Larand Leisurelies, Inc.

National Labor Relations Board - Board Decisions

Sep 6, 1974

213 N.L.R.B. 197 (N.L.R.B. 1974)

LARAND LEISURELIES , INC. 197
Larand Leisurelies , Inc. and International Ladies' Gar-
ment Workers' Union, AFL-CIO . Cases 9-
CA-7557, 9-CA-7610, 9-CA-7679, and 9-
CA-7748
September 6, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On January 22, 1974, Administrative Law Judge
Paul E. Weil issued the attached Decision in this pro-
ceeding. Thereafter, the Charging Party filed excep-
tions and a supporting brief, and General Counsel
filed limited exceptions and a supporting brief. Re-
spondent filed cross-exceptions and a supporting
brief, and an answering brief to the Charging Party's
and General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order only to the extent con-
sistent herewith.'
Although he found that the Respondent committed
numerous violations of Section 8(a)(1) and (3) by its
conduct in issuing written reprimands that threatened
employees with discharge if they continued to engage
in certain protected activities, by announcing and
'Chairman Miller would dismiss the 8(axl) allegations relating to the
alleged photographing of strikers . He finds the evidence on this issue to be
in a state of some confusion, and does not believe the General Counsel
established that the picturetaking was intended to, or did, interfere with or
coerce the strikers . There is evidence , in his view , that large numbers of
strikers were gathered in the general area of the plant gates and that there
were incidents which reasonably led Respondent to the conclusion that the
evidence-gathering with respect to picket line misconduct might well be
necessary. In the absence of any evidence that the photographs actually
taken were not relevant to this legitimate purpose , but rather were of innocu-
ous activity and for the purpose of harassment , the Chairman does not
believe the violation has been established.
In adopting the Administrative Law Judge's findings and conclusions with
respect to the Respondent's conspicuous picture taking , Members Fanning
and Jenkins note that record testimony establishes that early on the morning
of the first day of the strike , at a time when the Respondent had no reason
to anticipate striker misconduct , supervisory personnel were observed taking
pictures and apparently taking down the names of striking employees. More-
over, although there were no arrests or disturbances on the first day of the
strike and picketing had been confined to four pickets at each of the several
entrances to the Respondent's plant, the Respondent persisted in taking
pictures during the second day of the strike. In these circumstances it is clear
to us that Respondent's picture taking was calculated to create and did create
an impression of management surveillance of protected and peaceful activity
carrying with it the implicit threat of possible future retaliation . The Udylite
Corporation, 183 NLRB 163 (1970).
then rescinding a grant of additional benefits, by re-
moving union literature from the plant, by interrogat-
ing employees, and by photographing strikers, the
Administrative Law Judge found that the strike that
began on April 26, 1973, was an economic rather than
an unfair labor practice strike. In so finding, the Ad-
ministrative Law Judge noted that most of
Respondent's conduct found violative of the Act oc-
curred in January 1973. He also observed that in
"large part" the April 26 strike was caused by the
April 13 discharges of employees Bell and Brown,
discharges not alleged to be unlawful.'
As is thus apparent from his Decision, in character-
izing the April 26 strike as economic the Administra-
tive Law Judge relied largely on two factors: ( 1) the
lapse of several months between the Respondent's
commission of most of the unfair labor practices and
the date of the strike, and (2) the conclusion that the
strike was "primarily" the result of the Bell and
Brown discharges and the fear of future similar dis-
charges. These factors, coupled with the Union's ex-
pression of frustration over the Employer 's insistence
on filing and pursuing its objections after the April 5
election, apparently convinced the Administrative
Law Judge that the strike was economic in nature. We
disagree.
The uncontradicted record evidence amply demon-
strates that the strike on April 26 was caused, at least
in part, by the Employer's commission of numerous
and serious unfair labor practices. Thus it is clear
from the testimony of Robert Jenkins, the Union's
organizer, and Patricia Rains, a member of the em-
ployees' strike committee, that at nearly every meet-
ing, including those on March 1, March 17, and April
25, employees reviewed and discussed the various ac-
tions of Respondent that they considered, and the
Administrative Law Judge thereafter found, violative
of their rights.' In this regard it is particularly signifi-
cant that in the period preceding the strike employees
continuously voiced their concern and anger over the
approximately 90 still outstanding written reprimands
which the Administrative Law Judge subsequently
found violative of Section 8(a)(1) and (3) of the Act .4
Union Organizer Jenkins testified, for example, that
2 The Administrative Law Judge pointed out that although employees may
have believed at the time that the discharges were unlawful, a strike occa-
sioned by such mistaken belief "does not achieve the protection of an unfair
labor practice strike."
3 In fact, following the March 17 meeting of the strike committee during
which employees discussed, among other matters , the Employer's unlawful
confiscation of union literature , a decision to strike was reached and employ-
ees began to construct signs indicating that the strike would be in protest of
Respondent 's unfair practices . Only the intervention of Union Representa-
tive Jenkins on March 18 persuaded employees that they should delay the
strike in view of the upcoming election.
Even assuming, arguendo, that the Administrative Law Judge was correct
in asserting that the discharge of Bell and Brown was a primary cause of the
strike , such a finding would not warrant a conclusion that the strike was an
Continued
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
just prior to the strike vote on April 25 he discussed
with employees the still outstanding disciplinary no-
tices as well as reviewing for employees all of the other
conduct of the Employer which the Union considered
violative of the Act and over which the Union had
filed charges. It can hardly be gainsaid therefore that
the employees had before them and were influenced
by the Employer's unfair and unlawful practices at
the time they voted to strike.
Accordingly, as we have concluded that the
Respondent's unlawful conduct played a part in the
decision of the employees to strike on April 26, 1973,
we find that from its inception and at all times there-
after the strike was an unfair labor practice strike and
strikers were entitled to the protection given unfair
labor practice strikers.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By issuing written reprimands to employees be-
cause they engaged in protected concerted activities
and by threatening therein to discharge employees for
engaging in such protected, concerted activities, Re-
spondent discriminated against its employees, thereby
discouraging membership in a labor organization.
3. By the above and by granting and then rescind-
ing a paid holiday after it learned of the union organi-
zation, by interfering with employees' organizing
activities, by removing from their personal possession
union handbills, and by photographing employees on
the picket line, Respondent interfered with, coerced,
and restrained employees in the exercise of their rights
guaranteed in Secion 7 of the Act in violation of Sec-
tion 8(a)(1) of the Act.
4. The strike that commenced on April 26, 1973,
was an unfair labor practice strike from its inception.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices , the Board orders that it cease
and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the
Act.
Having found that the strike by Respondent's em-
ployees which began on April 26, 1973 , was caused
and has been prolonged by Respondent's unfair labor
economic strike in view of the convincing record evidence that the employ-
ees' decision to strike was also occasioned by the Employer's numerous
unlawful acts . Thus, as we have elsewhere pointed out, when it is reasonable
to infer from the record as a whole that an employer 's unlawful conduct
played a part in the decision of employees to strike, the strike is an unfair
labor practice strike. Juniata Packing Company, 182 NLRB 934 (1970).
practices, the Board orders that, upon. their applica-
tion for reinstatement, the Respondent shall reinstate
all its employees who participated in said strike to
their former positions or, if such positions no longer
exist, to substantially equivalent positions, without
impairment of their seniority and other rights and
privileges, dismissing, if necessary, any persons hired
as replacements on and after April 26, 1973. If, after
such dismissals, there are insufficient positions re-
maining for all the striking employees who desire rein-
statement, the available positions shall be distributed
among them, without discrimination because of their
union membership, activities, or participation in the
strike, in accordance with seniority or with other non-
discriminatory practice as theretofore has been ap-
plied by the Company in the conduct of its business
at its Monticello, Kentucky, plant. Those strikers for
whom no employment is immediately available after
such distribution shall be placed on a preferential
hiring list with priority determined among them by
seniority or by other nondiscriminatory practices as
theretofore has been applied by Respondent in the
conduct of its business at its Monticello, Kentucky,
plant, and, thereafter, in accordance with such sys-
tem, they shall be offered reinstatement as positions
become available and before other persons are hired
for such work. The Board also orders that the Respon-
dent make the striking employees whole for any loss
of earnings they may have suffered or may suffer by
reason of Respondent's refusal, if any, to reinstate
them, by payment to each of a sum of money equal
to that which he normally would have earned during
the period from 5 days after the date on which he
applied, or shall apply, for reinstatement, to the date
of Respondent's offer of reinstatement to him, absent
a lawful justification for Respondent's failure to make
such offer. Backpay shall be computed on the basis of
calendar quarters, in accordance with the method pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950). Interest at the rate of 6 percent per annum
shall be added to the net backpay and shall be com-
puted in the manner set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Having found that Respondent discriminatorily
and coercively issued reprimands to its employees for
engaging in protected, concerted activity, the Board
orders that Respondent physically expunge such rep-
rimands from the personnel files of all employees to
whom they were issued and, further, take whatever
steps are necessary to rescind any effect of the is-
suance of such reprimands.
ORDER
Pursuant to Section 10(c) of the National Labor
LARAND LEISURELIES, INC. 199
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, La-
rand Leisurelies, Inc., Monticello, Kentucky, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Issuing written reprimands to employees for en-
gaging in protected, concerted activity.
(b) Either granting or denying employee benefits in
order to interfere with, coerce, and restrain employees
in their exercise of their protected rights to engage in
union activity.
(c) Removing from employees' personal possession
handbills, union insignia, or other paraphernalia con-
nected with the employees' adherence to the Union.
(d) Warning or threatening employees that they
would be laid off or otherwise punished for engaging
in union activity.
(e) Taking pictures of employees on the picket line.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Expunge from its records and from the employ-
ees' personnel files the written reprimands issued as a
result of the protected, concerted activity which took
place on January 17, 1973, and make whatever record
changes are necessary to negate the effect of the is-
suances of such reprimands.
(b) Upon application, offer immediate and full re-
instatement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent
positions, if jobs are available, without prejudice to
their seniority and other rights and privileges, to all
employees of Respondent who participated in the
strike which began on April 26, 1973, and who have
not already been reinstated, dismissing, if necessary,
any persons hired as replacements by Respondent on
or after April 26, 1973. If, after such dismissals, suffi-
cient jobs are not available for these employees, they
shall be placed on a preferential hiring list in accor-
dance with their seniority or other nondiscriminatory
practice theretofore utilized by the Company, and
they shall be offered employment before any other
persons are hired. Make whole these employees for
any loss of earnings they may have suffered or may
suffer by reason of Respondent' s refusal , if any, to
reinstatement them in accordance with the terms of
this Order, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Monticello, Kentucky, plant copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint as to all
allegations not found to be violative of the Act be
dismissed.
5 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice and we
intend to carry out the Order of the Board and abide
by the following.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains , or coerces employees with respect to
these rights.
WE WILL remove from our records any trace of
the written reprimands issued on January 17,
1973, and WE WILL NOT again issue reprimands to
employees for engaging in protected, concerted
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity.
WE WILL NOT promise our employees benefits to
refrain from activities on behalf of International
Ladies' Garment Workers' Union, AFL-CIO, or
any other labor organization, and WE WILL NOT
deny them benefits because they have engaged in
such activities.
WE WILL NOT warn or threaten our employees
with layoff or discharge or other punishment for
engaging in activity on behalf of the above-
named Union or any other union.
WE WILL NOT take pictures of our employees
engaged in protected, concerted activities and WE
WILL destroy any pictures in our possession that
we have taken of employees engaged in such ac-
tivities.
WE WILL NOT remove from employees' posses-
sion handbills, union insignia, or other parapher-
nalia connected with employees' adherence to
the Union.
WE WILL, upon application, offer immediate
and full reinstatement to their former positions
or, if those positions no longer exist, to substan-
tially equivalent positions, if jobs are available,
without prejudice to their seniority and other
rights and privileges, to all our employees who
were on strike on or after April 26, 1973, and who
have not already been reinstated, dismissing, if
necessary, any persons hired by us on or after
April 26, 1973. If insufficient jobs are available
for these employees, they shall be placed on a
preferential hiring list and they will be offered
employment before any other persons are hired.
LARNAD LEISURELIES, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 3003,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
DECISION
PAUL E. WEIL, Administrative Law Judge: On January 6,
1973, International Ladies' Garment Workers' Union,
AFL-CIO, hereinafter called the Union, filed with the Re-
gional Director for Region 9 (Cincinnati, Ohio) of the Na-
tional Labor Relations Board, hereinafter called the Board,
a charge alleging that Larand Leisurelies, Inc., hereinafter
called Respondent, violated Section 8(a)(1) and (3) of the
Act by unlawfully threatening and disciplining approxi-
mately 75 employees because of their union activities (Case
9-CA-7557). On February 2, 1973, the Union amended its
charge, attaching thereto a list of the names of the employ-
ees allegedly discriminated against by the actions charged.
On February 23, 1973, the Union filed a second charge
alleging additional violations (Case 9-CA-7610) and on
March 19, 1973, filed an amendment thereto. On March 20,
1973, the Regional Director of Region 9 of the Board on
behalf of the General Counsel issued a complaint and notice
of hearing in Case 9-CA-7557 which was duly answered on
March 27 by Respondent. On March 29, 1973, the Union
filed a third charge against the Employer (Case 9-CA-7679)
and on April 11, 1973, amended this third charge. On April
19, 1973, the Regional Director issued a complaint and
notice of hearing in Case 9-CA-7610 and an order consoli-
dating Case 9-CA-7610 with Case 9-CA-7557. On April 30,
the said Regional Director issued a complaint in Case 9-
CA-7679 and on May 2, 1973, issued a notice consolidating
that case with the original. On the same day, the Union filed
a fourth charge (Case 9-CA-7748). The Employer, who had
answered the complaint in Case 9-CA-7610 on April 27,
thereafter answered the complaint in Case 9-CA-7679 on
May 14. On May 14, the said Regional Director issued an
order consolidating cases, consolidated complaint and no-
tice of hearing, adding to the complaint allegations from the
charge, Case 9-CA-7748, the last prior charge, and consoli-
dating all four of the cases. On May 22, the Respondent
issued an answer to the consolidated complaint. Thereafter,
after the hearing had been postponed five times, the matter
came on for hearing before me at Monticello, Kentucky, on
October 10, 11 and 12. All parties were present and repre-
sented by counsel and had an opportunity to call and exam-
ine witnesses, produce relevant and material evidence,
argue orally on the record and file briefs. Briefs have been
received from the General Counsel, Respondent and the
Charging Party.
Upon the entire record in the case and in consideration
of the briefs, I make the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
Respondent, a Kentucky corporation, is engaged in the
manufacture of women's and children's wearing apparel at
its plant in Monticello, Kentucky. Respondent annually
sells and causes to be shipped goods valued in excess of
$50,000 directly from Monticello, Kentucky, to points locat-
ed outside the State of Kentucky. Respondent is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
LARAND LEISURELIES, INC. 201
H. 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
Background
Respondent's plant in Monticello, Kentucky, has about
200 employees engaged in the manufacture of clothing.
Respondent's president, Jack Brownstein, is based in Wa-
terbury, Connecticut; his director of manufacturing, Mrs.
Adrian Ermini, is based in Monticello. Under her is a plant
manager , Wayne Burnham , and his assistant , Coy Watson.
The plant has a personnel manager, John Preston, and a
staff of lower level supervisors.
During the month of December 1972, the Union started
organizing among Respondent's employees. President
Brownstein became aware of the organization on December
29, and on January 2 appeared at the plant. He met in the
conference room with a large group of the employees and
listened to them air their gripes while he attempted to deal
with them. On this occasion, he was told by some of the
employees that Mrs. Ermini had promised during the rush
season that ended early in December that the employees in
the cutting room would be rewarded for their industry by
a day off with pay. Brownstein answered that if Mrs. Ermini
had made such a promise he would see that it was kept.
During his "presentation," Brownstein pointed out that the
plant was just getting out of debt and that as business condi-
tions improved he anticipated that he would be able to
improve the wages and working conditions of the employ-
ees. Other employees complained that they had been prom-
ised raises and wanted to know when they were going to get
them. He answered that if there was a promise and a com-
mitment given he would see that it was fulfilled. During the
course of the meeting, Brownstein announced that he had
had a meeting with Mrs. Ermini and with his comptroller,
Saul Schneider, and that they had agreed on an additional
paid holiday. He suggested that the holiday be given on
Washington's Birthday and the employees enthusiastically
accepted.
President Brownstein testified that he had met with Mrs.
Ermini and his comptroller, Schneider, in December and at
that time had decided that they would improve the compa-
ny benefits. They discussed and made tentative plans to give
an additional paid holiday, but apparently no definite deci-
sion was made at that time. He testified that he was to have
announced the additional paid holiday at the employees'
annual Christmas party which is held on December 21 but
that for some reason it slipped his mind and he failed to
make the announcement. After meeting with his employees
on January 2, according to Brownstein's testimony, he first
consulted his counsel who advised him that he should not
grant the additional paid holiday because it could be con-
strued as an unfair labor practice if he did so. Accordingly,
although the holiday had been announced to the employees
on January 2, it was not thereafter granted.
On January 17, Union Agent John Jenkins, together with
Union Agent David Freeland, came to the plant to demand
recognition. A number of the employees (estimated from 40
to 120) met him at the plant office. As Jenkins entered the
factory, Plant Manager Burnham walked out of the cafete-
ria and went into the office. Jenkins knocked on the door
and Mrs. Ermini came out. Jenkins offered Ermini his card
and told her that a majority of the workers had authorized
the Union to bargain for them and demanded recognition.
Ermini answered that she could not talk to him, that she had
nothing to do with it and did not want to speak with him.
Jenkins suggested that she call Brownstein and that he
would talk to Brownstein. Ermini went back into the office,
leaving Jenkins and the employees standing in the lobby.
After a few minutes, a number of the employees com-
menced chanting, "We want a union." This went on for a
few minutes and they stopped. Jenkins again rapped on the
door; there was no answer and he opened the door and
asked a man in the office if Mrs. Ermini were still on the
telephone. The man replied that she was and Jenkins closed
the door. At this time, he noticed that a telephone was lying
on the counter, off the hook. He was told by the employees
that this was a direct line to Mr. Brownstein, and Jenkins
said , "Why don't you tell him what we are doing." The
employees again started chanting, "We want a union." Af-
ter a few more minutes they stopped chanting and some-
body suggested that they all go into the cafeteria.
As they started walking into the cafeteria, the receptionist
called through the window to Jenkins that this was private
property and that she would prefer that he was outside.
Accordingly, he did not go into the cafeteria and the em-
ployees remained with him in the lobby. Jenkins again said
that he wanted to talk to Mrs. Ermini and suggested that the
receptionist try to contact her. About 5 minutes later,
Wayne Burnham came out and informed Jenkins that they
had nothing to say to the Union at this time and that Brown-
stein was getting advice from his lawyers and would be in
touch with Jenkins that afternoon. Burnham told the em-
ployees to go back to work. They did not do so. Jenkins then
told Burnham where Brownstein could reach him at his
motel, instructed the employees to go back to work, which
they did, and left with David Freeland.
On the afternoon of January 17, Respondent issued writ-
ten reprimands to 90 employees which stated as follows:
Written Reprimand [name of employee]
About 10 a.m. Wednesday, January 17, 1973 you left
your work place without permission of your supervisor
and did not return to your work place until approxi-
mately 10:30 a.m. As a result, the Company lost about
30 minutes of your productive time.
Your conduct is in violation of plant rules and your
responsibilities to the Company. You are being given
this written reprimand for leaving your work place
without permission and being warned that future viola-
tions of the plant rules will subject you to further disci-
pline, including discharge.
/s/ Wayne Burnham, Plant
Manager
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Recognition was not forthcoming to the Union and even-
tually a petition was filed for an election. An election was
conducted on April 5, 1973, and the Union prevailed. On
April 12, Respondent filed objections to the election, which
were investigated by the Regional Director who conducted
a hearing thereon on August 22.1
Between the demand for recognition and the election,
Respondent, the Union and groups of employees, pro and
con and the Union, continued campaigning. Various ac-
tions of Respondent during this period were alleged to have
been violative of Section 8(a)(1) of the Act and will be
discussed below.
On or about March 1, Jenkins, who was in charge of the
Union's campaign, caused a strike committee to be nomi-
nated. A strike vote had been taken and the Union had been
given authority by the employees to call a strike when it saw
fit. Jenkins testified that his purpose in forming a strike
committee was to have a buffer between employees, who
sporadically insisted that a strike commence, and himself so
as to avoid an inopportune strike. On or about March 17,
the strike committee met and agreed that a strike should be
called. According to the testimony of members of the strike
committee, the employees were disgruntled at various of the
unfair labor practices and determined to strike at this time.
One of the members called Jenkins, who had not been pre-
sent at the meeting, and Jenkins pointed out that the elec-
tion was scheduled for April 5 and suggested that any strike
activity be delayed until after the election. The following
day a second meeting was held and it appears that the
committee decided to await the election before taking any
further strike activity.
The Union won the election and, on April 12, Respon-
dent filed objections and the Union's lawyers called upon
Respondent to bargain. Respondent's lawyers declined to
bargain until there had been a ruling on the objections. The
next day two employees who were union adherents were
discharged? According to the testimony of Jenkins, a group
of employees came to him complaining about the discharge
on April 13 or 14 and seeking to go on strike. He counseled
investigating the discharges before taking strike action. A
day or two later they returned, stating that supervisors were
doing the work that the discharged employees had been
doing and again demanding a strike. Jenkins then called a
meeting for April 25 which was attended by about 115
employees. According to the testimony of Jenkins, the only
witness who testified as to what took place at this meeting,
he called to the attention of the employees all of the past
unfair labor practices and the fact that the Company had
acted irresponsibly in laying off Bell and Brown, the two
discharged employees, and suggested to the employees that
if they did not take action at this time that "these kind of
unfair labor practices would continue." It was decided that
this would be an appropriate time to strike "inasmuch as
this discharge was just at this time." Jenkins called for dis-
cussion or objections to the calling of a strike; there were
none. Organizer Freeland then gave instructions about the
1 At the time of this writing , no Board Decision appears to have issued.
2 It appears that the employees were permanently laid off . If there is a
distinction between a permanent layoff and a discharge , it was not made
clear at the hearing.
conduct of the strikers during a strike and those who wished
to do so remained to assist in making strike signs. The strike
commenced at midnight on the night of April 26 and appar-
ently was still going on at the time of the hearing.
On the first day of the strike, Personnal Manager John
Preston took photographs of the strike activities of the em-
ployees. General Counsel contends that the strike is an un-
fair labor practice strike and that the taking of photographs
by Preston, as well as by two supervisors, violated Section
8(a)(1) of the Act.
Discussion and Conclusions
The first allegation, chronologically, concerns that con-
duct of President Brownstein on or about January 2 in
promising an additional paid holiday to the employees. I
credit the employees who testified that at the meeting of
January 2 Brownstein informed the employees that they
would be given the additional paid holiday.
Mr. Brownstein testified that the additional paid holiday
had been discussed early in December and tentatively
agreed upon. His testimony that he came to the Christmas
party with the intention of announcing it and failed to do
so by oversight is hardly credible. Traditionally, Christmas,
and especially the situation of a Christmas party for em-
ployees, is a time when an employer displays what gifts he
has in his bag. With such an opportunity present , it is espe-
cially difficult to believe that Brownstein had any intention
of announcing an additional paid holiday. Indeed, his testi-
mony clearly reveals that no firm decision had been made
at his meeting with his comptroller and Mrs. Ermini to grant
any particular day or even grant a day. At any rate, it was
not until he had been apprised of the union organization
among his employees, a matter which was of sufficient im-
portance to him that he immediately flew to Kentucky to
look into it, that he decided to announce the benefit . Presi-
dent Brownstein further testified that after consultation
with his labor relations counsel the decision was made not
to grant the holiday after all, but no announcement to that
effect was ever given the employees.
The vice of the unfair labor practice, as the Board has
frequently stated, is that by granting benefits during a union
campaign an employer demonstrates that it is within the
employer's control whether employees are to be given such
benefits. The Employer's subsequent failure here to grant
the holiday after announcing that it would be given to em-
ployees only served to underscore this message . I conclude
that by announcing the additional paid holiday and then by
reneging on this announcement Respondent violated Sec-
tion 8(a)(1) of the Act.
The General Counsel also contends that by giving em-
ployees wage increases on or about January 1 Respondent
discouraged sympathy for, membership in or activities on
behalf of the Union. The record reveals that in November
certain employees in the cutting and shipping department
asked for wage increases. Glenn Keaton, the cutting rcom
foreman, testified that early in December he mentioned to
Mrs. Ermini that some of his employees should have raises.
She told him to make up a list and bring it to her; she would
check it and make a decision on it. Thereafter, he made up
a list which included all the employees in the cutting room
LARAND LEISURELIES, INC. 203
with the exception of one who had a raise within the 3 or
4 months preceding December. The range of the wage in-
creases he recommended was 10 to 15 cents. Mrs. Ermini
approved the recommendations and, prior to Christmas,
Keaton advised the employees that they were going to re-
ceive the wage increases effective January 1.
Roger Burks, an employee in the cutting department in
December, testified that his supervisor, Keaton, in the first
week in January told him that he had a 10-cent raise and
that this was after the meeting with Brownstein. On cross-
examination, however, when he was asked specifically
whether Keaton came to him prior to Christmas of 1972 and
advised him that he would be getting a wage increase, he
testified, "I don't remember if he did." On being pressed, he
continued to reiterate that he did not recall having been
informed before that he was going to get the raise. Keaton
testified that raises were given six of his seven employees
effective January 1 and that he informed all of them prior
to Christmas that they were to receive the raise. Of the six,
the General Counsel called only one, Burks, and although
another, Elam, was called to the witness stand by Respon-
dent, the General Counsel did not ask him when he was
informed of the raise.'
On the other hand, Clyde Denney testified that Up-
church, a prounion employee and Burton, an antiunion em-
ployee, "Got into it," and that he, Denney, intervened and
told Upchurch that they had better all stick together and
that if Burton started anything they could all take care of
him. He was then called to the side by Bill Koontz, his
supervisor, who told him what he did on his own time was
his own business but on company time he was not to start
anything and Koontz added that, as of that time, Denney
had a 10-cent raise. Denney did not react other than to say
"okay" and walk off. Koontz was not called to testify and
no explanation was given for Respondent's failure to call
him.
On the record as a whole, I conclude that the General
Counsel has failed to support the allegation with a prepon-
derance of the evidence and further, from the fact that the
General Counsel called no employee in the cutting room
other than Burks, that no support for his allegations was
available to him. The failure of Burks to recall whether or
not Keaton had informed him of the raise prior to Christ-
mas does not adequately contradict Keaton's testimony that
he did inform Burks. Denney's testimony of Koontz' rather
offhand announcement of his raise is scarcely credible and
operates in no way to counter the testimony of Brownstein
that the raises were agreed upon prior to Christmas. In any
event, the granting of a single raise , which is all that re-
mains, does not in my opinion support the allegation. Ac-
cordingly, I shall recommend that this allegation be
dismissed.
Roger Burks testified that on December 29, 1972, the day
the overt organization commenced, his aunt, Lena Burks, a
supervisor, told him that he had better remove the union
card he was carrying in his coat pocket or he might be laid
off at the end of the workday. Burks answered, "We will just
3 The inference from the record as a whole is clear that Mr. Elam switched
his allegiance from the Union to the Company at some time before the
election . He was the Respondent's observer at the election.
wait and see." Lena Burks was not called to testify and I
credit Roger Burks' testimony. Respondent contends that
this statement is not violative because it was ineffectual and
because there is no evidence that other employees who were
carrying union cards were similarly warned. The subjective
effect of coercion by a statement is immaterial to an inquiry
as to whether this statement has a tendency to coerce. The
threat of layoff in retaliation for carrying union cards at the
plant can hardly be argued to be anything but coercive.
That the statement was made by the employee's aunt is no
more material. She was a supervisor and spoke with the
authority of Respondent. I find that by her warning to
Burks Respondent violated Section 8(a)(1) of the Act.
The Reprimands
The General Counsel contends that, by issuing the repri-
mands to 90 employees who accompanied the business
agent on the occasion of his demand for recognition, Re-
spondent violated Section 8(a)(1) and (3) of the Act. Re-
spondent contends that the employees were guilty of
misconduct in stopping work without punching out on the
timeclock, that they paid the employees and that the repri-
mands for failing to work for the 30 minutes that the work
stoppage lasted were justified and lawful. Respondent com-
pares its situation to various acts of strike activity that had
been found unprotected, applying the test of whether the
particular activity involved is so indefensible as to warrant
an employer's disciplining participating employees. Relying
on cases involving slowdowns, overtime strikes and "quick-
ie" strikes Respondent argues that the action of the employ-
ees in the instant case was indefensible and therefore was
outside the protection of the Act. The cases on which Re-
spondent relies are inapposite. "Quickie" strikes had been
found indefensible when they occurred frequently or spo-
radically and are held unprotected because they tend to
bring about a condition that is neither strike nor work and
allow a Union to unilaterally determine the conditions of
employment.
In those cases where the Board has found a violation, they
have found it based on a pattern of such strikes rather than
on a single instance. The "sitdown" strike cases are not
applicable herein. The employees did not stay at their ma-
chines or render work impossible to those who wished to
work. Indeed, they left their machines and congregated at
the office, returning to their machines at the end of 30
minutes and resuming work. There was no "seizure of prop-
erty"; the gathering was orderly and had no overtones of
coercion implicit in its nature. I conclude that the brief work
stoppage was protected, concerted activity." Accordingly,
by the reprimand and the threat contained therein of dis-
charge for similar activity, Respondent violated Section
8(a)(1) and (3) of the Act.
The Smock Incident
On the evening of January 28, 1973, the union organizers
passed out smocks with the name of the Union imprinted
4 See Hanes Hosiery Division, Hanes Corporation, 168 NLRB 856, enfd. 413
F.2d 457 (C.A. 4. 1969), and the cases cited therein.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in an overall design upon them. The next morning about 10
or 11 employees wore them into the plant. One of the em-
ployees, Mrs. Lynn Denney, testified that she was wearing
one of the smocks and was called by a fellow employee to
see Supervisor Velma Smith who advised her to take the
smock off or she would be called into the office and made
to take it off. This was before the start of working hours.
Later that day other employees in Mrs. Smith's section wore
the smocks without hindrance. Mrs Denney was not called
into the office and continued to wear the smock on that and
succeeding days.
Velma Smith testified that she had been through a union
campaign as an employee in the past and knew that employ-
ees had a right to wear union insignia on their clothing and
denied the entire occurrence. I believe Mrs. Denney. I be-
lieve that Mrs. Smith reacted to her first sight of an employ-
ee in a smock of this nature, but that she shortly became
aware of the fact that the Employer did not choose to inter-
fere with the wearing of the smocks and accordingly went
no further than the friendly warning that she gave Mrs.
Denney. I believe that the incident is of minimal coercive
significance and were it all that was involved in this case I
would recommend that the complaint be dismissed. Howev-
er, there is no question that Mrs. Denney had a right to wear
the smock and Mrs. Smith had no right to ask her to take
it off. I therefore find it was a violation of Section 8(a)(1)
of the Act.
The Alleged No-Solicitation Rule
Calvin Upchurch and Clyde Denney worked in the ship-
ping department under the supervision , commencing in
February, of Andrew Campbell . Their work, generally
speaking, was packing , weighing, labeling and shipping
Respondent 's products . In the shipping department near
where they worked was located a water fountain , which was
used not only by the shipping department but by other
employees . Indeed , it appears that throughout the day em-
ployees came into the shipping department to use the water
fountain and frequently exchanged comments with the em-
ployees of the shipping department . Upchurch testified that
he talked to the employees coming into his department
about the Union only on breaks but would talk to them
about other matters as they came through , when he was not
on his break . According to Upchurch , sometime in Febru-
ary, Campbell called the employees in the shipping depart-
ment together and gave them a little speech . His report of
the "little speech" was as follows : "He just told us not to
talk to people when they came back through our depart-
ment ." Clyde Denney testified about what apparently was
the same meeting . He testified that Campbell told the em-
ployees that there had been too much fooling around and
there had to be less talking and no one could leave his
department without permission . He felt that the employees
were doing something they should not be doing and said
that the next time they would be taken to the office for
immediate action . On cross-examination , Denney testified
that there was seldom any reason for him to leave the de-
partment for any reason and admitted that the employees
in the shipping department were talking to other employees
that came to the drinking fountain during their working
hours.
Campbell credibly testified that the productivity of his
department was affected by the fact that individual employ-
ees were coming back to get drinks at the drinking fountain
and conversations ensued with the employees in the ship-
ping department, and that he therefore called a meeting and
told the employees that he did not want them leaving the
department without advising him and he did not want to see
them talking to people when they were supposed to be work-
ing and when people were on their breaks.
The Union argues vigorously that this constitutes a no-
solicitation rule which, against the background of the union
organization, is invalid. I disagree. In my opinion, the state-
ments made by Campbell, who had been hired as a supervi-
sor only a month before, were a perfectly normal exercise
of his supervisory function, not attributable in any way to
the Union. No one claims that Campbell said anything
about the Union or that the conversations that he was com-
plaining about had anything to do with the Union. As a new
supervisor in the division, it was his function to keep the
employees at their work during working hours, and Denney
and Upchurch, as will be seen in the next section, made
much of the fact that they did not talk about the Union or
organize for the Union during working hours. Accordingly,
there is no basis on which I can find that the inhibition of
talking among them and of leaving the department during
working hours had any effect on their union organizational
activities. I shall therefore recommend that the allegation be
dismissed.
The Removal of Union Literature
The General Counsel contends that Supervisor Campbell,
on or about February 28, ordered an employee to remove
prounion literature from his pocket and, on refusal by the
employee, physically removed such literature from the em-
ployee. The facts do not support this allegation. However,
what took place is as follows.
Upchurch and Denney, who were avid union adherents,
posted a union handbill on Upchurch's workbench. Camp-
bell saw the handbill and told Upchurch to take it down and
Upchurch refused to take it down on worktime and said that
if Mrs. Ermini wanted it done she should come and take it
down herself. Campbell reported this matter to Mrs. Ermini,
came back and took down the handbill himself, folded it up
and put it into Upchurch's pocket. Shortly thereafter, per-
haps the next day, Upchurch and Denney pinned union
handbills to their jackets which they hung on nails 5 or 10
feet from the water fountain. This occasioned some com-
ment from employees coming to drink water and apparently
aroused the ire of Mr. Campbell, who asked each of them
to take the signs off their coats. Upchurch retorted that he
was not going to take the sign off his coat because the coat
was his personal property, so Campbell took the signs off
the coats, tore them up and threw them in the trash. At the
next break, Upchurch and Denney affixed handbills to the
back of their shirts. Although Campbell saw them, he made
no comment and the two men continued to wear union
placards on their shirts occasionally for a considerable peri-
od of time thereafter.
This incident too is of minimal coercive impact; however,
LARAND LEISURELIES, INC.
the Board has held that employees have a right to display
union insignia in the plant on their lunchboxes and aprons.5
Here it is clear that the employees were engaged in a war
of nerves with their supervisor . They were heckling him by
the posting of the handbills to the point where he was re-
quired by Mrs. Ermini to take action . It is clear from their
testimony that at various times they had handbills posted
around their work area and on their persons without com-
plaint . On the other hand , there is no showing that the
posting of handbills on the coats of these two employees had
any affect on production or led in any way to disruption of
the production process to warrant the imposition of any rule
against such display . Accordingly , I find that Respondent
has violated Section 8 (a)(1) by the action of Supervisor
Campbell.
The Surveillance of the Handbilling
Throughout the month of March, the prounion employ-
ees engaged in handbilling on 15 or 20 occasions. On most
such occasions, members of the supervisory or managerial
staff kept them under surveillance .6 Personnel Manager
Preston testified that he made it a point to watch the hand-
billing because he was afraid that some incident would take
place, an explanation that appears to me to be singularly
lacking in candor inasmuch as by his own testimony his
surveillance was sporadic, lasting sometimes less than a
minute and sometimes only a few minutes at a time. No
incident ever occurred although there was handbilling both
by pro- and antiunion groups at various times until the
election. The General Counsel contends that this surveil-
lance violated Section 8(a)(1) of the Act.
In a recent case, under circumstances where the vice pres-
ident or office manager of Respondent seated himself in a
company car in Respondent's parking lot to observe the
distribution of handbills by employees and union agents,
Administrative Law Judge John Funke stated as follows:
The notion that it is unlawful for a representative of
management to station himself at a point on
management's property to observe what is taking place
at the plant gate is too absurd to warrant comment. If
a union wishes to organize in public it cannot demand
that management must hide.
Although in that case I the Board issued a decision sus-
taining in part and reversing in part that of Administrative
Law Judge Funke, it left the above-quoted language and
finding undisturbed. I find in the instant case that Respon-
dent was guilty of no infraction by its surveillance of the
open and public handbilling by employees and union agents
of the employees leaving Respondent's place of business.
Accordingly, I shall recommend that the complaint be dis-
missed insofar as that was alleged as an unfair labor prac-
3 Webb Furniture Corporation, 158 NLRB 1003.
6 Although there is some quibbling about the extent of the surveillance, it
is not denied by Respondent that members of management and supervision
watched the handbilling activities through the windows and from the doors.
7 Tarrant Manufacturing Company, 196 NLRB 794.
205
tice.
In connection with the handbilling, the General Counsel
alleges that Respondent violated Section 8(a)(1) by permit-
ting antiunion employees to leave work early in order to
distribute literature while refusing prounion employees the
same privilege. The allegation stems from an occurrence
that took place on or about March 20. On this occasion, a
number of female employees who were opposed to the
Union gathered in a restroom that opened into both the
plant and the cafeteria, and, shortly before quitting time,
they exited through the cafeteria where they picked up
handbills and stationed themselves at the employees' exit
door where they distributed their handbills as the employees
left for the evening. Larry Richardson, a prounion employ-
ee, was the first one out the door. He had been hovering
near the timeclock in order to punch out and leave ahead
of the crowd and saw the women standing outside the door
before quitting time although he could not identify them.
He punched out and immediately went out the door and
found a number of women, two of whom he identified,
passing out antiunion literature. There is no issue of fact
that the women were at the door when Richardson left,
although they denied having left the building before 3:45,
which is quitting time. I do not credit them.8 It appears that
the women left their posts about 5 minutes before the quit-
ting time . There is no evidence that any supervisor of Re-
spondent knew that they were leaving early. After they
completed the handbilling, the women reentered the plant
and punched out on the timeclock. Another union employee
called this to the attention of supervision, and the personnel
manager, after apparently checking with his superiors, ini-
tialed the timecards of the two women who punched out late
and showed them as having departed at 3:45, the regular
quitting time. Thereafter, one or two members of the
Union's organizing committee complained that antiunion
employees were permitted to distribute leaflets on company
time and asked for a similar privilege which was denied
them. I see no violation in this set of circumstances. There
is no evidence that Respondent knew or condoned the early
departure from their jobs of the women who distributed the
handbills on this occasion and, immediately on
Respondent's becoming aware that the women had
punched out late, Respondent took care that they were not
paid overtime for the time spent in distributing handbills.
There is no evidence that Respondent lost any production,
indeed, it appears that Richardson quit work at least as
early as any of the female employees in order to be the first
one out the door in the evening. Accordingly, I conclude
that it is not considered compulsory at Respondent's plant
to work until the actual quitting time arrives. There is no
showing that this circumstance was ever repeated or that the
antiunion handbillers received any form of support from
Respondent in their endeavor. Accordingly, Respondent
was under no obligation to permit prounion forces any fur-
ther privilege. I therefore recommend that the complaint be
dismissed insofar as this incident is alleged to be a violation.
8 The testimony of the two women who denied leaving before 3:45 was so
evasive and lacking in candor that I do not credit them.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alleged Threats and Interrogation
Sharon Brown, who had been employed by Respondent
as a payroll clerk until she quit on March 14, 1973, testified
that around the last of February she had a conversation
with Plant Manager Burnham in his office during which
Burnham asked her if she knew about the Union and wheth-
er they were going to strike the following Thursday. She
answered that she knew nothing about it . She further testi-
fied that about a week later Personnel Manager Preston
interviewed her in Brownstein 's office after she told him
that she was thinking about quitting. She quoted Preston as
saying that she did not want to quit right then, that the mess
caused by the union organization would be settled later. She
testified that he went on to say, "I heard that you were
working for the Union today . . . if I knew you or anyone
else was working for the Union, I'd get rid of you and
wouldn't this be a perfect chance to get rid of you." She also
stated that on various other occasions Preston told her that
he had heard that she was working for the Union. On cross-
examination , Mrs. Brown testified that she did not recall
whether Preston had suggested to her that she should not
quit or that he wished that she would reconsider her deci-
sion to quit. However, she admitted that she told him that
she would give him a definite answer by a certain date and
that he said that the Union had things torn up and things
would settle down.
Preston testified that the best he could recall the conver-
sation he had tried to talk her out of quitting and later in
the conversation told her that he heard that she was for the
Union but that he didn't believe it because he trusted her
completely on the job. He denied specifically saying, "By
the way I heard you were working for the Union today" and
"wouldn't this be a perfect chance to get rid of you" or
words to that effect, and additionally he denied ever, after
that conversation, accusing her of working for the Union.
As far as the conversation being characterized as an inter-
rogation of Mrs. Brown as to whether she was working for
the Union, even crediting Preston's version of the conversa-
tion, a remark that he had heard that she was for the Union
and did not believe it because he trusted her calls for an
answer from her and therefore constitutes interrogation. At
the least, she could either assure him that she was not work-
ing for the Union or remain quiet, leaving the inference that
she was. However, to characterize this conversation as a
threat, as the General Counsel has done, goes too far. At the
very most, I conclude that what Preston said was, in effect,
"I've heard you were working for the Union ... wouldn't
this be a good opportunity to get rid of you" and then
reassured her that he was not going to get rid of her by
asking her not to quit. The whole thrust of the conversation
was contrary to one of threat, rather it constituted a reassur-
ance to her that any possible union activity on her part
could be overlooked by Respondent. Accordingly, I find
that Preston interrogated her in violation of Section 8(a)(1)
of the Act, but did not threaten her, and I shall recommend
that the allegation with regard to threat be dismissed, but
with regard to interrogation, he sustained.
Plant Manager Burnham did not testify. Accordingly, the
testimony of Sharon Brown stands uncontradicted on the y q
record. I find that by Burnham's and Preston' s interroga - supervisor about how he was going to vote, I do not credit him.
tions of Sharon Brown concerning her and other employees'
union activities Respondent interfered with, coerced and
restrained employees within the meaning of Section 8(a)(1)
of the Act.
Dwight Dobbs testified that, on the morning of the day
on which the election was held, Supervisors Springer and
Keaton came by his work place and that Springer in effect
asked him how he was going to vote. He answered that of
course he was going to vote for the Union and Springer
rejoined that that was a losing vote. Dobbs answered that
that was the best way he knew how to vote and that was the
way he was going to vote.
Larry Richardson testified that at about the same time he
was across the table from Dwight Dobbs and Springer
asked him if he was going to vote against the Union. Rich-
ardson answered that he was going to vote "yes." He testi-
fied also that he heard Springer ask Mike Brown how he was
going to vote and Glenn Keaton asked Robert Elam how
he was going to vote. Elam answered he was going to vote
"no" and Brown's answer was not reported by Mr. Richard-
son. Burks supported Richardson's testimony and testified
that Springer asked him which way he was going to vote and
he replied that he was going to vote "yes." Each of these
interrogations is denied by Keaton and Springer. Springer,
however, testified that he asked Burks the day before the
election if he was going to vote. Burks answered that he was,
whereupon Springer advised him to put his "x" on the right
side of the ballot (a "no" vote) and Burks answered that he
was going to put it on the other side. Springer specifically
denied any conversation with Richardson, Brown or Dobbs
on either the day of the election or the preceding day.
I believe and find that Springer and Keaton walked
through the cutting room on the day of the election and that
Springer spoke to Burks, Richardson, Dobbs and Elam
about the vote in the forthcoming election. I believe that the
positions of all four of these men were well known to ev-
eryone in the plant. I believe that Burks, Richardson and
Dobbs were well-known union supporters who had been
active in organizing and campaigning on behalf of the
Union and that Elam was equally well known as a union
supporter who had turned his coat and was now supporting
the Employer. Indeed, Elam was Respondent's observer at
the polls. I believe that the questions were asked substantial-
ly as the employees testified.' However, I find no coercive
impact whatsoever in the interrogations. I find that the
questions asked and the answers given were no more than
argumentative assertions on the parts of the speakers, each
of whom knew that the other was well aware of the position
of the speaker. The conversation amounted to no more than
idle badinage and does not support the allegations. Accord-
ingly, I shall recommend that the allegations with regard to
these interrogations be dismissed.
Photographing the Strikers
On May 26, the Union commenced its strike at midnight.
Personnal Manager Preston was obviously informed in ad-
vance that the strike would take place at that time and made
9 Although Elam testified that he was never asked an uestions by any
LARAND LEISURELIES, INC.
it his business to be at the plant at 5:00 in the morning. He
went out to the picket line at 6 and spent a good bit of the
first 2 days observing the picket line. During the course of
his observation, he had a camera on his person. He testified
that he had the camera in order to take pictures for use in
evidence in the event any unlawful or violent activity took
place on the picket line. Although there was no untoward
activity, he appeared to the employees to have taken pic-
tures on a number of occasions and, according to the testi-
mony of Burks and others, on some occasions handed the
camera to nonstriking employees who were accompanying
him who in their turn took some pictures.
No pictures were presented in evidence and accordingly
there is no substantial evidence that any pictures were tak-
en. I find, especially under the circumstances that the strike
was peaceful and protected, that Respondent's conspicuous
taking of pictures was calculated to have a coercive implica-
tion that Respondent was recording such information as
was forthcoming for the purpose of visiting future reprisals.
There was no indication of a reasonable basis for Respon-
dent to anticipate violence and mass picketing, and its con-
tention that its purpose was to secure evidence of such
activity is without foundation. Accordingly, I find that the
picture-taking was coercive and in violation of Section
8(a)(1) of the Act.10
An additional allegation of a threat of plant closure by
Glen Keaton was unsupported by the evidence, I therefore
recommend it be dismissed.
The Nature of the Strike
The General Counsel contends that the strike, which
commenced on April 26, 1973, and in which the employees
were still engaged at the time of the hearing, was caused or
prolonged by the unfair labor practices described above
and, accordingly, was an unfair labor practice strike. The
Respondent contends that inasmuch as it committed no
unfair labor practices the strike was economic in its origin.
I find that the strike was an economic strike. The testimo-
ny is clear that a strike committee was formed on March 1,
largely for the purpose of insulating the Union from the
employees who wanted to go on strike. On March 17, the
committee decided to go on strike but acceded to the sug-
gestion of Union Organizer Jenkins who recommended that
they wait until after the election. After the election, no strike
action was taken and there appears to have been no great
desire on anyone's part for a strike until it became apparent
that Respondent would not recognize the Union until after
the representation case was closed. This would be a consid-
erable time inasmuch as the employer filed objections to the
election. Immediately, on April 14, the strike committee
again appears to have urged a strike. Temporizing, Jenkins
called for a union meeting on April 25. On that occasion,
the discussion involved the layoff or discharge of employees
Bell and Brown which took place on April 13 and reviewed
all the matters which the Union had charged to be unfair
labor practices. The union agents, after sampling opinion at
the April 25 meeting, called for a strike which then com-
10 The Udylite Corporation, 183 NLRB 163, and cases cited therein.
207
menced.
Every strike that takes place after the commission of un-
fair labor practices by an employer is not necessarily an
unfair labor practice strike. It is only when those unfair
labor practices so coerce and restrain employees that they
feel that they have to strike in self-protection or in mutual
support that the strike achieves the extra protection of an
unfair labor practice strike. All the unfair labor practices I
found to have been committed were committed prior to the
election and most of them in January. Surely a large part of
the causation of the strike was the discharge of Bell and
Brown, but this is not alleged to be an unfair labor practice.
Jenkins testified that he told the employees that "if we did
not take some action at this time that these kind of unfair
labor practices would continue and it was decided that this
would be the appropriate time to strike inasmuch as this
discharge was just at this time." There is no evidence that
unfair labor practices were continuing or that there was any
reasonable cause to expect that they would continue. A
strike caused by an action which the employees believed at
the time to be an unfair labor practice, but which turns out
not to have been an unfair labor practice, does not achieve
that protection of an unfair labor practice strike. This strike
was indeed primarily caused by the discharge of Bell and
Brown and by the apprehension of future similar dis-
charges. Inasmuch as these discharges were not unfair labor
practices, the strike is not an unfair labor practice strike.
Upon the foregoing findings and upon the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. By issuing written reprimands to employees because
they engaged in protected concerted activities and by
threatening therein to discharge employees for engaging in
such protected, concerted activities , Respondent discrimi-
nated against its employees , thereby discouraging member-
ship in a labor organization.
3. By the above and by granting and then rescinding a
paid holiday after it learned of the union organization, by
interfering with employees ' organizing activities , by threat-
ening employees with layoff or discharge if they engaged in
such activities , by removing from their personal possession
union handbills and by photographing employees on the
picket line , Respondent interfered with, coerced and re-
strained employees in the exercise of their rights guaranteed
in Section 7 of the Act in violation of Section 8(a)(1) of the
Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, it will be recom-
mended that it cease and desist from the same and take
certain affirmative action necessary to effectuate the poli-
cies of the Act.
Having found that Respondent discriminatorily and
coercively issued reprimands to its employees for engaging
in protected, concerted activity, I shall recommend that
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent be ordered to physically expunge such repri- sary to rescind any effect of the issuance of such repri-
mands from the personnel files of all employees to whom mands.
they were issued and , further, take whatever steps are neces - [Recommended Order omitted from publication.]