I. W. Corp.

National Labor Relations Board - Board Decisions

Nov 28, 1978

239 N.L.R.B. 478 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. W. Corporation and Teamsters Local Union 175,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 9-CA-11993 and 9
CA-12282
November 28, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On August 31, 1978, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed
limited exceptions and a supporting brief.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The General Counsel contends that the strike
which commenced on January 18, 1978.2 was an un-
fair labor practice strike. Although the Administra-
tive Law Judge found that the strike was prompted in
part by the numerous violations of Section 8(a)(1)
and a discharge in violation of Section 8(a)(3), he
'We do not adopt the Administrative Law Judge's finding that Respon-
dent violated Sec. 8(aX3) of the Act by implementing mass layoffs on Sep-
tember 16, 1977, and October 28, 1977, inasmuch as such a violation was
not alleged in the complaint, as amended, and the matter was not fully
litigated.
Respondent asserts that the Administrative Law Judge's resolutions of
credibility, findings of fact, and conclusions of law are the result of bias.
After a careful examination of the entire record, we are satisfied that this
allegation is without merit. There is no basis for finding that bias and par-
tiality existed merely because the Administrative Law Judge resolved impor-
tant factual conflicts in favor of the General Counsel's witnesses. As the
Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship Cormpanv. 337
U.S. 656, 659 (1949), "IT}otal rejection of an opposed view cannot of itself
impugn the integrity or competence of a trier of fact." Furthermore, it is the
Board's established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all
the relevant evidence convinces us that the resolutions are incorrect. Stan-
dard Dry Wall Products. 91 NLRB 544, (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We find no basis for reversing his findings.
2 All dates unless otherwise indicated are 1978.
3 The Administrative Law Judge found, and we agree, that Respondent
violated Sec. 8(aXI) of the Act by interrogating employees regarding their
union affiliation or activities; threatening its employees that it would close
down its warehouse if the employees selected the Union as their collective-
bargaining representative; threatening its employees with loss of their jobs if
they selected the Union as their collective-bargaining representative; and
threatening its employees that it would place a "padlock" on its warehouse
doors if the employees selected the Union as their collective-bargaining
representative.
concluded that the strike was economic in character.
For the reasons set forth below, we find merit in the
contentions of the General Counsel.
According to credited testimony, a union meeting
was held on January 17 at which the employees vot-
ed to strike. It is undisputed that prior to the strike
vote the employees discussed Respondent's threats to
close down its warehouse if the Union were selected
as the collective-bargaining representative of the em-
ployees, and there was also agreement that it was
necessary to strike in order to secure reinstatement
for an employee who had been discriminatorily dis-
charged. On the basis of this evidence, the Adminis-
trative Law Judge found that one of the objectives of
the strike was to secure reinstatement with backpay
for an employee who had been discriminatorily dis-
charged in violation of Section 8(a)(3). However, ap-
parently relying on the fact that the striking employ-
ees also desired to obtain better wages and working
conditions, the Administrative Law Judge character-
ized the strike as economic.
Under established Board law, an unfair labor
practice strike is a strike precipitated in part by an
employer's unfair labor practice. 4 The fact that a
strike is prompted in part or even primarily by eco-
nomic issues does not preclude a finding that unfair
labor practices are a contributing factor in the deci-
sion to strike.' The uncontradicted record evidence
fully supports the Administrative Law Judge's find-
ing that at least part of the motivation behind the
strike was to protest Respondent's interference with
the union activities of the employees. Therefore, we
disagree with the Administrative Law Judge's finding
of an economic strike. Accordingly, we find that
from its inception and at all times thereafter the
strike was an unfair labor practice strike and the
strikers were entitled to the protection given unfair
labor practice strikers. In view of the foregoing, we
find that Respondent, in violation of Section 8(a)(1)
and (3) of the Act, unlawfully refused to reinstate the
unfair labor practice strikers upon their uncondition-
al application on February 17 for their reinstatement.
AMENDED CONCLUSIONS OF LAW
Delete paragraph 8, substitute the following and
renumber the remaining paragraph accordingly:
"8. The strike which commenced on January 18,
1978, was an unfair labor practice strike from its in-
ception.
"9. By discriminatorily refusing to reinstate the
unfair labor strikers upon their unconditional appli-
4C & E Stores, Inc., C & E Supervalue Division, 221 NLRB 1321 (1976).
Head Division, AMF, Inc., 228 NLRB 1406 (1977); Larand Leisurelies,
Inc., 213 NLRB 197 (1974).
478
I. W. CORPORATION
cation for reinstatement on February 17, 1978. Re-
spondent violated Section 8(a)(1) and (3) of the Act."
REMEDY
Having found that the strike by Respondent's em-
ployees which began on January 18, 1978, was
caused and has been prolonged by Respondent's un-
fair labor practices and that Respondent unlawfully
refused to reinstate the unfair labor practice strikers
upon their unconditional application of February 17,
1978, for their reinstatement, we revise the recom-
mended remedy of the Administrative Law Judge to
require that Respondent offer unfair labor practice
strikers immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if
necessary, any persons hired as replacements on and
after January 18, 1978. If, after such dismissals, there
are insufficient positions remaining for all the strik-
ing employees who desire reinstatement, the avail-
able positions shall be distributed among them, with-
out discrimination because of their union
membership, activities, or participation in the strike,
in accordance with seniority or with other nondis-
criminatory practices as theretofore has been applied
by the Company in the conduct of its business at its
South Charleston, West Virginia, plant. Those strik-
ers for whom no employment is immediately avail-
able after such distribution shall be placed on a pref-
erential hiring list with priority determined among
them by seniority or by other nondisciminatory prac-
tices as theretofore has been applied by Respondent
in the conduct of its business at its South Charleston,
West Virginia, plant, and, thereafter, in accordance
with such system, they shall be offered reinstatement
as positions become available and before other per-
sons are hired for such work. The Board also orders
that Respondent make the striking employees whole
for any loss of earnings they may have suffered by
reason of the discrimination against them by pay-
ment to them of a sum of money equal to that they
normally would have earned from the date of the
striking employees' unconditional request for rein-
statement to the date of Respondent's offer of rein-
statement, less net earnings during such period, to be
computed in the manner prescribed in F. W. Wool-
worth Cornpany, 90 NLRB 289 (1950), with interest as
set forth in Florida Steel Corporation, 231 NLRB 651
(1977). 6
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, I. W.
Corporation, South Charleston, West Virginia, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
i. Delete paragraph l(f) and substitute the follow-
ing:
"(f) Discriminatorily refusing to reinstate unfair
labor practice strikers upon their unconditional ap-
plication for reinstatement."
2. Delete paragraph 2(a), substitute the following.
and reletter the remaining paragraphs accordingly:
"(a) Offer Charles Carte immediate and full rein-
statement to his former job or, if such job no longer
exists, to a substantially equivalent job, and make
him whole for any loss of pay he may have suffered
by reason of the discrimination against him. Backpay
and interest thereon shall be computed in the manner
set forth in the section of this Decisions entitled
'Remedy.'
"(b) Offer unfair labor practice strikers Curtis Gil-
lispie, Harold Gillispie, John Gillispie, Kevin Gillis-
pie, Ernest Hutson, Kenneth R. Jordan, Larry E. Ste-
vens, Dale Kessinger, Kenneth Kessinger, Raymond
Kessinger, Chester Kessinger, Calvin Pauley, James
Pauley, Mike Pauley, and Theodore Yerrid immedi-
ate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority and other rights and privileges, dismissing, if
necessary, any employees hired as replacements for
such positions. If insufficient jobs are available for
these employees, they shall be placed on a preferen-
tial hiring list and they will be offered employment
before any other persons are hired. Make whole said
unfair labor practice strikers for any loss of pay they
may have suffered by reason of Respondent's refusal
to reinstate them, by payment to each of them a sum
of money equal to what he would have earned as
wages during the period from the strikers' first un-
conditional request for reinstatement to the date of
Respondent's offer of reinstatement, such loss to be
computed in the manner set forth in the section of
this Decision entitled the 'Remedy.'"
3. 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- 6 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1%962)
479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act, as amended, and has ordered
us to post this notice.
WE WILL NOT discourage membership in
Teamsters Local Union 175, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or any other labor organization, by:
(a) Coercively interrogating employees about
their union interest or activities.
(b) By threatening employees, through our
agent, that we will close down our warehouse if
they organize a union.
(c) By threatening employees with loss of
their jobs if they organize a union.
(d) By threatening employees that we would
place a "padlock" on the doors of our ware-
house if they organize a union.
(e) By discriminatorily discharging employ-
ees.
(f) By discriminatorily refusing to reinstate
the unfair labor practice strikers upon their un-
conditional application for reinstatement on
February 17, 1978.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise and enjoyment of rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, except to the extent that such rights
may be affected by lawful agreements in accord
with Section 8(a)(3) of the Act.
WE WILL offer immediate and full reinstate-
ment to Charles Carte to his former position or,
if such position no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights previously enjoyed, and
make him whole for any loss of pay or other
benefits suffered by reason of the discrimination
against him.
WE WILL offer the following employees imme-
diate and full reinstatement to their former posi-
tions or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their
seniority or other rights and privileges, dismiss-
ing, if necessary, any employees hired to replace
them and make them whole for any loss of pay
they may have suffered because of our refusal to
reinstate them:
Curtis Gillispie Dale Kessinger
Harold Gillsipie Kenneth Kessinger
John Gillispie Raymond Kessinger
Kevin Gillispie Chester Kessinger
Ernest Hutson Calvin Pauley
Kenneth R. Jordan James Pauley
Larry E. Stevens Mike Pauley
Theodore Yerrid
If insufficient jobs are available for these em-
ployees, they shall be placed on a preferential
hiring list and WE WILL offer them employment
before any other persons are hired.
All our employees are free to become or remain, or
refuse to become or remain, members of said Union,
or any other labor organization, except to the extent
that such rights may be affected by lawful agree-
ments in accord with Section 8(a)(3) of the Act.
I. W CORPORATION
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: This
proceeding was initiated upon charges filed in Cases 9-
CA-11993 and 9-CA-12282 on December 5, 1977, by
Teamsters Local Union 175, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union,
against I. W. Corporation, herein called the Respondent.
In substance, the complaint alleges that the Respondent on
or about certain specified dates coercively interrogated its
employees concerning their union sympathies and activi-
ties, that it threatened to close its warehouse if the employ-
ees selected the Union as their bargaining representative,
and that it threatened employees with the loss of their jobs
if they selected the Union as their bargaining representa-
tive, all in violation of Section 8(a)(1) of the Act; and that
Respondent laid off and has since thereafter failed and
refused to reinstate employee Charles Carte to his former
position because of his sympathy for and/or activities on
behalf of the Union, that certain employees of the Respon-
dent engaged in a strike and picketing at Respondent's
place of business, which strike was alleged to have been
caused and prolonged by the aforedescribed unfair labor
practices, that said striking employees offered to return to
work, and that the Respondent has since then failed and
refused to reinstate some of the striking employees because
of their membership in, sympathy for, or activities on be-
half of the Union, in violation of Section 8(a)( 3) of the Act.
The Respondent timely filed an answer to the complaint
categorically denying all allegations which would consti-
tute a violation of the Act.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
480
1. W. CORPORATION
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a West Virginia corporation engaged
in the operation of a warehouse at South Charleston, West
Virginia. During the past 12 months, a representative pe-
riod, Respondent performed services valued in excess of
$50,000 for nonretail enterprises located within the State of
West Virginia, each of which, in turn, annually sells and
ships goods and materials valued in excess of $50,000 di-
rectly from points within the State of West Virginia to
points outside the State of West Virginia.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Teamsters Local Union 175, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introductory Facts
The Respondent carries on a warehouse business opera-
tion at South Charleston, West Virginia, which involves the
in-and-out storage of seasonal goods, such as antifreeze,
for the Union Carbide Company. Its warehouse is a four-
story building about the length and width of a football
field, and the work force consists of about 18 to 20 employ-
ees.
In the latter part of July 1977, Charles Carte and other
employees of the Respondent commenced organizing ac-
tivities on behalf of the Union, and a representative peti-
tion was filed on August 29, 1977, in Case 9-RC-12197,
which was thereafter served upon the Respondent. The
hearing on the representative petition was held on Septem-
ber 16, 1977, and the union election was held on October
28, 1977.
On September 19, 1977, Charles Carte was given a layoff
slip advising that he was laid off but might be recalled.
The following named persons occupied positions oppo-
site their respective names and have been and are now,
agents of the Respondent, acting on its behalf, and are
supervisors within the meaning of Section 2(11) of the Act:
Ed Burdette, president-manager; and Howard Slaughter,
warehouse superintendent.
The parties stipulated that Respondent contends it did
not lay off Charles Carte for economic considerations, but
rather, for cause.'
The facts set forth above are undisputed and are not in conflict in the
record.
B. The Organizing Activities of Respondent's Employees
Charles Carte was first employed by Respondent on
February 23, 1977, as a laborer for $3.50 an hour. After 7
weeks, Carte said, President Burdette gave him a wage in-
crease of 25 cents, for a total of $3.75 an hour, and started
to train him as a fork truck operator. President Burdette
said that the probationary period of a new employee is 6 to
8 weeks and that he gave Carte three wage increases, the
first of which was for 25 cents, resulting in a wage of $3.75
per hour; then on April 11, 1977, he increased Carte's sal-
ary to $4 an hour, and on July 11, 1977, he raised Carte's
wage rate to $4.25 per hour.
Charles Carte testified that he started discussing the
Union with all of Respondent's employees in mid-July
1977. Around the latter part of July 1977, he said he con-
tacted Teamsters Local No. 175 and arranged for the sche-
duling of a meeting between the union representatives and
Respondent's employees on August 24, 1977. He said he
told most of the 18 employees about the union meeting,
except Jim Burdette, Jr., and Emmit Hutson. About eight
employees attended the meeting, and thereafter he distru-
buted union authorization cards to about five employees
by his car during the lunch period. The employees dis-
cussed the procedure for joining the Union with union rep-
resentatives, Bill Thacker and Larry Miller. He asked the
employees to sign cards in his car and return them to him
because he did not want the Burdettes to know about it. He
said at first he made an effort to be careful and to conceal
his organizational efforts.
Carte further testified that on or about August 30, a
week after the first union meeting on August 24, 1977, Jim
Burdette, Jr., son of President Ed Burdette, approached
him and told him a union man had been out back looking
for him. He asked Burdette who the man was, and Bur-
dette said he did not know, but just a union man, and he
described him as being 5 feet 8 inches, driving a red and
white Ford car. Carte said that Jim's description was a
good description of Larry Miller of Local 175.
During the first week of September 1977, while on the
front dock, in the presence of Mike Pauley, Carte said the
following conversation was initiated by Jim Burdette, Jr.:
A. We were talking at random about-just general
conversation, and he brought up the idea of union,
you know, he just started talking about it. He said-I
told him that I liked the union, and he said that if we
got the union in it was going to break the company; that
the money the), got from Carbide wasn't enough money, to
run the comparn and paiY the union at the same time:
they couldn't afford it.
Q. Do you recall whether or not James Burdette,
Jr., ever said anything to you about a layoff when you
were hired?
A. No. [Emphasis supplied.]
Carte is in the armed services reserve and said he went
for reserve training September 5 to 16, 1977. However, on
September 19, 1977, he said that while he was on the back
dock President Ed Burdette approached him, called him
over to the side, and gave him z layoff slip (G.C. Exh. 3),
advising him as follows: "i'm going to have to lay you off,
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carte, because they're closing down the Sevin poly plants
for a cleanup for a period of six weeks." Burdette further
said, "We might call you back." Although laid off, Carte
said he participated in and acted as an observer in the
representative election held on October 28, 1977, and that
he also attended the preelection conference. With respect
to the election, he further testified as follows:
Q. What happened at that conference?
A. I walked into the building, went into the lunch
room where the election was to be held, saw Fred Hol-
royd and Ed Burdette, Bill Thacker and Larry Miller,
I believe was with me. When we came into the room,
Mr. Holroyd stated that I had been terminated. He
also said that my vote would be challenged.
Q. Was your vote challenged?
A. Yes, it was.
Ernest Hutson was employed by the Respondent in May
1971. He testified that in 1977 he was a fork truck operator,
approximately 4 or 5 days prior to the Union's representa-
tive election on October 28, 1977. At that time, he said, Mr.
James Burdette, Sr. (presumably Ed Burdette, Sr.), ap-
proached him in the lunchroom and the following conver-
sation ensued:
A. Burdette came to me with a sample ballot and
showed it to me and said that we were having an elec-
tion, and I knew that we were having an election, and
the company would like for me to vote no, and they
had to have an observer, and asked me if I would want
to be their observer, I said no. He said he'd get some-
one else, then.
Hutson said he voted in the Union's representative elec-
tion on Ocotber 28, 1977, and that about 4 or 5 days there-
after, he participated in the formulation of the proposal for
a contract. On November 26, 1977, the Saturday after
Thanksgiving, he said, he and John Gillispie and Harold
Gillispie were the three men working; that it was a cold
morning and they were unloading trucks; that about II or
11:30 a.m., Mr. Ed Burdette asked them to come down in
the lunchroom and warm up, at which time he brought a
copy of a proposal (G.C. Exh. 4) which represented a pro-
posed collective-bargaining agreement. Hutson said Mr.
Burdette told them he wanted to talk to them about the
proposal, and his testimony continued by describing the
conversation as follows:
A. He said did we know what was in here and what
the Teamsters was trying to [do to] the company. We
said, yes, we were there when the proposal was made
up. And he said he wanted to talk to us about it. I told
him I didn't want to talk to him about it, to talk to the
people up at the union hall, they represented me in
this proposal.
Q. Was anything said about Carte at the time.?
A. Yes. He said they had in the back page of this
proposal that they asked to put Carte back to work.
He said that that meant that they could lay off any-
body and put Carte back to work. I said, no, that
meant they were just asking for him to be put back on
the seniority list in the proposal.
Q. Did Mr. Burdette say anything else?
A. Yes. I left-it was a short conversation. I got up
and left, and I told Burdette that I didn't want to talk
to him about it and discuss it with him, because I'd
wind up in an argument with him, and I didn't want to
argue with him. As I was leaving, he said, "I just want
to tell you, the company's going out of business the
first of the year."
Carte said James Burdette, Jr., son of the president, Ed
Burdette, Sr., was treated differently from other employees
and that he was permitted to go and come as he pleased.
Although he was a fork truck operator purportedly for 40
hours a week, 8 hours a day, he did not report during, or
work all of, those scheduled hours. Carte's testimony in
this regard is corroborated by the testimony of Ernest Hut-
son, who said Burdette, Jr., came in late two-thirds of the
time.
Sutton Hoover has been employed by Teamsters Local
175 as a business representative since March 10, 1969. He
testified that he was negotiator for Local 175 and partici-
pated in the negotiations with Respondent and assisted in
preparing the proposal that was submitted to Respondent
between December 16 and 30, 1977. He said there were
several bargaining sessions held on December 16 and 30,
1977, February 17, 1978, and May 2, 1978. He said Ernest
Hutson and Ken Kessinger were employee representatives
on the negotiating committee and that at the December 16,
1977, meeting the following occurred:
A. We reviewed-first of all we asked the company
if they wanted to review the proposals. Mr. Holroyd
said that he understood them. And he said to me that
he had-that he wasn't too far apart as far as the lan-
guage proposed in the contract, some minor adjust-
ments, but he just didn't have any god damn money.
Q. Was there any discussion of Carte?
A. Yes, there was. The last sheet of the proposal, we
had on there that the Union requested the company to
reinstate Carte with all back wages. Likewise with the
Gillispie brothers.
With respect to the Respondent's reaction to the Union's
proposals, he said he did not ask to see the Company's
financial records reflecting its profits and losses during the
first negotiating meeting. However, upon request of Re-
spondent, he later wrote for the records and did in fact
receive them. Hutson described the December 30 meeting
as follows:
Q. Was there any other reason given for not reins-
tating Carte at the time?
A. The only thing he said, that the matter hadn't
come before the Board, and he wanted to wait and see
what the Board did on it. He didn't want to weaken
his position.
Hoover described the February 17 meeting as follows:
Q. Do you recall what, if anything, occurred on
February 17, 1977? [sic]
A. Yes, that was the morning that the 1. W. Corpo-
ration employees attempted to return to work.
Q. And what happened when they attempted to re-
turn to work?
482
I. W. CORPORATION
A. The 1. W. Corporation is on my way to work.
and it was prearranged that I would meet the people
there at the time of reporting. And we were there
about 7:15 in the morning ....
When they walked up on the dock, Mr. Burdette
came out and he had a short conversation with Ernest
Hutson. I was standing back at the edge of the parking
lot and didn't hear what was said. But in any event
they came back out and I asked Ernest Hutson, what
did Mr. Burdette say, then he said he's coming out.
Shortly, Mr. Burdette came out and he told the boys,
he said, "I wish you fellows would make up your mind
what you're going to do, whether you're going to work
or strike." He said, "In any event, you don't have a job
here any longer, I don't need you. I've already re-
placed you."
So, the employees asked me what to do, and I told
them to go down to the unemployment office and sign
up for unemployment. And I left.
Employee Kenneth Kessinger was employed by the Re-
spondent in March or April 1971 as a forklift operator. He
testified that he signed the union authorization card, and
that on September 1, 1977, President Ed Burdette, Sr., ap-
proached him and the following conversation transpired:
A. Yes, Ed came back there and told me he wanted
to show me something down the aisle. And we walked
down towards the office a piece, and he said he heard
we was going to join the union, and I told him yes, I'd
joined the Teamsters Union. And he asked me what
the problem was. I told he [sic] we hadn't had a raise
in about two years. He said he'd like to give us all ten
dollars an hours but the company couldn't afford it.
He went on to tell me that-the different prices they
get for handling different material. And he said he was
afraid we'd all be out of a job.
However, President Ed Burdette, Sr., explained his ver-
sion of the September 1, 1977, conversation as follows:
A. Well, I went back in the warehouse, to the back
there. Kenneth was working, and he said, "Ed, I want
to talk to you there." I said, "What do you want to
talk about-what do you mean?" He said, "Well, Ed,
you know that union stuff is not going to cost you any
more money." He said, "It's no money out of your
pocket, Ed." And I said, "Now, Kenneth, that's not
right-it doesn't quite work that way." He said,
"There's no more money out of your-we want a
union." he said. I said to him, "Well, Kenneth, why do
you want a union-for what reason? You've got ev-
erything that-I mean, I'm giving you top dollar.
You're getting paid holidays and vacation. What more
could you want?" He said, "Well, we want more
money and things like that." He said, "We've got
some other things." And I said, "Well, I'll tell you, we
might all be out of work-all of us be out of a job,
including myself, Slaughter, and office girl and ev-
erything," because-and that was the conversation.
The only conversation-I had one other one with
him-when they passed out those slips about the elec-
tion. I went to each boy and gave them a slip. And it
said on the slip, you know, the day we're going to have
the election and the date it was going to be. And I
said, "You can vote the way you want to, but the com-
pany would like for you to vote yes-I mean, no."
Also, during October, according to Kessinger, James
Burdette, Jr., told him the Company could not afford
union wages and they discussed some of the benefits em-
ployees might get as a result of having a union. He said
Burdette, Jr., then said, "Well, if the union comes in, we'll
padlock the doors." Kessinger said he told Burdette, Jr., if
Respondent was that hard up, he (Kessinger) would buy
him one of those padlocks.
About a week or two before the election on October 28,
1977, Kessinger said President Burdette. Sr., approached
him and the following conversation ensued:
A. It was in the morning before he passed out the
work we was going to do during the day. He would
come out there with a sheet of paper, and on this pa-
per he would have figures of what we did the day
before, how much money we made and how many
people worked and how much they made, and usually
it would say the company just barely broke even, or
went in the hole. And one time he said that he was
afraid we was all going to be out of a job at this time,
too.
Q. Did Burdette Sr. ever have any conversations
with employees about the daily cost sheets prior to the
election?
A. No.
Kessinger said he attended the strike vote meeting on
January 17, 1977, which he described as follows:
A. We discussed what the company had offered.
And they wouldn't put Chuck Carte back to work;
they wouldn't pay the Gillispie boys the back pay.
And we discussed if we was going to get them to do
anything, we'd have to strike.
Q. Was there any discussion of conversations you
had with Burdette, Sr. or Burdette, Jr. about the
union?
A. Yes. Most of it's been mentioned. They threat-
ened to shut the company down, we'd be out of a job,
they didn't know what they was going to do. They said
if we'd go on strike they'd shut the company down.
Q. Do you recall who made the motion to strike?
A. James Pauley.
Q. What did he say when he made the motion?
A. He said if we was ever going to get anything out
of the company, we was going to have to strike to get
anything else. He said that maybe they'll put Carte
back to work, or something of the sort, and give the
Gillispie boys the back pay.
Q. Who seconded the motion?
A. I did.
Kessinger corroborated the testimony of Ernest Hutson
and Charles Carte to the effect that Burdette, Jr., was con-
tinuously late, and that he discussed such lateness with
Burdette, Jr., who informed him that he had been out
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drunk and couldn't make it in. Kessinger also said Bur-
dette, Sr., told him he did not know what he was going to
do about Burdette, Jr.2
C. Respondent's Mass Layoff of its Employees
Ernest Hutson further testified that he remembered
when Charles Carte was hired in February 1977 and that
after Carte was hired, Respondent hired Larry Stevens,
Calvin Pauley, Michael D. Pauley, and Bobby Carpenter.
Hutson says to the best of his knowledge there were no
layoffs prior to September 1977. He said if work got slow
the employees would sweep the floors and cleanup the
building. He said the Union's representative hearing was
held on the morning of September 16, 1977, and that on
that same afternoon Bobby Carpenter, Michael D. Pauley,
Calvin Pauley, Jack Wright, Kevin Gillispie, and Curtis
Gillispie were all laid off. Heretofore, Hutson said, he
could not recall a time when so many employees were
being laid off at one time. He testified that on September
20, 1977, employees were recalled and employees were
hired to do the work that Charles Carte previously per-
formed.
Hutson said Bobby Carpenter was recalled the next
week, Tuesday, September 20, 1977, as a fork truck opera-
tor; and Kevin Gillispie and Curtis Gillispie were recalled
2 weeks later, about October 2, 1977. Calvin Pauley was
recalled in mid-January 1978 and Larry Stevens was re-
called in mid-January 1978. Before Carte was laid off, Hut-
son said, he was a fork truck operator and Carpenter did
basically the same work. Hutson further testified that be-
tween 11 and 11:30 a.m., on October 28, 1977, the union
election was held. On that same afternoon Larry Stevens,
Bobby Carpenter, and Chester Kessinger were laid off.
Carpenter was laid off again and no warnings were given
about the layoffs. To the best of his knowledge, he said, the
workload was normal around Thanksgiving time.
On January 17, 1978, Hutson said, Local Union 175 had
a meeting during which Union Representative Bill Thacker
gave them a report on the progress of the negotiations, and
advised that Respondent had failed and refused to give
Kevin or Curtis Gillispie or Charles Carte any backpay as
requested by the proposal. Hutson said James Pauley
moved for a strike vote or, he contended, Carte would nev-
er be rehired or recalled, and the Gillispies would never get
their backpay. He said the employees returned to work on
February 17, 1978. When President Burdette arrived, he
said, they started to enter the building and President Bur-
dette told them that they could not come in the building. In
fact, he said, President Burdette told them they could not
walk off the job and return whenever they pleased, and if
he needed them, he had their names and he would contact
them.
Hutson also testified that he had been working with the
2 I credit the testimonial versions of Ernest Hutson, Sutton Hoover. and
Kenneth Kessinger not only because I was persuaded by their demeanors
that they were testifying truthfully about their aforedescnbed conversations
with James Burdette, Jr., and/or President Ed Burdette. but also because
their versions were not clearly denied by the Burdettes and, in part, were
essentially corroborated by President Burdette.
Respondent 7 years and had been late about six or seven
times, but he always went in the office and gave an expla-
nation for being late, which was the policy of the Respon-
dent. He said Chester Kessinger was once terminated for
being late and absent, as well as for drinking heavily. All
employees punch a timeclock and may request time off.
Before the election, he said, James Burdette, Jr., punched a
timeclock but after the union election, he did not punch
the timeclock. He said that before the election, Burdette,
Sr., would punch the timecard for Burdette, Jr., and on one
occasion, told him (Hutson) he would punch Burdette, Jr.'s
timecard and call him and he would be there in a few
minutes. He said he had not known Burdette, Sr., to have
punched anyone else's timecard.
Finally, Hutson said the employees felt the letters (Un.
Exhs. Nos. I and 2) sent them by Respondent were threat-
ening that Respondent would go out of business if they
voted for the Uniorl.
D. Carte's Layoff and His Work Performance While
Employed
Howard Slaughter has been warehouse superintendent
over all of Respondent's employees for 5 years. He testified
that about a week before Charles Carte went on military
reserve duty, he entered the Respondent's office while up-
set and used foul language within the hearing range of two
female employees. Specifically, Slaughter said Carte said,
"everything was all fucked up," and he (Slaughter) told
Carte if he could not talk better than that he could leave
the office, and Carte left. Slaughter admitted that no one
complained to him about the language, but he nevertheless
reported the incident to President Burdette, Sr., and told
him he did not think Carte was an efficient operator and
should not be an employee for the following reasons:
And I also told Mr. Burdette that I felt that Carte
wasn't an efficient operator, because I'd had an occa-
sion where a truck driver came to me and there was
eighteen pallets being loaded on a truck. Mr. Carte
had torn one bag on every pallet in taking it from the
elevator over to the place to be put onto the truck. I
told him I didn't feel he was an efficient operator. He
shouldn't be an operator, in my estimation.
Q. Did you make any recommendations to Mr.
Burdette?
A. Well, I thought that he wasn't a desirable em-
ployees, coming in there talking like that. If he
couldn't control himself any better than that, and he
couldn't handle a fork truck, or didn't handle a fork
truck in a better manner than to tear a bag on every
pallet.
Superintendent Slaughter further testified that he over-
sees the work of the men and if something is not being
performed correctly, he speaks to them about it. On one
occasion, he said a truckdriver told him that Charles Carte
had punched every bag, or at least I bag on each of 18
pallets loaded with merchandise, to the extent that the
driver had to tape over the holes to keep the goods from
wasting. Slaughter, however, adm.itted that he never spoke to
Carte about his work performance (regarding the punched
484
1. W. CORPORATION
holes and the sacks of goods on the pallets) or about his con-
duct in the office or any other problem. He further stated that
he does not evaluate or rate employees but that Mr. Bur-
dette, Sr. has, on occasion, asked him for his opinion about
the performance of employees. He said he did not know
Carte had any union interest or was engaged in any union
activities at the time he talked to President Burdette about
Carte's conduct in the office and his work performance.3
Ed Burdette, president of the Respondent since 1971,
gave a testimonial account of his hiring and laying off of
Charles Carte which was essentially consistent with the tes-
timony of Charles Carte and other witnesses testifying on
the subject. The significant difference in President
Burdette's account is that he contends his layoff of Charles
Carte had nothing to do with his union activity, of which
he denied he had any knowledge. Instead, President Bur-
dette said Charles Carte was laid off because of Superin-
tendent Slaughter's report of his conduct in the office. He
said he gave Carte a layoff slip in order to prevent hurting
him from securing future employment as a result of being
terminated. He said he generally would give an employee a
layoff slip instead of a discharge notice, so that he would
not be hampered in securing additional employment.
Analysis and Conclusions
The testimony in reference to the issues raised by the
pleadings in the instant proceeding is essentially undisput-
ed and is credited unless otherwise discussed and discred-
ited herein.
The Organizing Activities of Respondent's Employees
The credited evidence of record shows that Charles
Carte commenced discussing unionization of Respondent's
18 (approximately) employees in mid-July 1977, and dur-
ing the latter part of that month he contacted Teamsters
Local Union 175. Thereafter, Carte arranged a meeting
with Local 175 representatives and Respondent's employ-
ees on August 24, 1977. About eight employees attended
the organizing meeting, and subsequent thereto Carte dis-
tributed and collected union authorization cards from
about five fellow employees in the location of his automo-
bile on the parking lot. On August 29, 1977, a representa-
tive petition was filed; and on August 30, 1977, James
(Jim) Burdette, Jr., son of Ed Burdette, president of Re-
spondent, told Carte that a union man had been there
looking for him (Carte). According to Burdette, Jr.'s de-
scription of the union man, Carte said it was descriptive of
Larry Miller, a representative of Local 175.
During the first week of September 1977, Jim Burdette,
31 credit Supervisor Slaughter's testimony only in part and discredit his
testimony to the effect that he concluded and advised President Burdette
that Carte was not an efficient worker and that he did not know of Carte's
union activities. I discredit the latter testimony not only because I was
persuaded by Mr. Slaughter's demeanor that he was not testifying truthfully
but also because of the exaggerated significance placed upon his testimonial
account by Respondent, as revealed by Slaughter's adrmssion that he did
not even talk to or warn (orally or in wnting) Carte about his work perfor-
mance, and that he did not give such a report to President Burdetle until the
day before Carte's discharge. Actual knowledge of Carte's union activities
by Slaughter need not be shown since management (the Burdettes) had such
knowledge. which is imputed to Slaughter. who is a part of management.
Jr., initiated a conversation about the Union with Charles
Carte in the presence of fellow employee Mike Pauley, dur-
ing which Carte acknowledged he liked the Union, and
Burdette, Jr., said: "If the Union got in it was going to
break the company," since the money it received from
Union Carbide was inadequate, and the Company could
not afford the Union.
Carte went to military reserve training for the period
September 5 to 16, 1977. On September 16, 1977, a hearing
was held on the representative petition, and on September
19, President Burdette called Carte and gave him a slip,
while telling him, 'I'm going to have to lay you off, Carte,
because they're closing down the Sevin poly plants for a
cleanup for a period of six weeks. ... We might call you
back."
On or about October 22, President Burdette showed em-
ployee Ernest Hutson an election ballot, advised him that
the employees were going to have an election, which Hut-
son already knew, and informed Hutson that the Company
would like for him to vote "no" and that the Company had
to have an observer, and President Burdette then requested
Hutson to serve in that capacity. Hutson declined to serve
as an observer, and President Burdette said he would get
someone else. The election was held on October 28, 1977,
and Charles Carte, accompanied by Bill Thacker and Lar-
ry Miller of Local 175, entered the election room. As they
entered, Respondent's attorney, Mr. Holroyd, announced
that Carte had been terminated and, therefore, Respondent
would challenge his vote. Carte, nevertheless, participated
in the election by voting and serving as an observer for the
Union. About 4 or 5 days later (November 1, 1977), Carte
also participated in the formulation of the contract propos-
al.
The complaint alleges and the General Counsel contends
that James Burdette, Jr., was, at all material times herein,
an agent of Respondent, and Respondent denies that Bur-
dette, Jr., was such an agent. The Board has held in several
cases that whether an employee is or may be deemed an
agent of the employer depends upon whether the employee
occupied a position in which other employees were caused
to believe that such employee was speaking for the em-
ployer. Byrd's Terrazzo & Tile Co., Inc., 227 NLRB 866
(1977); Whiting Corporation, 188 NLRB 500 (1971). In this
regard, the credited evidence of record clearly establishes
that James (Jim) Burdette, Jr., is the son of Respondent's
president, Ed Burdette, which fact the other employees
knew. As such, without dispute, and with the concurrence
of Respondent (President Burdette), Burdette, Jr., was em-
ployed as a forklift operator, but was extended privileges
other employees did not enjoy. More specifically, Burdette,
Jr., reported to work late and left work early on numerous
occasions at his pleasure; and on some occasions he did
not report to work on time because he had been drinking
the previous night and could not get up early. He was late
for work one-half hour to three-quarters of an hour two-
thirds of the time. Prior to the election, all of Respondent's
employees, including Burdette, Jr., punched a timecard.
However, on several occasions President Burdette punched
Burdette, Jr.'s timecard, and on at least one known occa-
sion, he punched Burdette, Jr.'3 card when Burdette, Jr.,
was not at work.
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent (President Burdette) acknowledged that
Burdette, Jr., was extended the aforedescribed privileges
because he (Burdette, Jr.) sustained an injury in Vietnam,
and he felt it was his obligation to help his son get himself
together and become independent and self-sufficient. Pres-
ident Burdette said he had extended similar concern and
consideration for other wounded veteran employees. When
he was asked to whom else he had extended such special
privileges or consideration, he referred to the fact that he
hired Curtis Gillispie (who had a prison record) at the re-
quest of his father, employee John Gillispie. However, I
find, as counsel for the General Counsel indicates in his
brief, that the only special privilege or consideration shown
by the evidence to have been accorded Curtis Gillispie by
Respondent was the fact that Respondent employed him.
In all other respects, the record shows that Curtis Gillispie
was treated as all other employees except Burdette, Jr. In
other words, Curtis Gillispie reported to work and left
work regularly at the proper starting and quitting times. He
punched his own timecard and he did not report and leave
work at his pleasure. Consequently, since Burdette, Jr., en-
joyed such special privileges and was also the son of Re-
spondent (President Burdette) the employees had a reason-
able basis upon which to believe that Burdette, Jr., had
authority and was in fact speaking and acting for Respon-
dent. This position would appear especially true when, as
here, the employee accorded such special privileges bears a
consanguine and/or a conjugal relationship to manage-
ment (President Burdette). Byrd's Terrazzo & Title Co.,
Inc., supra, and Whiting Corporation, supra.
Based upon the foregoing evidence and legal authority, I
conclude and find that as early as mid-July 1977, Charles
Carte was engaged in union activity; that James (Jim) Bur-
dette, Jr., was an agent of Respondent; and that at least on
August 29, 1977, and in all probability before that date,
Respondent had knowledge of the union activities of its
employees, including Carte, through Burdette, Jr., and
President Burdette. Moreover, evidence of Respondent's
knowledge of Carte's union activity may also be imputed
to President Burdette by reason of Burdette, Jr.'s knowl-
edge of such activity. It was certainly reasonable for the
employees to believe that Burdette, Jr., had imparted any
knowledge he learned about the union activities of the em-
ployees to his father, President Burdette, with whom it is
shown he shared the Company's point of view.
Kenneth Kessinger signed a union authorization card on
September 1, 1977, and on the very same day Respondent
(Ed Burdette) approached him and told him he had heard
that he (Kessinger) had joined the Union. Kessinger said
he acknowledged that he had joined the Union and Presi-
dent Burdette asked him why, and went on to explain that
Respondent would like to give the employees a $10 raise
but could not afford to do so because it was afraid Respon-
dent would be out of business. President Burdette's version
of this conversation essentially corroborates Kessinger's
version. About a week before the election, according to
Kessinger, President Burdette told him the Company was
just breaking even and he was afraid they were all going to
be out of a job.
Based upon the foregoing undisputed and other credited
evidence of record, I conclude and find that in the fall
(September and October) of 1977 Respondent (James Bur-
dette, Jr.) told employees Carte and Kessinger, respective-
ly, that if the Union got in it would break the Company
because the Company could not afford it, and that Re-
spondent would just have to "padlock" the doors; that
President Burdette told Kessinger he had heard that he
(Kessinger) had joined the Union; that a week or two be-
fore the election held on October 28, 1977, Respondent
(President Burdette) told employee Kessinger that the
Company was just breaking even (financially), and he was
afraid they were all going to be out of a job; and that such
unsupported statements by Respondent (the Burdettes)
constituted an interference with, restraint upon, and coer-
cion against its employees in the exercise of rights protect-
ed by Section 7 of the Act, and were in violation of Section
8(aXl) of the Act.
I further conclude and find upon the credited evidence
of record that on November 26, 1977, in reference to the
contract proposal, President Burdette asked employees Er-
nest Hutson, Curtis Gillispie, and John Gillispie if they
knew what the Union was trying to do to the Company.
Although Huston told him he did not want to talk about it
because he knew what it said and that the Union repre-
sented his point of view, President Burdette nevertheless
told him the Union had requested Respondent to recall
Carte back to work, and that "He just wanted to tell
them the Company was going out of business." I find that
the latter statement, as well as the other conversations initi-
ated by James Burdette and President Burdette, had a
threatening, coercive, and restraining effect upon Carte
and other employees in the exercise of their protected Sec-
tion 7 rights. This is especially so since Respondent did
not, on any occasion, give any of its employees assurances
that they would not be subjected to acts of reprisal by
Respondent for their organizing efforts. Consequently,
such conduct by Respondent was violative of Section
8(aX1) of the Act.
Respondent's Replacement of its Striking Employees
The representative hearing was held on September 16,
1977, and on that same afternoon, six employees were laid
off by Respondent. One employee was recalled on Septem-
ber 20, two were recalled 2 weeks thereafter (October 2,
1977), and two were recalled in mid-January 1978. The
union election was held on October 28, 1977, and on that
same afternoon three employees were laid off, including
employee Carpenter, who was laid off for the second time.
On January 17, 1978, the employees voted to strike because
Respondent would not recall Carte and would not make
backpay to Carte and other employees who had been pre-
viously laid off. On February 17, 1978, the employees re-
turned to the warehouse to work, but Respondent refused
to accept them, advising them that they could not walk off
the job and return any time they pleased and that they had
been replaced.
It is very well established by the credited evidence of
record that during their meeting on January 17, 1978, the
employees discussed the threatening and aforementioned
unfair labor practice conduct of Respondent, Respondent's
486
1. W. CORPORATION
refusal to reinstate Charles Carte to his position with back-
pay as requested by the Union, Respondent's refusal to
give the laid off and recalled employees backpay as re-
quested by the Union. It is also established that the em-
ployees in their desire to obtain better wages and working
conditions decided to vote to strike in an effort to achieve
those objectives. I therefore conclude and find upon the
above evidence that the employees' strike was economic in
character and was therefore lawful. Consequently, Respon-
dent's replacement of the striking employees because they
concertedly engaged in an economic and lawful strike was
discriminatory and in violation of Section 8(a)(3) of the
Act.
Respondent's Mass Layoff of Employess, its Recall of
Some Employees and its Discharge of Carte
The uncontroverted and credited evidence of record fur-
ther shows that the representation petition in Case 9-RC-
12197 was filed on August 29, 1977, and that a hearing on
that petition was held on September 16, 1977; that on that
same afternoon (September 16, 1977) Respondent laid off
Bobby Carpenter, Michael Pauley, Calvin Pauley, Jack
Wright, Kevin Gillispie, and Curtis Gillispie; and that the
above-named employees were individually recalled to work
on various dates between September 20, 1977, and mid-
January 1978. The evidence shows that employee Charles
Carte was on military reserve leave from September 5
through 16, 1977, and when he returned to work on Sep-
tember 19, Respondent (President Burdette) gave him a
layoff slip and advised him that he had to lay him (Carte)
off because Union Carbide was closing the Sevin poly
plants for 6 weeks, but he (Carte) might be recalled.
The record is clear that Respondent laid off Carte with-
out ever having discussed his use of foul language in the
office or his damage to goods on pallets, as reported by
Supervisor Slaughter, or that Respondent ever warned or
reprimanded (orally or in writing) Carte about the use of
foul language or about unsatisfactory work performance.
The evidence also shows that Respondent's employees had
not ever experienced a layoff before September 1977.
When Charles Carte came to vote in the union election on
October 28, 1977, he was advised by Respondent's attorney
that he had been terminated and that his vote would be
challenged. After Respondent was advised by the Union
about Carte's rights under the Act, Carte nevertheless vot-
ed and participated in the election, although he has not
been recalled or reinstated by the Respondent.
Respondent contends for the first time during this pro-
ceeding that it laid off Carte on September 19 because he
used profane language in the Company's office and be-
cause it had been reported to him that Carte was an ineffi-
cient worker. Respondent further contends that it laid off
Carte, rather than terminate him, in order to prevent ob-
structing his opportunities for future employment, but that
for all intents and purposes, in fact, Carte was discharged.
The record does not support Respondent's contended rea-
son for discharging Carte.
When it is observed that Respondent knew about its em-
ployees' organizing activities, including Carte's, that the
timing of Respondent's mass layoff on September 16, 1977,
coincided with the representation hearing held earlier on
that same date, that in all probability the only reason
Charles Carte was laid off on the following Monday, Sep-
tember 19, was that he had not returned from military re-
serve training and was not present at work on September
16, that, nevertheless, on September 19, without any warn-
ing or reprimand (written or oral) Respondent precipitous-
ly laid off Charles Carte with the qualification that he
might be recalled, that Respondent (President Burdette)
admitted that neither he nor Supervisor Slaughter ever
talked to Carte about his use of foul language in the office
or his work performance, and the evidence fails to show
that Carte had received any warnings (written or oral)
about his work performance being unsatisfactory, the con-
clusion is inevitable that the primary motivating cause for
Respondent's layoff-discharge of Charles Carte was his
union activity and not his use of foul language in the office
or unsatisfactory work performance. The above position is
further supported when it is considered in conjunction with
the evidence of Respondent's mass layoff of other employ-
ees on the afternoon of the representation hearing (Septem-
ber 16, 1977) and its second mass (three employees) layoff
on the afternoon of the union election held on October 28,
1977. Under such circumstances, Respondent's discharge
of Charles Carte, whose work performance it tolerated
without any evidence of dismay, as well as its mass layoff
of other employees hereinbefore described, although most
of them were later recalled, constituted discrimination
against such employees because of their union activities, in
violation of Section 8(aX3) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMER( CE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce. They are unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall recom-
mend that it cease and desist therefrom, and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that, commencing in late August
and the month of September 1977, the Respondent inter-
fered with, restrained, and coerced its employees in the
exercise of their Section 7 protected rights, in violation of
Section 8(a)(l) of the Act, by threatening to close down its
warehouse if the employees selected the Union as their col-
lective-bargaining representative and by coercively threat-
ening said employees with the loss of their jobs if they
selected the Union as their collective-bargaining represen-
tative. Respondent discriminated against its employees by
laying off Charles Carte and refusing thereafter to reinstate
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him because of his interest in, sympathies for, and activities
on behalf of the Union, in violation of Section 8(a)(3) of
the Act, and that Respondent thereafter discriminated
against other employees on or about February 18, 1978, by
refusing and failing to reinstate them after they had en-
gaged in an economic and lawful strike, the recommended
Order will provide that Respondent cease and desist from
or in any manner interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act. N.L.R.B. v. Entwistle Manufacturing
Company, 120 F.2d 532, 536 (4th Cir. 1941). The recom-
mended Order will also provide that Respondent offer to
Charles Carte, Curtis Gillispie, Harold D. Gillispie, John
Gillispie, Kevin Gillispie, Ernest Hutson, Kenneth R. Jor-
don, Larry E. Stevens, Dale Kessinger, Kenneth Kessinger,
Raymond L. Kessinger, Chester Kessinger, Calvin Pauley,
James Pauley, Mike Pauley, and Theodore Yerrid rein-
statement to their former jobs or, if such jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights previously enjoyed,
and that said employees shall be made whole for any loss
of earnings they may have suffered by reason of the dis-
crimination against them by payment to them of a sum of
money equal to that which they would have earned from
the date of discharge to the date of valid reinstatement,
with interest, less net earnings during such period, to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). 4
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. I. W. Corporation, the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters Local Union 175, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating its employees about their
union interest or activities, Respondent violated Section
8(a)(1) of the Act.
4. By threatening its employees, through its agent, that it
would close down its warehouse if the employees selected
the Union as their collective-bargaining representative, Re-
spondent violated Section 8(a)(1) of the Act.
5. By threatening its employees with loss of their jobs if
they selected the Union as their collective-bargaining rep-
resentative, Respondent violated Section 8(a)(1) of the Act.
6. By threatening its employees it would place a "pad-
lock" on its warehouse doors if the employees selected the
Union as their collective-bargaining representative, Re-
spondent violated Section 8(a)(l) of the Act.
7. By discriminatorily laying off and/or discharging
Charles Carte on September 19, 1977, and thereafter failing
4See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
and refusing to reemploy him, Respondent violated Sec-
tion 8(a)(3) of the Act.
8. By discriminatorily replacing and failing and refusing
to allow the following named employees to return to their
former positions of employment following their lawful eco-
nomic strike on January 18, 1978, Respondent violated
Section 8(a)(3) of the Act.
Charles C. Carte
Curtis Gillispie
Harold D. Gillispie
John Gillispie
Kevin Gillispie
Ernest Hutson
Kenneth R. Jordon
Larry E. Stevens
Dale Kessinger
Kenneth Kessinger
Raymond L. Kessinger
Chester Kessinger
Calvin Pauley
James Pauley
Mike Pauley
Theordore Yerrid
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (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:
ORDER
The Respondent, I. W. Corporation, South Charleston,
West Virginia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees about their
union interest or activities.
(b) Threatening its employees, through its agent, that it
would close down its warehouse if the employees selected
the Union as their collective-bargaining representative.
(c) Threatening its employees with loss of their jobs if
they selected the Union as their collective-bargaining rep-
resentative.
(d) Threatening its employees that it would place a
"padlock" on its warehouse doors if the employees selected
the Union as their collective-bargaining representative.
(e) Discriminatorily laying off and/or discharging em-
ployees, and thereafter failing and refusing to reemploy
them.
(f) Discriminatorily replacing employees engaged in a
lawful economic strike and refusing to allow them to vol-
untarily return to their jobs.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Charles Carte, Curtis Gillispie, Harold D. Gil-
lispie, John Gillispie, Kevin Gillispie, Ernest Hutson, Ken-
neth R. Jordon, Larry E. Stevens, Dale Kessinger, Kenneth
Kessinger, Raymond L. Kessinger, Chester Kessinger, Cal-
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.
488
I. W. CORPORATION
vin Pauley, James Pauley, Mike Pauley, and Theodore
Yerrid reinstatement to their former positions, discharging
replacements if necessary, or, if such positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights previously enjoyed,
and make them whole for any loss of pay suffered by rea-
son of the discrimination against them, with interest, in the
manner described 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 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
of this recommended Order.
(c) Post at Respondent's South Charleston, West Vir-
ginia, warehouse copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly signed
by Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) 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.
IT 15 FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
6 In the event that this 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 Rtlations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National L abor Relations Board."
489