Kitty Clover, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1953

103 N.L.R.B. 1665 (N.L.R.B. 1953)

KITTY CLOVER, INC. 1665
will be taken to have indicated their desire to remain part of the
existing production and maintenance unit, and the Regional Director
is instructed to issue a certificate of results of election to such effect.
Order
IT Is HEREBY ORDERED that the petition filed in Case No. 6-RC-11'98
be, and it hereby is, dismissed.
[Text of Direction of Elections omitted from publication in this
volume.]
KITTY CLOVER, INC. and UNITED PACKINGHOUSE WORKERS OF AMERICA,
CIO. Cases Nos. 17-CA-,,41,17-CA-44 ,17-CA-447, and 17-CA-
.455. April 8,1953
Decision and Order
On September 30, 1952, Trial Examiner Robert E. Mullin issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, a supporting brief, and request
for oral argument. Inasmuch as the record, in our opinion, ade-
quately reflects the issues and the position of the parties, the request
is hereby denied.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the Respondent's exceptions and brief, and the entire record in the
case and hereby adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications.
1 Pursuant to the provisions of Section 3 (b) of the Act , as amended , the National
Labor Relations Board has delegated its powers in connection with this case to a three-
member panel [ Chairman Herzog and Members Styles and Peterson].
P In finding that the discriminatory enforcement of plant rules after June 1, 1951,
Superintendent McFadden 's surveillance of the union meeting about June 16 1951k and
Nykiel 's statements to Bell , Marasco, and Koester . (see footnote 12 of the Intermediate
Report ) were unlawful , the Trial Examiner inadvertently omitted to find that by such
conduct the Respondent violated Section 8 ( a) (1) of the Act. We so find.
The Trial Examiner also omitted to find that the Respondent 's discriminatory suspen-
sion of Bell on June 19, 1931 , and its discriminatory discharges of Moore and Gamerl on
June 4 , 1951 , and of Gains on July 17, 1951 , violated Section 8 (a) (3) and ( 1) of the,
Act. We so find.
103 NLRB No. 127.
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that the mass discharge of July 19, 1951,
violated Section 8 (a) (3) and (1) of the Act.
On the preceding day the employees had agreed to seek a meeting
with Mrs. Lippold, secretary-treasurer of the Respondent, to protest
the discharges of employees Galus and Sogge a few days earlier. A
few weeks before Mrs. Lippold had met with employees to discuss
their protest of the discharge of another employee, and she had at
that time invited them to come to her office at any time to discuss
their problems. Pursuant to this plan of action, the employees on
July 19 left their work and gathered outside the plant building and,
upon calling Mrs. Lippold's office on the telephone, were told that
she was in conference but would see them shortly. Mrs. Lippold was
advised of these telephone calls. After waiting some time outside
the building for Mrs. Lippold to appear, the employees reentered the
building and waited for her in the hallway outside the office of Mrs.
Lippold and other plant officials. Plant Superintendent McFadden
accosted them there and was told that they were waiting to see Mrs.
Lippold.
McFadden went into the office and, in the presence of Mrs. Lippold,
discussed the employees' request with the president of the Respondent,
who instructed him to discharge the employees if they did not return
to work. When McFadden thereupon ordered the employees to re-
turn to work, and when they refused to comply, he discharged them.
The Trial Examiner found that in leaving their work to protest
the discharge of fellow employees, the employees were, in effect, strik-
ing, and their discharge for engaging in such protected concerted
activity violated Section 8 ( a) (3) as well as Section 8 (a) (1) of the
Act. We agree.
We find without merit the Respondent's contention that it had no
knowledge that the employees' purpose in seeking a meeting with
Mrs. Lippold was to discuss a grievance relating to working condi-
tions. As set forth in the Intermediate Report, Respondent was aware
of organizational activity by the employees on behalf of the Union
during the preceding 6 or 7 weeks. On June 4, the Union had sought
recognition by the Respondent. During June and July, as detailed in
the Intermediate Report, the Respondent conducted a vigorous anti-
union campaign , including reprisals for union activity , surveillance,
and discriminatory discharges or suspensions of employees. During
this period groups of employees had met on several occasions with
McFadden and Mrs. Lippold to discuss various grievances , including
the discharge of an employee. Mrs. Lippold had encouraged the em-
ployees to bring their problems to her. It was against this background
that the discharges of Sogge and Galus occurred on July 16 and 17,
KITTY CLOVER, INC. 1667
respectively. Under all these circumstances, we find that the Respond-
ent was aware that the employees' purpose in seeking a meeting with
Mrs. Lippold on July 19 was to discuss the recent discharges or some
other grievance relating to their working conditions. Indeed, it
would be unrealistic to conclude that responsible management officials
believed that the employees were insisting on seeing Mrs. Lippold,
even at the risk of loss of their jobs, for any other reason.
The Remedy
In section III, F of the Intermediate Report the Trial Examiner
found that the rights to reinstatement of those striking employees
who received the Respondent's letter of October 4, 1951, offering them
reinstatement were unaffected by that offer, because the offer was
made to part of a group of strikers. It is true that an offer of rein-
statement is not valid if it is clear to the offeree that the other strikers
will not be allowed to return to work. (Porto Rico Container Corpo-
ration, 89 NLRB 1570; The Good Coal Company, 12 NLRB 136, enfd.
110 F. 2d 501.) However, in the instant case, the letters of October
4 were on their face unconditional offers of reinstatement. There is
no basis in the record for inferring that the 17 employees who failed
to return on October 15 knew that certain of their fellow strikers had
not been offered reinstatement or that such 17 employees failed to re-
turn for that reason. Under these circumstances, we find that the
right to reinstatement of the 17 employees who received the letters
of October 4 but failed to return to work was terminated on October 15,
the effective date of the offer of reinstatement, and that their right to
back pay was tolled on that date.
The Trial Examiner, in section V of the Intermediate Report,
recommended that back pay for those employees discriminatorily dis-
charged by McFadden on July 19 should be computed from the date
of their discriminatory discharge. It is true that, under ordinary
circumstances, the Board allows an employee who is discharged in
violation of the Act back pay from the date of the discrimination
against him to the date he is offered reinstatement. But where, as in
the instant case, employees are discriminatorily discharged while en-
gaged in a strike, it is the Board's practice to award back pay from the
date of the dischargees' unconditional request for reinstatement,
rather than from the date of their discriminatory discharge, on the
theory that their loss of wages cannot conclusively be attributed to
their discharge until the employees indicate their willingness to aban-
don the strike.3 Accordingly, in awarding back pay to the employees
discriminatorily discharged on July 19, as well as to the employees
2 Porto Rico Container Corporation , 89 NLRB 1570.
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who later joined the strike, we will compute such back pay from the
date of their unconditional offer to return on July 30, 19511
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent; Kitty Clover, Inc., Omaha,
Nebraska, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the Union, or any other labor
organization of its employees, by discharging or refusing to rein-
state any of its employees or by discriminating in any other manner in
regard to their hire or tenure of employment, or any term or condition
of their employment, except to the extent permitted by Section 8 (a)
(3) of the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the Union or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain
from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Immediately offer to the following:
Moore Kratochvil
Gamerl Newman
Galus Nocita
Anderson Riter
Brunner Rosegay
Digilio Runnels
Fisher Synowiecki
Johanek Young
Koesters
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
and make whole all the employees listed in Appendix A attached
hereto in the manner set forth in the section entitled "The Remedy"
+ In the absence of any exceptions thereto , we adopt the Trial Examiner 's finding that
Aggerson , Bell , and Duncan are not entitled to reinstatement or back pay.
KITTY CLOVER, INC.11669
in the Intermediate Report and Decision herein, for any loss of pay
they may have suffered by reason of the Respondent's discrimination.
(b) Upon request make available to the Board or its agents for
examination and copying all payroll records, social-security pay-
ment records, timecards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due.
(c) Post at its plant in Omaha, Nebraska, copies of the notice at-
tached hereto and marked "Appendix B." 5 Copies of said notice,
to be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by the Respondent, be posted by the
Respondent immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter in conspicuous places including
all places where notices are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventeenth Region,
Kansas City, Missouri, in writing within ten (10) days from the date
of this Order what steps the Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that Respondent discriminated in regard to the hire and tenure
of. Sogge and Thorkildsen.
4In the event that this Order to enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
Appendix A
Employees Entitled to Back Pay
Theresa Abboud
Elva Aquilar
Sam Anderson
Madonna Annis
Helen Bear
Rose Bell (for period of her
suspension commencing on
June 19, 1951)
Agnes Bernady
Josephine Brunner
Shirley Clark
Clara Crook
Lawrence Cushing
Catherine Digilio
David A. Downs
Don Everest
Nellie Everett
257965-54-vol . 103-106
Delores Fisher
Thomas A. Galus
Duane Gamerl
Catherine Giles
Shirley Harper
Helene Hartman
Carol Hensley
Madge Jacobs
Rose Johanek
John Koesters
Rose Kratochvil
Adele Leasenby
Emma Marasco
Gale Moore
Esther Newman
Marie Nocito
Jane Nusrallah
1670 DECISIONS OF
Jack Peterson
Eleanor Ramold
Leona Riter
Sophia Riza
Shirley Roach
Virginia Rosegay
Ardell Runnells
Sally Smolinski
Helen Stodola
NATIONAL LABOR RELATIONS BOARD
Millie Svagera
Ann Synowiecki
Donna Taylor
Antoinette Thompson
William Voester
Delores Wyatt
Fred H. Wackerhagen
Nina C. Young
Appendix B
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in UNITFD PACKINGHOUSE
WORKERS OF AMERICA, CIO, or in any other labor organization of
our employees, by discriminating in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT engage, directly or indirectly, in the surveillance
of unon meetings, the interrogation of employees with respect to
their union interests, activities, or sympathies, the discriminatory
application of plant rules, or in any other manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist the
above-named union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL make whole Rose Bell for any loss of pay suffered as a
result of her discriminatory suspension on June 19, 1951.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and privi-
leges previously enjoyed:
Gale E. Moore Sam Anderson
Duane F. Gamerl Josephine Brunner
Thomas A. Galus Catherine Digilio
KITTY CLOVER, INC. 1671
Delores Fisher Leona Riter
Rose Johanek Virginia Rosegay
John Koesters Ardell Runnels
Rose Kratochvil Ann Synowiecki
Esther Newman Nina C. Young
Marie Nocita
WE wmr make whole for any loss of pay suffered as a result of
the discrimination, all of the above-named employees and, in addi-
tion, the following :
Theresa Abboud Adele Leasenby
Elva Aquilar Emma Marasco
Madonna Annis Jane Nusrallah
Helen Bear Jack Peterson
Agnes Bernady Shirley Roach
Shirley Clark Eleanor Ramold
Clara Crook Sophie Riza
Lawrence Cushing Sally Smolinski
David A. Downs Helen Stodola
Don Everest Millie Svagera
Nellie Everett Donna Taylor
Catherine Giles Antoinette Thompson
Shirley Harper William Voester
Helene Hartman Fred Wackerhagen
Carol Hensley Delores Wyatt
Madge Jacobs
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named union or any other
labor organization except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act. We
will not discriminate against any employee because of membership
in or activity on behalf of any such labor organization.
KITTY CLOVER, INC.,
(Employer)
Dated ------------------ By -------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days for the date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor Management Rela-
tions Act, 1947, 61 Stat. 136 (herein called the Act), was heard in Omaha,
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nebraska, from October 30 to November 8, 1951, pursuant to due notice to all
parties. The complaint, issued on October 10, 1951, by the General Counsel of
the National Labor Relations Board,' and based on charges duly filed and served,
alleged that the Respondent had engaged in unfair labor practices proscribed by
Section 8 (a) (1) and (3) of the Act. In its answer, duly filed, the Respondent
conceded certain facts with respect to its business operations but denied the
commission of the alleged unfair labor practices.
All parties were represented at the hearing by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
relevant evidence, to argue orally, and to file briefs and proposed findings and
conclusions. Oral argument was waived. Subsequent to the close of the hear-
ing, the General Counsel and the Respondent submitted briefs, both of which
have been carefully considered by the undersigned.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Nebraska corporation, is engaged in the manufacture of potato
chips and popcorn, maintaining its principal office and plant in Omaha, Nebraska,
and distributing points at Sioux City, Iowa, and Lincoln, Nebraska. In the
course and conduct of its business, Respondent sells and delivers, or causes to be
delivered, to customers outside the State of Nebraska, manufactured products
valued in excess of $25,000 annually. Upon the foregoing facts, the Respondent
concedes, and I find, that Kitty Clover, Inc., is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 ( 5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
On about May 26, 1951,' 2 employees of the Respondent contacted a representa-
tive of the Union and thereafter distributed authorization cards among their
coworkers. On about June 1 the Union held its first organizational meeting.
The discharge of Gale Moore and Duane Gamerl, an issue herein, occurred on
June 4. That same day Robert L. Armstrong, field representative of the Pack-
inghouse Workers, wrote the Company that his Union represented a majority of
the employees and requested a meeting to discuss wages and working conditions.
By letter dated June 7, the Respondent questioned the majority status of the
Union and stated that it would decline to meet with Armstrong. On June 12
the Packinghouse Workers filed a representation petition with the Regional
Office of the Board in a proceeding entitled Kitty Clover, Inc., Case No. 17-RC-
1074. On July 18, a hearing was held on this petition. Shortly before this date
the Respondent discharged Thomas A. Gains and Alberta Sogge, 2 other em-
ployees whose dismissals are now in question. On the evening of July 18, the
'The General Counsel and his representalves at the hearing are referred to herein an
the General Counsel and the National Labor Relations Board as the Board . The above-
named Company is referred to as the Respondent and the charging Union, likewise named
above, as the Union or Packinghouse Workers.
9 Unless otherwise noted, all events referred to herein occurred in 1951.
KITTY CLOVER, INC. 1673
Union held a meeting at which plans were made to protest the discharge of
Gains and Sogge. The following morning the employees then on duty requested
a conference with Mrs. Lou C. Lippold, secretary- treasurer of the Respondent.
John C. McFadden, plant superintendent, requested that the assembled employees
select a few of their number as representatives for such a meeting with the
company officers, and when this request was not met he asked that the em-
ployees return to work. For noncompliance with this order the superintendent
discharged the entire group. That afternoon the Union established a picket line
in front of the Kitty Clover plant which was maintained until October 15. On
July 30 a committee representing all the employees then on strike met with
company representatives and presented an offer to return to their jobs. On
October 4, the Respondent wrote 32 of these employees, offering them employ-
ment effective October 15. On the latter date a number of these individuals re-
turned to the plant and were reemployed.
B. The allegations with respect to interference, restraint, and coercion; con-
clusions with respect thereto
Sometime during the latter part of May, Thomas A. Gains, a maintenance
mechanic at the Respondent's plant, went to the Omaha office maintained by
the Packinghouse Workers to seek information on the unionization of the Kitty
Clover employees. There he met Robert L. Armstrong, a field representative,
who gave him a number of authorization cards and suggested that Gains distrib-
ute them among his coworkers. Several days later Gains and another em-
ployee, Gale Moore, returned to the union hall where, in a discussion with Arm-
strong, arrangements were made to hold an organizational meeting for Kitty
Clover employees on about June 1. During the succeeding weeks, Galus, Moore,
Rose Bell, Ann Synowiecki, and a number of other employees solicited their
fellow workers to sign cards. About 37 attended the meeting on June 1 and at
that time approximately 43 signed cards were returned to Armstrong' There-
after union meetings were held about once a week.
1. Interrogation
The General Counsel alleged that from the outset of the Union's organizational
campaign the Respondent's supervisory personnel engaged in a course of conduct
proscribed by Section 8 (a) (1) of the Act. This allegation was denied by the
Respondent.
Several of the employees, appearing as witnesses for the General Counsel,
gave testimony on the activities of Anton Nykiel, an assistant supervisor. Much
of this was admitted by Nykiel. Synowiecki testified that several times during
the early weeks of the organizational drive Nykiel asked whether she had signed
a card. According to Emma Marasco, after the first union meeting Nykiel asked
whether she had joined and when she answered in the affirmative he asked how
how many others had done likewise. The following week he asked whether
she would tell him what had transpired at the latest union meeting; later in
the month of June he told Marasco that he knew how many employees had
joined the Union and then proceeded to name several. David A. Downs, Cath-
erine Digilio, Theresa Abboud, John C. Koesters, and Nellie Everett testified that
9 At this time the Respondent had from 45 to 50 employees on its day shift Late in
May and early in June employees were being hired for a night-shift operation ; eventually
the number of employees on this shift equalled the number on during the day. Precisely
how many night-shift employees had been hired by June 1, however, does not appear in the
record.
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the month of June, Nykiel asked similar questions of them to determine
whether they were attending meetings and to learn what transpired at those
which the employees attended. At the hearing Nykiel conceded that he had
such conversations with the employees named above.
On June 4, the Respondent dismissed Gale Moore and Duane Gamerl. For
reasons which are discussed hereinafter, it is the conclusion of the undersigned
that these discharges were discriminatory. Nykiel testified that in conversa-
tions with Marasco he told her that "I thought Gale Moore and Tom Gains and
I can't recall who else it was" were the leaders in the move to organize the
employees. Koesters testified that early in July, Nykiel asked him "How's the
Union coming" and when Koesters denied knowledge of the matter, Nykiel went
on to say "the trouble maker is still here." Koesters then interposed the re-
mark, "I thought they fired them two guys." According to Koesters, Nykiel's
response was, "He is still here, but I will not say whether it is a he or a she,
but he's still here." Nykiel conceded that he had had such a conversation with
Koesters. Rose Kratochvil testified that 2 or 3 days after Moore was discharged
Nykiel told her "Those girls sure will be sorry that they signed those union
cards," and then asked whether she knew the identity of the "ring leader."
According to Kratochvil she then said, "I thought Duane and Gale were the
ring leaders" and Nykiel responded, "That's why they got fired, for starting
the Union." Nykiel denied having made the latter remark. This denial was
not convincing, whereas Kratochvil's testimony was. In view of this fact and
Nykiel's admittedly extensive interrogation of other employees, I believe
Kratochvil to be the more credible and so find.
Nykiel testified that he first learned of the employees' interest in a union
the last week in May and promptly reported the matter to Edmond Flowers,
the production manager. Superintendent John McFadden was out of the city
then but upon his return about May 28, Nykiel also brought the matter to his
attention. According to both Nykiel and McFadden, the latter told him "to
mind my own business . . . [and] keep my nose clean." Both testified that
subsequent to this occasion Nykiel never again brought to the superintendent any
other reports on employee activity. To the Examiner, however, this latter
testimony was not persuasive for it was contradicted by other testimony which
Nykiel gave later.4
In addition to the testimony regarding Nykiel's interrogation of the personnel,
Synowiecki credibly testified that during the second week in June, Sigismund
Kwiatkowski,' one of the foremen, told her "Ann . . . if you are thinking about
any union . . . you'd just as well forget it because I am warning you ahead of
time . . . if you don't . . . you will be out of a job."'
A day or two after Galus and Moore had begun the distribution of union cards
among their fellow employees, Galas was called to the office of his superior,
Harold C. Thom, the plant engineer. According to Galus, Thom asked him,
"What's all this I hear about a union of which you are the leader?" and then
said, during the course of the conversation, that "the Company would not
consent to a union and that they had done that before and fired a few." Thom
denied having made any such remarks to Galus at this meeting. Thom testified
that he called Gains in for a conference upon hearing that Galus was passing
' On cross-examination, Nykiel conceded that early in July, in a conversation with
McFadden, the latter had "brought up the subject about the Union" and that on this occa-
sion he told McFadden about the employees "I thought were really strong for the Union.
I mentioned Rose Kratochvil, Josephine Brunner, Nellie Everett, and Tom Galus "
° Referred to throughout the record as "Ziggy."
° Kwiatkowski denied having made this remark. His denial is not credited.
KITTY CLOVER, INC. 1675
out union cards as the first shift reported for work . According to Thom, he
became concerned on getting this report because that particular hour was one
during which Gains' job required his undivided attention . Thom testified that
when Galus denied that he was passing out cards he dropped the matter. The
plant engineer was an intelligent witness, much of whose testimony seemed
credible , but his explanation here was contradicted , in part, by a prior sworn
statement which was introduced during his cross -examination . In this affidavit
Thom had averred that he asked Galus whether he had passed out any cards
"or had seen any union literature" and further that he had asked this question
"to ascertain in my own mind whether he was concerning himself with things
of this nature . . . Thom was one of the three men in my department and I
simply wanted to know if he was interested in the Union." Gains was a slow,
reticent type who was , nevertheless , a convincing witness. In view of this
fact and the conflict between Thom's testimony at the hearing and his prior
affidavit , the Examiner credits Galus' testimony with respect to this conver-
sation.
In the light of the above findings it is my conclusion that the Respondent,
through the interrogation of employees as to their union activities and interests
by supervisory personnel , as set out in the foregoing paragraphs, violated Sec-
tion8 ( a) (1) of the Act.
2. Enforcement of plant rules ; suspension of Rose Bell
The General Counsel alleged that after the Union arrived the employees were
subjected to a rigid discipline and that foremen thereupon set out to enforce
numerous rules which in the past had been either nonexistent or largely ignored.
This charge was denied by the Respondent in its entirety.
There was credible testimony from numerous witnesses that after June 1,
Foremen Nykiel, Kwiatkowski , and Wagner insisted upon strict compliance with
rules against talking or chewing gum, and required that employees obtain per-
mission from a foreman before getting a drink of water or going to the restroom
while on duty. Although it appears that there was a long-standing prohibition
against excessive talking and against chewing gum the foremen who testified
in this connection ' were extremely vague about the promulgation of the other
rules in question or their terms. Several of the foremen testified that such
rules were posted on the plant bulletin board , but no copies were offered in
evidence.
On June 19 , Rose Bell was charged with violating the rule against chewing
gum and suspended for 1 week. According to Bell : On that particular morning
Nykiel engaged her in conversation about the last union meeting and during
the course of it told her she was foolish for having joined , that it would do her
no good ; Nykiel then went into McFadden 's office but returned shortly there-
after to ask whether he had been the subject of any discussion at the meeting;
when she suggested that Nykiel himself should have gone to learn the answer
to that question he commented, "Well, we know everybody that goes to the
union meetings" and then departed ; at 2:20 p. in. that day Nykiel returned
and ordered her to "punch out your card and go home" ; when she insisted on
seeing McFadden for an explanation the superintendent told her she was
being disciplined for chewing gum and that he was giving her a week "to go
home and think it over" ; at the time she pointed out to McFadden that other
employees were also chewing gum but his only response was, "Yes, but we don't
see them." Nykiel conceded that Bell's version of their conversation about the
7 Wagner, Nykiel , McFadden , and Kwiatkowski.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meeting was substantially correct, then went on to testify that on the
morning in question he saw Bell chewing gum, warned her not to do so on two
occasions and later, when he observed her violating the rule for the third time
that day, reported it to McFadden. Nykiel's testimony in this regard was con-
tradicted by an affidavit in which he averred that McFadden had told Bell not
to chew gum some 4 to 5 days before her suspension, that he (Nykiel) had
warned her the next day and that when he saw her chewing gum on June 19 he
reported the matter to McFadden without ever speaking to Bell. McFadden
could not recall whether she was warned on the day of her suspension but testi-
fied that he had spoken to her several days before. McFadden had no clear
recollection, however, that he had ever warned Bell that violation of this rule
would result in her suspension.
On about July 12, McFadden summoned Sophie Riza into his office for an al-
leged violation of the rule against talking. When the rest of her coworkers on
the production line in the main plant 8 heard of this all of them accompanied
Riza into McFadden's office. There the superintendent asked the employees
whether he needed their permission to talk with Riza, whereupon Leona Riter,
one of the group, told him that all the girls had accompanied Riza because every-
one had been talking and felt that no one individual should be singled out for a
reprimand. The group then engaged the superintendent in a discussion of the
plant rules. He agreed that in the future the employees could talk while at work
so long as the privilege was not over indulged. McFadden testified that when
the girls at this meeting brought to his attention the fact that Nykiel was re-
quiring them to obtain permission to get a drink of water, he changed that
practice at once.9 Several of the employees credibly testified, however, that even
after this meeting there was no abatement of the new discipline initiated the
preceding month.
From the foregoing it is my conclusion and I find that after June 1, as the
General Counsel alleged, the foremen initiated a far more rigid discipline in the
plant than had previously obtained and that this culminated in the suspension
of Bell for allegedly violating one of these rules. Kwiatkowski, one of the fore-
men who had been with the Company for many years, testified that this was
the only occasion he had ever known in which anyone had been disciplined for
chewing gum. In view of the facts related above and the background of inter-
rogation and surveillance (see below) present in this case I find that Bell's
suspension was discriminatory and that during the period after the unionization
drive started the foreman enforced the plant rules in a discriminatory manner
for the purpose of discouraging union organization.
3. Surveillance
The first union meeting was held on about June 1 at the Packinghouse Workers'
hall, a point located several miles from the plant. Several witnesses 30 testified
that on the eve of the meeting Superintendent McFadden was seen at a place
about a block from the hall and on the route which the employees were follow-
ing on their way to the meeting place, that he remained there for some time, that
during that period he was observed looking toward the hall which was visible
from that point, and that some time later he drove within a short distance of
9 Respondent's principal operations were carried on in two adjoining buildings, one a
frame structure , the other a Quonset hut. The former is referred to throughout the
record as the main plant.
9 During the time the employees were in McFadden 's office the machines which they
operated were shut off.
10 Virginia Rosegay, Sally Smolinski, Agnes Bernady, and Gains.
BITTY CLOVER, INC. 1677
the union building , turned down an alley, and disappeared from view. Two
other witnesses 1' testified that they had seen McFadden across the street from
the site of another union meeting held early in July at the Rome Hotel. At the
hearing McFadden could not recall having been in the vicinity of either meet-
ing at the time in question but he conceded that he might have been there.
The Rome Hotel is located in the heart of downtown Omaha and McFadden's
presence in that area at the time of the employees ' meeting , may have been no
more than a coincidence . On the other hand, his presence in the vicinity of the
first union meeting cannot be dismissed in the same manner. The union hall was
located in South Omaha . McFadden did not live in the area and the plant
was several miles away. In view of the credible testimony of the numerous
witnesses as to the superintendent 's conduct near the site of the first organiza-
tional meeting , McFadden 's concession that he might have been there and his
failure to offer any explanation for his presence in the area , I conclude and
find that his activity in the vicinity of the union meeting constituted unlawful
surveillance."
4. The night-shift bonus
The General Counsel alleged that the Respondent also discriminated against
its employees by the institution of a 5-cent differential in pay for the night crew
shortly after it learned that the Union was organizing its employees . In support
of this allegation the General Counsel argued that although the night shift was
started early in May a night differential was not placed in effect until the pay
period ending June 13. While it is true that Nykiel testified that the evening
shift started early in May, the payroll records introduced at the hearing indicate
that many of the second-shift employees first came to work for the Respondent
early in June and some of them were not on the rolls until June 13. If the
Respondent had proposed to discourage the fledgling union movement by the
grant of a wage increase, it seems unlikely that this would have been attempted
by granting newly hired employees a bonus and ignoring the bulk of its regular
employees who worked on the day shift . On the record here there appears to be
little support for the allegation that the night -shift bonus was initiated for
discriminatory reasons. Without much more evidence than the General Counsel
presented it must be presumed that the Respondent instituted this particular
wage increase for none other than a sound business reason.
0. The alleged discriminatory discharges ; conclusions with respect thereto
1. Gale Moore
Moore started to work for the Respondent on or about September 24, 1950.
For 6 to 8 weeks he was paid 80 cents an hour as a peeler in the Quonset hut and
was then given a 5-cent an hour raise . In February he transferred to the ship-
ping department under Foreman Carl H. Carlson. On about May 1 he was
transferred to the warehouse where his supervisor was Edmond Flowers, the
production manager . On May 16 , Moore was given a 5 -cent an hour raise. When
Moore asked McFadden for an overtime assignment with which to supplement
11 Hartman and Newman.
22 Further , I conclude and find, av counsel for the General Counsel argued in their brief,
that the impression of surveillance was fostered by statements , such as those made by
Nykiel to Bell, Marasco , and Koesters to the effect that the management knew (1) who
attended union meetings , ( 2) who the union leaders were, and ( 3) how many employees
had signed cards. Remarks of this character and in the setting present here are in them-
selves Intimidatory. Rubin Brothers Footwear, Ino., et aZ., 91 NLRB 10, 34, footnote 28.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his income after he had finished the morning shift in the warehouse, the super-
intendent gave him afternoon work as a peeler. In addition, in the morning and
before Moore went to work at his regular job, McFadden detailed him to the
plant entrance where he performed the functions of a guard or watchman as the
first shift reported for duty. In the latter part of May, as a result of these
various assignments, Moore was working approximately 15 hours a day 6 days
a week. On June 4 he was discharged.
Moore's initial interest in the Union has already been mentioned. After his
original contact with Armstrong on May 26 and before the meeting on June 1,
Moore obtained approximately 25 signed cards from his coworkers. Among
these employees was Duane Gamerl. At the time Moore gave Gamerl a card,
Nykiel was present and asked for a card for himself. Moore questioned the
assistant foreman on whether he wanted to join the Union and, then the latter
replied in the negative, declined to give Nykiel a card 18
On Friday afternoon, June 1, Flowers called Moore into his office. Accord-
ing to Moore, Flowers opened the conversation with a question as to whether
Moore had heard anything about the Union. When Moore replied that every-
one had, Flowers called McFadden into the room and announced, "I think
we have found our man," whereupon both interrogated Moore as to what he
knew, whether he had any cards, how many had been signed, and who was
leading the movement. According to Moore, as the conversation progressed,
McFadden remarked to Flowers, "Well, if I were in your place, I know what
I would do right now." Moore was then told to return to his job, but as he left
the office Flowers asked whether he had changed his mind about the Union and
Moore assured him that he would think it over.
Flowers denied that at this conference he told McFadden "I think we have
found our man," but much of his testimony corroborated that of Moore. Ac-
cording to Flowers, he asked Moore why it was the latter seemed dissatisfied,
that Moore's response was that he wanted "less hours and more money," and
that he then asked whether Moore belonged to any organization and was pass-
hug out union literature. Flowers testified that when Moore answered the last
question in the affirmative he called in McFadden to tell him that Moore was
"passing out union literature on company time" 14 and that the superintendent,
after discussing the advantages he had afforded Moore, turned to Flowers and
declared, "I know what I'd do with him. I'd let him go." At about 2: 30
p. in. the following Monday, Moore was again summoned to Flowers' office,
where the latter told him that in view of the fact that Moore was dissatisfied he
was being discharged.
The General Counsel alleged that Moore's dismissal was discriminatory. In
support of this position it was argued that Moore's record was satisfactory,
that his superiors had not criticized him, that he had received successive pay
raises and that until Moore became a leader in the move to unionize the plant,
McFadden had accorded him many favors.
The Respondent seemed to rely on various grounds in support of the dis-
charge. Much testimony was offered to prove that Moore had been a problem
for months. McFadden testified that after Moore went to work in the ware-
house he seemed to lose interest in the job and that he (McFadden) had spoken
to Flowers about this matter several times. Flowers himself, however, testi-
fied that he had no occasion to criticize Moore and that it was not until the
13 This finding is based on the mutually corroborative testimony of Moore and Nykiel.
14 Flowers testified , however, that he had not questioned Moore as to when he was
distributing cards.
KITTY CLOVER, INC.
last week in May that McFadden spoke to him about Moore. McFadden could
recall no complaints about Moore while the employee was assigned to the ship-
ping department. Thom, however, testified at some length about an electric
switch that he had replaced on the peeling machinery while Moore was operating
it. According to Thom, the switch was rendered unusable because the peeler
operator habitually adjusted it by hitting the switch with a knife instead of
doing so manually, that he complained to Moore about this practice, and that
the latter replied "If that costs the company any money, I am all for it." At the
time Thom gave this testimony he could not recall the date when the switch was
;actually replaced. Upon demand made by the General Counsel, records of the
repair work were produced by the Respondent which fixed the date when the
switch was replaced as September 25, 1950. In view of the fact that Moore had
only started with the Company on September 24, I feel that little credence can
be accorded Thom's account of his conversations with Moore regarding the
switch and the observations he attributed to Moore at that time.
McFadden, after considerable testimony as to Moore's alleged shortcomings,
declared that the basis of his decision to discharge the man "was the fact that
Gale had been passing out these cards on company time." The Respondent made
no effort to prove the existence of any rule against solicitation. No effort was
made to develop whether, in the event such a rule against soliciting coworkers
was in effect, Moore had violated it during working hours. Flowers conceded
that he had not asked Moore whether the latter was distributing cards while on
duty.
From the record it is apparent to me that McFadden had been satisfied with
Moore until he learned of his union interests. The superintendent had given him
numerous assignments to increase his overtime pay and he received various
raises, the last only 2 weeks before his discharge. Moreover, no immediate
foreman was produced to testify against him. Late in May, however, when
Moore became active in the Union his troubles began. In view of these facts and
the unsatisfactory character of the various explanations offered by the Respond-
ent for Moore's abrupt discharge at a time when the plant was extremely busy
and there was a shortage of labor," I conclude and find that Moore was dis-
charged not for the reasons advanced by the Respondent but rather to discourage
the employees from organizing.
2. Duane Gamerl
Gamerl was hired in February 1951. He worked in the Quonset hut under Fore-
man Wagner for several weeks and then transferred to a peeling machine for a
short time. While at this latter job he received a 5-cent raise . Shortly there-
after he was assigned to the shipping department where he filled the vacancy
created when Moore went to the warehouse . When the union campaign started,
Gamerl, along with Moore and several other employees , passed out cards among
his coworkers . Two or three days after he received a supply of cards from
Moore , Nykiel questioned Gamerl on whether he had solicited any signatures
and asked that Gamerl show him a card . On June 4 , Gamerl was discharged.
At the time he was working from 50 to 60 hours per week.
About 3 o'clock on the afternoon of June 4, McFadden saw Gamerl standing
outside the Quonset hut and engaged in conversation with Moore, who had just
been discharged . McFadden testified that he told Gamerl to "get back to work"
.and then ordered Carlson to send the employee to his office . When Gamerl ar-
ss As McFadden conceded.
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rived, McFadden told him he was being dismissed "because his work was
unsatisfactory." "
Gamerl testified that he had received no complaints on his work in the shipping
department. McFadden conceded there had been no complaints about Gamerl's
work prior to his transfer to Carlson's section and when asked who it was that
had complained about this employee he admitted that no one had complained
to him. According to McFadden, he had observed, in the course of his rounds,
that Gamerl was "fooling around too much on the job" and that he had spoken
to Carlson about the matter on several occasions. McFadden's testimony was not
corroborated by that of Carlson. Although at the hearing the latter testified
that he had a few complaints about Gamerl and that he had been compelled
to speak to him about certain incidents, in a prior sworn statement, introduced
during his cross-examination, Carlson had averred that Gamerl was a "good
worker" " and that prior to his discharge there had been no complaints about
him 18 At the hearing Carlson testified that he first heard that Gamerl was
being dismissed when McFadden came to him on the afternoon of June 4 and
told him "I'll have to relieve this man." McFadden gave Carlson no reason
for this decision.
The General Counsel alleged that McFadden's decision to fire Gamerl was
motivated by the desire to rid the plant of another union sympathizer. The
evidence offered by the Respondent in support of the position that Gamerl was,
in fact, dismissed for cause is not persuasive. McFadden's own testimony as
to Gamerl's alleged dereliction was unconvincing, and Carlson, Gamerl's im-
mediate superior, testified that he had been a good worker. In view of these
facts it is relevant to note that Gamerl, an active proponent of the Union,
was precipitately dismissed in the middle of his shift, despite a good record,
and at a time when he was working from 50 to 60 hours per week, after the
superintendent had seen him engaged in conversation with Moore who, as I have
found above, had been discriminatorily discharged only a few moments be-
fore. From the foregoing, it is my conclusion and I find that Gamerl, too, was
discriminatorily discharged.
3. Alberta Sogge
Sogge was employed on the sacking line in the Quonset hut from the time
she was hired by the Respondent in January until her discharge on July 16.
According to Sogge, throughout her employment, she was never criticized until
shortly before her discharge. She joined the Union in May. According to her
testimony, she talked freely of her affiliation while at work and induced 4 or
5 other employees to sign authorization cards. She testified that in one con-
versation with John Wagner, her foreman, she asked what the Company would
do when the Union organized the employees and the latter replied, "There will
never be a Union, they will close it up.s 1° Shortly before her discharge, Wag-
ner admonished Sogge for talking while at work. On the Friday or Saturday-
preceding her discharge," while she was operating the stapling machine, Wagner
19 The quotation is from McFadden's testimony.
14 The quotation is from Carlson's affidavit.
18 In his testimony, Carlson referred to a complaint regarding Gamerl which one of the
transport drivers had made. He conceded, however, that Gamerl was dismissed before
he could report this matter to anyone . The same is true of another complaint as to which
Albert D. Davison , one of the truckdrivers , testified. Davison likewise had never reported
the matter to anyone.
39 Sogge's version of this conversation was undenied.
20 July 16 was a Monday.
KITTY CLOVER, INC. 1681
told her that she was doing the job improperly, and produced a bag which he
said was a sample of her work that he had found on the conveyor line. On
the following Monday morning Wagner told Sogge to report to McFadden where
she was informed that effective immediately she was being dismissed for inferior
and unsatisfactory work.
Both McFadden and Wagner testified in connection with Sogge's dismissal.
Wagner testified that he had often had occasion to criticize her for carelessness,
that she had engaged in an excessive amount of talking while on duty, that
"over a period of time" he had spoken to her about the manner in which she
stapled packages, that after he criticized her for this she corrected herself
in that respect but then started handling the merchandise in a careless, destruc-
tive manner. According to Wagner, after Sogge corrected her stapling method
she began tossing the packages on to the conveyor instead of placing them on it
carefully to avoid damaging the fragile contents. Wagner testified that on
the morning of July 16 he admonished her about this practice several times
and when she continued to violate his injunction he reported the matter to
McFadden. The latter testified that over a period of several months Wagner
had frequently complained about Sogge's work and her attitude, that on the
morning of July 16, Wagner told him again about his dissatisfaction with her
performance, that he (McFadden) instructed Wagner to send her to him in the
event any further trouble developed and that later in the morning when the
foreman reported that she was still performing her work in an unsatisfactory
manner he dismissed her.
The testimony of both Wagner and McFadden was somewhat vague and
lacking in detail. It was not entirely persuasive. On the other hand Sogge's
role in the organizational campaign was not such as would have rendered her
conspicuous. In addition, she was not an impressive witness and her denial
that her work was ever criticized was not convincing. In fact, her manner,
while testifying, bore out the subsequent testimony of both Wagner and McFadden
that she had been dismissed for being a careless, indifferent employee. On this
record and from my observation of the witnesses it is my conclusion that with
respect to Sogge, the General Counsel has failed to prove by a preponderance
of the evidence that Sogge was discharged in violation of Section 8 (a) (3)
and (1) of the Act.
4. Thomas A. Galus
Galus was employed as a maintenance mechanic early in the spring of 1951.
For about a month he worked under the tutelage of John Rihanek and then
was assigned a shift by himself. For a time he worked on the day shift; about
the middle of May, he was placed on the night shift. On the morning of July 17,
McFadden discharged Galus on the ground that his work was unsatisfactory.
The General Counsel alleged that Galus ' discharge was discriminatory ; the
Respondent that it was for cause.
In support of its position , the Respondent endeavored to prove that Galus had
been an unsatisfactory employee for many months and that only the lack of a
replacement had delayed his dismissal until July . Thom , the plant engineer,
testified that Galus had been deficient in numerous instances : That he had on
several occasions failed to adjust correctly the rotor blades on the slicing machine,
that he had difficulty cleaning the sacking machines , and that about a month
before his discharge Galus had, through faulty workmanship , rendered worth-
less an aluminum bucket on one of the sacking machines . Thom conceded that
insofar as he could recall Galus had had no trouble in the week before his dis-
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge and that the latter action was taken on July 17 only because a replacement
had then become available.
The Respondent attached considerable importance to the damage which Galas
allegedly did to the sacking machine bucket . Thom and Rihanek testified that
this piece of equipment could only be repaired either by the manufacturer or
at a specialty welding shop in Omaha. When Gains was called on rebuttal, how-
ever, he credibly testified that he had never tampered with any of the aluminum
buckets on the machines , that within about a month after he had been hired he
called Rihanek 's attention to the fact that one of the buckets needed repairs,
that Rihanek told him to leave it alone, and that as a result he had never
attempted to repair either that or any other bucket. Although Thom testified
that the bucket in question was beyond repair, the Respondent had never at-
tempted to have it repaired by either the special service available in Omaha
or the manufacturer of the machine.
The Respondent 's assertion that Galas' dismissal was delayed only long
enough to locate a replacement was not borne out by the evidence . Although
Thom testified that for some while he had been planning to replace Galas he
had taken no active steps to locate a substitute . The replacement who took
Gains' job, it developed , was John McFadden , Jr., son of the superintendent.
McFadden , Jr., was put to work on July 17 without having to undergo any on-
the-job training to determine adaptability. This was true despite the fact he
had no extensive background as a mechanic . Thom testified that such prior
experience as McFadden , Jr., had was confined to work in an automobile service
station "doing minor automobile adjustments."
As noted above ( section III, B ), Gains had been one of the original leaders
in the campaign to organize the plant . Thom queried him about his part in
the organizational effort in the presence of Nykiel , likewise a supervisor, early
in June, and about a week before Galas' discharge Nykiel reported to McFadden
that Gains was one of the most active union members in the plant . About the
same time Nykiel , while questioning one of the employees about the Union, had
commented that "the trouble maker is still here." McFadden testified that his
son gave his employer a week's notice before reporting to the Kitty Clover plant
on the day Galas was fired. Insofar as the record indicates, McFadden, Jr.,
had been available for sometime and could have replaced Gains sooner had
the Respondent in fact been dissatisfied with Galas and desired to remove him.
Although Gains may have left something to be desired as a mechanic, I am
not convinced from the credible testimony in this record that he had been unsatis-
factory to the point where the Respondent was waiting only for a suitable
replacement before discharging him. Galas ' original activity in the Union had
been the subject of interrogation and interest on the part of his foreman. Ap-
proximately a month later , another foreman reported to the plant superintendent
that Galas was still one of the union stalwarts . At about this same time the
superintendent arranged to have his son, who had no readily apparent qualifica-
tions as a mechanic , replace Galas . Then on July 17, in the middle of the week,
in the middle of his shift , and with no prior notice, Galas was abruptly dis-
missed. In the light of the foregoing , and further , in view of the various other
acts of discrimination in which the Respondent had engaged during this period,
I am convinced and find that the Respondent discharged Galas, not for the
reason it advanced , but rather to rid the plant of another union adherent.
D. The period from July 18 to October 15
On the evening of July 18, some 35 of the employees met at the union hall to
discuss the discharges of Sogge and Gains and to consider what course of action
KITTY CLOVER, INC. 1683
they should follow. A short while before several had met with Mrs. Lou C.
Lippold, secretary-treasurer of the Company, to protest another dismissal and
at the time she had encouraged them to bring their problems to her. On June
27, McFadden discharged Evelyn Aggerson for her participation in a dispute
that arose with another worker. A number of the employees thought his action
unfair and the same day Rose Bell requested a meeting with Mrs. Lippold.
Shortly thereafter Mrs. Lippold came out into the plant, met with a group of
the employees including Bell, Leona Riter, and Virginia Rosegay, discussed the
Aggerson incident with them, and promised that she would investigate. At the
same time she assured them that they and all the other employees could feel
free to come to her office with their problems at any time" Shortly thereafter
the Respondent reinstated Aggerson without loss of pay. The employees at the
meeting on July 18, believing that the discharges of Galus and Sogge arose out
of their union activities, voted to seek a meeting on the following morning with
Mrs. Lippold. At the same time they also decided that rather than have any-
one of their number meet with Mrs. Lippold alone, all would attempt to see her
as a group.
1. The mass discharge of July 19
At about 9: 30 a. in., on July 19, most of the Respondent's employees, in ac-
cordance with the plan made at their meeting the night before, endeavored to
present to Mrs. Lippold their protest of the discharge of Galus and Sogge, as
well as grievances with respect to other matters. At the end of what was
known as the second relief period, most of the employees, with the exception of
the cooks who remained behind until relieved by their supervisors," assembled
in a driveway between the main plant and the Quonset hut. Riter, one of the
group, then telephoned for Mrs. Lippold. She was told that Mrs. Lippold was
in conference but would see them shortly. After waiting a few minutes, Rosegay
also called. When Mrs. Lippold still did not appear, the entire group went
upstairs to wait for her in the hallway outside the office of the plant officials.
At this point, McFadden, on instructions from F. E. Lippold, appeared before
the group to ask if there was something he could do. He was told that the
employees did not want to talk with him, that they were waiting to see Mrs.
Lippold. McFadden then discussed the matter with F. E. Lippold and returned
to the assembled group where he stated that Mrs. Lippold was not then avail-
able n but asked that they select certain representatives who could arrange for
a meeting with her. The employees rejected this suggestion, however, and re-
peated their demand that all be permitted to see Mrs. Lippold. McFadden then
declared that was impossible, ordered that they return to work immediately
and gave them four minutes to do so. None of the group made a move during
this interval, and upon the expiration of the time limit, McFadden removed their
cards from the clock rack, announcing as he did so, "All right, you're through."
The assembled employees then disbanded and left the plant. According to F. E.
Lippold, when McFadden returned to the plant president's office he reported
that "he had discharged [the] group according to my instructions." u
n There was no conflict between the testimony of Mrs. Lippold and that of Bell, Riter,
and Rosegay with respect to this matter.
n This matter is discussed below.
sg F. E. Lippold testified that he was afraid to let Mrs. Lippold go out to talk to the
employees because "they were milling around." Mrs. Lippold herself testified, however,
"I wasn't afraid to meet the girls [almost the entire plant complement was made up of
women ]. I never have been"
u There were 35 employees in this group. They are listed in Appendix A attached
hereto.
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that the employees involved in this incident were
lawfully protesting the discharge of two fellow employees and, consequently,
were engaged in protected concerted activity for which they could not be dis-
missed . Respondent, on the other hand, contends that their discharge was in no
way violative of the Act because they had refused to give any reason for their
action and had wilfully refused to return to their posts of duty.
The Respondent's contention is not well founded. The employees had banded
together to protest the discharge of 2 of their coworkers, the dismissal of 1 of
whom I have previously found to have been discriminatory. They had previously
met with Mrs. Lippold during working hours to discuss other grievances and
she had assured them that they were to feel free to bring their problems to her
at any time. When the assembled employees endeavored to meet with the secre-
tary-treasurer to protest the unlawful discharge of Galus and refused to return
to their work after the Respondent rejected their request for that meeting, they
were, in effect , striking. In consequence, their conduct was a protected concerted
activity under Section 7 of the Act. N. L. R. B. v. Greensboro Coca Cola Co.,
180 F. 2d 840, 843-844 (C. A. 4) ; Carter Carburetor Corp. v. N. L. R. B., 140
F. 2d 714, 718 (C. A. 8) ; N. L. R. B. v. Globe Wireless, Ltd., 193 F. 2d 748, 750
(C. A. 9) ; American Mfg. Co. of Temas, 98 NLRB 226; Kallaher and Mee, Inc.,
87 NLRB 410, 411-413. The Respondent could have ordered them to return to
work or leave the plant but it was not free to discharge them. Their dismissal
by the plant superintendent, therefore, violated Section 8 (a) (3) and (1) of the
Act and I so find. Barr Marketing Co., 96 NLRB 875.
2. The strike of the warehouse employees
Immediately following their mass discharge, the affected employees proceeded
to the union hall for a meeting with Armstrong. On the way they passed the
company warehouse, located some distance from the main plant, and there saw
Fred H. Wackerhagen, Jack Peterson, William Voester, and Lawrence Cushing,
who were about to start for the plant with two loaded trucks. The discharged
employees stopped to ask that the warehouse personnel accompany them to the
union hall . According to the uncontradicted testimony of Wackerhagen and
Peterson, they discussed the matter briefly, then asked Al Ramsey , their foreman,
whether they could go. The latter told them, "All right, park the trucks across
the street," whereupon they did as he directed and departed for the union meeting.
They remained there about 30 minutes, then returned to the plant at approxi-
mately 11 a. mn. where they met McFadden. The superintendent told them that
he had already pulled their timecards, but since they were good workers he would
like to have them back and that if they wanted an opportunity to consider the
matter they could do so during the lunch hour. The four told him they would
go back to the union hall to consider his suggestion and then left. They did not
return to the plant but joined instead with the rest of the employees in the strike.
3. Initiation of picketing and subsequent events
On the afternoon of July 19, the Union began picketing the plant. Thereafter,
several employees on the afternoon shift ,' and others , upon returning from
vacation," refused to cross the picket line and did not report for work. Certain
of the Respondent 's files which were introduced at the hearing show that some
of the employees who respected the picket line were terminated at the end of
26 Theresa Abboud, Helen Bear , Clara Crook , Carolyn Duncan , Shirley Roach, Helen
Stodola , and Donna Taylor.
2B Shirley Clark and Nellie Everett.
KITTY CLOVER, INC.
the current pay period ," and at least one 2B testified that she received a separation
notice in the mail. Although the Respondent denied that it had any knowledge
of strike activity on the part of these employees , it was undenied that all of
them either actively participated in the picketing of the plant , or notified the
Respondent that they would not come to work as long as the picket line remained
at the entrance ."' In the light of these facts it would be most unrealistic to
assume that the Respondent was unaware of the strike activity in which these
employees were engaged . Since the initial dispute was precipitated by the dis-
charge of Gains, which I have held was an unfair labor practice , the ensuing
concerted action, climaxed on the morning of July 19 by the mass dismissal of
almost the entire shift , was an unfair labor practice strike. When other em-
ployees refused to return to work or to cross the picket line it is well settled
that they , too, became unfair labor practice strikers ( Intertown Corporation, 90
NLRB 1145 , 1148 ) and were engaged in protected concerted activities when
taking this action. Consequently , it was an unfair labor practice for the Respond-
ent to effect the termination of any of its employees because they had joined
in the strike and to refuse them reinstatement when they offered to return.30
4. The employees ' request to return to work
After the discharged employees arrived at the union hall on July 19, Armstrong
called McFadden to ask for the Company 's position on the dispute . McFadden
told him the girls had been terminated for walking off their jobs and that as far
as he was concerned there was nothing further to discuss but that if the board
of directors should change their minds he would call . Armstrong, however,
heard nothing further from him.
The following week Armstrong talked with Mr. Clarence T. Spier, counsel for
the Respondent , and urged that the Company reconsider the discharge of its
employees . During the conversation , Mr. Spier objected to any bargaining with
the Union because it had not been certified . Armstrong then suggested that if the
Respondent would not bargain with the Packinghouse Workers it might at least
bargain with the employees themselves . The attorney indicated that the latter
arrangement might be satisfactory . On July 30 , the employees met at the union
hall and decided to notify the Company that they were ready to return to work
immediately and unconditionally . A letter was prepared to this effect and a
committee of 12, chosen to represent all the workers , signed it. Armstrong
then contacted counsel for the Respondent to ask whether a group of employees
could meet with the company officials to make their offer. Mr. Spier assumed him
that that would be possible . The committee then proceeded to the plant. When
the Respondent objected to the size of the committee , 5 were designated to meet
with the management . The latter group opened the conference with the state-
ment that they had come on behalf of all the employees to ask for their old jobs.
271. e, Abboud , Bear, Duncan , and Taylor Cushing, Peterson, Wackerhagen , and Voes-
ter, the warehouse employees discussed above, were likewise terminated in this manner.
28 Nellie Everett.
20 On the afternoon of July 19 , Shirley Roach phoned McFadden to ask whether any
other employees had reported for work. In answering her question, McFadden told her,
"If you don ' t come to work today , you won't need to come any more "
$0 Angela Thorkildsen was listed in the complaint as one of those who refused to cross
the picket line and was thereafter discriminatorily refused reinstatement . The Respond-
ent, however , alleged in its answer that Thorkildsen had voluntarily terminated her
employment, purportedly because of illness Since the General Counsel offered no evi-
dence in support of this particular allegation , I shall recommend that the complaint be
dismissed in9ofar as it alleges a discriminatory refusal to reinstate Thorkildsen.
257965-54-vol. 103-107
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the meeting lasted for some while and the parties discussed a number
of additional grievances , the company officials concluded the meeting with the
statement that nothing could be done with respect to reemployment "until the
Labor Board has come to some decision." 81 The committee then returned to the
union hall and on the same day mailed the letter they had prepared previously
on behalf of all the employees in which they offered to return to work immedi-
ately and unconditionally . The Respondent received this letter on August 1. On
October 4, it wrote 32 of the employees involved, offering them employment effec-
tive October 15 . The remaining 17 involved in this action received no such
offer.
Since, as I have found, the strike was an unfair labor practices strike those who
had refused to cross the picket line or had otherwise joined in the strike 12 were
entitled to reinstatement upon application regardless of whether they had
been replaced . For the Respondent to refuse them reemployment on July 30, was
In itself an unfair labor practice. I so find. Jackson Press, Inc., 96 NLRB 897.
E. The refusal to reemploy 17 alleged discriminatees ; conclusions with respect
thereto
It is the Respondent 's position that at least 17 of the employees who were
terminated on July 19 or who went on strike thereafter, by various acts and
conduct during the period from July 19 to October 15," precluded themselves
from any right to reemployment they might have had with the Company. As
to several of these employees, the record contains evidence that is relevant to
any consideration of their rights to reinstatement. That is not true with respect
to some of the others, however. Although the Respondent argued that this entire
group was ineligible to exercise any reinstatement rights it did not, either by
oral argument at the hearing, or in its brief, spell out the evidence on which it
was relying in support of this position. Tha General Counsel, on the other hand,
contended that none of the 17 engaged in any conduct that would work a for-
feiture of any rights to reinstatement. I cannot accept completely the position
either of these parties has taken and will turn now to a consideration of the
evidence relevant to this issue.
1. Carolyn S. Duncan
At about 10 a. m., one morning in August, Betty Bolich, an employee who did
not join in the strike, left the plant, entered a taxicab, and started toward her
home several miles away in north Omaha. Throughout the trip she was followed
by a car in which Carolyn Duncan was riding. When nearing her home Bolich
had the cab driver turn into an alley behind her apartment building. The Dun-
can car, following her at a distance, likewise entered the alley and stopped.
After Bolich reached her apartment Duncan came to the entrance, rang the bell,
and beat upon the door for several minutes and until Bolich telephoned the
police." When called as a rebuttal witness, Duncan conceded that she and her
husband had followed Bolich's cab but she insisted that at the time they were
simply on their way to a nearby grocery store. Since Duncan had trailed the
ffi The charge In Case No. 17-CA- 455, filed by the Union on July 24, as well as the
charges in Case No 17-CA-447 (filed June 25), Case No. 17-CA-442 (filed June 12), and
Case No. 17-CA-441 (filed June 7), were then pending before the Regional Office.
32 As found above (in section III, D, 2, and 3 of this report), Abboud, Bear, Clark,
Crook , Cushing , Duncan, Everett , Peterson , Roach, Stodola , Taylor, Voester, and Wacker-
hagen were in this category.
83 The picketing was discontinued on the latter date.
84 The foregoing findings are based on the credited testimony of Bolich.
KITTY CLOVER, INC. 1687
taxicab in which Bolich was riding for several miles across the city, followed the
cab into the alley behind Bolich's home, and then noisily sought admittance to
Bolich's apartment, Duncan's version of events was most implausible. Neither
Duncan's testimony on the incident nor the manner in which she related it on
the witness stand inspired any confidence in her credibility. Under these cir-
cumstances I am satisfied that it was no mere coincidence that Duncan found
herself outside Bolich's home on the morning in question. The pursuit of Bolich
from the plant to her residence was unquestionably intimidatory. In view of
this fact, it is my conclusion that Duncan, having engaged in such conduct during,
the course of the strike, should be denied reinstatement. Cf. N. L. R. B. v. Kelco,
Corp., 193 F. 642, 643 (C. A. 4) (denying enforcement as to Popiolek, Kelco Corp.,
94 NLRB 1766, 1771) , Mackay Radio & Telegraph Co., 96 NLRB 740.
2. Strikers who participated in allegedly illegal boycott activities
During the strike a number of the complainant employees followed the
Respondent's delivery trucks, contacted the customers, told them that the plant
was on strike, and sought to induce the patronage to refuse to purchase Kitty
Clover products during the pendency of the labor dispute. It is the Respondent's
contention that by such conduct the employees involved ' rendered themselves
ineligible for reinstatement privileges. In support of this argument counsel
cite N. L. R. B. v. Service Trade Chauffeurs, Salesmen & Helpers, 191 F. 2d 65
(C. A. 2), and Hoover Co. v. N. L. R. B., 191 F. 2d 380 (C. A. 6). Neither case
is apposite to the problem here involved. At issue in the Service Trade Chauf-
feurs case was the question whether the respondent union had induced and en-
couraged the employees of secondary employers to withhold their services to
attain an illegal objective in violation of Section 8 (b) (4) (A) and (B). In the
instant case the strikers sought to induce the customer to refrain from buying the
Respondent's products in order to win their own reinstatement. But no evi-
dence was adduced that any of the strikers ever attempted to induce or en-
courage the employees of any customer to engage in a strike or concerted re-
fusal to handle any Kitty Clover products or to perform any services to attain
this objective. In the Hoover case the court was concerned with a product
boycott initiated during an economic strike to attain an objective which the
court held would have compelled the employer to commit an unfair labor practice.
Here, in contrast, the strike involved arose out of the Respondent's unfair
labor practices and the objective of the strikers, which was to attain their
own reinstatement, was entirely legitimate. Nothing the court said in the
Hoover case is in conflict with the rule that unfair labor practice strikers are
free to publicize the story of their labor dispute and call upon their employer's
customers for support if they wish, V. L. R. B. v. Peter Cailler Kohler Swiss
Chocolates Co„ Inc., 130 F. 2d 503, 506 (C. A. 2). Electronics Equipment Co.,
94 NLRB 62, remanded on other grounds, 194 F. 2d 650 (C. A. 2). Cf. Bakery
Drivers Local Union No. 276, 100 NLRB 1092.
Several of the Respondent's driver-salesmen testified as to the occasions when
striking employees followed their delivery trucks, contacted customers, and dis-
tributed handbills setting forth the Union's version of the dispute. Two of these
driver-salesmen, Wayne E. Lippold and Lester E. Van Meter, testified to such
' The Respondent refused reemployment to Aggerson, Bell, Digilio, Fisher, Johanek,
Newman, Nocita, Riter, and Runnels, all of whom had participated in the trailing of
delivery trucks. It appears, however, that other employees were also involved in this
tactic Digilio testified that on one occasion, when she was in a car following a driver-
salesman , she was accompanied by Aguilar, Jacobs, Nusrallah, and Marasco . The last four
named were reemployed on October 15
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity on different days but in none of their testimony was there any evidence
that the striking employees were engaged in anything more than a legitimate
effort to present their story to the Respondent's customers. However, it appears
that on August 14, the truck of Joseph Kucero, another driver-salesman, was
followed by Bell, Aggerson, Nocita, and Fisher, in a car driven by Ardell Run-
nels. According to Kucero, on arriving at Driml's Grocery, Bell and Aggerson
preceded him into the store where Bell asked Mrs. Driml, the store owner, not
to buy any potato chips from Kitty Clover because they employed "diseased
girls from North Sixteenth Street" and "from skid row." Bell and Aggerson
also told her that the Company had in its employ one who suffered from the skin
disease known as impetigo. According to Kucero, when he left Driml's and went
to another customer, the Bogatz Grocery, Bell and Aggerson repeated to the
store owner and the patrons present substantially the same remarks about Kitty
Clover as they had made at Driml's. Bell conceded that on these occasions she
referred to an employee at the plant as having impetigo,38 but she denied hav-
ing charged the Company with employing "diseased girls from North 16th
Street" or "skid row." Aggerson likewise denied making any such comments.
The General Counsel called Frank Bogatz, manager of Bogatz' Grocery, who
testified that he did not hear the striking employees make the remarks which
Kucero attributed to them. However, Bogatz conceded that he had not heard
everything they had said and that they were in his store for several minutes
during which time "they were talking to everybody." n Consequently it can-
not be argued, as the General Counsel has in his brief, that Bogatz' testimony is
in complete conflict with that of Kucero. I am not persuaded by the denials of
Bell and Aggerson. Kucero impressed me as a thoroughly frank and honest
witness. I find that in this instance his testimony, and not that of the striking
employees, should be credited.
No testimony was offered to support the charge made during the strike by
Bell and Aggerson that the Respondent had employed girls from "skid row" or
any other disreputable section of the city. The Respondent argues that such
an unsubstantiated attack upon the employees engaged in the manufacture of
its food products was so serious in character that it cannot be considered
protected concerted activity. Although employees involved in a labor dispute
are permitted great latitude of expression this does not mean that their attacks
may be completely unlicensed. Cf. Jefferson Standard Broadcasting Company,
94 NLRB 1507, 1509-1512. Here, I feel that Bell and Aggerson, by the re-
marks in question 'a passed the permissible limits of protected activity and that
by such conduct they forfeited any rights they had to reinstatement. None of
the other employees who engaged in the truck trailing, however, were simi-
larly involved and for that reason I find that they are in no way barred from
any of the customary reinstatement privileges of unfair labor practice strikers.
3. Brunner and Kratochvil
At the time of the walkout on the morning of July 19, Josephine Brun-
ner, Rose Kratochvil, and Emma Marasco were operating the 3 cookers in the
main plant and the Quonset hut. All 3 cooks joined in the strike on July 19.
Marasco was reemployed but Brunner and Kratochvil were not. In its answer
30 She identified the employee by name. The Respondent made no effort to refute the
accuracy of her testimony in this regard.
81 The quotation is from Bogatz' testimony.
38 These do not include the references to an employee with impetigo which on this record
must be presumed to have been true.
KITTY CLOVER, INC. 1689
the Respondent alleged that the 2 last named , among others, were terminated
for abandoning their posts of duty "during working hours without any stated
justifiable cause and refusing to return . . . when requested to do so."
The three employees worked at large, gas-operated stoves used in the cooking
of potato chips. Left untended, the hot oil in these cookers could shortly reach
very high temperatures. To guard against the hazards involved should the
oil reach a flash point, each cooker had an automatic cutoff which went into
operation whenever a safe temperature was exceeded. Despite this safety de-
vice some danger would be inherent in the careless abandonment of the cookers
by those employees assigned to operate them.
The three cooks credibly testified that in accordance with a plan agreed upon
at the union meeting the night before, they did not at once join in the concerted
action on July 19 but remained at their cookers until relieved. According to
both Brunner and Marasco, who were in the main plant, after the other employees
had left, Thom asked whether they wanted to join the rest. When they answered
in the affirmative, Thom and Rihanek turned off the gas,a9 and Thom and Nykiel
then took over the job of finishing out the work-in-process still left in the
cookers. This testimony was corroborated in large part by both Thom and
Nykiel.40 Kratochvil, who operated the cooker in the Quonset hut, credibly
testified that about 5 minutes after the other employees had left to seek a
meeting with Mrs. Lippold, Wagner told the mechanic on duty to shut off the
gas on her stove and shortly thereafter asked if she wanted to join the other
employees. Kratochvil replied in the affirmative and turned the cooker over to
Wagner who then relieved her. Wagner's testimony corroborated that of Krato-
chvil.
The record supports the contention of the General Counsel that all the cooks
remained on duty until relieved by supervisory personnel qualified to operate
the stoves. In view of this fact there is no support for any argument that the
cooks "abandoned" their posts. After being relieved by the foremen, they
joined their coworkers who were then engaged in protected concerted activity.
Once they had been properly relieved I can see no distinction between the posi-
tion of the cooks and that of all the other employees in connection with their
right to likewise engage in concerted activity. Since the Respondent offered no
proof that its property had been endangered by their action, it was not free to
discharge them on July 19 for their participation in concerted activity or to
refuse them reinstatement. Moreover, Respondent's position with respect to
Brunner and Kratochvil is particularly difficult to understand since Marasco,
whose activities on the morning of July 19, were identical with those of Brunner
and Kratochvil, was offered reemployment. Neither at the hearing nor in its
brief did the Respondent make any effort to distinguish the case of the latter
from that of the two cooks whom it refused to reemploy. As a result I can see
no justification for withholding the privilege of reinstatement from either Brun-
ner or Kratochvil. Reynolds cE Hanley Lumber Co., Inc., 97 NLRB 188.4'
4. Koesters and Anderson
Among the employees discharged on July 19 were John Koesters and Sam
Anderson, both of whom operated potato-peeling machines in the main plant.
39 The cookers were always shut off by a mechanic.
40 At one point in his testimony Rihanek stated that the cooks walked off the job at the
same time as the other employees. However, he conceded that he had no clear recollection
of the occasion . In the light of the credible testimony of Brunner and Marasco and the
mutually corroborative testimony of Thom and Nykiel, I do not feel that the conflict
between their testimony and Rihanek 's memory is significant.
41 Kratochvil 's participation in picket -line activity is discussed below.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither was offered reemployment. The Respondent's theory as to these two
employees is unclear since it was not specifically set forth in either brief or oral
argument. At the hearing, however, some evidence was offered to prove that on
the morning of July 18, a nail was found in the slicer connected with the peeler
operated by Koesters, in the afternoon another nail was found in the slicer sup-
plied by Anderson's peeler, and that, as a result, repairs had to be made imme-
diately on both machines. Both Koesters and Brunner 42 testified that the slicer
fed by Koesters' peeler was not stopped for repairs on the morning of July 18
and Anderson testified that the slicer adjoining his machine was not stopped
that afternoon. Both Anderson and Koesters worked throughout their shifts on
July 18 and reported for duty on the following day. Neither on July 18, nor on
the next morning, was either charged with responsibility for any dereliction in
the operation of his equipment.
On the basis of the evidence which appears in the record I am not convinced
that any nails were actually found in the slicer on the day in question. On the
other hand, it was not unusual for a wide variety of items to find their way into
the peeling and slicing machines . Koesters, who had been employed at the plant
over 4 years, and Anderson, who was there for almost 7, testified to having found
nails, bolts, wire, stones, cans, and various other objects in the machines. Their
testimony in this regard was corroborated by both Thom and Rihanek. In the
light of these facts and in view of the lack of support for an allegation that
during the course of any concerted activity on the day before their discharge
either Koesters or Anderson dropped foreign objects into the slicers, maliciously
or otherwise, I am satisfied that there is no credible evidence in the record to
prove that either Koesters or Anderson engaged in any attempted sabotage of
plant equipment on July 18."
5. Other picket-line conduct in issue
C. C. Lippold, general manager of the Company, testified that one evening
shortly after the strike began, while a large crowd was gathered in front of the
plant, he was about to accompany several of the nonstrikers from the door of
the plant to their cars across the street when John Koesters, who was then with
the crowd, called out, "Lippold, I dare you to bring the girls across the street."
Koesters, while conceding that he may have called the night-shift employees
"scabs," denied that he uttered the remark attributed to him by Lippold. In
any event, the general manager was able to proceed across the street without
incident." On the basis of my observation of these witnesses, it is my conclu-
sion with respect to this affair that Lippold's testimony is the more credible.
There was testimony that a number of the strikers, while on the picket line,
engaged in name-calling, used profanity, and were at times obscene. Some of the
nonstrikers testified that while entering or leaving the plant Kratochvil, Bell,
Aggerson, and Digilio had engaged in abusive or profane name-calling, and others
testified that Fisher and Nocita had made them the object of vulgar and obscene
epithets. The remarks attributed to Fisher and Nocita were uncontradicted.
Kratochivil and Aggerson denied the use of profanity in picket-line encounters
with Jennie Norton, but the testimony of the latter that they had in fact done
so was more convincing to the Examiner than their denials. Bell and Digilio
conceded that they had freely used the appellation "scab" in greeting the non-
strikers, and they did not deny that on one occasion about which Winifred Need-
42 Brunner 's work position was beside that of Koesters.
+s An issue with respect to Koesters' picket-line activity is discussed below.
"At the time several policemen were present.
KITTY CLOVER, INC. 1691
ham testified, they had, in addition, made some disparaging remarks about the
marital problems of that particular nonstriker 45
Although the Respondent alleged that the employees engaged in mass picketing,
there was no testimony in the record which would support a finding that the
striking employees at any time engaged in any mass or coercive picketing which
blocked the free ingress or egress of those who wanted to enter or leave the plant.
In support of its argument that the 17 strikers whom it refused to reemploy
had disqualified themselves for reinstatement, the Respondent, in its brief, relies
heavily on a Nebraska statute, sections 28-812, 28-814.01 and 28-814.02, Revised
Statutes of Nebraska, as amended. The cited provisions of the State law pro-
hibit, in pertinent part, picketing in which more than 2 pickets are at any one
time within 50 feet of any entrance to the premises being picketed, any inter-
ference with any person in the exercise of his right to work by the use of profane,
offensive, or threatening language, by following, intercepting, or photographing 46
anyone on the way to or from work, or by loitering about, or picketing the
residence of any employee. The Respondent's reliance upon a State statute in
a proceeding under the Labor Management Relations Act, however, is misplaced.
The Board has held that since "the Act has preempted the field of peaceful
strikes affecting commerce," it is not bound by the decisions of State courts or
the provisions of State statutes in deciding on the legality of the manner in
which a strike is conducted. H. N. Thayer Co., 99 NLRB 1122; Nashville Corp.,
94 NLRB 1567, 1569-1570. Consequently it is my conclusion that in this case
the provisions of the Nebraska statute on which the Respondent relies are not
relevant here. Relief under the State law must be sought in the courts of
Nebraska." The Board has never held it to be unprotected concerted activity
per se for a striker to photograph a nonstriker. Neither has the use of profane,
vulgar, and obscene language been held to deprive a striking employee of any
right he may have to reinstatement. Longview Furniture Co., 100 NLRB 301'°
Although the remark which Koesters made to Lippold as found above may
have in it the elements of intimidation I do not believe that this statement,
9b Needham also testified that after leaving the plant one evening during the strike Gale
Moore came up, walked with her for a short distance along the street, and told her that
she should be ashamed of herself for not joining the strike. Moore's testimony as to this
meeting was not in conflict with that of Needham. According to Moore, he told her that,
having once signed a union card, she should be ashamed of herself for no longer being
"on our side." From the testimony of both parties to this incident I can find no evidence
of intimidation in Moore's remarks This conclusion is further supported by Needham's
own statement that during this conversation Moore "didn't say anything out of the way
to me"
14 There was testimony in the record that on one day while Aggerson was serving as a
picket she photographed Madeline Keating, one of the nonstrikers, as the latter was on her
way to work.
"The record contains no evidence that any of the striking employees was either arrested
for, or convicted of, any violation of the State laws by the local authorities.
48 In the Longview case the Board stated :
In our opinion, the language of these employees, while neither polite nor moderate,
must be regarded as an integral and inseparable part of their picket and strike activ-
ity, for which the Act affords them protection. Although the Board does not con-
done the use of abusive and intemperate language, it is common knowledge that,
in a strike where vital economic issues are at stake, striking employees resent those
who cross the picket line and will express their sentiments in language not altogether
suited to the pleasantries of the drawing room or even to courtesies of parliamentary
disputation. Thus, we believe that to suggest that employees in the heat of picket
line animosity must trim their expression of disapproval to some point short of utter-
ances here in question would be to ignore the industrial realities of speech in a worka-
day world and to impose a serious stricture upon employees in the exercise of their
rights under the Act.
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing by itself or in the context uttered, is enough to deprive that employee
of his reinstatement privileges.
As to Ann Synowiecki, Nina C. Young, and Virginia Rosegay, the Respondent
offered no evidence whatsoever of any misconduct in connection with their strike
activities.
In the light of the foregoing it is my conclusion that of the 17 whom the
Respondent refused to reemploy, only Duncan. Bell, and Aggerson, for the reasons
set forth above, have forfeited their right to reinstatement.
P. The offer of reemployment made by the Respondent; conclusions with respect
thereto
As noted above, on October 4, the Respondent sent letters to 32 of the employees
named in the complaint offering them reemployment effective October 15.49 No
similar offer was made to the remaining 17 who were involved for the stated
reason that their conduct during the strike, discussed in the preceding section
of this report, made them ineligible.
The General Counsel attacks this offer of reemployment on the grounds that it
was no more than a partial offer and clearly discriminated against other em-
ployees who were fully entitled to reinstatement, that the Respondent made the
offer to the returning strikers as "ex-employees," that it misrepresented the
position of the nonstrikers, and that it did not reinstate them to their former
jobs without prejudice to their former rights and privileges.
It appears from the record that on about October 10, McFadden called the plant
personnel together and in a prepared statement told them that the Company had
offered reemployment to a substantial number of its "ex-employees" in an effort
to reach a settlement of the controversy that had arisen in July; that the action
would have no effect on the job security of those currently employed ; and that
the Respondent would ask the support, patience, and tolerance of all to settle
the matter amicably. Beverly Dougherty, one of the employees present, credibly
testified that at the conclusion of this statement McFadden, in response to ques-
tions from those present, stated that the returning strikers would be paid 90
cents per hour but that "they wouldn't be there long."" She further testified
that at the conclusion of the meeting Mary Santi, one of the nonstrikers in
attendance, asked for and received permission from McFadden to keep the
employees at the plant for another meeting that evening. At this meeting Santi
advised those present that the returning strikers were to be ignored and made
suggestions as to how this should be done.m
Some 15 62 of the 32 offered reemployment reported at the plant on October
15. They were put back on the payroll at the same rates they had been re-
ceiving on July 19.63 Some of the returnees were not given their old jobs !in-
49 Thorkoldsen was among this group to whom the Respondent offered reemployment.
50 This testimony was uncontradicted.
61 The employees were paid for time spent at this second meeting.
sa I., e ., Abboud, Aguilar , Bernady, Clark , Crook, Everett , Giles, Hartman , Hensley,
Leasenby , Marasco , Nusrallah , Ramold, Smolinski, and Stodola.
63 Thus, some returned at 75 cents , others at 80, some at 85, and at least 1 at 95. This
was in contrast with McFadden 's statement on October 10 that they would be taken back
at 90 cents an hour.
One other matter should be mentioned at this point. During the strike the Respondent
replaced certain defective water coolers previously in use at the plant. During the same
period it also initiated the practice of furnishing coffee and doughnuts to the morning
shift. This latter practice was continued after the strike ended . The General Counsel
alleged that these constituted benefits granted to discourage the employees' union activity.
I can see no merit in the allegation and will recommend that it be dismissed.
KITTY CLOVER, INC. 1693
mediately but it does not appear that their work assignments were less than
substantially equivalent to those they held prior to their discharge 64
In the light of the foregoing but particularly because at the time the Re-
spondent made the offer of reemployment on October 4, it refused to consider those
others whom I have found entitled to reinstatement, I now find that the rights
of those who received the company letter of October 4 were unaffected by the
offer made to them on that date. The Board has consistently held that "an
offer of reinstatement to some of a number of employees who have been discrimi-
nated against as a result of concerted activity . . . together with a clear mani-
festation that the other employees who have been so discriminated against
will not be allowed to return to work, does not constitute any real offer of
reinstatement within the purview of the Act." Porto Rico Container Corp., 89
NLRB 1570, 1581, citing The Good Coal Company, 12 NLRB 136, enfd. 110 F. 2d
501 (C. A. 6), cert. den. 310 US 630. See also N. L. R. B. v. Poultrymen's Serv-
ice Corp., 138 F. 2d 204 (C. A. 3). Moreover, the fact that 15 employees were
thereafter allowed to return to work, as noted above, does not alter the dis-
criminatory nature of the Respondent's offer.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring
in connection with the operations of Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Because it has been found that Respondent has engaged in certain un-
fair labor practices, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent discriminated in regard to the hire and
tenure of employment of Moore, Gamerl, Gains, the 35 employees named in
Appendix A under .July 19, and the 13 employees named in Appendix A under
July 30.
With respect to Bell and Aggerson, named in Appendix A under July 30, it
will be recommended that reinstatement and back pay be denied for the reasons
hereinbefore stated. However, it will be recommended that Bell be made
whole for any loss of pay suffered because of her discriminatory suspension on
June 19.
With respect to the others named above and listed in Appendix A, it will be
recommended that Respondent offer to each one who has not yet been reinstated 66
"The offer of reemployment, however, contemplated no back pay. Further, it appar-
ently includes no provision for accumulation of vacation or seniority benefits that
employees dismissed on July 19 would have earned but for their discriminatory discharge.
Thus, Hartman, one of the dischargees who returned on October 15, testified that McFad-
den told her that to qualify for her annual vacation she would have to make up time lost
during the strike. McFadden, when on the witness stand, did not contradict this testi-
mony and stated that he did not then know the company policy on the matter of vacation
and seniority rights for those who had been discharged on July 19.
55 Thus, those employees who returned to work on October 15 are not included in the
recommended order for reinstatement. However, because I have found that the Respond-
ent's offer on October 4 was insufficient, those who did not accept it lost none of their
rights and privileges by so doing. As to them the Respondent must make a new and
valid offer of reinstatement. Moreover, the Respondent's offer of October 4, having fallen
short of the Act's requirements, cannot relieve the Respondent of the obligation to com-
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate and full reinstatement to her former or substantially equivalent
position," without prejudice to her seniority or other rights and privileges. It
will be further recommended that the Respondent make whole Moore, Gamerl,
Gains, and all of the employees listed in Appendix A " for any loss of pay suf-
fered by reason of the Respondent's discrimination by payment to each of a sum
of money equal to that which the employee normally would have earned as wages
from the date of the discriminatory discharge 68 or the date of the discriminatory
refusal to reinstate," to the date of a valid offer of reinstatement less net earnings
during such period 60 Loss of pay shall be computed on the basis of each separate
calendar quarter or portion thereof during the period from the Respondent's
discriminatory action to the date of a proper offer of reinstatement. The
quarterly periods, herein called quarters, shall begin with the first day of
January, April, July, and October. Loss of pay shall be determined by deducting
from a sum equal to that which each employee would normally have earned
for each such quarter or portion thereof, her net earnings, if any, from any
other employment during that period. Earnings in one particular quarter
shall have no effect upon the back pay for any other quarter.' It will also be
recommended that the Respondent upon reasonable request, make available to
the Board and its agents all payroll and other records pertinent to an analysis
of the amount due as back pay.
It has further been found that Respondent by various acts interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
the Act. Because Respondent's discriminatory discharges and acts of inter-
ference, restraint, and coercion go to the very heart of the Act and indicate a
purpose to defeat self-organization of its employees, I am persuaded that the
unfair labor practices committed are related to other unfair labor practices pro-
scribed and that the danger of their commission in the future is to be anticipated
from Respondent's conduct in the past. Accordingly, in order to make effective
the interdependent guarantees of Section 7 and thus effectuate the policies of the
Act, it will be recommended that Respondent cease and desist from in any
manner infringing upon the rights of employees guaranteed by the Act82
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees listed above in the remedy section and in Appendix A, thereby dis-
couraging membership in the Union, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
pensate the members of this latter group who did not accept it for back pay subsequent
to the date of the offer . N. L. R. B . v. Electric City Dyeing Co., 178 F. 2d 980, 983
(C. A. 3) ; N. L. R. B. v. Van Deusen, 138 F. 2d 89h, 895 (C. A. 2). Downs, Peterson, and
Wackerhagen will not be included in the recommended order of reinstatement. At the
hearing they testified that they had returned to school and were no longer interested In
going back to their old jobs.
" The Chase National Bank o f New York, San Juan, Puerto Rico, Branch, 65 NLRB 827.
W With the exception of Aggerson , Bell, and Duncan.
881. e., July 19, for those listed under that date in Appendix A ; for Moore and Gamerl
the date would be June 4, and for Galus, July 17.
69 I. e., July 30, for those listed under that date in Appendix A.
6° Crossett Lumber Company, 8 NLRB 440.
ss F. W . Woolworth Company, 90 NLRB 289, 291-294.
es May Department Stores v. N. L. R . B., 326 U. S. 376, 386-892; N. L. R. B. v . Entwistle
Manufacturing Co., 120 F. 2d 532 (C. A. 4).
NASH-FINCH COMPANY 1695
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not engaged in any unfair labor practices, as alleged in
the complaint, in connection with the grant of a night-shift bonus, the installa-
tion of new water coolers, and the furnishing of coffee and doughnuts, free of
cost, to its employees.
6. Respondent has not discharged or failed and refused to reinstate Sogge or
Thorkildsen because of union or concerted activities as alleged in the complaint.
7. The conduct of employees Bell, Aggerson, and Duncan during the strike
bars their right to reinstatement and back pay.
[Recommendations omitted from publication in this volume.]
HASH -FINCH COMPANY and GENERAL DRIVERS, HELPERS, WAREHOUSE-
MEN, DAIRY EMPLOYEES AND INSIDE WORKERS UNION, LOCAL 116,
AFL. Case No. 18-CA-369. April 8, 1953
Decision and Order
On September 22, 1952, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed excep-
tions to the Intermediate Report and a brief in support of its excep-
tions.,
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed.2 The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications and
additions :
1. We agree with the Trial Examiner's finding that Respondent
unilaterally terminated certain existing benefits (group life insurance,
hospitalization coverage, and Christmas bonus) for the drivers and
warehousemen represented by the Union, and that by doing so Re-
spondent violated Section 8 (a) (5) and (1) of the Act.
1 Respondent ' s request for oral argument is denied because the record and brief ade-
quately set forth the positions of the parties.
2 At the hearing the Trial Examiner sustained an objection to a question directed to
Union Negotiator Stolz as to whether, in July 1951, he understood that the collective
contract then negotiated superseded certain individual employment contracts. For
reasons set forth below , we find no merit in Respondent 's exception to this ruling.
103 NLRB No. 149.