit that Hancock offered as evidence by General Counsel supports Steidley's
prior to the end of the strike three male employees had been employed by testimony he told her she would not have over 3 days rather than the
Respondent as single needle sewing machine operators statement contained in his affidavit she would have 3 days to learn how to16 The death certificate established Hancock died on February 17, 1973 operate the machine
17 The taped interview of the conversation between Steidley and
ELSING MFG. CO. 1097
Anna Holt, employed as a machine operator (single
needle) prior to the strike, was reinstated on September 8,
1970, as a machme operator. Respondent by letter dated
August 20, 1970, notified Holt to report to the plant for an
interview regarding her reinstatement request suggesting
she come prepared to go to work. Holt who received the
letter on September 4, 1970, testified when she went to the
plant on September 8 she was reinstated by Steidley as a
single-needle machine operator and began work that day.
Holt at the time of the hearing was still employed as a
single-needle machine operator or on the same type sewing
machine.
Billie Holt, employed prior to the strike as a machine
operator, was reinstated on May 11, 1970, as a machine
operator. Respondent by an undated letter notified Holt
who received the letter on May 9, 1970, to report to the
office pursuant to her reinstatement application. Holt
testified upon being informed the only opening was for a
single needle operator's job she accepted it and has since
continued to perform that job. According to Holt prior to
the strike she had operated an overlock or safety stitch
machine and on occasions a single needle machine. While
Holt testified before the strike she always made over her
quota from the time the strike ended until Respondent
increased the hourly wage she only made her quota four
times.
Manilla Huffman, employed as a machine operator
(single needle ) prior to the strike , was reinstated on
September 23, 1970, as a presser. Respondent by letter
dated August 28, 1970, notified Huffman who received the
letter about August 29 or 30, to report to the office
regarding her reinstatement request . Huffman who at her
own request arranged a later reporting date testified when
she went to the plant on September 22, 1970, Steidley
informed her the only opening was a presser's job which
she could either take or hold off for a machine operator's
job. Huffman who informed Steidley she had never
pressed, accepted the job and began work the next day.
Steidley acknowledged informing Huffman when he hired
her she would he expected to perform the job as efficiently
as if she had prior experience on the job . Huffman testified
the pressing job which required standing caused her feet
and legs to swell which she treated with home remedies.
Huffman stated she continued to work as a presser until
April 23, 1971, when she quit her job. While she claimed
the reason she quit was because she couldn't take the
standing, a reason never conveyed to Respondent, the only
reason listed on her resignation slip was for personal
reasons. There was no evidence Huffman who had
previously worked as a waitress had either requested a
transfer or that Respondent was aware of the problems she
had with her feet and legs. Huffman stated about
September 25, 1972. when she inquired of Steidley whether
there were any openings he informed her to put in an
application which she did but has since heard nothing
further.
Mary James, employed as a machine operator (single and
double needle) prior to the strike, was reinstated on
October 8, 1970, as a presser. Respondent by letter dated
October 6, 1970, notified James who received it on October
7, 1970, pursuant to her reinstatement application there
were three job openings and of the three employees being
notified they would be given a choice in the order they
reported to the office unless arriving together whereupon
the roster would control . James testified when she went to
the plant on October 8 , she was given her choice of the jobs
truckdriver, presser, or trimmer. Although she accepted the
trimmer's job when she reported to work the next day she
was assigned by Floorlady Sullivan to a presser's job.
When James informed Supervisor Whitfield she had been
hired to trim , Whitfield replied they didn 't need trimmers
but needed a presser . James did not protest the assignment
to Steidley who had reinstated her and made no further
requests for a trimmer's job. James has continued to work
as a presser except when they run out of pressing work
when she is assigned trimming . According to her she never
requested to be transferred to a single needle machine
operator's job . James stated she took a leave of absence the
last of May 1971; however , when it was time for her to
return to work about September 1, 1971, she was nervous
and did not want to resume her job. The reason given by
James as reflected by Respondent's records for taking a
leave of absence from June 1, to September 1, 1971, was in
order to take care of her children for the summer. James
acknowledged while working for Respondent she had less
difficulty making a quota as a presser than as a machine
operator and preferred the presser work on which she was
faster.
Laura Jameson, employed as a presser prior to the strike,
was reinstated on August 27, 1970, as a machine operator.
Respondent by letter dated August 20, 1970, notified
Jameson who received it on August 21, to report to the
office regarding her reinstatement request . Jameson testi-
fied upon reporting to the plant on August 26, Steidley
offered her a single needle machine operator's job which
she accepted . Jameson testified and Steidley admitted
telling her she would be expected to perform as efficiently
as an experienced operator. Jameson who had never
operated a commercial sewing machine began work the
following day and continued working until September 3,
1970, when she was terminated . According to Jameson,
Supervisor Hardin showed her how to operate the machine
the first day and said she was doing good. The second day
she was assigned work of sewing collars. On the Monday,
preceding her discharge she sewed labels whereupon
Hardin again told her she was doing all right . According to
Jameson her beginning piece rates which were only a few
dollars increased about a dollar a day for the first 3 days.
Jameson , who experienced difficulty in operating the
machine , testified on September 1, Steidley informed her
that her work wasn't improving and he had told her she
had to operate as an experienced employee. When
Jameson protested she had to start learning from scratch,
Steidley informed her she would have to do better and
improve her makeup or he would let her go because he had
a long list of experienced machine operators waiting for a
job. Jameson testified on September 3, 1970, Steidley
informed her that her work had not improved and he had
to let her go . Respondent's records show Jameson was
terminated on September 3, 1970, for excessive makeup
pay. According to Steidley she wasn't again considered for
reinstatement because she did not make an application.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However she had been discharged and was never advised
she had the right to apply.
Patricia Johnson, employed as a floor girl pnor to the
strike, was reinstated on September 9, 1970, as a machine
operator. Respondent by letter dated August 28, 1970,
notified Johnson who received the letter that day to report
to the office regarding her reinstatement request. Johnson
testified on September 3, upon going to the plant Steidley
informed her the only job open was for a single-needle
machine operator. Johnson, who acknowledged under
cross-examination that prior to becoming a floorgirl in the
latter part of July 1969 she had worked as a single-needle
machine operator, accepted the job and reported for work
about September 9. Johnson has since continued to work
as a single-needle machine operator with the exception of
four or five occasions for a day at a time when she has
been assigned the duties of floorgirl. While Johnson stated
she preferred the floorgirl job because she didn't have to
meet quotas she had never requested a transfer.
Leulla King employed as a machine operator (single
needle) prior to the strike was reinstated on March 23,
1971, as a machine operator. Respondent by letter dated
September 22, 1970, notified King who received the letter
on September 23 to come to the plant regarding her
reinstatement application. King testified when she initially
went to the plant on September 23, Steidley informed her
the only job open was a spreader's job which had generally
been handled by a man 18 and involved lifting weights of
up to 90 pounds. Steidley testified he informed King she
had the right to hold out for some other type work she felt
she was more qualified to do and informed her he would
hate to see her take a job she couldn't do when other jobs
would be available soon. According to King, when she
inquired if a man was later hired could she be transferred,
Steidley replied he couldn't say because he was going along
with the Board and his attorney and if she took the job and
couldn't perform it he would have to let her go. Steidley's
version was he informed her of the procedures for
reinstating employees under the plan set up by the
attorney, and told her he was offering her the spreader's
job in order not to get the Company in a position of an
unfair labor practice. Steidley informed her pursuant to her
inquiry she could not be transferred. King testified Steidley
told her if she declined the job her name would be placed
at the bottom of the second list. However, King agreed to
accept the job but the following morning when she was
suppose to report to work she informed Steidley her
husband had refused to let her take the job. Steidley
informed her that her name would be put on the second list
and when he asked if she was asking for a special job she
replied no but for any job a woman could do. Steidley
testified which I credit, without contradiction by King that
while offering her the job he told her there was a Federal
law against discriminating against an employee because of
sex. King's name was entered on the second list with the
notation she wanted a job she was more qualified to do.
Respondent by letter dated March 20, 1971, notified King
who received the letter on March 22, to come to the office
because her name was up for consideration again pursuant
18 See fn 12, supra
19 The correct address was contained on Respondent's reinstatement
to her reinstatement request. King testified when she went
to the plant on March 23, Steidley informed her they had a
single-needle machine operator's job which she accepted
and was put to work. King stated she continued to perform
the job until she left her employment in March 1972.
Lauretta Lambert, employed as a machine operator
(single needle) prior to the strike, was reinstated on
September 4, 1970, as a machine operator (single needle).
Respondent on August 20, 1970, mailed a certified letter to
Lambert notifying her to report to the office on August 31
regarding her reinstatement request. However the letter
was misaddressed to her at Box 354, McAlester, Oklahoma
74501, rather than her correct address at Box 354, Kiowa,
Oklahoma 74553.19 According to postal markings on the
envelope the letter was returned to Respondent on
September 14, 1970, with the notations unclaimed and
addressee unknown. However, Lambert who stated they
had been told they would be recalled according to the
names on the roster, upon learning some unidentified
employees who had applied with her and whose names
were below hers on the reinstatement roster had been
called she went to the plant on September 3, 1970. Steidley,
after informing her he had sent her a letter, told her to
report to work the next morning as a single-needle sewing
machine operator. She was reinstated the following day on
the same job held before the strike and has since continued
to work in that position. Inasmuch as Lambert was not
instructed to report to the plant until August 31 for an
interview, and she was reinstated on September 4, I do not
find she was prejudiced by the misaddressed letter which I
find was an inadvertent error.
Melba McNally, employed as a floorgirl prior to the
strike, was reinstated on May 11, 1970, as a machine
operator. Respondent on May 7, 1970, mailed McNally an
undated letter notifying her to report to the office pursuant
to her reinstatement application. McNally who received
the letter about May 7 or 8, testified when she went to the
plant on May 11, Steidley offered her a single-needle
machine operator's job informing her she would go in as an
experienced operator. McNally, who had never operated
that type machine before, accepted the job and worked in
that position until July 14, 1970, at which time she was
transferred to the job of bundle girl in the cutting
department which job she had never done before. McNally
neither requested the transfer or complained about the
assignment and under cross-examination acknowledged
when asked by Production Manager Bernard if she would
like to go to the cutting department as a bundle girl she
replied she would. McNally, who never requested a
transfer to a floorgirl's job, testified she continued to work
as a bundle girl until September 21, 1972, when she
resigned to accept another job.
Virgie Moseley, who was classified as a presser, trimmer,
and inspector but worked primarily as a presser prior to the
strike, was reinstated on July 27, 1970, as a presser.
Respondent by letter dated July 25, 1970, notified Moseley
to report to the office regarding her reinstatement
application suggesting she come prepared to go to work.
Moseley testified on July 27, when she applied for
roster
ELSING MFG . CO. 1099
reinstatement , Steidley informed her she would have
pressing and trimming which job she agreed to accept and
since that time has continued to be emplo yed as a presser.
Nettie Motes, employed as a machine operator (single
needle and overlock) prior to the strike , was reinstated on
June 8 , 1970, as a presser . Respondent by letter dated June
3, 1970, notified Motes who received the letter about June
4, to report to the office regarding her reinstatement
application. Motes testified upon reporting to the plant on
June 5, Steidley offered her a pressing job whereupon she
informed him she could do anything they had to offer
Motes who hack never pressed before began work at her
request on June 8. Motes stated she worked as a presser
until July 14, 1970, when her job was changed to that of
sewing machine operator which she has continued to do.
According to Motes, at the time of her transfer which she
had not requested, Production Manager Bernard had
asked her if she would like to go back on the machine
where he needed her and thought she could do better than
on pressing . She informed him she would rather have the
machine.
Sandra Painter, employed as a floor girl prior to the
strike , was reinstated on August 12, 1970, as a machine
operator . Painter testified on August 11, 1970, Steidley
telephoned her and inquired if she was ready to return to
work . When he asked if she could come in for an interview
the next morning she replied she could . Respondent by
letter dated August 11 , received by Painter about August
15, confirmed the telephone conversation . Painter testified
upon reporting to the plant on August 12, Steidley offered
her a job as a single-needle machine operator informing
her he would give her a few days whereupon she would be
expected to do as much as an experienced operator . Painter
who had previously operated a single needle machine to set
labels, accepted the job and reported for work the next
day. Painter has since continued to work as a single -needle
machine operator except for about one-fourth of the time
when she operates an overlock machine . Painter testified
about March 11, 1971, when she informed Floorlady
Sullivan she would like to have the floorgirl job of an
employee who was quitting , Sullivan replied it was handled
through the front office. A few days later Supervisor
Carlton informed her Floorlady Sullivan had instructed
she also perform work on the overlock machine which she
began doing part-time that day.
Winnie Powell, employed as a machine operator (single
needle) prior to the strike , was reinstated on September 14,
1970, as a machine operator.
Respondent by letter dated August 28 , 1970, notified
Powell , who received the letter the week before September
14, to report to the office regarding her reinstatement
request suggesting she come prepared to go to work . Powell
testified on September 14, Steidley offered her a job as a
single-needle machine operator , which she accepted.
Powell continued to work in that capacity until about
October 1970 when she took a leave of absence because of
sickness in her husband 's family, afterwards calling
Steidley and informing she wouldn ' t be able to come back
to work.
Ruth Silsbee, employed as a machine operator (overlock)
prior to the strike , was reinstated on June 9, 1970, as a
presser . Respondent by letter dated June 4 , 1970, notified
Silsbee , who received the letter on June 5 , to report to the
office concerning her application for reinstatement . Silsbee
testified upon reporting to the office on June 5, Steidley
offered her a presser 's job which she accepted . Steidley
admitted and Silsbee corroborated his testimony that upon
reinstating her he told her she would be expected to
perform as efficiently as if she had had prior experience.
On June 9 Silsbee , who had never worked as a presser
before , began work as a presser . Silsbee testified on July
14, Steidley informed her that her makeup for the previous
2 weeks was ridiculous and she would have to do better. He
accused her of holding hack in order to be transferred to
her old job. Silsbee denied it and upon asking if there was
any chance of getting her old job back Steidley informed
her he might be able to do something about it . Silsbee
mentioned he had changed Motes'job whereupon Steidley
replied he had a girl sewing who could never make her
quota and he put her on pressing and Motes on the sewing
machine . Steidley further mentioned the Union had put
them in a bad position the way she had applied for the job.
Steidley admitted on one occasion Silsbee had requested a
transfer to a sewing machine however she had demonstrat-
ed she could do better on pressing and he was convinced
she was getting worse in order to be transferred . Silsbee
testified on August 6, Steidley informed her that her
makeup was so high the Company could not stand it, she
had previously been informed she had to do better and told
her he was letting her go. According to Silsbee when she
inquired whether she could be transferred back to her old
job or have any chance of getting it back Steidley told her
she couldn ' t. When Silsbee asked if she was fired , Steidley
told her she was. Respondent 's records show Silsbee was
terminated on August 6, 1970 , for excessive makeup pay.
According to Steidley , since Silsbee upon being terminated
did not make application to be put on the second list, she
was therefore ineligible for reinstatement . However,
Silsbee , who had been discharged , had not been informed
she could be put on the second list.
Carol Smith, employed as a machine operator (sewing
machine) prior to the strike , was reinstated on August 3,
1970 as a presser . Respondent by letter dated July 30, 1970,
notified Smith , who received the letter about August 2, to
report to the office for an interview regarding her
reinstatement application. Smith testified upon reporting
to the plant on August 3, Steidley offered her a pressing
job. After informing Steidley she had never pressed before,
Smith accepted the job and began work that day. Smith
testified she continued to work as a presser until August 9,
1971, when she was notified she had been terminated due
to excessive makeup pay . The termination letter stated her
daily average makeup pay for the week had exceeded $6.
Respondent's records established Smith's makeup had
exceeded this amount. According to Smith about 3 weeks
prior to her discharge Steidley had informed her that her
makeup was excessive and she would have to bring it up or
be terminated . Smith stated during that same period when
she had asked Steidley about getting her old job back
because her ankle had been giving her trouble , he replied
he didn 't know right then but would see what he could do.
Ruby Smitherman, whose classification was trim/fold/in-
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spect prior to the strike, although she spent most of her
time trimming, was reinstated on August 6, 1970, as a
presser. Respondent by letter dated August 5, 1970,
notified Smitherman, who received the letter on August 6,
to report to the office concerning her reinstatement
application. Steidley on August 5 had also left word with
her husband for her to come to work the next morning.
Smitherman testified when she reported to the plant on
August 6, Steidley offered her a job as presser. After
informing Steidley she had never pressed before she
accepted the position whereupon Steidley informed her she
had 3 days to make her quota or he would have to let her
go. Smitherman began work that same day and has since
continued to work as a presser except on occasions about
once a month when they run out of pressing and she is
given a bundle to trim which takes about 30 or 40 minutes
and which she then presses.
Irene Stark, who did not testify, was classified as trim
and inspect when the strike occurred and was not
reinstated after the strike ended. Respondent mailed Stark
a certified letter dated August 5, 1970, notifying her
pursuant to her reinstatement application to come to the
office for an interview regarding a job opening. Steidley
testified the letter was not returned to Respondent and
according to its records the return receipt was signed by an
L. Workman on August 7, 1970. Steidley did not recall
Stark ever responding to the letter or any further efforts
being made by Respondent to contact her. Based upon the
evidence I find there was a presumption Stark received the
letter and contrary to General Counsel's position I find
when considering the procedures followed in reinstating
the employees which established all of them upon reporting
to the plant were offered jobs that consistent with that
procedure the letter to Stark amounted to a job offer.
Nellie Turner, employed as a presser prior to the strike,
was reinstated on August 31, 1970, as a machine operator.
Respondent by letter dated August 28, 1970, notified
Turner who received it about August 29, to report to the
office regarding her reinstatement request. Turner testified
when she went to the plant on August 31, Steidley offered
her a job as a single needle machine operator. After telling
Steidley she had not been trained for the job20 she
accepted it and began work that day. Steidley acknowl-
edged when he reinstated Turner he informed her she
would be expected to perform as efficiently as if she had
pnor experience on the job. According to Turner, who
experienced difficulty operating the machine the first 2
days, she was assigned to sew collars and on the second
afternoon Steidley informed her she had' only made 18
cents for the Company the previous day. After she had
explained she had only sewed for 30 minutes the previous
day because of practicing Steidley replied he understood
she had to practice some. On the third day she was
switched to another sewing machine requiring repairs after
the thread kept breaking. Turner testified the fourth day
she worked Steidley informed her she hadn't caught up her
quota for work. After she complained it was impossible
because of the way the work was handed her she suggested
that he just as well fire her then. When Steidley inquired if
she could bring her quota up in another day, she replied
she couldn't because of having to change threads and the
way the work was assigned and mentioned the best
seamstress couldn't make the quota. Steidley informed her
he would have her check ready for her that afternoon
whereupon she worked out the remainder of the day.
Turner was discharged on September 4, 1970, for excessive
makeup and was not offered anotherjob.
Merle Watkins, who did not testify and was classified
pnor to the strike as trim/fold/inspect, was reinstated on
August 27, 1970, as a machine operator.
Respondent by letter dated August 20, 1970, notified
Watkins to report to the plant for an interview regarding
her reinstatement application suggesting she come prepar-
ed to go to work. According to Steidley's uncontradicted
testimony Watkins had also worked as a sewing machine
operator pnor to the strike.
Billie White, who did not testify, was employed as a
machine operator prior to the strike and was reinstated on
September 1, 1970, as a machine operator. Respondent by
letter dated August 28, 1970, notified White to report to the
office for an interview regarding her reinstatement request
suggesting she come prepared to go to work.
Wanda Yates, employed as a bundler prior to the strike,
was reinstated on April 16, 1970, as a machine operator.
Yates testified on April 15, 1970, Steidley during a
telephone conversation informed her there was an opening
for a single-needle machine operator and for her to report
to the plant the next day for a job. Respondent by letter
dated April 17, 1970, received by Yates on or about April
17 or 18, confirmed the telephone conversation.
According to Yates when she went to the plant on April
16, Steidley offered her the job of single-needle machine
operator, which she accepted. Steidley, whose testimony
was corroborated by Yates, admitted telling Yates upon
reinstating her they expected her to perform as well as an
experienced sewing machine operator and he did not want
her to get the idea she was going to be a trainee because
they had too many sewing machine operators to be hiring
trainees . Yates, who had never worked as a single-needle
machine operator previously, began work that same day.
Yates testified Steidley talked to her on two occasions
about her makeup being too high. The first occasion
occurred on May 1, 1970, when he talked to a group of
operators including her. The second occasion was a couple
of weeks later during which she asked him for a transfer to
the cutting department but was informed there were no
openings . Steidley, who testified Yates became a qualified
machine operator, stated he talked to Yates on three
occasions about her work the first time with a group of
operators on May 1, 1970, and individually on July 30 and
September 10, 1970. Steidley testified during the July 30
conversation Yates had asked about a transfer to the
cutting department saying there had been two opemngs.
Steidley mentioned they had to transfer employees who
couldn't sew as well as she to keep from firing them but he,
believed she could keep her makeup down because she had
proved it. However Steidley reminded her she could have
held up for her old job and those employees who couldn't
20 Turner, on her employment application , had listed as her experience testimony this was a different type machine
mending on a power machine in a laundry; however, according to her
ELSING MFG. CO.
keep their makeup below the $7 figure could not stay in the
plant and he wanted to see her improve. Yates testified on
several occasions she asked about a transfer and on one
occasion Production Superintendent Bernard had told her
there were no openings but doubted whether she would be
transferred when there was an opening because she would
be trained. About the latter part of May 1970 Steidley, in
response to her request for a transfer, informed her there
were no openings.
Yates testified her supervisor continued to talk to her
about her work, and while first claiming it occurred every 2
weeks subsequently changed her testimony by stating it
occurred every day. Yates testified she continued working
as a single-needle machine operator until she quit her job
on April 23, 1971, giving as a reason it wasn't her line of
work. According to Yates she found the job difficult
because she had to sit down and they were pushing her to
do better.
Beginning about May 1970 following an auditor's report
the Respondent began raising its production standards
which resulted in the discharges not only of employees
hired during and after the strike but included some of the
returning strikers and discriminatee Carol Smith.
As previously noted, that portion of the charge alleging
the returning strikers were subjected to discriminatory
working conditions was dismissed and accordingly no
finding will be made.
D. Training
President Elsing, Jr., Treasurer Steidley, and Supervisor
Whitfield all acknowledged prior to the strike employees
were given training by Respondent to perform their jobs.
This training was conducted either in training Imes
established from time to time for that purpose or in the
production Imes. The witnesses however varied in their
estimates as to the length of training given. According to
Steidley, machine operators were given 1 to 6 weeks
training. Supervisor Whitfield testified they were given
from 2, to 4 weeks training while former Supervisor
Chambers testified they were given from 6 to 8 weeks
training. Pearl McCray, hired in September 1969 as a
machine operator, testified she was given 2 months'
training and Normi Bernardi hired in August 1969 as a
machine operator testified she was given 3 weeks training.
Lennie Goddard hired in March 1969 stated she received 6
weeks training as a machine operator.
However both President Elsing, Jr., and Treasurer
Steidley admitted after the strike those employees includ-
mg the discriminatees who were reinstated were not given
any training on their jobs even though they had never
performed such jobs previously. According to President
Elsing, Jr., the reason was because Respondent did not
have the time and there were a lot of employees waiting for
their jobs back. Steidley stated the reason was because
there was an abundance of employees waiting to return to
work in addition to production problems. Steidley further
21 Sec 8(a)(1) of the Act prohibits an employer from interfering with,
restraining , or coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act Sec 8(a)(3) of the Act provides in pertinent part ..It
shall be an unfair labor practice for an employer . by discrimination in
regard to hire or tenure of employment or any terms or conditions of
1101
acknowledged the limited instructions given by the
supervisors to those employees reinstated did not consti-
tute training. Steidley also admitted telling the reinstated
employees upon being reinstated that they would be
expected to perform like experienced operators and keep
pace with them even though they had never performed the
job before.
The testimonies of President Elsmg, Jr., Treasurer
Steidley, Supervisor Whitfield, and employees Norma
Baker and Reba Pearson all establish after the returning
employees including the discriminatees had been reinstat-
ed, the Respondent resumed training new employees
including establishing a training line. Jennifer LeFlore,
hired in March 1973 as a single-needle machine operator
but unable to perform the job stated she was given 3 weeks
training prior to her discharge.
E. Analysis and Conclusions
General Counsel contends while Respondent denied that
Respondent violated Section 8(a)(1) and (3) of the Act,21
by discriminatonly refusing to reinstate the 31 discrimina-
tees to their former or other available positions of
employment to which they were entitled.
The findings herein established each of the discrimina-
tees had participated in the economic strike at the
termination of which they had made unconditional offers
to return to work on their old jobs or, if those jobs were not
available, to any job, and at the time of such applications
they had either been permanently replaced or there were
no existing jobs.
The reinstatement rights of economic strikers are
statutory. Brooks Research & Manufacturing Inc., 202
NLRB 634. The Supreme Court in Fleetwood22 held: "the
status of the striker as an employee continues until he has
obtained "other regular and substantially equivalent
employment ...: ' If and when a job for which the striker
is qualified becomes available, he is entitled to an offer of
reinstatement. The right can be defeated only if the
employer can show "legitimate and substantial business
justifications."
Following the Court's decision in Fleetwood the Board
in Laidlaw 23 held: "economic strikers who unconditionally
apply for reinstatement at a time when their positions are
filled by permanent replacements: (1) remain employees;
and (2) are entitled to full reinstatement upon the
departure of replacements unless they have in the mean-
time acquired regular and substantially equivalent employ-
ment, or the employer can sustain his burden of proof that
the failure to offer full reinstatement was for legitimate and
substantial reasons." The Board in a more recent decision
Brooks Research, supra, commenting on its holding in
Laidlaw stated, in pertinent part, "The Board in its decision
in Laidlaw applied Fleetwood to hold that economic strikers
who unconditionally apply for reinstatement when their
positions are filled by permanent replacements are entitled
to full reinstatement upon departure of replacements or
employment to encourage or discourage membership in any labor
organization ... "
22 N.LR.B v. Fleetwood Trailer Company, 389 U.S. 375, 381 (1967)
23 The Laidlaw Corporation. 171 NLRB 1366, enfd. 414 F.2d 99 (C.A 7,
1969). cert denied 397 U S. 920 (1970).
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when jobs for which they are qualified become available
.... However private agreements between parties to
determine the reinstatement rights of economic strikers
while not binding on the Board may be permitted where it
will effectuate the policies of the Act. United Aircraft
Corporation, 192 NLRB 382.
To hold that replaced economic strikers who in lieu of
awaiting the jobs to which they are entitled accept and are
reinstated by their employer on comparable jobs are
thereafter legally entitled to reclaim their prestrike jobs
should they subsequently become available would discour-
age if not preclude an employer from reinstating them to
jobs other than those to which they would be entitled since
the employees thereafter would be able to claim such jobs
regardless of the employer's needs and the time and
expenditures incurred in training them for those jobs which
they had accepted. The benefit normally derived by an
employee in agreeing to accept another job is a greater
assurance of obtaining reinstatement and a speedier return
to work.
General Counsel contends both that the selection of the
reinstatement plan was discriminatorily motivated, relying
upon the conduct engaged in by Respondent's officials and
supervisors found supra, and that the reinstatement plan
itself was discriminatory, suggesting other plans should
have been adopted instead. While the conduct alluded to
establishes Respondent's union animus in the absence of a
continuation of such conduct subsequent to the settlement
agreements, the lack of a prescribed procedure for the
order of reinstating replaced economic strikers, and the
wording of the reinstatement applications, I do not find
that either the selection of the reinstatement plan devised
by Attorney Lyne and uniformly applied was discriminato-
rily motivated or the reinstatement plan itself was
discriminatory. The arguments advanced by both General
Counsel and the Charging Party erroneously ignore the
literal wording of the reinstatement applications in which
the returning employees including the discriminatees
offered to accept any jobs if, as found here, their old jobs
were not available. Attorney Lyne, in reliance upon such
offers, devised the reinstatement plan under which the
employees including the discriminatees were offered
reinstatement in the chronological order they had signed
the register established for that purpose. Regardless of
whatever reinstatement plan was selected, certain employ-
ees would necessarily be given preference over other
employees. Further the dismissal of allegations under the
charge that approximately 97 other employees had been
discriminatorily denied their recall rights under the same
reinstatement plan not only distracts from the validity of
General Counsel's contention the reinstatement plan itself
was discriminatory but rather seeks to consider the
discriminatees in isolation.
Having found that neither the selection of the reinstate-
ment plan or the reinstatement plan itself were discrimina-
tory, the remaining issue to be decided is whether the
reinstatement plan was implemented in a discriminatory
manner against the discnminatces. Here the discnminatees
who could have elected to await their jobs to which they
were entitled instead offered to accept any job. Respon-
dent in return for accepting such offers was at least
required as a quid pro quo to make them a bona fide offer
of a job acceptable to them. To the extent however
Respondent offered jobs to discnminatees other than their
prestrike jobs which they were not qualified to perform,
admittedly gave them no training while holding them to
the same standards required of experienced employees on
thejobs and, without giving them a reasonable opportunity
to learn the jobs, discharged them because they couldn't
perform those jobs, such offers could not arguably
constitute either a bona fide job offer or a valid
reinstatement. Moreover, implementing the reinstatement
plan in this fashion violated its own terms which provided
an employee would be afforded a reasonable opportunity
to perform the job accepted. The fact the discriminatees
were informed upon being reinstated, which was their first
notice of the standards to be applied, would not afford
Respondent a defense inasmuch as Respondent when
devising its reinstatement plan had, thereby, accepted the
discriminatees' offers and in return the discriminatees by
adhering to the procedure used had already withheld
asserting their rights to claim jobs to which they may have
been entitled.
Since the implementation of the reinstatement plan in
this manner was so inherently destructive of the recall
rights under the Act of those discriminatees affected no
specific proof of antiunion motivation is required to
establish a violation of Section 8(a)(3) and (1) of the Act.24
A review of the evidence found supra, with respect to
discriminatees Anna Hall, Luella King, Lauretta Lambert,
Virgie Moseley, Winnie Powell , and Billie White, estab-
lished that each of them was offered and accepted their
prestrike job and that Nettie Motes, although she was
offered and accepted a job other than her prestrike job,
was transferred to her prestrike job 6 days later. Inasmuch
as the evidence established these seven named discrimina-
tees were reinstated to their prestrike jobs I find that the
Respondent did not unlawfully refuse to reinstate them.
The evidence established the discriminatees Oral Bowen,
Helen Daniel, Rebecca Drake, Lennie Goddard, Billie
Holt, Manilla Huffman, Mary James, Patricia Johnson,
Melba McNally, Sandra Painter, Carol Smith, Ruby
Smitherman, Merle Watkins, and Wanda Yates were each
offered and accepted jobs other than their prestrike jobs.
Among this group of 14 employees 6 of them, Helen
Daniel, Lennie Goddard, Billie Holt, Patricia Johnson,
Sandra Painter, and Merle Watkins, were reinstated to jobs
on which they had at least some prior experience.
Since these 14 named discriminatees had accepted jobs
which appear comparable to their prestrike jobs for which
they were paid the same basic hourly wage rate and either
because of prior experience, or continued employment on
the jobs beyond a reasonable period, had demonstrated
they were qualified to perform these jobs, I find that
Respondent did not unlawfully refuse to reinstate them.25
Further, while some of these discriminatees subsequently
quit their jobs, there was no evidence to establish that after
their reinstatements they were treated any differently than
24 See Fleetwood, supra, N L R B v Great Dane Trailers, inc, 388 U S 26 25 In making this finding, I have taken into consideration Carol Smith's
(1967). termination which occurred approximately a year after her reinstatement.
ELSING MFG. CO.
other employees or discriminated against. The evidence
established the discriminatees Lois Barham, Alene Boat-
right, and Irene Stark, although offered jobs, either
declined them outright or did not respond to the offers.
Accordingly I find that the Respondent did not unlawfully
refuse to reinstate these three discriminatees . However with
respect to remaining discriminatees Edith Chitwood,
Carolyn Eakle. Kenneth Fraizer, Zampa Hancock, Laura
Jameson , Ruth Silsbee , and Nellie Turner the evidence
established they were each offered and accepted jobs other
than their prestrike jobs for which they were not qualified
to perform, and admittedly were given no training while
held to the same standards required of experienced
employees on the job and without being given a reasonable
opportunity to learn the jobs were discharged because they
couldn't perform the jobs or as in Chitwood's case denied
the right to return to work following a leave of absence.
Under these circumstances for the reasons herein discussed
I find that Respondent thereby violated Section 8(a)(3) and
(1) of the Act by discriminatonly refusing to reinstate these
seven discriminatees by discharging Carolyn Eakle26 on
September 3, 1970, Kennith Framer on September 4, 1970.
Zampa Hancock on September 2, 1970, Laura Jameson on
September 3, 1970, Ruth Silsbee on August 6, 1970, Nellie
Turner on September 4, 1970, and by refusing to permit
Edith Chitwood to return to work on August 30, 1971.
However I find that Respondent's discrimination against
Zampa Hancock ceased on July 14, 1971, when she was
reinstated to her prestrike job.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section 1, above , have a close, intimate , and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Elsing Manufacturing Co., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminatorily refusing to reinstate to their jobs
strikers Carolyn Eakle on September 3, 1970, Kenneth
Fraizer on September 4, 1970, Zampa Hancock from
September 2, 1970, until July 14, 1971, Laura Jameson on
September 3, 1970, Ruth Silsbee on August 6, 1970, Nellie
Turner on September 4, 1970. and Edith Chitwood on
August 30, 1971, Respondent has engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
1103
4. Respondent did not violate Section 8 (a)(3) and (1) of
the Act by discriminatorily refusing to reinstate strikers
Lois Barham , Alene Boatright, Irene Stark, Anna Holt,
Luella King, Lauretta Lambert, Virgie Moseley, Winnie
Powell , Billie White , Nettie Motes , Oral Bowen, Helen
Daniel, Rebecca Drake, Lennie Goddard, Billie Hall,
Manilla Huffman , Mary James , Patricia Johnson, Melba
McNally, Sandra Painter , Carol Smith , Ruby Smitherman,
Merle Watkins, and Wanda Yates.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Since I have found the Respondent unlawfully denied
reinstatement to strikers Carolyn Eakle on September 3,
1970, Kenneth Fraizer on September 4, 1970, Laura
Jameson on September 3, 1970, Ruth Silsbee on August 6,
1970, Nellie Turner on September 4, 1970, and Edith
Chitwood on August 30, 1971, 1 shall order the Respondent
to offer immediate and full reinstatement to each of these
employees to their prestrike jobs27 or, if those jobs no
longer exist, to substantially equivalent jobs without
prejudice to their seniority or other rights and privileges,
discharging, if necessary , any striker replacements hired
after the date of the discrimination against each striker,
and to make them whole for any loss of pay suffered by
reason of the discrimination against them from those dates
herein found when they were unlawfully denied reinstate-
ment to the dates they are made valid offers of reinstate-
ment . With respect to Zampa Hancock , since deceased,
whom I have found was unlawfully denied reinstatement
to her job for the period from September 2, 1970, until July
14, 1971, I shall order that Respondent pay her estate for
any loss of pay suffered by reason of the discrimination
against her during the aforesaid period . Backpay shall be
computed in accordance with the formula prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289,
together with 6 percent interest per annum , to be computed
in accordance with Isis Plumbing & Heating Co., 138
NLRB 716.
Further in view of the violations herein found , Respon-
dent shall be ordered to cease and desist from "in any
manner" infringing upon the rights guaranteed to its
employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
26 Although Lakle declined ajob offered her in July 1971 the offer made
was not to her prestrike job
27 The reinstatements are being ordered to their prestnke jobs because of
the Respondent 's failure to train them on those jobs previously assigned.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER28
Respondent, Elsing Manufacturing Co., its officers,
agents, successors and assigns shall:
1. Cease and desist from:
(a) Discriminatorily refusing to reinstate its employees
who have been replaced while engaged in an economic
strike when jobs became available for them after they have
made an unconditional offer to return to work.
(b) In any manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join or assist International Ladies'
Garment Workers' Union, AFL-CIO, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing and to engage in other
concerted activities for purposes of collective bargaining or
other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in
accordance with Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Carolyn
Eakle, Kennith Fraizer, Laura Jameson, Ruth Silsbee,
Nellie Turner, and Edith Chitwood to their prestrike jobs
or if those jobs no longer exist to substantially equivalent
jobs without prejudice to their seniority and other rights
and privileges, discharging, if necessary, any striker
replacements hired after the dates they were discriminato-
rily denied reinstatement and make each of them in
addition to the estate of Zampa Hancock whole for any
loss of earnings they may have suffered by the Respon-
dent's unlawful refusal to reinstate them for those periods
and in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amount of backpay
due under the terms of the Order.
(c) Post at its McAlester, Oklahoma facility, copies of the
attached notice marked "Appendix." 29 Copies of said
notice on forms furnished by the Regional Director for
Region 16, shall, after being duly signed by the Respon-
dent's authorized representative, be posted immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
28 1n the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the amended complaint be,
and it hereby is, dismissed insofar as it alleged unfair labor
practices not specifically found herein.
29 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily refuse to reinstate
employee-strikers, who have unconditionally requested
reinstatement , to available job openings.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to form , join or assist International
Ladies' Garment Workers' Union, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment in accordance with
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer employees Carolyn Eakle, Kennith
Fraizer, Laura Jameson, Ruth Silsbee, Nellie Turner,
and Edith Chitwood immediate and full reinstatement
to their jobs held before the strike or, if those jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority and other rights and
privileges, and make them, in addition to the estate of
Zampa Hancock (deceased), whole for any loss of
earnings they may have suffered as a result of the
discrimination against them.
ELSING MANUFACTURING
Co.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Office Building, Rm. 8-A-24, 819 Taylor Street,
Fort Worth, Texas 76102, Telephone 817-334-2921.