McGwier Co., Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1973

204 N.L.R.B. 492 (N.L.R.B. 1973)

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGwier Co., Inc. and UBC-Southern Council of In-
dustrial Workers , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO-CLC. Case 15-
CA-4590
June 25, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On March 30, 1973, Administrative Law Judge Phil
Saunders issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed limited
exceptions and a brief in support of the Administra-
tive Law Judge's Decision, and the Respondent filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive Law Judge and to adopt his recommended Order,
as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, McGwier Co., Inc., Grove
Hill, Alabama, its officers, agents , successors , and as-
signs , shall take the action set forth in the said recom-
mended Order, as modified, and substitute the
attached notice for the Administrative Law Judge's
notice.
1 The Respondent in effect has excepted to certain credibility findings
made by the Administrative Law Judge It is the Board's established policy
not to overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd . 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 Add the following phrase after the word "his" in para 2(a) of the Admin-
istrative Law Judge 's recommended Order "former job, or, if such job no
longer exists, to a substantially equivalent position, without prejudice to his "
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in, or con-
certed activities on behalf of , UBC-Southern Council
of Industrial Workers , United Brotherhood of Car-
penters and Joiners of America . AFL-CIO-CLC, or
any other labor organization, by discriminating
against employees with regard to their hire , tenure, or
any other condition of employment by locking em-
ployees out of the plant because of their concerted or
union activities.
WE WILL NOT in any manner interfere with, re-
strain , or coerce our employees in the exercise of their
right to self-organization , to form , join , or assist UBC-
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO-CLC, or any other labor organization, to
bargain collectively through a bargaining agent cho-
sen by our employees , to engage in concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any such
activities.
WE WILL OFFER Lloyd Hutto his former job or, if
such job no longer exists , a substantially equivalent
position , without prejudice to his seniority or other
rights and privileges , and WE WILL make him and the
other I 1 discriminatees listed below whole for any loss
of pay they may have suffered by reason of our dis-
crimination against them , together with interest there-
on at 6 percent per annum.
Alvin Flowers Charles Chapman
Chester Parnell Earl Wilson
Richard Bedwell Walter Chapman
James J. Ott James Overton
Van Finnery Jessie Chapman
Joseph Smith
All of our employees are free to become , remain, or
refrain from becoming or remaining members of
UBC-Southern Council of Industrial Workers,
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO-CLC, or any other labor organi-
zation.
MCGWIER CO, INC
(Employer)
Dated By
(Representative ) (Title)
204 NLRB No. 87
McGWIER CO., INC. 493
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 , Plaza Tower Building , Suite 2700,
1001 Howard Avenue , New Orleans , Louisiana
70113, Telephone 504-527-6361.
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Law Judge : Based on a
charge filed on August 1, 1972,1 by UBC- Southern Council
of Industrial Workers, United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, herein called the
Union, a complaint against McGwier Co., Inc., herein the
Company or Respondent , was issued on October I 1 alleging
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act , as amended . Respondent filed an answer to
the complaint denying it had engaged in the alleged unfair
labor practices . A hearing in this proceeding was held be-
fore me , and both the General Counsel and Respondent
filed briefs.
Upon the entire record in this case , and from my observa-
tion of the witnesses and their demeanor , I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is an Alabama corporation with its principal
office and place of business in Grove Hill, Alabama, and
has been , at all times material herein , engaged in the manu-
facture of church furniture at its Grove Hill facility. During
the past 12 months, which period is representative of all
times material herein , Respondent , in the course and con-
duct of its business operations , sold and shipped church
furniture valued in excess of $50 ,000 directly to points out-
side the State of Alabama.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) 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
The complaint alleges that commencing on July 24 the
Respondent locked out employees who had gone out on
strike , and further alleges that the Company refused to rein-
state them until various dates in August and September.
As pointed out, the Company is engaged in the business
of manufacturing church furniture. The physical operations
of the Company are contained in a warehouse where lumber
is received and stored ; a large building known as the mill-
room which contains a pew department, a chancel depart-
ment , and a glueing room ; a separate building which houses
the finishing department; and a separate office and finished
product warehouse . This record shows that the millroom,
the finishing room , and the warehouse are equipped with
heaters to keep the lumber and the finished products within
appropriate moisture content of less than 8 percent and it
appears that the moisture content of the raw lumber, semi-
finished products, and finished products are constantly
monitored . The Company attempts to process an order as
rapidly as possible-from the millroom to the finishing
room where they put a seal on it so as to prevent moisture
from getting out and to guard against any additional mois-
ture getting into the wood.
In June, after a Board election , the Union was certified
as the bargaining representative of the Respondent's em-
ployees in a unit of all production and maintenance employ-
ees, and initial negotiating sessions were held on July 13 and
19. On the latter date Respondent's representatives advised
the Union 's negotiators that they had not had sufficient
time to go through the Union' s contract proposal
thoroughly or to discuss it between themselves, and this
development was then reported to the employees at a union
meeting later on the same day. The employees were very
much concerned with this delay by the Company, and as a
result a strike vote was taken whereby it was decided to
strike the Company on the next day. On the following morn-
ing, July 20, the employees reported to work at their regular
starting time of 6 a.m., but at 8 a.m . went out on strike as
planned , and immediately began to picket .2
On July 21 Union International Representative Grover
Seale talked with the Respondent President Vernon Mc-
Gwier on the telephone , and after arriving in Grove Hill
that afternoon Seale had the pickets removed and then in-
formed Respondent's purchasing agent , Charles Allred, and
Plant Superintendent Robert Pruett that the strikers would
report to work at their usual time on Monday morning (July
24). There was then some discussions as to whether or not
timecards would be in the racks, but Allred told Seale that
the strikers were needed.
There were also other events that took place on Friday,
July 21. Employee Jessie Ott, a nonstriker , had reported for
work that morning, and later in the day left the plant prem-
ises for business purposes but was followed by strikers Jerry
Wiggins, Artie Sheffield , James Ray, and Earl Wilson, to a
point several miles from the plant and when the strikers
passed Ott, Sheffield stuck his head out of the car and said
he was going to break his arms. After Ott turned off the
highway the strikers pulled up in the middle of the road and
stopped in front of Ott's car, and Sheffield then announced,
"Come on boy. We are going to beat him, break some arms
and bust some skulls." The strikers ganged up around Ott,
and in response to Ott's offer to take all four of them "one
at a time," the strikers told Ott "No, . . . we all are going
1 All dates are 1972 unless stated otherwise. 2 Four or five employees did not join in the strike
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to jump you, all at one time." However, before any physical
violence took place Allred and Deputy Sheriff James Kidd
arrived on the scene and further trouble was avoided.
On Friday morning, July 21, as nonstriker Crissie Cox
was leaving the plant premises, Arnold Campbell, one of the
strikers, walked in front of the truck Cox was driving and
said, "Stop this son of a B." Cox stopped and backed up,
but Allred then came along and drove the truck through
without any further difficulties and with Cox sitting along-
side him.
This record shows that on the mornings of July 24, 25,
and 26 the employees assembled at the plant premises at
their regular time in preparation for work, but on each
occasion were refused entrance when Plant Superintendent
Robert Pruett chained and locked the gate entrance normal-
ly used by the employees.
On July 26, the parties held a third negotiating session,
and at the conclusion of this meeting Union Representative
Seale told President McGwier that he would like to have the
Company put the employees back to work. Seale was then
told that possibly a few strikers could return in a day or so,
but Seale replied there was work to be done and in his
opinion "they should all be put back." On July 27 and 28
there was additional picketing at the plant premises.
During the above intervals nonstriking employees were
permitted to work at the plant and Respondent began re-
placing the striking employees. Thereafter, beginning on
August 1, Respondent started reinstating the striking em-
ployees and at the present time has reinstated all those
striking employees who wished to return to work except for
employee Lloyd Hutto, whom Respondent considers not
subject to reinstatement.
President McGwier testified that he was advised of the
strike on the morning of July 20, and upon his arrival at the
plant soon after the employees walked out, he found part of
some pews "glued up" and with "open joints"; said that
there was a lot of material throughout the plant that should
have been worked on; and further stated there were also
materials in the finishing room that had been left without
any spray or seal on them. McGwier said that he had to
throw out the wood that had been partially glued, but by
everyone working 48 hours on an emergency basis they were
able to save the materials or products in the finishing room
by reworking it, and then getting it "sealed up."
A threshold and overriding question in this proceeding is
the status of Lloyd Hutto. The Respondent has taken the
position that Hutto is a supervisor, and also maintains that
since Hutto applied for his social security retirement bene-
fits he removed himself from the labor market. There also
appears to be an argument that Hutto had been replaced by
Frank Reynolds during the period relative hereto.
Hutto was a longtime employee of Respondent, having
worked at the plant for many years, and he considered
himself classified as a labor leaderman in the chancel de-
partment. In fact, the job classification of leaderman was
included in the bargaining unit in Case 15-RC-4879 pur-
suant to a stipulation for certification upon consent elec-
tion , and Hutto voted without challenge in the election of
June 8 , and has served since then as a member of the
Union's negotiating committee. This record shows that
there were three employees in the chancel department at
times material hereto-Hutto was paid $3.50 per hour, em-
ployee Ben Pugh was paid $3.25 per hour, and employee Jim
Ott was paid $2.50 per hour. Hutto punched a timecard like
the other employees.;
This record shows that Hutto generally performed the
same manual work as other employees in the chancel de-
partment, except for perhaps when he would pick up new
orders from the office. Hutto gave credited testimony that
he was never consulted about wage increases or promotions,
and that instructions showing work to be performed were
numbered by Superintendent Pruett as to the order in which
the work was to be done .4 Hutto also gave reliable testimony
that when new orders were brought in from the office the
employees would look at them and each knew what he was
supposed to do without having to get instructions from
him.' As pointed out, Hutto was consulted occasionally by
Pruett or McGwier as to whether the chancel department
could get out a specific order by a certain deadline, and he
would then suggest that overtime would or would not be
necessary but, in essence, the final decision would be made
by Pruett or McGwier. In these regards McGwier even ad-
mitted that Hutto would "almost always" contact him or
Pruett.
In the final analysis this record shows that Superinten-
dent Pruett was in and out of the chancel department quite
often and provided the needed and necessary supervision.
Hutto had no authority to discipline employees or warn
them nor could he criticize an employee, promote, hire, or
fire an employee.' As pointed out, the Respondent did not
consider Hutto to be a supervisor for he was included in the
consent election agreement and voted, and he was also per-
mitted to participate in negotiations as a member of the
Union's negotiating committee without objection. Even
during negotiations Hutto was classed as a labor leader on
a list of employees and classifications furnished to the
Union by Respondent. The record is clear that Hutto was
a nonsupervisory leadman and who, outside of his normal
job, merely helped in the necessary daily coordination of
J The Respondent produced testimony through Ben Pugh to the effect that
Hutto was his immediate supervisor . He testified that Hutto told him when
to work overtime, would give him time off, would tell both him and Ott what
jobs to do and how to do them, and also stated that Hutto made the decisions
as to what type of work they were assigned to. McGwier testified that Hutto
was in charge of the chancel department and that he was responsible for the
production and that it was also his responsibility to supervise the men in his
department. McGwier said that Hutto had the authority to work his employ-
ees overtime without checking with anyone else, that he could give people
time off, and also that he had the authority to reprimand and criticize
emaployees.
An employee by the name of Arnold Campbell took the place of Pugh
a few weeks prior to the strike, and he apparently did the simple operations
in the department, and on one occasion Superintendent Pruett left instruc-
tions with Hutto that if Campbell ran out of work to put him on something
else
5It appears the work in the chancel department is mostly routine in the
sense that everyone knew the work he was to do, and it is also apparent the
relationship among the employees is obviously that of two skilled journey-
ment working with one lesser skilled helper Hutto had the most experience
and performed the most difficult work , Pugh normally built pulpits , and Ott
did the least skilled work
6 Hutto related that on one occasion he received instructions from Pruett
to advise employee Ott to improve his work. However, the employees in the
department agreed that if mistakes in their work did show up the employee
who made the mistake would correct it himself.
McGWIER CO., INC. 495
work by getting the orders from the front office, and occa-
sionally relaying instructions from Pruett or McGwier and
advising management as to the progress of the work in the
department.
The strike on July 20 was in support of the Union's bar-
gaining efforts and was engaged in by a clear majority of
employees, and must be deemed protected concerted activi-
ty. The employees were upset by Respondent's delay at the
bargaining table, but Union International Representative
Grover Seale was not present at the time of the July 19
employee meeting where the strike vote was taken, and the
strike admittedly was not sanctioned by the International
Union or by Seale. There is no contention by the General
Counsel that the strike was an unfair labor practice strike,
and the employees involved must be deemed economic
strikers.
In view of the testimony given by McGwier, the Respon-
dent is apparently claiming that the strike was unprotected
as the employees purposely walked out at a time when they
knew economic damage would be caused because of the
condition in which they left materials. As noted below I
reject this contention. There are no indications in this rec-
ord that there were any serious considerations or discus-
sions at the meeting on July 19 relative to causing economic
damage or "hurt" to the Company by walking out at the
time chosen-8 a.m. on July 20. The General Counsel
points out that from an employer's viewpoint there is actual-
ly no convenient time to commence a strike, and further
notes that the plant here in question quite frequently had
partially finished products left over from the previous day.
The General Counsel further maintains that any inconven-
ience caused the Company was quite commensurate to the
Respondent's discourtesy at the bargaining table the previ-
ous day, and argues that if Respondent had been courteous
or diligent enough to study the Union's proposal the em-
ployees would have been courteous enough not to have
called the strike.
It appears to me that the only permanent damages sus-
tained by the Company during the strike resulted when
certain parts or sections of pews were left partially glued
and upon discovery it was already too late to rework the
materials and, therefore, they had to be discarded. There
was no monetary amount of any kind assigned to this loss,
but from other factors and incidents in this record this loss
would appear to be extremely minor and of no financial
consequence to the Company whatsoever.
The Respondent maintains that on July 21 the Union did
not make an unconditional offer or application to return the
strikers to work, and in support thereof argues that at the
time of the strike McGwier was handling the labor relations
for the Company along with Attorney Ronald Keahey, and
notes that neither of these individuals was directly contact-
ed on the date in question.
On the morning of July 21, Union Representative Seale
called McGwier by phone from Montgomery, Alabama,
and after some preliminary remarks about the strike Mc-
Gwier told Seale that he would appreciate it if he would
come down from Montgomery to Grove Hill and get the
"picket line down" and "get the men back in the plant."
Seale then assured McGwier that he would make necessary
arrangements and would leave as soon as possible. On Fri-
day afternoon, July 21, Seale had the employees cease pick-
eting after he arrived in town, and then went to the plant
premises along with the president of the local, Frankie Cox-
well, and Negotiating Committeeman Lloyd Hutto. Upon
arrival at the plant Seale advised Charles Allred and Super-
intendent Pruett that the pickets were gone and that the
employees would report for work at their usual time on
Monday morning (July 24). Allred then told Seale that there
were no timecards in the rack. Superintendent Pruett con-
firmed this and Seale then asked if they were sure McGwier
wanted the men back in the plant. Allred replied, "I can tell
you this much. We need them." 7 At this time Seale was also
informed that McGwier was out of town, and upon learning
this Seale told Allred that if he did get in touch with Mc-
Gwier to let him know that the employees would be at work
Monday morning. Seale testified that when he talked with
McGwier on the phone Friday morning, July 21, he was told
that the Company "would like to get the men back in the
plant. We have got work to do." He also stated that Mc-
Gwier never said anything to him about looking for replace-
ment employees. Coxwell testified that when the offer of
reinstatement was made Allred told Seale that this matter
was up to McGwier.
The main thrust of the Respondent's argument is that the
offer or application of reinstatement was not made to Mc-
Gwier, and that the Company would have to take all of the
strikers back including Hutto. On the afternoon of July 21,
Seale specifically advised Respondent's number two man,
Plant Superintendent Pruett, and the purchasing agent for
the Respondent that the strike was over and the striking
employees would report to work as usual on Monday morn-
ing.8 It does not adversely affect the validity of this uncondi-
tional offer to return the strikers simply because it was not
made directly to McGwier. Testimony in this record estab-
lished that Superintendent Pruett dealt with the plant per-
sonnel on a daily basis, and had full authority to act and
bind the Company in the matters here under consideration.
Insofar as striker Hutto is concerned, I have previously
found that he was an employee and I now find that on the
date in question he had not been replaced nor had he re-
moved himself from the employment market, as contended
by the Company. Hutto applied for social security benefits
around the first of August, but had no plans on receiving
his annuity until after the first of the year (1973), or when
he was 63 years old which would occur in May 1973. It had
been his intention to work until this time and thereafter he
intended to work until such time as he made the maximum
allowable earnings permitted him under social security, and
there is no evidence that the Company had ever been noti-
fied differently.
McGwier testified that he had received complaints from
7 Allred has the official title of purchasing agent He types up production
orders and sees that they are verified and distributed Allred apparently has
no duties with respect to hiring and firing employees or directing them in
their normal work assignments The Respondent denies he is a supervisor,
and there is insufficient evidence in this record to prove that he is. Admitted-
ly, Pruett is a supervisor and is, in fact, in charge of the entire mill operation.
Neither Allred nor Pruett testified at the trial before me.
8 McGwier had to leave town at noon on a business trip, but it is clear that
the above happenings were in accord with the specific wishes of McGwter
expressed to Seale that morning, as aforestated
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributors about the quality of their work , and said that
there had also been an unhappy condition among some of
the employees in the plant-particularly in the chancel de-
partment-and as a result of these circumstances he had
contacted a man by the name of Frank Reynolds in Mobile,
Alabama . McGwier placed this initial contact with Reyn-
olds about 2 months prior to the strike . McGwier testified
he subsequently made Reynolds an offer to come to work
under Hutto until he learned what was "going on" in the
chancel department , and then if he was satisfactory he
would "give him the department ." He said that in the week
preceding the strike he again contacted Reynolds who ad-
vised him that he could not report for work until Tuesday
(July 25). The next event was that Reynolds reported to
work on July 25 and he was then placed in charge of the
chancel department.
It is the contention of the General Counsel that
Respondent 's obligation to reinstate those striking employ-
ees who had not been permanently replaced , accrued
around 3 p .m., Friday, July 21, when Superintendent Pruett
and Purchasing Agent Allred were notified by Seale that the
strikers would unconditionally report to work the following
Monday morning at their regular reporting time . Upon the
circumstances and for the reasons stated previously herein,
I am in accord that a valid offer to return the strikers was
made, and insofar as Hutto is concerned , there is no reliable
evidence that he had taken himself out of the labor market
nor had Hutto been permanently replaced prior to June 21.
The contention by the Respondent that the Union's offer
was conditional because they were being asked to take all
the strikers back or none-and their argument that striker
Hutto was not entitled to reinstatement-fails, on the basis
as noted beforehand . Furthermore, the contention by the
Company that Hutto had been replaced by Frank Reynolds
becomes rather ridiculous in view of McGwier 's own testi-
mony that Reynolds did not report until July 25, and also
the testimony by McGwier that Reynolds was to work with
and under Hutto until he learned the operations of the
chancel department. It is obvious that the permanent em-
ployment of Reynolds was conditional upon the fullfillment
of several factors.
At 6 a.m., on Monday, July 24, pursuant to the Union's
unconditional application to return the economic strikers,
the returning employees started for the clockhouse on the
plant premises , but Superintendent Pruett , as aforestated,
then chained and locked the gate normally used by employ-
ees to enter the premises . A few of the returning employees
noticed several nonstriking employees working in the plant
and also noticed that there were no timecards in the rack for
the strikers . As indicated , on the mornings of July 25 and
26 the returning employees again found their entrance gate
locked and no timecards for them in the clockhouse, and
also noticed that several nonstriking employees were per-
mitted to enter and work . This record is clear and duly
establishes that the Respondent 's action on the above dates
fully constituted a lockout of the returning strikers .9
9 The Company solicited testimony showing that the finishing room was
not located behind the locked gate , but is a small separate building to which
the employees ' access was not barred However , the fact that an additional
access to the plant existed should not serve to vitiate the effect of Supei inten-
Even in view of the fact that the Company had been
notified on July 21 that the Union had persuaded the em-
ployees to abandon the strike and had made application for
reinstatement of the strikers on Monday morning , neverthe-
less, as stated by the General Counsel , the "Respondent
locked out its employees in retribution for their having en-
gaged in a protected concerted activity, and to maximize the
effect of this upon the employees , permitted those nonstrik-
ing employees to continue working . Respondent then uti-
lized the 3 -day lock out beginning July 24, after the strike
had ceased , as an opportunity to obtain replacements in
derogation of the rights of its striking employees to rein-
statement . Respondent 's locking out of its returning em-
ployees in this case may also be construed as the positive act
of denying reinstatement to those employees who through
their Union representative had made an unconditional ap-
plication to return to work the previous Friday and , in fact,
showed up for work the day the lock out commenced."
In the instant case , unlike the situation in American Ship
Building Co., 380 U . S. 300 ( 1965), and as noted in O 'Daniel
Oldsmobile, Inc., 179 NLRB 398, there is an obvious dispa-
rate treatment of employees in that the Company locked out
only those employees who, by striking , had identified them-
selves as union adherents , while continuing to operate with
those employees who had not joined the strike and then
later with replacements . It cannot be said that Respondent's
action was taken to enhance its bargaining position, for no
bargaining position had yet even been taken by Respon-
dent ; rather , it seems that the purpose of the lockout was to
undermine adherence to the Union by demonstrating to the
employees , by the disparate treatment accorded union and
nonunion employees , the advantages from the standpoint of
job security of rejecting the Union or of refraining from
concerted action in support of the Union.
On the basis of the above, it is found that the lockout in
the instant case was not privileged and, by deliberately lim-
iting the impact of the lockout to those employees who had
struck , Respondent discriminated against them for striking,
and by such action violated Section 8(a)(3) and ( 1) of the
Act.
Since the strikers unconditionally applied for reinstate-
ment on the afternoon of July 21, the Company was re-
quired to take back such of them as had not yet been
permanently replaced . By all indications in this record there
is no question but there was plenty of work available and
that they were needed. Respondent 's Exhibit 6 lists six re-
placement employees who show employment dates on July
20 and 21 , three employees show employment dates of July
24, 25, and 26 , and this exhibit shows the employment date
of Frank Reynolds as of July 17. The General Counsel
classifies the employment dates of replacements reflected in
Respondent 's Exhibit 6 as "outright prevarication "; points
to the fact that only two of the replacements reported to
work on July 24; and notes that most of the replacements
reported to work on and after July 31. McGwier testified
that immediately after the strike started he had the employ-
ment application files brought to him and he and Pruett
went through them in efforts to get help and stated that he
contacted these replacements on the date shown as date of
dent Pruett locking the employees ' normal entrance
McGWIER CO., INC. 497
employment.
It appears to me that, in consideration of all the factors
and circumstances involved, there is a sufficient showing in
this record to justify the General Counsel's position that
Respondent was "jockeying" its dates of employment of
replacements to antedate the Union's application for rein-
statement of the strikers. Respondent's Exhibit 6 shows the
date of employment for Guyon Callier to be July 21, howev-
er, in contrast, his actual application for employment (Resp.
Exh. 9) shows the date of June 31, but Callier testified this
date should have been July 31 and said that he actually
started to work the day after his application was made-
August 1. Callier's application for employment even has
penciled in at the top "called 7/21/72," an obvious inten-
tional effort to show employment on an earlier date, and I
think it a fair inference to assume that other replacements
fall in the same category,1° or, at the most, the date of
employment on Respondent's Exhibit 6 merely reflects
some initial contact with them, as even McGwier seems to
indicate and infer in his testimony. It is noted also there is
no corroborating testimony in this record by the replace-
ments of anyone else to establish their actual dates of em-
ployment or when they agreed to report for work.ll
Where employees engaged in an economic strike, an em-
ployer must reinstate strikers who apply for reinstatement
to positions which are vacant or become vacant thereafter,
but need not discharge strike replacements to make room
for the economic strikers. In the instant case, I find that
there were no replacements actually hired when the strikers
applied for reinstatement on July 21, and the Company was
therefore legally obligated to take all the strikers back.12
I turn now to the Respondent's contention that several of
the strikers engaged in misconduct on July 21 sufficient to
deprive them of reinstatement. The strikers involved are
Wiggins, Sheffield, Wilson, and Ray who followed a car
driven by Jessie Ott. The other incident involved striker
Arnold Campbell who stopped a truck for a few minutes.
Relative to the first incident involving Ott, it was established
that the above-named strikers followed Ott on his way
home, finally stopped his vehicle and then threatened him,
but no acts of violence actually were attempted or occurred
and with the arrival of others everyone involved left the
scene and there were no further difficulties, as previously
noted herein. In the latter incident, also on July 21, Crissie
Cox attempted to drive a truck through the picket line and
was stopped by striker Campbell who stepped in front of the
truck. The truck was then driven through by purchasing
agent Allred a few minutes later.
The test to be applied in dealing with the above is whether
such misconduct was so flagrant as to render the employees
unfit for further service. Respondent's Exhibit 5 shows the
10 McGwier said that he contacted replacements Clyde Baugh and Mar-
shall Robinson on the same day he contacted Callier
11 It would also be difficult to classify James Hicks as a permanent replace-
ment because admittedly he only worked I day
12 Even assuming that the two replacements who reported to work on July
24-Hicks and Cox-were hired prior to the offer to return the strikers, there
still appeared to be ample and sufficient work and existing vacancies for
everyone including all the returning strikers There are no contentions that
the Company had any excess of employees, and the inferences and indica-
tions are that they needed all the help possible
Company attempted to rehire all four of the individuals who
had followed nonstriking employee Ott. Earl Wilson was
returned to work on August 8, and Marvin Sheffield, Jerry
Wiggins, and James Ray were contacted by the Respondent
in its efforts to get them back to work on the dates of August
3, 28, and 29, respectively. It is clear from the above that the
Respondent did not actually regard these employees as unfit
for rehire and, accordingly, it can hardly ask the Board to
find them unfit. It is therefore found that none of the fore-
going events warranted either the locking out of any of the
claimants or denial of their right of reinstatement and back-
pay arising from such lockout.13
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor practices,
occurring in connection with the operations of the Compa-
ny set forth 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 burden-
ing and obstructing such commerce and the free flow there-
of.
V THE REMEDY
In view of the findings above set forth to the effect that
the Company has engaged in unfair labor practices affect-
ing commerce, it will be recommended that it be required
to cease and desist therefrom and take such affirmative
action as appears necessary and appropriate to effectuate
the policies of the Act. Such action shall include an offer of
reinstatement to Lloyd Hutto, and reimbursing him, as well
as all the other claimants, Alvin Flowers, Chester Parnell,
Richard Bedwell, James J. Ott, Van Finnery, Charles Chap-
man, Earl Wilson, Walter Chapman, James Overton, Jessie
Chapman, and Joseph Smith, for any loss of earnings suf-
fered since July 21 by reason of the discrimination against
them. Backpay shall be computed in accordance with the
remedial relief policies of F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Company, 138
NLRB 716. In view of the finding of discriminatory dis-
charge the cease-and-desist provisions hereof should be ap-
propriately broad.
CONCLUSIONS OF LAW
1. Respondent is an employer whose operations affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By locking out employees or claimants on July 24,
1972, because of their concerted activities on behalf of the
Union, and by refusing to reinstate Lloyd Hutto because of
such concerted activities, Respondent has violated Section
8(a)(3) and (1) of the Act.
13 Arnold Campbell apparently resigned his job at the Company on July
20 or 21 See Resp Exh 5
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in this case, and
pursuant to Section 10(c) of the Act , I hereby issue the
following recommended: "
ORDER
McGwier Co., Inc., its officers, agents, successors, and
assigns , shall:
I. Cease and desist from:
(a) Discouraging membership in, and concerted activi-
ties on behalf of, the Union named herein or any other labor
organization , by discriminating against employees in regard
to their hire or tenure of employment or any term or condi-
tion of employment.
(b) Locking employees out of the plant because of their
concerted or union activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form, join , or assist labor organizations,
including the above-named organization, to bargain collec-
tively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. I 02A8
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order and all objections thereto shall be deemed
waived for all purposes.
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Offer Lloyd Hutto immediate full reinstatement to his
seniority or other rights and privileges, and make him and
the other claimants or discriminatees listed above whole for
any loss of pay which they may have suffered as a result of
the discrimination against them, in the manner set forth in
the portion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records, and reports, and all other records necessary to
analyze the amount of backpay due under the term of this
recommended Order.
(c) Post at its plant copies of the attached notice marked
"Appendix." 15 Copies of said notice, on forms provided by
the Regional Director for Region 15, after being duly signed
by Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
15 In the event that the Board 's 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."