Hargis Mine Supply, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1976

225 N.L.R.B. 660 (N.L.R.B. 1976)

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hargis Mine Supply, Inc. and United Steelworkers of
America, AFL-CIO-CLC. Case 9-CA-9331
July 13, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On March 4, 1976, Administrative Law Judge Jo-
sephine H. Klein issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions 2 of the Administrative Law Judge and to adopt
her recommended Order as modified herein.3
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Har-
gis Mine Supply, Inc., Pineville, West Virginia, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Make whole the employees named below for
any loss of pay they suffered as a result of Re-
spondent's failure to offer them all reinstatement
pursuant to their unconditional offer of August 1,
1975, to return to work. The employees are: Priscilla
Wade, Anona Church, Inez Rose, Lorraine Trull,
Robert Craft, Barbara Fritz, Barbara Brown, Darrell
Wingler, Pamela Daniels, Lidda May Christian, Har-
old Wingler, Wesley Friend, Mildred Canterbury,
Arlene Berta, and Lynda Christian. Backpay, from
August 1 through August 22, when these employees
were offered reinstatement, shall be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest, in accordance with
Isis Plumbing & Heating Co., 138 NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
In the absence of exceptions thereto, we adopt pro forma the Administra-
tive Law Judge's finding that Respondent conveyed to the employees the
impression of surveillance of union activities in violation of Sec 8(a)(1) of
the Act
2 The complaint alleges that the Respondent refused to bargain with the
Union in violation of Sec 8(a)(5) of the Act We adopt herein the Adminis-
trative Law Judge's findings that on April 3, 1975, the Union represented a
majority of the Respondent's production and maintenance employees, that
on April 8 the Union made a written bargaining demand, and that the
Respondent refused to bargain with the Union while, both before and after
the April 8 demand for recognition, committing serious unfair labor practic-
es which thereafter prevented the holding of a free and fair election We
therefore find that the Respondent thereby violated Sec 8(a)(5) of the Act
and that a bargaining order is warranted Accordingly, we adopt the Ad-
ministrative Law Judge's order requiring the Respondent, inter a/ta, to bar-
gain with the Union, effective April 8, 1975, the date of the demand for
recognition Trading Port, Inc, 219 NLRB 298 (1975) Inasmuch as all mis-
conduct occurring before April 8, 1975, is remedied by the Board's Order,
Member Jenkins concurs in the result
3 In view of the fact that Respondent was discriminatorily motivated in
refusing reinstatement to 4 of the 15 strikers, we agree with the Administra-
tive Law Judge that all of the strikers are entitled to backpay However,
unlike the Administrative Law Judge, we conclude that in view of
Respondent's discriminatory motivation backpay should be computed from
August 1, 1975, the date on which the unconditional request for reinstate-
ment was made, rather than from 5 days thereafter To do otherwise would,
in our judgment, permit Respondent to profit by its own unlawful conduct
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the chance to
present evidence and argument, the National Labor
Relations Board has found that we, Hargis Mine
Supply, Inc., violated the National Labor Relations
Act, and has ordered us to post this notice. We in-
tend to abide by the following:
The National Labor Relations Act gives you,
as employees, these rights:
To engage in self-organization
To form, loin, help or be helped by unions
and to bargain collectively through a repre-
sentative of your own choice
To act together with other employees for
collective bargaining or other mutual aid or
protection without fear of any interference,
restraint, coercion, or reprisal
To refrain from any or all of these things
(except to the extent that such right may be
affected by an agreement requiring member-
ship in a labor organization as a condition of
employment as authorized in Section 8(a)(3)
of the National Labor Relations Act).
225 NLRB No. 88
HARGIS MINE SUPPLY, INC.
WE WILL NOT discourage membership in or ac-
tivities in behalf of United Steelworkers of
America, AFL-CIO-CLC, or any other union,
by failing to employ or otherwise discriminating
against any employees because of their union or
concerted activities.
WE WILL NOT coercively question you concern-
ing your union sympathies and activities; nor
threaten you with reprisals (including plant clo-
sure, discharge, or loss of overtime work) if the
plant is unionized or if you support a union; nor
threaten or attempt to hire additional employees
to vote against unionization; nor convey to you
the impression that employees' union activities
are being kept under surveillance; nor threaten
employees or pickets with physical injury by
firearms or otherwise.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under the National Labor
Relations Act.
WE WILL make each of the following named
employees whole with interest for any loss they
suffered as a result of our failure to offer all of
them reinstatement to employment measured
from August 1, 1975:
Lorraine Trull Pamela Daniels
Anona Church Lidda May Christian
Priscilla Wade Harold Wingler
Inez Rose Wesley Friend
Robert Craft Mildred Canterbury
Barbara Fritz Arlene Berta
Barbara Brown Lynda Christian
Darrell Wingler
WE WILL bargain, upon request, with United
Steelworkers of America, AFL-CIO-CLC, as
the exclusive representative of our employees in
the following appropriate unit:
All production and maintenance employees
employed by Hargis Mine Supply, Inc., at its
Pineville, West Virginia, location, including
truckdrivers, but excluding driver-salesmen,
office clerical employees, professional em-
ployees, guards, and supervisors as defined in
the Act.
HARGIS MINE SUPPLY, INC.
DECISION
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge filed on May 5, 1975,' by United Steel-
workers of America, AFL-CIO-CLC (the Union), alleging
1 All dates herein are in 1975
661
violation of Section 8(a)(1), (3), and (5) of the Act,' a com-
plaint was issued on June 24 against Hargis Mine Supply,
Inc. (Respondent), alleging that on several occasions be-
tween April 7 and 26 Respondent interfered with its em-
ployees' statutory rights in contravention of Section
8(a)(1). The complaint further alleged that the Union rep-
resented a majority of Respondent's production and main-
tenance employees and demanded recognition, but that
Respondent rejected the demand. Further, it was alleged
that the employees went out on strike on April 26 and that
the strike was an unfair labor practice strike. During the
hearing, as discussed below, the complaint was amended to
add an allegation that in August Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discriminatorily refusing
to reinstate four strikers.
Pursuant to due notice, the case was heard before me in
Welch and Pineville, West Virginia, on August 20, 21, and
22 All parties were represented and were afforded full op-
portunity to present oral and other evidence and to exam-
ine and cross-examine witnesses. The General Counsel and
Charging Party waived oral argument; Respondent pre-
sented oral argument. Since the hearing, the General
Counsel has filed a brief.
Upon the entire record, together with careful observa-
tion of the witnesses and consideration of the brief, I make
the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a West Virginia corporation located in
Pineville, West Virginia, is engaged in the manufacture and
sale of safety devices for mine operations. During the past
year, a representative period, Respondent purchased goods
valued in excess of $50,000 which it had shipped directly
from points outside West Virginia to its plant in Pineville.
Respondent is, and was at all times material herein, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
B The Union is, and was at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
As of April 1, Respondent had 19 production and main-
tenance employees.3 Between April 1 and 3, inclusive, 15 of
these 19 employees executed union authorization cards. On
April 8, the Union made a written bargaining demand on
Respondent and filed a representation petition with the
Board. On April 7 or 8, one additional employee was hired
and two more were hired around April 23. These three new
employees also signed union authorization cards.
A representation hearing was held on April 24. On April
25 the Union sent the following telegram to Respondent:
2 National Labor Relations Act, as amended, 29 U S C § 151, el seq
, Four other names appear on a list of employees in the record However,
it was stipulated that those four employees were not to be included in the
relevant bargaining unit
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"DUE TO COMPANY'S ACTIVITIES PRECLUDING THE HOLDING OF A FAIR
ELECTION , PETITIONER HEREBY WITHDRAWS ITS PETITION FILED
AS 9-RC-11015 - The Union's charge was then filed on May 5.
The Regional Director did not authorize withdrawal of the
representation petition , which is blocked by the present
complaint proceeding.
On April 26, 17 of the 21 employees went out on strike.
Picketing at the front and back of Respondent's plant was
begun at that time and was still being conducted at the
time of the present heanng 5 There was uncontradicted evi-
dence that on April 26, after the strike began, Respondent
hired 17 new employees, the majority of whom were still in
Respondent's employ at the time of this heanng. Two strik-
ers apparently abandoned the strike and returned to work
within about 2 weeks after the commencement of the
strike.
On August 1 the strikers, through their union representa-
tive, made unconditional offers to return to work. In a let-
ter dated August 6, Respondent replied, offering reinstate-
ment to 11 named "individual employees who have not
been replaced." Respondent's letter then proceeded: "The
individual employees who have been replaced, and whom
we place upon a preferential list are as follows: Priscilla
Wade, Anona Church, Inez Rose, Lorraine Trull." None of
the employees returned to work, presumably because of the
exclusion of the four. At the hearing the complaint was
amended by the addition of an allegation that the denial of
reinstatement to four strikers was violative of Section
8(a)(3) and (1).
On the last day of the present hearing, under circum-
stances set forth below , Respondent offered reinstatement
to all 15 employees then on strike, and they accepted the
offer. Respondent indicated on the record that it did not
intend to discharge any of its current employees, with the
result that as of August 25 there would be a total of 32
employees.
B. The Issues
The issues presented are:
1. Has the General Counsel established that Respondent
interfered with its employees ' exercise of their Section 7
rights, in violation of Section 8(a)(1)?
2. Has it been established that Respondent discrimina-
torily refused to reinstate four strikers upon their uncondi-
tional offer to return to work?
3. Do the facts warrant issuance of a bargaining order
under N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), as subsequently implemented by the Board in Steel-
Fab, Inc., 212 NLRB 363 (1974), and Trading Port, Inc.,
219 NLRB 298 (1975)?
4. Was the strike which began on April 26 an unfair
labor practice strike?
Respondent 's motion to dismiss the complaint because of the pendency
of the representation petition was denied at the outset of this hearing
5 Presumably the strike and picketing ended when, on the last day of the
hearing , all the strikers were offered and accepted reinstatement
C The Specific Alleged Unfair Labor Practices
1. The supervisors
The complaint alleges, but the answer denies, that Irvin
Hargis is "supervisor and manager" of Respondent. At
some points in his testimony , Hargis 6 maintained that he
has little effective relationship to business since he is un-
able to do much work because of seriously deficient eye-
sight resulting from a mine accident. However, the record,
including Hargis' own testimony, unquestionably estab-
lishes that he is a major management representative and
supervisor. He founded the business as an individual pro-
prietorship in 1959 and had it incorporated as of 1970.
Until about a year ago he owned a 49-percent interest,
which was then reduced to 25 percent. He and his daughter
and son-in-law live in houses on Company-owned property
within 50 to 60 feet of the plant. In testifying, he referred to
the plant as his property. He testified that he goes to the
plant on an average of three times a day. He also acknowl-
edged that he has and exercises authority to hire and fire
employees. Indeed, there was considerable testimony that
his son Ronald, vice president and treasurer, and in full
charge of day-to-day operations, had been stripped of any
authority to hire or fire employees.' There is no question
that the employees generally consider Hargis as Ronald's
superior. There is no doubt that Hargis makes, or at least
actively participates in, all major decisions. For example, it
was he who decided to consult an attorney, and then, on
the attorney's recommendation, a management adviser,
when the Union's bargaining demand was received. He tes-
tified that he always opens and reads the Company' s mail.
The answer to the complaint also denies that Ronald
Hargis, vice president and treasurer, is a supervisor. How-
ever, the evidence leaves no doubt that he holds the named
positions and supervises the employees in their work. In-
deed, so far as appears, he is the only person regularly in
charge of the operations and gives all orders and directions
as to the work. He signs all documents on behalf of the
Company.
2. Credibility
All the employees called by the General Counsel im-
pressed me as thoroughly honest, reliable witnesses, who
were attempting to recall the relevant events accurately
and fully. Especially apparent was the total absence of any
attempt or tendency for the employees to exaggerate or to
color their testimony in favor of the Union's position.
There is, however, reason to question the testimony of
one employee witness, Lidda May Christian. She testified
to statements allegedly made to employees at the plant by
Hargis and Ronald on the morning of Monday, April 7,
and around 12:30 p.m. on Tuesday, April 8 Both these
incidents were fully established by the credited testimony
6 Irvin Hargis will be referred to as Hargis , to distinguish him from his
son Ronald (frequently known by the nickname "Bo")
7 Another son, James , holds the position as president of Respondent
However, he did not testify and there is no evidence as to what function, if
any, he serves in the Company's operations He was quoted as having told
some employees that they needed a union
HARGIS MINE SUPPLY, INC. 663
of several other witnesses. The difficulty with Lidda May
Christian's testimony is that, as she herself testified, she did
not actually enter Respondent's employ until 2 p.m. on
Tuesday, April 8. While it is possible to speculate as to how
she was able to testify to the events before she began her
employment, there is no sound evidentiary explanation.
Having carefully observed Christian's demeanor as a wit-
ness, and bearing in mind the very substantial degree to
which her testimony was corroborated, I have no hesitancy
in stating that I consider her a totally honest and conscien-
tious witness who would not and did not fabricate. Howev-
er, her memory was not totally reliable. For example, in a
preheating affidavit she had said that she signed a union
authorization card on April 7, whereas she actually did so
on April 15. Accordingly, while I do not affirmatively dis-
credit her testimony, I find it sufficiently unreliable to sup-
port affirmative findings where it is not corroborated.
On the other hand, both Hargis and Ronald appeared to
me to be more concerned to further what they believed to
be Respondent' s interests than to reveal the facts. As will
emerge in more detail below (particularly in the discussion
of the alleged replacements of the strikers), they appeared
to be guided more by the legal result desired than by the
facts. One example of the conduct of each of these witness-
es will serve to elucidate.
When the Union's demand for recognition was received,
it was Hargis who, pursuant to his usual practice, opened
the letter. And it was Hargis who then proceeded to con-
sult legal counsel and, at counsel's suggestion, Morgan, a
labor consultant. Obviously the question of whether the
Union's demand was to be met was at least one of the
questions to be considered. On cross-examination, Hargis
testified that he "didn't know" that Respondent had taken
the position that it would not recognize the Union. Then,
adopting the prompting of Morgan, given in the form of
objections to a question, Hargis said: "I'm not an officer or
on the Board of Directors, either one, and what I say
would have little weight, as far as that." Significantly, it
was Hargis who sat beside and consulted with Morgan at
counsel table at the present hearing. And, as set forth be-
low, Hargis participated in the purported replacement of
the strikers. Additionally, also as set forth below, Hargis
conceded having told at least two employees that he hoped
they would be on Respondent's side in the election. It is
inconceivable that Hargis was unaware of the Company's
decision not to recognize the Union, at least without an
election. It is clear, therefore, that Hargis was bent on tai-
loring his testimony to fit Respondent's position as suggest-
ed by its labor consultant.
Ronald's testimony was even more clearly dictated by
the exigencies of litigation. On August 6, in a letter signed
by Ronald, the Union was advised that 11 strikers had not
been replaced and 4 had been. At the present hearing, late
in the afternoon of August 21, Ronald was questioned
about the "replacements," apparently unexpectedly. He
temporized and finally said that "all" the strikers had been
replaced. He then withdrew somewhat from that position
He did say, however, that Respondent did not need and
could not possibly use the four who were said to have been
replaced. However, on the morning of August 22, Respon-
dent announced that it needed all 15 strikers back. The
overnight reversal can be explained only by the fact that
questioning of Ronald had illuminated the unlawful nature
of the claimed "replacement" of four strikers.
Such obvious tailoring of testimony and conduct to the
vicissitudes of the litigation, together with careful observa-
tion of their demeanor, leads me to discredit uncorroborat-
ed testimony by Hargis and Ronald.
It may be added that, as to the specific unfair labor prac-
tices, a large part of the Hargises' testimony consisted of
bare conclusory denials of the formal allegations of the
complaint. While sometimes no more detailed evidence is
possible, such bare denials are not generally entitled to
much weight, particularly where, as here, the witnesses'
other testimony is not entirely reliable. Cf. Chauffeurs,
Teamsters and Helpers, Local 633 of New Hampshire [Law
Motor Freight] v. N.L.R.B., 509 F.2d 490 (C.A.D.C., 1974);
Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d
466, 470 (C.A. 9, 1966); N.L.R.B. v. Edward P. Tepper,
d/b/a Shoenberg Farms, 297 F.2d 280, 284 (C.A. 10, 1961).
3. Section 8(a)(1)
a. The evidence
(1) Threats of plant closure and discharge
Employees Anona Church, Lorraine Trull, Inez Rose,
and Barbara Fritz 8 testified that on April 7, about 7:45
a.m, Hargis, as was his wont, came to the door of the
office and there spoke to the employees who had arrived
preparatory to starting work at 8. According to the em-
ployees who testified to this event, Hargis said that he had
dust got word that the Union was trying to get into the
plant and that before he would allow a union in he would
close the plant and board it up; Respondent could not
afford a union-could not afford to pay union wages; he
would close the plant for 6 months to a year and then
reopen with new employees and without the Union.
According to employee Church, Hargis said that the em-
ployees' organizing activities were being checked into and
that "anyone who engaged in organizing activities" would
be discharged
Hargis denied having made the threats attributed to him
and denied having informed employees that he knew of
their union activities on April 7. Apparently to support
these denials, he testified that "the first time [he] knew defi-
nitely [about union activities] was on the 8th day of April,"
when he received the Union's demand letter. The first "un-
official" information he had was when one of Re-
spondent's driver-salesmen telephoned him about 2:30
p.m. on Monday, April 7. The driver-salesman, who could
have corroborated this testimony and thrown light on the
content of the alleged conversation, did not testify.9
8 Lidda May Christian also testified to similar effect However, for the
reason set forth above, no reliance is placed on her testimony as to this
event
9 Lidda May Christian, who is related to Hargis by marriage, testified that
when she visited Hargis' home sometime during the previous week Mrs
Hargis spoke of union activities then reportedly going on at the plant. Har-
Continued
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Six employees 10 testified to a brief employee meeting
called by Ronald at 12:30, at the close of the luncheon
recess, on Tuesday, April 8. He started by reading to the
employees all or a part of the Union's demand letter, which
had been received that morning. According to the employ-
ee witnesses , Ronald said that the Company could not and
would not have a union; it could not afford a union; and
they might all be out of work, or looking for jobs.
Ronald acknowledged having called the meeting and
having read to the employees the Union's demand letter.
He testified, however, that he said only that he "hoped the
demands were not too great . . . that we can't meet them
or we would have to board the place up." Since Ronald
also testified that he did not believe the Union represented
a majority and that before he read the letter to the employ-
ees Respondent had decided not to recognize the Union
without an election, it is most unlikely that he would have
spoken to the employees in terms of excessive demands Cf.
Ludwig Motor Corp., 222 NLRB 635 (1976). As stated
above, I found Ronald Hargis an unreliable witness, whom
I discredit whenever his testimony is in conflict with that of
other witnesses.
Employee Rose credibly testified that she overheard
Hargis tell other employees on a few occasions that he
would close the plant down and then hire new employees,
in addition to the occasion on the morning of April 7. Em-
ployee Barbara Fritz testified that a few days after April 7
Hargis telephoned her at home to talk about the Union.
According to Fritz, Hargis "said others have tried it and
you see where they are at today." He said that he would
not have it and "before I do I will board the windows and
doors up and that will be it." He also said that he "would
appreciate it if [she] were on his side." Fritz testified that
she did not pay much attention to the call, being anxious to
end it speedily because she "was on a party line." Hargis
admitted having made the call, in which he told Fritz he
"would appreciate it if she would help us out in the elec-
tion" and "[s]he said she would." He denied having threat-
ened to close the plant.
Lidda May Christian testified that on about three to five
occasions after she started to work for Respondent Hargis
called her at her home in the evening. She could not recall
his having mentioned the Union in his first telephone call,
which occurred on April 8. However, within a day or two
thereafter, he called again. In this second call he said he
would appreciate it if she "could help them in any way"
and then he said that he could not afford to pay union
wages and "that he would close the place down and board
it up before he would have a Union. And he also said he
could live for six months after closing down and it
wouldn't hurt him." In other telephone conversations he
merely talked about the work and said that the Company
"had been good to their employees."
When Lidda May Christian arrived at work on April 26
and found pickets present, she returned to her home. Har-
gis did not deny or otherwise discuss Christian's preemployment visit to his
home Mrs Hargis did not testify
10 Church, Trull, Rose, Fritz, Pamela Daniels, and Barbara Brown Lidda
May Christian also gave similar testimony, but no reliance is placed there-
on
gis then telephoned her and asked if she wanted to work.
He told her she "should come back and come through his
driveway." She said she did not want to do that. Her testi-
mony continued: "And so he did say that anyone standing
on the picket line or carrying food to those on the picket
line . . . [w]ould be fired." That was her last telephone
conversation with Hargis.
Hargis acknowledged that he had telephoned Christian
at her home on a few occasions. He maintained that he
frequently called new employees to find out how they were
making out and that he felt particular concern for Chris-
tian because she was related to him. According to Hargis,
in his first call Christian indicated that she liked the job but
was unhappy because the other employees did not talk to
her. It was concern about this matter, Hargis maintained,
that led him to call her again within a few days. According
to him, she complained that the other employees still did
not talk to her. He testified that his last telephone call with
Christian was on April 21. He acknowledged that on this
occasion he did talk about the Union, testifying as follows:
"I called her and told her-asked her if she knew about the
Union and the election that was supposed to come up, and
she said that she did. And I told her that I would appreci-
ate it if she would vote for us, be on our side, help us out in
the Union. And she said she would." Hargis added that
"there might have been some more talk about her work in
the shop, but that would have been all." He did not "recall
the exact words." He denied that he had asked her about
her intentions or had threatened to close the plant and
board it up if the Union came in.
While no specific findings will be based on Christian's
testimony, the calls are significant in showing Hargis' in-
volvement in Respondent's campaign to defeat the Union
in an election.
Employee Brown testified to a telephone conversation
with Ronald around April 23, in the course of which he
said that before Respondent would have a union it "will
board it up for six months and start out with new employ-
ees."
Employee Craft credibly testified that sometime in April,
while he and Darrell Wiggler were unloading plastic from
a truck, Ronald approached them "and said that this
would be the last load for a while. That he was tired of this
stuff going on." Although Ronald did not use the word
"Union," Craft understood that "this stuff" meant the
union activity. Obviously Ronald' s statement was an im-
plied threat of plant closure or suspension of operations.
(2) Hiring additional employees
The complaint alleges that Respondent threatened to
hire additional employees to defeat the Union in the elec-
tion.
Anona Church testified that on April 23 Ronald told
employees Robert Craft and Darrell Wingler that they
would be working on the night shift, about to be instituted.
According to Church, Ronald then said, in the presence of
all the employees, that "they were hiring additional em-
ployees and they had already hired three for the night shift
to vote the Union out."
Similarly, employee Barbara Brown testified that in a
HARGIS MINE SUPPLY, INC 665
telephone conversation on April 23 Ronald had told her
that his father "is going to hire enough to vote this thing
down." She referred to the fact that two new employees
(Arlene Berta and Lynda Christian) 11 had dust come to
work, to which Ronald replied, "[Y]es, that is what he hired
them for." 12
(3) Loss of overtime
Anona Church testified that sometime in April Hargis
"said there would be no more overtime for the ones who
had signed Union cards." 13 On cross-examination, Church
said that Ronald also told the employees "there would be
no more overtime for the persons who signed a union
card."
Robert Craft testified that for about a year and a half he
had regularly spent an hour of overtime sweeping the plant
after the close of business almost every day. However, that
regular overtime ended after the union campaign began.
On cross-examination Craft testified that one evening in
April, while he was sweeping after hours, Hargis came into
the plant and talked to Craft In the course of the conversa-
tion Hargis said that he was going to eliminate Craft's 1-
hour-per-day overtime. Thereafter, Craft did not do the
after-hours' sweepmg.14
(4) Interrogation
Robert Craft testified that one evening, while he was
sweeping the plant after the close of business, Hargis asked
him what he thought about the Union and if he was going
to sign a union card. Craft could not specify the exact date
of this conversation but placed it at around April 20.
Employee Brown credibly testified that in their tele-
phone conversation of April 23 Ronald asked her how she
stood "with this Union thing." He proceeded to ask if "we
have enough to vote it down." She replied that she did not
know "because [she] couldn't tell him how the other people
were going to vote." At the end of the conversation she
told Ronald that she "was on his side."
Employee Trull testified that when she arrived at work
on April 24, the day of the scheduled representation hear-
ing, Ronald called her to the stockroom, where he asked
her "what this was all about." He was referring to the
Union. She "said it is for respect," to which he replied that
"there are some people who do not deserve respect here."
Lynda is Lidda May's daughter-in-law
i2 Both Hargis and Lidda May Christian testified that when she reported
to work on April 8 Ronald had no place to assign her She testified that she
had been hired for a night shift and Ronald indicated that she had been
hired because Hargis had "some kind of hare-brained idea " Although no
reliance is placed on Christian's testimony, it may be noted that it was not
specifically denied by Ronald
i3 Respondent's representative objected to this testimony because it was
"not germane to the complaint " However , the complaint specifically alleges
that Respondent "threaten [ed] employees with a reduction in work because
of the Union 's organizing campaign " Although the specific allegation iden-
tifies Ronald as the author of the threat , I believe the complaint adequate to
apprise Respondent of the nature of the allegation
Craft's testimony was "A [Mr Hargis] said no employees would get
unemployment and they would cut my hour overtime And so the next day
I didn't stay for the one hour over Q He told you he was going to cut your
one hour overtime) A Yes (indicating) And he cut my hour overtime 11
(5) Creating the impression of surveillance
The complaint also alleges that Respondent unlawfully
created the impression that the employees' union activities
were being kept under surveillance.
On cross-examination Church testified as follows:
Q. Did [Hargis] ever give you the impression that
he was watching you and your Union activity?
A. I don't know what you mean about watching.
Q. Give the impression of watching. I don't know
what the Board means either, but that is the way it is
written, the impression of surveillance.
A. He said-we were told it was being checked
into.
Barbara Brown testified that when Ronald telephoned
her at her home on the morning of April 23 he said, inter
alia, that "Anona [Church] and Lorraine [Trull] were the
ones who started this thing." He indicated that Church and
Trull had started the union campaign because each was
disturbed about what she considered unfair treatment af-
forded another employee. Brown repeated this testimony
on cross-examination, adding that she disclaimed knowl-
edge of who started the campaign. However, the next day,
at work, she told Ronald that "Lorraine didn't start it."
Brown said she had taken this latter course because Trull
was crying when she emerged from the office after talking
with Ronald.
Under date of April 14 Respondent distributed a brief
letter among the employees. That letter made clear that
Respondent opposed the Union. It continued:
I know that a majority of the employees feel the
way we do. I want to thank those who have come to
me and let their thoughts be known.
It would be difficult for the employees not to conclude
from this statement that Respondent was keeping tabs on
the campaign.
(6) The shooting incident
The complaint further alleges that Hargis "threatened
employees, as they stood on a picket line, by firing shots
that struck in close proximity to said employees."
The employees went out on strike on the morning of
Saturday, April 26, and immediately started to picket at
the front and back of the plant. Generally, their method of
picketing was to park cars on the roadways and rest picket
signs on the front and back of the cars. Although they
apparently did little, if any, walking on picket lines, there
were some pickets at the site at all times, around the clock.
They had a trailer available for sleeping.
At the back of the plant there is a relatively narrow pub-
lic highway beyond which is a steep hill. On the night of
April 28 employees Craft and Darrell Wingler were picket-
ing at the rear of the plant. Upon invitation, they went up
the hill to visit briefly with friends of Craft who lived there
in a trailer . When they came down the hill to the road, at
about 10 p.m., Hargis fired three shots from a doorway in
the back of the plant. Craft testified that the bullets "hit the
ground, and started bouncing up towards the hillside." Ac-
cording to Craft, Hargis told them "to get away from his
property," but they "weren't on his property at all." He
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said Hargis shot "close to the road." Wingler testified that
he was about 30 feet from Hargis when the shots were
fired. Wingler did not actually see the bullets but believed
they came very close to him.
Although Respondent's representative had been at pains
to establish that Hargis has poor eyesight, with very re-
stricted lateral vision, Hargis admitted that he had fired the
shots in question. He testified thatjust before then he was
in his home, about 50 feet from the plant, watching televi-
sion , when his son-in-law entered and said that he had
heard noises at the rear of the plant and thought somebody
was trying to break in. This testimony was, of course, pure
hearsay, and the son-in-law did not testify. Hargis went
into and through the plant, toward the rear. He testified
that he heard rocks being thrown on the roof, but at that
time he did not hear any noise of somebody trying to get
into the plant. Thereupon he returned to his house to get a
key to open the interior padlock on a rear door to the plant
and his 30-caliber, M-1 hunting rifle, which he keeps in his
bedroom. He then reentered the plant and "unlocked [the
interior padlock] real softly." He testified that he then
"heard a noise . . . like somebody was trying to get in the
door" of the loading platform, to the left of where he was.15
At that point he opened the plant door and "jumped" out,
one step down to the ground. He looked to the left, but
"they had gone." His testimony continued: "I looked
straight ahead down the street, and there was a street light,
and I could see if there was anybody down that way in the
line of fire, because the street came around on a curve
.... And then I shot down in the ground, three shots
right there. And I heard someone start running behind me,
and I looked around behind me and I saw two figures
running up the road. I couldn't tell who they were, but all
I know is two figures running, and they was picking them
up and laying them down." At no time did he call out or
otherwise attempt to find out who, if anybody, was there.
Nor did he ever summon the police.16 He apparently imme-
diately decided to get his gun and shoot. 17 Hargis acknowl-
edged that he knew of the continuous picketing. He de-
scribed it as follows: "They leave their cars out there most
of the time with signs on it . . . and then they go to the
shade or down to the trailer . . . to do their picketing down
there , from what I've seen ." But then, when asked if there
was picketing in progress at the time he shot, he replied
that he did not know because "it was 10:00 at night, and I
couldn' t see."
I discredit Hargis' testimony that he heard somebody
apparently trying to break into the plant. And Re-
15 Hargis described the noise as follows "They sounded like someone was
trying to get the door open, or pull a piece of tin off, or something-lust a
big noise out there on the side of the building, back down in the loading
dock area, to my left "
16 The police arrived later on the call of the owner of the trailer, who
swore out a warrant against Hargis
17 On cross-examination he testified "Q Did you look in any other direc-
tion besides where you heard the noise? A 1 looked straight ahead, down
the road, because that's where I was intending to shoot, down in the ditch, to
warn the people off, whoever was trying to break in the plant, to protect my
property I looked down there and I could see there was no one, because
there was a street light down in there, and I didn't see anyone, and that's when
I pointed the gun down in the ground and fired three shots " (Emphasis sup-
plied )
spondent's failure to call Hargis' son-in-law as a witness
leads me to give no credence to the hearsay evidence that
he had heard such sounds. There is no competent evidence
that Hargis' conduct was a reasonable or warranted at-
tempt to protect life or property. On the contrary, it would
be totally irresponsible and unreasonable for a man with
severely restricted vision to open the door and go outside
brandishing a gun if he actually believed that there were
people in the vicinity bent on nefarious activity. Had he
really felt in any danger, he would normally have called the
police, and certainly would have asked his son-in-law, pre-
sumably a younger and more able-bodied man, to remain
with him. I find it immaterial whether the shots struck on
Respondent's property, as Hargis maintained; they were
bound to be intimidating to anyone in the vicinity.
On all the evidence, I find that Hargis fired the shots
recklessly and/or maliciously, for the sole purpose of inti-
imdatmg the pickets.
b. Conclusions
The credited employee evidence outlined above requires
no further discussion or analysis. It clearly establishes that
between April 7 and 28 Respondent violated Section
8(a)(1) of the Act by unlawfully threatening employees
with plant closure and loss of jobs and work if they chose
to be represented by the Union; threatening to hire new
employees to defeat the Union in an election ; coercively
interrogating employees concerning union activities and
sympathies; creating the impression of surveillance over
union activities; and firing shots to intimidate employees
engaged in lawful picketing.
4. Section 8(a)(3)
a. The evidence
Over the objections of the General Counsel and the
Charging Party, Respondent persisted in establishing that
on August 1 the 15 employees still on strike made uncondi-
tional offers to return to work and that, in response, Re-
spondent offered immediate reinstatement to 11 named
employees, who, it was stated, "have not been replaced,"
but added that employees Trull, Church, Wade, and Rose
had "been replaced" and put on a preferential hiring list.
On the second day of the hearing, after the Respondent
had introduced into evidence the exchange of correspon-
dence of August I and 6 between the Union and Respon-
dent, Ronald testified that the 11 "unreplaced" strikers
were still welcome to return to work at any time, but the
other 4 were still "replaced" and on a preferential hiring
list and would be recalled as soon as there were openings.
In answer to questions about the replacements, Ronald
testified that on the morning of April 26, the day the strike
began, Respondent advertised for employees through the
use of radio spot announcements. The announcements said
that the hourly wage rate would be $2.75 but did not spec-
ify the number of employees to be hired or the qualifica-
tions desired. In response to the advertisement, Respon-
dent received between 100 and 300 applications and hired
17 persons. Ronald's testimony continued:
HARGIS MINE SUPPLY, INC. 667
Q. Did seventeen people go to work for you?
A. Yes.
Q. How long did those seventeen go to work for
you?
A. They are still working.
Q. They are still there?
A. The biggest part of them yes.
Q. Then would you explain why you said only four
employees had been replaced?
A. No, I didn't say-I mean I didn't mean it the
way you are-
Q. Well, how many employees were replaced?
A. All of them.
Q. They were all replaced?
A. Yes, ma'am.
Q. Then why were four people denied reinstate-
ment and put on a preferential hiring list while all the
rest were offered immediate reinstatement?
A. Well, because I don't have enough room to take
all the people back with the people I have got. I can't
work all of the people.
Ronald further testified that Respondent did not intend to
discharge any of the "replacements" if the I1 strikers re-
turned to work. When asked if Respondent needed approx-
imately 13 more employees than it had just before the
strike began, Ronald said he had needed them then and he
"could use them now," even though the total would be
around 30, as contrasted with 21 before the strike began.
He indicated that Respondent's business had increased.
Although he acknowledged that company records would
disclose any fluctuations in the volume of business, no such
records were produced. He did not volunteer any explana-
tion of his failure to hire employees from the numerous job
applicants when the 1 I strikers declined the offers of rein-
statement.
When Ronald was asked who had "replaced" each of the
four employees who were denied reinstatement, he replied
that he did not know, saying: "I would have to get a list of
it. I don't have them with me." No such list was ever pro-
duced. He further testified as follows:
Q. How did you decide that these four people were
to be replaced?
A. Well, they were replaced when we hired these
people.
Q. How did you decide to replace Wade, Church,
Rose and Trull?
A. I replaced them all.
Further questioning adduced no satisfactory answer.18
Ronald testified that he did not know of any union activ-
ities on the part of the four stnkers when he replaced them
on April 26. However, at least Trull had testified and been
the chief employee spokesman for the Union at the repre-
sentation hearing on April 24. And Church's union activity
was apparently known at that time, as evidenced by the
fact that her membership in the bargaining unit was vigor-
ously contested by Respondent.
Respondent did not follow seniority in recalling the em-
ployees. Respondent considered Wade, Church, Trull, and
Rose to be satisfactory employees, fully experienced and
conversant with all the operations of the business. As con-
ceded by Ronald, they could "pretty well" perform "just
about any job in the plant."
Ronald also disclosed that the decision as to who would
not be offered reinstatement in August was made by Irvin
Hargis, Ronald Hargis, Ronald Morgan, and Greg Coch-
ran, Morgan's associate. Morgan had first been retained,
at the suggestion of legal counsel, after Respondent re-
ceived the Union's demand for recognition. Neither Mor-
gan nor Cochran had had any previous connection orfa-
miliarity with the operation of the plant.
On the third, and last, day of the hearing, Hargis named
the individuals who he thought had replaced the four unre-
called strikers. He was then asked how it was decided "who
was going to replace whom." He replied: "We had a list of
people that was replaced, and the first ones replaced were
the four that wasn't called back. We replaced them in or-
der." Hargis vaguely suggested that replacements had been
hired for specific machines. But then he testified that each
of the four replacements for Trull, Church, Wade, and
Rose was hired to do "[J]ust general shop work" or "gener-
al labor." He was unable to identify the "replacements" for
the II strikers other than Trull, Church, Wade, and Rose
because "I didn't see that list for some time." Again the
"list" was not produced.
At the conclusion of Hargis' testimony, the General
Counsel moved to amend the complaint by adding an alle-
gation, based on Respondent's evidence, that on August 6
Respondent violated Section 8(a)(3) and (1) by discrimina-
torily refusing to reinstate Trull, Wade, Church, and Rose.
The motion to amend was granted. Thereupon Respon-
dent's representative said:
We would like, at this time, to-based on the un-
conditional request of these people to return to work,
to say that there are four jobs available now. We need
the people, we need every one of them working, and if
they are free to return to work at any time. . . . We
make an offer to Mr. Gravitt to offer full and uncon-
ditional-since they made an unconditional request
for their job back, that they be granted such a request.
Q. And how did you decide that Wade, Church,
Rose and Trull were the only four people out of all the
employees who had been replaced who would not be
reinstated at that time?
A. Well, I needed so many people. And if you have
a hundred out there and you need twenty you have to
leave eighty out there.
18 A later brief attempt to secure an explanation of the basis of the selec-
tion adduced the following statement "I had some of them replaced You
see some of these people quit " No enlightenment was forthcoming Ronald
later testified "Q Can you tell me which employees were replaced9 A I am
not a computer I'm sorry, but I don't remember them " His final statement
on the subject was "Q Well, is it your testimony they were all, in fact,
replaced on April the 26th) A I said I believe they were all replaced,
but I am not sure
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The offer of reinstatement was then accepted by all the
stnkers through union counsel.
In the course of oral argument presented by
Respondent 's representative , the following colloquy took
place:
MR. MORGAN: We will take fifteen back today.
JUDGE KLEIN: Is it the company's plan at that time
to discharge any of the present employees?
MR. MORGAN: No, ma'am, not at this time.
JUDGE KLEIN: So you are, as of today, offering em-
ployment to fifteen people. Now, since they have, on
the record, accepted, tomorrow morning you can ex-
pect 32 employees. Is that right?
MR. MORGAN: That's right. Based on their uncondi-
tional request.
b. Discussion and conclusion
Throughout the hearing , by cross-examination of the
General Counsel 's witnesses and by direct testimony of its
own witnesses , Respondent sought to establish that its pro-
duction and maintenance workers were all simply "general
laborers," without specific classifications or assignments,
and were all interchangeable . Respondent sought to estab-
lish this alleged "fact" to meet the substantial evidence ad-
duced by the General Counsel to the effect that after the
representation hearing Respondent arbitrarily and discrim-
inatorily transferred employees within the plant 19 But the
claimed interchangeability of the employees was essentially
inconsistent with the alleged replacement of four specific
employees.
It will be recalled that , as found above , before the strike
began Respondent had threatened to hire sufficient em-
ployees to defeat the Union and in fact started to imple-
ment that course 20 While Ronald was somewhat indefinite
as to the precise number of employees at various times, it
appears clear that on August 6, when Respondent made its
offers of reinstatement , 11 returning strikers would not
have constituted a majority whereas 15 might have How-
ever , it is clear on the record that as of August 25, when all
the strikers were to return to work , they would not consti-
tute a majority ; according to Morgan , they would number
15 in a unit of 3221 This arithmetic undoubtedly explains
Respondent 's offer on August 22 to reinstate all 15 strikers
despite the fact that on the day before Ronald had testified
that Respondent did not need and could not use more than
the 11 employees to whom reinstatement had been offered
19 Ironically, the complaint did not specifically allege these transfers as
violative of the Act
20 There is further irony in the fact that the three employees hired on
April 8 and 23 joined the union forces
21 But the assumption that the persons hired on April 26 would be eligible
to vote was probably erroneous Larand Leisurelies, Inc, 222 NLRB 838
(1976)
on August 6. Significantly, the four "replaced" strikers
were not offered reinstatement until after the motion to
amend the complaint was granted. The entire sequence of
events leaves no doubt that Respondent was motivated
throughout by an unalterable determination to defeat the
Union in a Board election.
As shown above, Respondent presented no reasonable
explanation for its claim that Trull, Church, Wade, and
Rose had been specifically replaced while the remaining
strikers had not been.22 Respondent was unable to advance
any basis whatsoever for its selection of the employees to
be "replaced." As previously observed, Respondent con-
ceded that the four strikers in question were competent and
fully experienced employees. They were not junior employ-
ees and Respondent never maintained that replacements
had been made on the basis of seniority. Absent any other
explanation, the evident basis for the selection is the union
activities of the four. As noted above, Hargis was credibly
quoted as having identified Trull and Church as the insti-
gators of the organizing campaign. The evidence also es-
tablishes that Rose and Wade were active supporters of the
Union both before and after the strike began. The infer-
ence is clear that Respondent discriminatorily chose Trull,
Church, Rose, and Wade to be denied reinstatement.
On all the evidence, I find that Trull, Church, Rose, and
Wade were denied reinstatement because of their union
sympathies and activities, in violation of Section 8(a)(1)
and (3) of the Act. Free-Flow Packaging Corporation, 219
NLRB 925 (1975).
III. THE NATURE OF THE STRIKE
The complaint alleges that the strike, which began on
April 26, was "caused and has been prolonged by
Respondent's unfair labor practices." Although, as set
forth above, Respondent offered all the strikers reinstate-
ment on August 22, it is possible that in the future it may
become pertinent whether the strikers were entitled to any
priority over the alleged "replacements" hired on April 26.
In the event the Board rejects my recommendation for the
issuance of a bargaining order, the eligibility of newly hired
employees to vote in an election will depend on the nature
of the strike, since "replacements for unfair labor practice
strikers are not eligible to vote in an election." Larand Lei-
surelies, Inc, 222 NLRB 838.
Robert J. Hodge, who had originally joined the strike
but thereafter returned to work, was called as a witness for
Respondent. He had appeared as a witness for the Union
at the representation hearing. In the present hearing he
testified that during a recess in the representation hearing,
on April 24, Wilburn Boothe, staff representative of the
Union, asked Respondent to agree to a stipulation for con-
sent election and when Respondent's representative re-
fused Boothe said "that it could be handled another way."
Hodge further testified that, as they were leaving the court-
house after the representation hearing, "Trull said some-
thing to the effect that, be prepared to strike in the morn-
ing."
22 There is an equal lack of support for Ronald's and Hargis' testimony
that all the strikers had been replaced
HARGIS MINE SUPPLY, INC.
At the present hearing, Respondent's representative ar-
gued that the foregoing testimony establishes "that the
strike itself was actually called during the break in the R
hearing because [Respondent] wouldn't agree to a stipula-
tion upon consent." This contention lacks merit. Boothe's
statement did not necessarily refer to a strike, but could
just as reasonably refer to the course actually taken, name-
ly, the filing of a charge designed to obtain a bargaining
order. At most Boothe was indicating that, despite
Respondent's unfair labor practices, the Union was willing
to have a speedy election but might not be so forbearing if
the election were to be delayed. And the statement as-
cribed to Trull could not reasonably be understood as re-
flecting an existing decision to strike. Indeed, the employ-
ees did not even meet to discuss the situation until later
that evening, and there had been no union meetings since
the initial one on April 1.
At the meeting on the evening of April 24 Trull reported
on the representation hearing and a general discussion en-
sued. Among the matters discussed were alleged physical
and verbal abuse of employees by Ronald, the threats of
plant closure and loss of jobs made by both Hargis and
Ronald, the hiring of new employees and proposed institu-
tion of a second shift in order to defeat the Union, and
Ronald's attempt in the representation hearing to have
Church excluded from the unit. At that meeting the em-
ployees unanimously voted to strike if necessary as a last
resort. They all worked the next day.
On direct examination employee Church, the General
Counsel's first witness, testified that the precipitating cause
of the strike was Ronald's conduct in transferring employ-
ees to new and unfamiliar jobs on April 25. After she had
enumerated several transfers, Respondent's representative
objected "to the line of questioning" as being irrelevant
under the complaint.
Although the charge had alleged violation of Section
8(a)(3), the complaint contained no such allegation. Nor
did the complaint allege the transfers of employees as vio-
lative of the Act. However, the complaint did allege that
the strike was an unfair labor practice strike and did re-
quest a bargaining order. The cause of the strike obviously
was relevant to a determination of its nature. Additionally,
even though not affirmatively or specifically alleged as vio-
lative of the Act, the transfers were part of Respondent's
total course of conduct by which the propriety of a bar-
gaining order must be judged.
After Respondent's objection to Church's testimony was
overruled, a substantial portion of the ensuing evidence
concerned the employee transfers. Both by cross-examina-
tion of the General Counsel's witnesses and by direct testi-
mony of its own witnesses, Respondent sought to establish
that the transfers were in accordance with its longstanding
method of operation. Respondent also offered consider-
able detailed evidence concerning the specific transfer of
Trull. Thus, the matter was fully litigated. That being so, in
view of its relevance to the nature of the strike and to the
requested bargaining order, it is appropriate to make find-
ings concerning the employee transfers after the represen-
tation hearing. Cf. Free-Flow Packaging Corporation, 219
NLRB 925.
On April 24 employee Church was not at work, as she
669
was attending her brother's funeral. Employee Brown was
assigned to Church's machine that morning. However,
when Ronald returned from the representation hearing
that afternoon, he replaced Brown with Pamela Daniels on
Church's machine. This latter change was apparently made
to support Ronald's testimony at the earlier hearing that
Church had resigned and he was training someone to re-
place her. As Brown testified: "Well he couldn't say he was
training me because I was already trained." Daniels was
inexperienced at sewing. On the next morning Daniels was
again assigned to Church's machine and several other em-
ployees were transferred, including Brown, Wade, Rose,
Church, Darrell Wingler, and Trull. According to employ-
ees Church, Trull, and Brown, the employees were trans-
ferred to jobs which they had not previously performed.
No explanations were given.23
Respondent maintains that all the employees are "gener-
al laborers," with no specifically assigned jobs. According
to Respondent, all employees are generally familiar with
the various operations in the plant and are frequently
transferred among specific operations. The employees tes-
tified that such transfers do occur frequently, but only
when necessitated by rush orders. In such cases, employees
willingly work wherever they are needed. However, they
maintain that, generally speaking, each employee has a reg-
ularly assigned position. Hargis in effect corroborated this,
testifying.
Well, usually, when they train them on a sewing
machine, that person uses that machine when it needs
to be used. But if there's something to be done over on
another table, some other type of work, and the work
on this machine is caught up, then this operator is
moved to the other job, and this machine is idle. And
then, when they need work done with this machine,
she comes back to her machine. But very seldom is
another person put on that person's machine, unless
there's a reason. . . . A machine breakdown- ... or
if-let's say-let's call them machines 1, 2 and 3-
three machines, . . . If the operator on No. 1 is moved
to another job, and No. 3 machine operator is working
on a certain bag, her machine breaks down, she will
move to No. I machine with her work. But that's-if
they have the same work to do on this machine, and
this other woman's machine is running, nobody gets
on this machine, but that operator. That's usually the
policy.
Since Respondent adduced no evidence of any special
circumstances calling for the numerous employee transfers
on April 25, I can conclude only that they were dictated by
the union activity and were part of Respondent's evident
campaign to discourage such activity.
Trull's transfer was especially significant . Employees
Robert Craft and Darrell Wingler had regularly worked
together installing grommets in large and heavy rolls of
plastic material. When Lorraine Trull arrived at work on
April 25, she went to her usual table to resume the work
she had been doing the day before. However, Ronald di-
23 As Brown testified "[Ronald] had everybody changed around so much
I don't think any of them knew what was going on "
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rected her to go help Craft, and Wingler was transferred
elsewhere. Craft was at that time working on rolls of plastic
150 feet long and 8 feet wide. Hargis maintained that the
weight of an 8-foot-wide roll would be only 125 to 130
pounds. He was referring to plastic weighing 13 ounces per
square yard. Trull, however, testified that one of the two
4-foot-wide strips that had been sewn together was materi-
al weighing at least 18 ounces per square yard. In the
course of the operation the material had to be lifted when
rolled on an iron bar 24 Craft said the average weight was
about 215 pounds, apparently including the metal roller.
He testified that he never before had had a female helper
on this operation. Trull testified that in the past she had
"helped make these rolls" but "had never lifted one before
April the 25th. Robert and Darrell would come and lift
them off for us." In the course of lifting the rolls on the
morning of April 25, Trull injured her back and went to the
hospital for treatment.
Had it been so alleged, I should have no hesitancy in
finding "that Respondent violated Section 8(a)(3) and (1)
by discriminatorily assigning [Trull] to work at a job it
knew was physically difficult for [her] to perform, because
[she] had openly expressed a prounion attitude." Drum
Parts, Inc., 222 NLRB 511 (1976).
The next morning, April 26, some 17 of the 21 employees
went on strike. They began picketing with signs reading:
"U S W A UNFAIR LABOR PRACTICE STRIKE HARGIS MINE SUPPLY "
Several of the employees testified that they went on
strike "for respect." It was the employees' objection to the
"lack of respect" afforded them by Respondent that origi-
nally led to the successful organizing campaign. It may
well be that the "lack of respect" and the specific incidents
evidencing that lack did not constitute unfair labor practic-
es. However, there is no doubt on the present record that
Respondent's unfair labor practices were a substantial fac-
tor in precipitating the walkout. Indeed, on cross-examina-
tion Church said that the switching around of employees
was the only reason for the strike. Church, Brown, and
Trull all indicated that the transfers were "the last straw"
leading to the strike. The employees had originally sought
to gain "respect" by organizing and they invoked Board
processes to achieve that goal. It was not until Respondent
refused to cooperate in a speedy election and, instead, add-
ed to its unfair labor practices that the employees went on
strike. Their tentative agreement to strike if necessary,
made on April 24, was substantially influenced by
Respondent's prior unfair labor practices, including the
threats to hire new employees to outvote the Union. The
tentative decision to strike if necessary became final-i.e.,
the strike became "necessary"-when the transfers on
April 25 made it clear that Respondent did not intend to
abandon or lessen its coercive conduct designed to discour-
age unionization. The evidence thus leaves no doubt that
24 Craft described the operation as follows "They have sewed together
two four foot pieces and that makes 8 by 150 foot rolls And we pull them
up off the floor and put them on the table, put grommets in them every foot,
and then roll them up on the roller
"Then you tape it up and then you spray it Then you have to take it off
the roller Then you have to take it over, carry it over maybe 15 feet, and lay
it down on the floor "
the strike was in major part a reaction to and protest
against Respondent's unfair labor practices.
On August 1 the strikers offered to return to work. They
then continued the strike only because of Respondent's un-
lawful refusal to reinstate Trull, Church, Wade, and Rose.
Thus it is found that the strike was not only caused but also
prolonged by Respondent's unfair labor practices.
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning their
union sympathies; by threatening them with plant closure,
discharge, or reduction in work if the plant were unionized
or if they supported picketing; by conveying to them the
impression of surveillance of union activities; by threaten-
ing to hire new employees to defeat the Union in an elec-
tion; and by firing threatening shots at pickets, Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act,
in violation of Section 8(a)(1) of the Act.
2. By discriminatorily failing to offer reinstatement to
striking employees Lorraine Trull, Anona Church, Priscilla
Wade, and Inez Rose on August 6, 1975, Respondent has
discriminated in regard to hire and tenure of employment,
in violation of Section 8(a)(3) and (1) of the Act.
3. The strike which began on April 26, 1975, was caused
by and prolonged by Respondent's unfair labor practices.
THE REMEDY
Having found that Respondent committed numerous vi-
olations of Section 8(a)(1) of the Act, I shall recommend
issuance of a customary cease-and-desist and notice-post-
ing order. Because of the flagrant and pervasive nature of
the unfair labor practices, I shall recommend a broad
cease-and-desist order. Highland House Nursing Center,
Inc, 222 NLRB 134 (1976).
Since Respondent has offered reinstatement to all the
strikers, I shall not recommend that the order contain any
such requirement. Denver Dry Wall Mountain Division, In-
corporated, 216 NLRB 51 (1975). However, backpay will be
ordered. Trull, Church, Wade, and Rose, having been dis-
criminatorily denied reinstatement , are obviously entitled
to backpay. The situation as to the remaining strikers is
somewhat different. In Southwestern Pipe, Inc., 179 NLRB
364 (1969), the Board ruled that unfair labor practice strik-
ers are not entitled to backpay if they decline offers of
reinstatement because discriminatorily discharged employ-
ees are not also offered reinstatement. See also Anderson
Plumbing and Heating Company, 203 NLRB 18 (1973).
However, in O'Daniel Oldsmobile, Inc., 179 NLRB 398
(1969), the Board stated the rule in a more qualified way,
as follows:
Southwestern Pipe, Inc.... holds that where strik-
ing employees make an unconditional offer to return
to work and the employer, without a discriminatory mo-
tive, offers reinstatement to them as less than a group,
backpay is tolled as to those strikers who receive offers
of reinstatement but who refuse then to return to
work. [Emphasis supplied.]
HARGIS MINE SUPPLY, INC 671
In the three cases cited the refusals to reinstate were not
found to be discriminatorily motivated. In the present case,
however, it has been found that Respondent was discrimi-
natorily motivated in refusing reinstatement to four of the
strikers. Had the remaining 11 returned to work, they
would probably have effectively renounced their right to
union representation since they were outnumbered by the
nonstrikers. Under the circumstances, the qualifying lan-
guage in the footnote to O'Daniel Oldsmobile warrants
awarding backpay to all the strikers in the present case. My
Store, Inc., 181 NLRB 321 (1970). Accordingly, I shall rec-
ommend that Respondent be required to reimburse all the
strikers for loss of pay suffered by them from August 6, 5
days after they offered to return to work, through August
22, when they were all offered reinstatement. Backpay shall
be computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest, in accor-
dance with Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
The General Counsel requests, and Respondent vigor-
ously resists, a bargaining order. The violations of Section
8(a)(1) were in themselves very serious. Repeated threats of
plant closure are notoriously most coercive and eminently
calculated to cause defection from the Union and to render
a fair election impossible. Additionally, as found above,
Respondent's conduct was unquestionably designed to de-
stroy the Union's clear majority. In this connection it is
worthy of note that on April 24, at the representation hear-
ing, Respondent refused the Union's request for a consent
election. Obviously Respondent was playing for time with-
in which to gain "the more favorable voting situation
which Respondent sought to accomplish by postponement
of the election." Free-Flow Packaging Corp., 219 NLRB
925, 929. Such conduct renders a fair election impossible.
Accordingly, I find that "Respondent's unfair labor prac-
tices are sufficiently flagrant and pervasive to justify an
order requiring it to bargain with the complaining Union
as the exclusive representative of the appropriate unit."
Ibid., 930; Dallas Ceramic Company, 219 NLRB 582
(1975); Elling Halvorson, Inc, 222 NLRB 534 (1976). The
effective date of the bargaining order will be April 8, 1975,
when Respondent received the Union's demand for recog-
nition. Trading Port, Inc., 219 NLRB 298 (1975).
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:
ORDER 25
Hargis Mine Supply, Inc., Pineville, West Virginia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees concerning their
sympathies and activities for any labor organization;
threatening them with reprisals (including plant closure,
discharge, or loss of overtime) if the plant is organized or if
they support a union; conveying to them the impression of
surveillance of union activity; threatening or attempting to
hire additional employees to vote against unionization;
threatening bodily harm to pickets; or in any other manner
interfering with, restraining, or coercing employees in the
exercise of their rights under Section 7 of the Act.
(b) Discouraging membership in and activities on behalf
of United Steelworkers of America, AFL-CIO-CLC, or
any other labor organization, by discriminating in regard
to hire and tenure of employment of Respondent's employ-
ees, or by discriminating in any other manner in regard to
any term or condition of employment, in order to discour-
age or interfere with membership or activities therein.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) In the manner described in the Remedy portion of
the Decision herein, make whole the employees named be-
low for any loss of pay they suffered as a result of
Respondent's failure to offer them all reinstatement pur-
suant to their unconditional offer of August 1, 1975, to
return to work. The employees are: Priscilla Wade, Anona
Church, Inez Rose, Lorraine Trull, Robert Craft, Barbara
Fritz, Barbara Brown, Darrell Wingler, Pamela Daniels,
Lidda May Christian, Harold Wingler, Wesley Friend,
Mildred Canterbury, Arlene Berta, and Lynda Christian.
(b) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
hereof.
(c) Upon request, bargain collectively with United Steel-
workers of America, AFL-CIO-CLC, as the statutory rep-
resentative of the employees in the following unit:
All production and maintenance employees em-
ployed by Respondent at its Pineville, West Virginia,
location, including truckdrivers, but excluding driver-
salesmen, office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
(d) Post at its plant in Pineville, West Virginia, copies of
the attached notice marked "Appendix." 26 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent, shall be
posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
25 In 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
26 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "