National Tape Corp.

National Labor Relations Board - Board Decisions

Dec 17, 1970

187 N.L.R.B. 321 (N.L.R.B. 1970)

NATIONAL TAPE CORPORATION
National Tape Corporation and Textile Workers
Union of America , AFL-CIO. Cases 14-CA-491 1,
14-CA-5070, 14-CA-5132, and 14-RC-6163
December 17, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On February 2, 1970, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent had not engaged in
certain other alleged unfair labor practices. Thereaft-
er, the General Counsel, Respondent, and Charging
Party filed exceptions to the Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following modifications:
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(1) of the Act by
interrogating employees concerning their union activ-
ities ; by telling employees they were not to talk about
the Union; by taking union authorization cards away
from employees; by warning employees not to sign
authorization cards, stating that other employees had
been dismissed for passing out such cards; by telling
employees that they were being continued on layoff
status because of Respondent's belief that they had
signed union authorization cards; and by threatening
striking employees with discharge if they did not
return to work.
2. The complaint alleges that Respondent further
violated Section 8(a)(1) by making certain threats and
by engaging in surveillance . The General Counsel and
Charging Party have excepted to the Trial Examiner's
failure to rule on these allegations . We find merit in
these exceptions. The evidence adduced in support of
i There is also testimony that this surveillance occurred sometime in
March However, it would appear that February 25 is the correct date in
321
these allegations shows that shortly after Foreman
Paul Maes removed union authorization cards from
the pockets of employees Melvin Morber and Amb-
rose Beshears , Maes told Morber that Beshears
"better watch it or he wouldn't be around much
longer" and that he was going to watch both of them.
We find that this threat was designed to prevent the
employees from engaging in any further union
activities and as such violated Section 8(a)(1) of the
Act.
The evidence elicited in support of the surveillance
allegation shows that Maes did in fact engage in
surveillance of Beshears and Morber. Thus, on
February 25, 1969,1 while Beshears was talking to
employees Marvin Hickey and Harvey Bloodworth in
the lunchroom during nonworking time, employee
Morber asked Beshears to walk with him while they
talked. At that time Maes followed and kept an eye on
them from around corners. It is apparent that Maes
was carrying out his threat to engage in surveillance
and in so doing violated Section 8(a)(1).
In February 1969, Foreman Maes and employee
Alan Bundren were engaged in a discussion concern-
ing unions in general. In this conversation, Maes
referred to a "law suit" and then mentioned employ-
ees Morber and Beshears and said "Damn them, it's
all their fault." It is clear that in the above context
Maes held known union supporters Morber and
Beshears responsible for the union activity and for the
results flowing therefrom including the unfair labor
practice charges against Respondent. Hence, the
malice contained in Maes' statement toward these
known union adherents was certain to be coercive and
tended to deter Bundren from engaging in any union
activity in violation of Section 8(a)(1) of the Act.
On March 26, 1969, the Union commenced picket-
ing at the Respondent's plant. Employee Larry Crider
was the strike captain. As strike captain, it was
Crider's duty to see that the picket line was main-
tained. While he was at the picket line Respondent's
Vice President Mario Perri drove by, rolled down his
car window, stuck his finger out shaking it at Crider
and repeated several times , "Larry, baby, you're
mine." We find that this threatening conduct toward
an employee engaged in picket line activity is violative
of Section 8(a)(1) of the Act.
About April 2 or 3, 1969, Perri stopped at the picket
line and called employee Ed Fallin to his car. Perri
opened the conversation stating that he thought Fallin
was his friend. When Fallin replied that he was, Perri
wanted to know if he was his friend what was he doing
on the picket line. In response, Fallin stated that he
wanted his rights and wanted to be treated like a
human being. Perri then stated that he knew where
that employees Hickey and Bloodworth who, according to Beshears, were
present at the time the surveillance took place , were laid off on that date.
187 NLRB No. 41
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fallin lived and he would hate to have to attend his
funeral. We find that this threat of bodily harm
towards an employee because of his picket line
activity is a clear violation of Section 8(a)(1).
3. We agree with the Trial Examiner's findings
that Respondent laid off employees Martell McAnel-
ly, Kenneth Pedigo, Thelma Pulley, Lillian Barr, on
October 23, 1968, discharged Freely Barnett on
November 23, 1968, and laid off Ruth Gurley on
February 25, 1969, in violation of Section 8(a)(3) and
(1) of the Act.
4. We also agree with the Trial Examiner's
findings that Respondent did not violate Section
8(a)(3) and (1) of the Act by laying off employees Ann
Gartner, Ernie Williams, Alan Bundren, Jack Mor-
gan, and James Morgan. We find, however, contrary
to the Trial Examiner, for reasons set forth below, that
Respondent violated Section 8(a)(3) and (1) by
discharging employee Barr on January 23, 1968, after
reinstating her from a discriminatory layoff; by laying
off employees Marvin Hickey and Donald Blood-
worth on February 25, 1969; and by laying off
employees Ambrose Beshears, Larry Crider, and
transferring employee Melvin Morber to Jackson
County Woodworks on March 24, 1969.
Employee Lillian Barr was hired on October 8,
1968, as a packer and rewinder. On October 23, 1969,
Barr was laid off assertedly for production difficulties.
During her layoff, Barr contacted Supervisor Mildred
Lacey and asked when she was going to be recalled. In
response, Lacey stated that Maes had said that Barr
and employee Pulley had signed union cards. Barr
denied this accusation and said that she would
contact the Labor Board and a friend in the Herrin
Chamber of Commerce to see what they could do for
her. Lacey then asked Barr to wait a few days in that
Perri was in New York and that she would talk to him
again . Barr was recalled on November 11, 1968.
The Trial Examiner correctly concluded that Barr
was discriminatorily separated. Barr's troubles, how-
ever, did not end with her reinstatement. She was
subsequently discharged on January 23, 1969, by Paul
Shalita, a management representative, for allegedly
packing second grade tape with first grade tape.2 Barr
denied packing the second grade tape. The record
shows that employees on the shift before and after
Barr had packed the same kind of tape which Barr
packed on the night preceding her discharge. The
evidence also shows that when a shift ended and a box
was partially packed it was finished by the employees
2 At first , Foreman Amo Hand testified that Barr was discharged for
packing first grade tape with second grade tape but later in his testimony
indicated that Shalita told him that second grade tape was put in with first
grade Barr testified that the reason given for her discharge was the packing
of second grade tape , which she referred to as "bad tape ," with first grade
tape . Shalita did not testify at this proceeding
3 We find that the evidence is sufficiently clear that employees were
on the next shift without checking what had been
previously packed in the partially filled box. But, even
if Barr had packed, as alleged, the second grade tape
with the first grade tape she was doing so pursuant to
the instructions of General Manager W. R. Henning-
son who had told her to put about one roll of second
grade tape in with first grade tape. Further, packer
Linda Murphy testified that Perri had told her to pack
second grade tape with first grade tape.3
As the evidence shows that other employees on
different shifts had packed the same kind of tape
packed by Barr and that Respondent's representatives
had told Barr and at least one other employee to pack
second grade tape with first grade tape, we are
convinced that the ground advanced for the discharge
of Barr was a mere pretext to disguise Respondent's
real motive which was to rid itself of an employee
whom it continued to believe was a supporter of the
Union.
Employee Marvin Hickey was hired on October 12,
1968, as a helper on the slitting machine and was
promoted to operator and received a pay increase. He
introduced his friend Donald Bloodworth to Perri
who hired Bloodworth on November 24, 1968, to be
Hickey's helper on the slitter. Hickey and Bloodworth
had never been criticized for their work and foreman
Hand told Hickey that he slit the best half-inch tape
they had ever produced. On February 13, 1969,
Hickey and Bloodworth signed authorization cards
for the Union. On February 23, 1969, Hickey and
Bloodworth attended a union meeting in the Textile
Workers' union hall. This hall in Herrin is identified
by a sign on the window, and is so situated that
occupants inside can be seen through a large plate
glass window and those persons entering and leaving
the hall can be seen from various vantage points. As
set out above, at lunchtime on February 25, 1969,
Hickey and Bloodworth were talking to employee
Beshears who had been warned by Respondent about
his union activities and threatened with surveillance.
Employee Morber, who had also been threatened
with surveillance, approached Hickey and Beshears
and walked off with Beshears at which time Foreman
Maes trailed and kept an eye on them.
Later that same day, both Hickey and Bloodworth
were laid off. They were told that their layoff was
because the plant did not have enough rubber and
cloth to make tape. In point of fact, however, there
was a supply of rubber already on hand and a supply
of cloth had been received the day before the layoff.
instructed by Hennmgson and Perri to pack second grade tape with first
grade tape . This evidence stands uncontradicted by Perri and Henningson
who testified at this proceeding Also as we read the record, Barr
consistently took the position that she did not know whether she packed
the box in question but was sure that she did not pack the bad tape in that
box
NATIONAL TAPE CORPORATION
Prior to the slitting operation rubber is placed on the
tape by the use of calender machines. These machines
were in operation at the time of the layoff and
continued thereafter without a reduction in prod-
uction. The record also discloses that at the time of the
layoff the. -e was material on hand that was ready to be
slit. In fact, the slitting operation continued at the
same level after the layoff as it had prior thereof.
As there was no shortage of material for slitters'
work, the reason given for the layoff of Bloodworth
and Hickey clearly was a pretext.4 Both employees
had provided satisfactory services. Nevertheless, 12
days after they signed union cards, 2 days after they
attended a union meeting and a few hours after they
were observed talking with employee Beshears,5 an
active union supporter, both employees were laid off.
In these circumstances, we find that Hickey and his
helper Bloodworth were laid off because of Respon-
dent's desire to rid itself of suspected union support-
ers.
Employee Larry Crider was hired in January 1969,
as a slitter operator. He obtained authorization cards
at a union meeting that he attended. In the week
preceding his layoff, he solicited employees' support
for the Union and obtained authorization card
signatures from eight of them. General Manager
Henningson was in the area at the time these
solicitations took place. These events occurred about
the time the Union filed a petition for an election on
March 19, 1969. On March 23, Crider attended a
union meeting at the Textile Workers hall. When he
went to work the following day he was told by
Foreman Brantley that he was being laid off because
they were "cutting back." As indicated above, at that
time tape was waiting to be slit and the operators were
unable to keep up with the work then available. The
calender machines that produce tape for slitting were
working full time and there was no reduction in the
work going to the slitters.
Under these circumstances, we find that Respon-
dent's asserted reason for laying off Crider to be
pretextual, and that Respondent's real reason was to
rid itself of a union organizer thereby discouraging
union activity.
Employees Melvin Morber and Ambrose Beshears
were hired in May and June 1968. In October 1968,
4 Contrary to our dissenting colleague , Respondent did not defend its
action with regard to the layoffs on grounds that a cutback was necessary
as a result of a reduction in sales and a shortage of raw materials For, the
only evidence elicited concerning specific reasons for the layoff of
Bloodworth , Hickey and the March layoff , discussed infra, of Crider,
Beshears , and the transfer of Morber, was their own testimony as to what
they were told by Respondent and not testimony of Respondent's
representatives Respondent 's representatives did not give specific
testimony on this matter . The record shows that at the hearings held in
Case 14-CA-491I, prior to the issuance of the complaint concerning the
above-named employees , Respondent 's representatives gave testimony in
defense of the 8(a)(3) allegations involving employees McAnelly, Pedigo,
323
Beshears received three authorization cards from
employee McAnelly and was told to sign one card and
pass out the other cards. Later that day without saying
a word Foreman Maes removed them from Beshears
pocket. Maes then went over to talk to Vice President
Perri. The next day, Personnel Director Mildred
Lacey warned Beshears against soliciting for the
Union and told him that Respondent had rid itself of
two other employees who were passing out authoriza-
tion cards and that his name was mentioned.
About the same time Foreman Maes caught Morber
with an authorization card and removed it from his
possession. The next day Maes told Morber that the
employees would have difficulty in getting the Union
and that Beshears had better watch out or he would
not be around much longer. Maes further told Morber
that he was going to watch both of them. As set out
above, Maes did keep them under surveillance. In
fact, Maes indicated to employee Bundren in Febru-
ary that Beshears and Morber were responsible for the
"law suit" against Respondent.
On March 7, 1969, Beshears and Morber testified in
support of the allegations in the original and first
amended complaint. After the initial hearing, Besh-
ears continued his activity of soliciting support for the
Union. He attended all union meetings. In fact he
acted as a liaison between the Union and employees
by keeping them informed of when such meetings
would be held. On March 23, Beshears attended a
union meeting and was laid off the following day. He
did not testify as to why he was laid off. On the same
day, Morber was transferred to Jackson County
Woodworks. Morber testified that upon asking why
he was being transferred, Maes replied "it was either
that or get laid off."
On the basis of the foregoing, we are convinced that
Respondent laid off Beshears and transferred Morber
for antiunion reasons. Neither employee was given a
satisfactory explanation by Respondent for the action
taken. While it appears that Morber was not as active
in the Union as Beshears, it is apparent that
Respondent identified both as being union support-
ers. This is clearly demonstrated by the 8(a)(1)
conduct that was directed against them by Respon-
dent. Accordingly, we conclude that the layoff of
Beshears and the transfer of Morber were but part of
Pulley, Barr , and Barnett. This included testimony that Respondent was
generally experiencing production problems with regard to the quality of
the tape and that there were layoffs because of these problems.
Subsequently , a complaint issued in Case 14-CA-5070 and was
consolidated with Case l4-CA-491 I This complaint alleged , inter alia, the
discriminatory layoff of Bloodworth , Hickey, Crider, Beshears and the
discriminatory transfer of Morber . At the hearing on this complaint, the
supervisors of these employees did not testify although Maes and Hand
had testified at the earlier unfair labor practice proceeding . Perri and
Henningson , however, were again called as witnesses but did not testify as
to why these employees were terminated
5 Beshears testified that he was talking to both Hickey and Bloodworth
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's unremitting effort to rid itself one by
one of the union supporters at National Tape.
5. The Trial Examiner found that the strike which
commenced on March 26, 1969, and terminated on
May 21, 1969, was an economic rather than an unfair
labor practice strike. In so holding, the Trial Examin-
er relied on the following facts. On the morning of
March 26, 1969, a union meeting was held. A majority
of the employees present at that meeting were those
employees who were laid off on March 24. After
airing the plight of the laid off employees, a vote was
taken in which the employees decided to take strike
action. Later that same day, picket lines were
established. Certain employees who did not attend the
strike meeting and were unfamiliar with the cause of
the strike nevertheless refused to cross the picket line.
The Trial Examiner was of the view that the strike was
caused by the recent March 24 layoff and since he
dismissed the 8(a)(3) allegations with respect to those
laid off employees he concluded that the strike was
not an unfair labor practice strike, but rather an
economic strike.
The General Counsel and Charging Party excepted
to this finding. We find merit in this exception.
Having found, contrary to the Trial Examiner, that on
May 24 Respondent discriminatorily laid off employ-
ees Beshears and Crider and discriminatorily trans-
ferred Morber, we also find that the strike which was
triggered by such discriminatory action was an unfair
labor practice strike rather than an economic strike as
found by the Trial Examiner.
We further find that while the strike was triggered
by the March 24 discriminatory layoffs and transfer it
was also provoked by earlier unfair labor practices
committed by the Respondent. As found herein,
Respondent from the beginning of the Union's
organizing campaign interfered with, restrained, and
coerced its employees in violation of their Section 7
rights. Respondent not only engaged in unlawful
interrogation, surveillance, and threats, but also
sought to rid itself of union supporters by layoffs,
discharges , and transfers. On March 19, the Union
filed a petition for an election and on March 23 held a
meeting to discuss the pending petition. Employees in
attendance at that meeting expressed their concern
over Respondent's conduct. They discussed the
separation of employees and stated their belief that
employees who attended union meetings were select-
ed for layoff or discharge. They asked Union
Representative Ford why it had taken so long to get
an election , what had become of the unfair labor
practice charges that were filed for the employees who
were laid off, and why Respondent continued to
watch and harass them on union activities.
On March 24, Respondent laid off several employ-
ees including Beshears , Crider and transferred Mor-
ber. Some of the very same employees who were
protesting, on March 23, the earlier layoffs now found
themselves laid off. As a result thereof, the employees
again met on March 26 and discussed the continuing
layoff and transfer of union supporters and decided to
strike. The discussion at that meeting, however, was
not confined to just the recent terminations. Certain
unfair labor practices that preceded the March 24
layoff were also discussed at that meeting. Thus, the
record discloses that the February 25 discriminatory
layoffs of employees Gurley, Hickey, and Bloodworth
were a subject of discussion. Also, employee Beshears
testified that he stated at the March 26 meeting that
Respondent seems to be laying off union card signers
and keeping those who had not signed cards. He also
told the employees at the meeting that Respondent
had taken union cards out of his pocket at the plant
and warned him if he signed any union cards he
would be discharged. According to Union Represent-
ative Ford, the employees expressed the opinion that
the way things were going none of the union
supporters would be left at the time of the election and
also expressed dissatisfaction with the progress made
in resolving the earlier unfair labor practices. After
the strike commenced on March 26, Respondent
continued its unlawful conduct by threatening strikers
with bodily harm and discharge.
The strike was terminated on May 21, 1969, on
which date a letter was addressed to the Respondent
by the Union. The letter contained an unconditional
offer on behalf of the striking employees to return to
work. After receiving the letter, Respondent sent a
letter dated May 28, to the strikers directing them to
come to the plant and state whether they were
available for rehire.6 Most of the strikers responded to
this letter, but were not immediately reinstated. Later,
some of the strikers were recalled to work. On June 20,
a representation election was held with the challenged
ballots sufficient in number to affect the results of the
election. Objections to the election were filed by the
Textile Workers Union. However, on July 28, Res-
pondent's plant burned down which rendered unfeas-
ible further operations.
On these facts, we find that the strike was provoked
by Respondent's overall unfair labor practices that
were part of a deliberate effort that began in October
1968 to eradicate union activity among its employees.
If the employees had not taken into consideration
Respondent 's earlier unfair labor practices, the
March 24 separations might have passed without
incident. However, the record demonstrates that the
employees were well aware of Respondent's previous
9 Respondent had hired replacements to fill the job vacancies created
by the strike.
NATIONAL TAPE CORPORATION
unlawful conduct. The March 24 terminations,
including the discriminatory layoff of employees
Beshears and Crider and the discriminatory transfer
of Morber, were, so to speak, the trigger for the strike
because of Respondent's overall unfair labor prac-
tices. Accordingly, as this was an unfair labor practice
strike, Respondent violated Section 8(a)(1) and (3) of
the Act by not recalling the strikers at the time they
made their unconditional offer to return to work.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
We have found that Respondent discriminatorily
laid off Martell McAnelly, Kenneth C. Pedigo, Lillian
Barr , and Thelma Pulley on October 23, 1968;
discriminatorily discharged Freely R. Barnett on
November 23, 1968, and Lillian Barr on January 23,
1968, after reinstating her from the earlier discrimina-
tory layoff on November 11, 1968; discriminatorily
laid off Ruth Gurley, Marvin Hickey, and Donald
Bloodworth on February 25, 1969; and discriminato-
rily laid off Ambrose Beshears , Larry Crider, and
unlawfully transferred Melvin Morber on March 24,
1969. We shall therefore order that the Respondent
remedy such unlawful conduct by making these
employees whole for any loss of earnings they may
have suffered as a result of the discrimination against
them in the following manner.
Discriminatees McAnelly, Pedigo, Barnett, Barr,
Gurley, Bloodworth, Hickey, Beshears,7 and Morber8
were not offered reinstatement to their former or
substantially equivalent positions without loss of
seniority or other rights and privileges. We shall order
the Respondent to make these employees whole from
the dates of their discrimination to the dates on which
their jobs would have normally ceased by reason of
Respondent's termination of the Herrin, Illinois,
operation. The Trial Examiner found that discrimina-
tee Pulley received an offer to return to work on
January 27, 1969. We shall order the Respondent to
make her whole from October 23, 1968, the date of
discrimination, to January 27, 1969, the date of the
Respondent's offer of reinstatement. Discriminatee
Crider was reinstated by Respondent during the week
7 On March 29, Beshears received a telegram stating "please report to
work at National Tape Corp. at 3 p in . today." We do not consider this to
be a valid offer of reinstatement to an 8(aX3)
s On March 27, Morber talked by phone to supervisor Brantley. He
asked if they needed help at National Tape and was told "Yes, come on
over " The next morning he went to National Tape to report for work but
on arriving there found that a picket line had been set up He had not
previously known of the picketing but upon seeing the picket line refused
to cross and in fact engaged in picketing on that day On the same day, he
received a telegram stating "Please report today 3/28/69 at National Tape
on your regular scheduled shift if not you will be permanently replaced "
325
ending August 16, 1969. We shall order the Respon-
dent to make him whole from the date of his
discrimination to the date of his reinstatement.
We have also found that the strike which com-
menced on March 26, 1969, was caused by Respon-
dent's unfair labor practices and was therefore an
unfair labor practice strike; that on May 21, 1969, the
Union, on behalf of the striking employees, made an
unconditional offer to return to work; that Respon-
dent did not immediately reinstate the strikers; and
that Respondent thereafter did reinstate some but not
all of the strikers. Accordingly, we shall order
Respondent to make whole the unfair labor practice
strikers for any loss of pay they may have suffered by
reason of Respondent's failure to reinstate them by
the payment to them of a sum of money equal to the
amount they would have earned in wages during the
period from May 21, 1969, to the dates they were
reinstated or offered reinstatement, as the case may
be, or if neither, then the dates on which their jobs
would have normally ceased by reason of Respon-
dent's termination of the Herrin, Illinois, operation.
We shall leave for determination during the compli-
ance stage of this proceeding Respondent's backpay
liability, if any, to each of the individuals alleged to be
unfair labor practice strikers and, where liable, the
discriminatory period for each with regard to the
computation of such backpay.
The employees covered by this section of the
Decision shall be made whole in accordance with the
formula approved in F. W. Woolworth Company, 90
NLRB 289, with interest thereon computed in the
manner and amount prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716.
We agree with the Trial Examiner that a reinstate-
ment order need not be required under the circum-
stances of this case. The record shows that the plant
burned down on July 28, 1969. The Respondent
attempted without success to acquire other facilities in
the Herrin, Illinois, area so as to continue its
operations. The Respondent then purchased a plant
in Woodbine, New Jersey, and moved the Herrin
facilities there. At the time of the hearing, the New
Jersey plant was about to go into production and
General Manager Henningson was to move to
Woodbine, New Jersey. The General Counsel has not
requested reinstatement at the New Jersey plant nor is
Respondent made no attempt to assure Mother that this offer of
reinstatement to his regular shift would be to his former or a substantially
equivalent position without prejudice to his seniority and other rights and
privileges which he may have enjoyed at the time of the discriminatory
transfer . Moreover, even if the offer were considered valid in these
respects, we would still find it to be inadequate by its own terms since it
was limited timewise to an unreasonably short period in that Morber was
required to accept such offer on the very day it was received by him.
Under these circumstances , we do not consider the offer of reinstatement
to be a valid one.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there evidence that Respondent plans to operate in
the foreseeable future in the Herrin area. In these
circumstances, we find no basis for fashioning a
reinstatement order at Herrin where no plant is in
existence and no future operations are contemplated.
We shall, however, order Respondent to mail a copy
of the notice herein, after the notice is signed by
Respondent's representative, to each of the former
employees of the Respondent's Herrin plant who were
employed during the time the unfair labor practices
were committed.
THE CHALLENGED BALLOTS AND OBJECTIONS IN
CASE 14-RC-6163
For the reasons stated by the Trial Examiner, we
would find that, in the circumstances of this case, the
policies of the Act would not be effectuated by
resolution of the question concerning representation.
ADDITIONAL CONCLUSIONS OF LAW
Amend Conclusion of Law number 3 in the Trial
Examiner's Decision to read as follows:
3. By laying off employees Martell McAnelly,
Kenneth C. Pedigo, Thelma Pulley, Lillian Barr, on
October 23, 1968; by discharging Freely Barnett on
November 23, 1968; by laying off Ruth Gurley,
Marvin Hickey, and Donald Bloodworth on February
25, 1969; and by laying off employees Ambrose
Beshears, Larry Crider and transferring Melvin
Morber on March 24, 1969; Respondent engaged in
discrimination to discourage membership in the
Union, thereby engaging in unfair labor practices
proscribed by Section 8(a)(3) and (1) of the Act.
Add the following two paragraphs after Conclusion
of Law number 3 in the Trial Examiner's Decision, as
amended above, and renumber subsequent Conclu-
sions of Law accordingly:
4. The strike in which Respondent's employees
engaged beginning on March 26, 1969, was an unfair
labor practice strike.
5. By refusing to immediately reinstate the unfair
labor practice strikers who applied for reinstatement,
Respondent engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
National Tape Corporation, Herrin, Illinois, its
officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees as
to their union activities.
(b) Telling employees they were not to talk about
the Union.
(c) Taking authorization cards away from employ-
ees.
(d) Warning employees not to sign union authoriza-
tion cards.
(e) Telling employees that they were being contin-
ued in layoff status because they had signed union
authorization cards.
(f) Threatening employees with discharge.
(g) Threatening employees with bodily harm for
supporting the Union.
(h) Engaging in surveillance of employees' union
activities.
(i) Discharging, laying off, transferring, or otherwise
discriminating against employees because they sup-
port and are active on behalf of the Union or any
other labor organization.
(j) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist any labor
organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any or all such activities, except to the
extent that such right is affected by the proviso to
Section 8(a)(3) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make whole Martell McAnelly, Kenneth Pedi-
go, Thelma Pulley, Lillian Barr , Freely Barnett, Ruth
Gurley, Marvin Hickey, Donald Bloodworth, Amb-
rose Beshears, Larry Crider, and Melvin Morber, for
any loss of pay which they may have suffered by
reason of the Respondent's discrimination against
them in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Make whole the unfair labor practice strikers for
any loss of pay they may have suffered by reason of
the Respondent's discrimination against them 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 the Order.
(d) Mail a copy of the attached notice marked
"Appendix" 9 to each employee who was employed
s In the event that this Order is enforced by a Judgment of a United of the National Labor Relations Board" shall be changed to read "Posted
States Court of Appeals, the words in the notice reading "Posted by Order Pursuant to a Judgment of the United States Court of Appeals Enforcing
NATIONAL TAPE CORPORATION 327
during the time the unfair labor practices were
committed.
(e) Notify the Regional Director for Region 14, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith. -
IT IS FURTHER ORDERED that all allegations of the
complaint not specifically found to involve violations
of the Act be, and they hereby are, dismissed.
CHAIRMAN MILLER, dissenting in part:
Contrary to the majority, I would reverse the Trial
Examiner only insofar as he failed to find that the
strike of March 26, 1969, was an unfair labor practice
strike 10 and that Respondent violated 8(a)(1) through
Foreman Maes' threat to Morber and Beshears,
through the impression of surveillance created by
Maes in following employees Morber and Beshears,
and through Vice President Perri's threat to Fallin.
I disagree with the additional 8(a)(1) violations
found by the majority. In my opinion, the statement
by Maes blaming Morber and Beshears for the
"lawsuit" and Perri's comment to Crider, "Larry
baby, you're mine," though, perhaps intemperate and
demonstrating animus towards employee activity on
behalf of the Union, were vague and failed to fall
within accepted standards for 8(a)(1) violations.
For the reasons set forth below, I would also affirm
the Trial Examiner's dismissal of alleged 8(a)(3)
violations relative to the discharge of Barr, the layoff
of Hickey, Bloodworth, Crider, and Beshears, and the
transfer of Morber.
Barr was terminated on January 23, 1969 because
she allegedly packed bad tape. Although at the time of
an earlier layoff in October 1968, Barr was thought by
Respondent to have executed a card, she had not in
fact done so and at no time did she openly engage in
any form of union activity. Further, the record
contains no evidence suggesting that, as of the time of
her discharge, Respondent continued to believe that
she was a union supporter. The Trial Examiner, in
dismissing, found "no credible evidence that . . . Barr
was discriminatorily discharged ..." The majority
reverses, concluding that the asserted ground for the
discharge was pretext. In doing so, the majority relies
solely upon rather vague testimony that employees
had been instructed to pack second grade tape with
first grade tape.ii Nonetheless, from Barr's own
testimony, it is clear that any such instructions would
not justify the packing job which led to her discharge.
Thus, Barr's own opinion concerning the tape she was
accused of packing was expressed as follows: ". . . a
two year old wouldn't pack that kind of tape."
an Order of the National Labor Relations Board "
10 My conclusion in this regard is based solely upon evidence showing
that the strike was provoked by Respondent 's overall pattern of unfair
labor practices and employee dissatisfaction with the progress being made
Furthermore, while Barr initially testified that she
didn't know whether she packed that box, then denied
that she had, on cross-examination she admitted she
couldn't be sure as to whether or not she had packed
it. In these circumstances , including Barr 's admission
that Respondent was troubled by quality control
problems at the time of her discharge, it seems clear
enough that the General Counsel has failed to cast
doubt upon the valid cause assigned by Respondent
for the discharge, and that the Trial Examiner
correctly found that there was no credible evidence
that Barr was discharged for reasons other than
packing low grade tape in first quality boxes.
Also without merit is the majority's finding that
Hickey and Bloodworth, a slitter operator and helper,
respectively, were laid off for discriminatory reasons.
The union activities of each were limited to signing
cards and attending union meetings . The majority
reverses the Trial Examiner' s dismissal on grounds
that the stated reason for the layoff was pretext. In so
concluding, they point to a statement by a low-level
supervisor that the terminations were attributable to a
shortage of materials. The majority finds this unsup-
ported by the record in view of evidence showing that
a supply of rubber and cloth was on hand at the time
of the layoff. At best, this evidence is inconclusive.
Respondent defended its action on grounds that a
cutback was necessary as a result of a reduction in
sales, and that, due to a shortage of raw materials, a
slitter operator and helper could be eliminated. I have
no quarrel with the majority's findings that tape
making materials were available at the time of layoff.
Respondent did not suspend slitting operations and
therefore some material was obviously on hand when
the layoff occurred. The key question is how much?
The availability of some material would hardly refute
Respondent's explanation that short supplies made it
feasible to dispense with the services of one slitter
operator and helper. Yet there is absolutely no
indication in the record that would support a finding
that materials were on hand in such abundance as to
justify continued employment of these workers.
Hickey himself testified that the quantity on hand at
the time of layoff could have been exhausted in less
than a week. But aside from the General Counsel's
failure to refute the assigned reason for the layoff,
additional factors negate the existence of discrimina-
tory motivation. Thus, the General Counsel concedes
that replacements were never hired to fill the jobs of
Hickey and Bloodworth. Additionally, though the
General Counsel points to the fact that the layoff
in efforts seeking to obtain a remedy through Board procedures
11 The record shows that there were at least three or four different
qualities of tapes The testimony concerning the instructions is vague and
does not indicate that employees were licensed to pack the lowest grade
tape with that of the highest quality
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
followed shortly after Hickey and Bloodworth attend-
ed a union meeting, the record also shows that five of
the six remaining slitter operators and helpers also
attended that meeting and were retained. I would
affirm the Trial Examiner's dismissal.
The majority also reverses the Trial Examiner by
finding that Crider and Beshears were laid off and
Morber transferred, all in violation of Section 8(a)(3).
I disagree. Each incident occurred contemporaneous-
ly with the layoff of five additional employees. The
group layoff and transfer was explained by Respon-
dent to have been dictated by a lack of orders and
excessive inventory. The record contains no evidence
to the contrary. Indeed, the Trial Examiner stated that
the record contains ". . . no credible facts which
either by inference or otherwise support a prima facie
case for the General Counsel as it concerns the above-
mentioned employees." Yet the majority finds Cn-
der's layoff unlawful because production materials
were available and his department continued to
operate thereafter. In my opinion, these considera-
tions are not inconsistent with Respondent's reason
for the layoff and are plainly insufficient to support
reversal of the Trial Examiner. Nor can I agree with
the majority, that in the case of Beshears and Morber,
the action taken against them must have been
unlawful because they were the object of certain
8(a)(1) conduct some 6 months previously. In my
opinion, the majority has failed to establish valid
reasons for distinguishing Crider, Beshears, and
Morber from the other five employees, which the
majority concedes were lawfully terminated simulta-
neously with, and for the same reasons, as the former
group. Here again, I would affirm the Trial Examin-
er's dismissal.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate any of our
employees concerning their union activities.
WE WILL NOT tell our employees that they
cannot talk about the Union.
WE WILL NOT take union authorization cards
away from our employees.
WE WILL NOT tell our employees not to sign
union authorization cards.
WE WILL NOT tell our employees that they were
being continued in layoff status because they had
signed union authorization cards.
WE WILL NOT threaten our employees with
discharge.
WE WILL NOT threaten our employees with
bodily harm for supporting the union.
WE WILL NOT engage in surveillance of our
employees union activities.
WE WILL NOT discharge, layoff, or transfer any
employee because of his or her membership in, or
activity on behalf of, the Union or any other labor
organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of your
rights under the National Labor Relations Act, as
amended.
WE WILL make whole Martell McAnelly, Ken-
neth Pedigo, Thelma Pulley, Lillian Barr, Freely
Barnett , Ruth Gurley, Marvin Hickey, Donald
Bloodworth, Ambrose Beshears, Larry Crider, and
Melvin Morber, for any loss of pay they may have
suffered as a result of our discrimination against
them, in the manner set forth in the section of this
Decision entitled "The Remedy."
WE WILL make striking employees whole for any
loss of pay suffered by reason of our refusal to
reinstate them in the manner set forth in the
section of this Decision entitled "The Remedy."
NATIONAL TAPE
CORPORATION
(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 compliance
with its provisions may be directed to the Board's
Office, 1040 Boatmen's Bank Building, 314 North
Broadway, St. Louis, Missouri 63102, Telephone
314-622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: The original charge
in Case 14-CA-4911 was filed by Textile Workers Union of
America, AFL-CIO, herein referred to as the Textile
Union, on November 25, 1968, and served on Respondent,
National Tape Corporation, by registered mail on or about
the same date. Complaint and Notice of Hearing was issued
on January 8, 1969; the first amended charge was filed and
served on February 12, 1969; and the amendment to
complaint was issued February 12 , 1969. The amended
complaint charged that the Respondent had violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, herein referred to as the Act, by certain specific
NATIONAL TAPE CORPORATION 329
acts of interrogation and threats all designed to dissuade
employees from becoming or remaining members of the
Textile Union. Additionally it was alleged that the
employer discriminatorily, in violation of Section 8(a)(3) of
the Act, laid off and failed to recall employees Martell
McAnelly, Kenneth Pedigo, Lillian Barr, and Thelma
Pulley and discriminatorily discharged Freely R. Barnett
on or about November 23, 1968. The Respondent filed
timely answer denying that it had engaged in or was
engaging in the unfair labor practices alleged.
The case came on for hearing on March 6 and 7 and April
21, 1969, at Herrin, Illinois. Each party was afforded a full
opportunity to be heard, to call, examine and cross-
examine witnesses , to argue orally on the record , to submit
proposed findings of fact and conclusions, and to file briefs.
Thereafter on April 14, 1969, the Textile Union filed a
charge in Case 14-CA-5070 which was served on the
Respondent by registered mail on the same date. A
complaint was issued on May 19, 1969. The complaint
alleged that the Respondent had violated Section 8(a)(1) of
the Act by specific interrogations and threats, all designed
to dissuade employees from becoming or remaining
members of the Textile Union. Additionally, it was alleged
that the employer in violation of Section 8(a)(3) of the Act
discriminatonly laid off or discharged Harvey Bloodworth,
Marvin Hickey, and Ruth Gurley on February 25, 1969,
discriminatorily laid off or discharged Ambrose Beshears,
Ann Gartner, Jack Morgan, Jim Morgan, Ernie Williams,
Larry Crider, and Alan Bundren on March 24, 1969, and on
the same date discnmmatonly transferred Melvin Morber
to work at a disadvantageous location where he was
required to perform more arduous work. It was further
alleged that a strike of the Respondent's employees
occurred on March 26, 1969, which was caused and
prolonged by the Respondent's alleged unfair labor
practices.
The Respondent, by timely answer, denied generally that
it had engaged or was engaging in the unfair labor practices
alleged but admitted that a "group of Respondent's
employees refused to perform services for Respondent
since on or about March 26, 1969."
Upon motion of the General Counsel Case 14-CA-5070
was consolidated with Case 14-CA-4911 on May 23, 1969.
On June 5, 1969, the Textile Union filed a charge in Case
14-CA-5132 which was served by registered mail on the
Respondent on the same date. A complaint was issued on
June 17, 1969. The complaint charged that the strike which
occurred on March 26, 1969, was caused and prolonged by
the unfair practices referred to in Case 14-CA-4911 and
14-CA-5070 and that the Respondent had, in violation of
Section 8(a)(3) of the Act, failed and refused to reinstate the
strikers who offered unconditionally to return to work on
May 21, 1969.
The Respondent filed timely answer, denying generally
that it had engaged in or was engaging in unfair labor
practices and alleging that the "Respondent has offered
jobs to the employees whenever replacement's employment
with the Respondent has terminated or when new jobs
became available."
On motion of the General Counsel Case 14-CA-5132
was consolidated with Cases 14-CA-4911 and 14-CA-5070
on June 20, 1969.
On August 12, 1969 , the Acting Regional Director for
Region 14 issued a supplemental decision and order
directing a hearing in Case 14-RC-6163. On August 22,
1969, Case 14-RC-6163 , on motion of the General
Counsel , was consolidated with Cases 14-CA-4911,
14-CA-5070, and 14-CA-5132.
The consolidated cases came on for hearing on
September 22, 23, 24, and 25 and November 12 and 13,
1969, at Herrin , Illinois . Each party was afforded a full
opportunity to be heard , to call , examine and cross-
examine witnesses , to argue orally on the record , to submit
proposed findings of fact and conclusions , and to file briefs.
All briefs have been carefully considered by the Trial
Examiner.
Upon the whole record and upon his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF RESPONDENT
Respondent is now , and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of Delaware. At all times
material herein Respondent has maintained its principal
office and place of business at 895 Mamaroneck Avenue in
the city of Mamaroneck and State of New York.
Respondent maintained a plant in the Ordill area, Herrin,
Illinois, where it is, and has been at all times material
herein, engaged in the manufacture, sale, and distribution
of pressure-sensitive tape and related products.' The Ordill
area, Herrin, Illinois, plant is the only facility involved in
this proceeding. During the year ending December 31,
1968, which period is representative of its operations during
all times material hereto , Respondent in the course and
conduct of its business operations, purchased and caused to
be transported and delivered at its Ordill area, Herrin,
Illinois, plant , paper and other goods and materials valued
in excess of $50 ,000 of which goods and materials valued in
excess of $50,000 were transported and delivered to said
plant directly from points located outside the State of
Illinois. The Trial Examiner finds as is admitted by
Respondent that at all times material herein the Respon-
dent was an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Textile Workers Union of America , AFL-CIO, and
Local No. 347 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America are
and have been labor organizations within the meaning of
Section 2(5) of the Act.
1 The parties stipulated that on July 28, 1969 , a fire occurred at the
Respondent's Herrin plant The Herrin plant has been closed and
operations moved to Woodbine , New Jersey
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Case 14-CA-4911
The Facts
the same day Maes asked him whether he had a union card.
Morber answered, "Yes." Maes requested the card. Morber
did not respond, whereupon Maes "politely took" the card
out of Morber's "shirt pocket," and walked over to where
Brantley, Henningson, and Perri were standing.9
The next day Maes told Morber that the employees "were
going to have one heck of a time getting the union, that it
would take more than 20 or 30, it would take close to 150 to
get a union in there." Referring to Ambrose Beshears, Maes
said that "he'd better watch it or he wouldn't be around
much longer."
On October 23, the day after the union card activity
detailed above occurred, the alleged discriminatees Martell
McAnelly, Kenneth Pedigo, Lillian Barr, and Thelma
Pulley were laid off.
About 10 days after the layoffs Foreman Joseph Rizzo,
Jr., told Barnett that the employer was "going to get some
help next day or two," and further commented, "I found
out why that layoff was . . . it was on account of union
activity, trying to get a union in here, and we don't want no
union in here right now. When we get ready for a union,
... We got our own." Rizzo, Jr., added that the employer
had "fired two maintenance men."
Rizzo, Jr., also asked Barnett whether employee Oglesby
mentioned the Union to him. Alleged discriminatee Barnett
was discharged on November 23, 1968.
Kenneth Pedigo was hired as a maintenance welder. Four
days after he went to work his foreman, Maes, said to him
that "he'd appreciate [his] not talking to the union men
because the company could not afford a union at the time."
The next day after he had been given blank union
authorization cards Maes advised him that "there was
going to be a layoff" and that he was included. Maes said
that he "didn't figure it would be long, not more than a
week and a half at the most." Maes added that "he'd
appreciate it [if he] didn't take another job someplace
because he really needed [him]." Pedigo telephoned Maes
about a week and a half after he was laid off and was told to
call back in about a week. About a week later Pedigo
reached Henningson, by telephone; Henningson said that
he would contact Maes. Henningson was unable to reach
Maes but talked to Perri. Perri informed him that Pedigo
"definitely wasn't going to be called back."
While in the employment of the Respondent Pedigo
received no complaints about his work. On the Friday
before his layoff Maes asked Pedigo to take the midnight
shift "because ... he knew that [Pedigo] was capable of
handling it and he would have a man he could depend on
there."
While Martell McAnelly had been working for Allen
Industries, Foreman Maes asked him to take a job in
maintenance with the Respondent. At the time of his hire
Maes told him he was looking for "qualified mechanics,
maintenance men" and that he knew McAnelly was
qualified because he had worked with him. McAnelly was
to have her sign it Pulley picked up the card and placed it in her purse.
5 Uncontradicted and credited testimony of Pedigo
6 The uncontroverted and credited testimony of Beshears
r Mildred Lacy was not called for testimony
8 The uncontroverted and credited testimony of Beshears
9 The uncontroverted and credited testimony of Morber.
Richard L. Ford, International representative for the
Textile Union, commenced union organizational activities
among the Respondent's employees around October 20,
1968. About that time there were approximately 27
employees on the Respondent's payroll.2 Ford met at the
union hall with Freely Barnett, one of the Respondent's
employees, and Larry Jackson, president of the Allen
local.3 Ford advised Barnett that the Union would
undertake an organizational campaign if the employees
were interested. Barnett signed a union authorization card
and was given about 25 or 30 blank cards by Ford. Four
days later Barnett returned "approximately 8 or 10" cards
to Ford.
Barnett carried the blank cards to the Respondent's plant
where he gave blank cards to employee Martell McAnelly
during the lunch period at the clock alley. Barnett asked
McAnelly to solicit card signers. McAnelly later returned
five signed cards to Barnett. Barnett distributed several
other cards, three of which were returned to him signed.
On October 22, 1968, McAnelly distributed blank cards
to Kenneth Pedigo, Ambrose Beshears, and Thelma
Pulley.4 Pedigo, who had received three cards, handed one
card to "a guy by the name of Ernie" and another to
Richard Bowlinger. The third card Pedigo signed and
returned to McAnelly the next day in the boilerroom.
Around 3:30 p.m., on October 22, 1968, Foreman Paul
Maes showed Pedigo a union card and asked him whether
he had one.5 Pedigo falsely answered that he did not have a
card. During this interrogation Vice President Mario Perri,
General Manager W. R. Henningson, and Foreman Robert
Brantley were in the vicinity.
McAnelly "stuck three cards" in Beshears' shirt pocket
and told him to sign one card and give the others to two
other employees. About 3:20 p.m., on the same day,
Beshears was waiting for clock-out time; Foreman Maes
"came up and took those union cards out of [Beshears']
pocket" and joined Vice President Perri with whom he
conversed." The next day Mildred Lacy, an admitted
supervisor,7 appeared in the boilerroom. She told Beshears,
`just between me and you . . . you better not be signing
cards or anything . . . we have got rid of the guys that was
passing out the union cards . . . your name was
mentioned."s A couple of days later, Beshears heard Maes
say that "when the company got ready for a union, that
they'd put one in." Maes added that "if he had anything to
do with it, the union wasn't going to get in." On another
occasion Maes told Beshears that he could not talk about
the Union.
When employee Melvin E. Morber received his card from
Pedigo he placed it in his shirt pocket. Around 2:30 p.m. of
2 The Regional Director's Decision and Direction of Election in Case
14-RC-6163 indicates that as of April 14, 1969, the unit averaged 55
employees in size
3 Jackson had contacted Barnett and had made an appointment for him
with Ford
4 McAnelly laid a card on Pulley's machine and said that he would like
NATIONAL TAPE CORPORATION 331
capable of performing setup work and had installed
machinery similar to that in use at the Respondent's plant.
McAnelly's job was filled by Gary Jackson on November
5 and Pedigo's job was filled by Harold Flambrough on
November 4. According to Henningson, Pedigo and
McAnelly were not recalled because Maes found someone
"whom he felt was more competent for the job. to
When asked, Maes testified that he did not know why
McAnelly and Pedigo were not recalled. He said that he
had not considered them for recall." According to Maes,
the work "started to increase again and [the Respondent]
decided [it would] put more men on again." Maes
explained that Flambrough and Jackson were "just two
gentlemen that came looking for jobs and [he] interviewed
them." At the time of their interview he did "not
particularly" consider Pedigo and McAnelly. He said it had
not entered his mind to recall them. At the time Maes said
he was "looking for newer talent or different types of
laborers, workers," Flambrough was "more of an electn-
cian" and Jackson "had a lot of experience as a setup man."
On January 8, 1969, the complaint in Case 14--CA-4911
was issued and served on the Respondent. Thereafter, in
the latter part of January, both McAnelly and Pedigo were
instructed by the Respondent to report to the Jackson
County Woodworks.12 They appeared at the Respondent's
establishment February 3 where they sat for about 45
minutes after which they called Amo Hands, one of the
supervisors. Maes appeared and told them he had nothing
for them. In that Perri was out of town, he said that he
would have to wait until morning to talk to him. He told
Pedigo and McAnelly to go home. That evening someone
called and directed Pedigo and McAnelly to report to the
Jackson County Woodworks at 7:30 a.m. Both employees
reported for work. Their jobs at the Jackson County
Woodworks plant involved generally heavy work. They
handled rough lumber and moved sawdust, rolled logs and
built skids. In addition, they did "general flunky work"
around the mill. They worked in two large buildings made
out of tin and rough lumber, which were opened and
unheated except for wood stoves. For protection against the
cold employees wore insulated clothing. At the Respon-
dent's plant Pedigo and McAnelly worked inside a heated
building. They oiled the mills several times nightly and
changed scrapers and rollers on calendars; the rollers
weighed about 50 pounds. They also tended the boiler
which required the filling of an automatic feed and the
removal of clinkers.
While Pedigo and McAnelly were working at the Jackson
County Woodworks they were carved on the Respondent's
payroll and were paid the same rate of pay they had been
receiving in the maintenance department on the Respon-
dent's payroll.13
Thelma Pulley and Lillian Barr were classified as packers
and rewinders. On October 23, 1968, Henmngson advised
Barr and Pulley that "due to difficulties" they were being
laid off. Pulley telephoned Mildred Lacy several times to
ascertain if and when she would be called back for
employment. On one occasion about 3 weeks after her
layoff, Lacy told Pulley that she had "bad news' for her.
She informed Pulley that somebody told Perri that she had
signed "a union card." She added that she had been unable
to convince Perri that Pulley had not signed a card and that
Perri was not going to call her or Lillian Barr back. Pulley
again called Lacy later in the day and requested the identity
of the person who had told Perri she had signed a union
card. Lacy gave her a name . Pulley replied that she did not
know the man; she said that she would like to talk to him
and face the man who said that she had signed a union card
because she was not guilty. Thereafter Pulley went to the
plant and asked to see Perri. Lacy after contacting Perri
reported that he was too busy to talk to Pulley, that the
quota was full, and that he could not call her back.14 Pulley
was offered reemployment on January 27, 1969, but did not
return. Judy Baldwin had been hired as a rewinder on
November 11, 1968.
Lillian Barr, who had been laid off on the same day as
Pulley, had been contacted by Lacy a few days before her
layoff. Lacy asked her whether she had been approached
about the Union. Barr answered, "No." Lacy responded
that Barr would be contacted and that there were cards in
the other building. She asked Barr not to sign a card. Lacy
added that "they had a union of their own to come in when
they got in full production." That evening a union card was
laid on Barr's table by another employee.
During her layoff Barr also called Lacy to ascertain if and
when she would return to work. On one occasion Lacy
informed her that Maes had said that she and Thelma
Pulley had signed union cards. Barr denied the accusation
and said that she was "going to do something about it." She
said that she would contact the Labor Board and that she
had a friend in the Herrin Chamber of Commerce. She said
that she was going to see what they could do about it for
her. Lacy told Barr to wait a few days in that Pem was in
New York. She said that when he came back Monday she
would talk to him again. 15 Barr was recalled on November
11, 1968. Thereafter she was discharged on January 23,
1969, for unsatisfactory services by Paul Shalita, a
management representative who visited the plant about
10 Maes testified that he had never told anyone "that there was a reason
why Mr Pedigo and Mr. McAnelly were not recalled "
11 Henningson testified that the employer's practice in regard to
recalling laid off employees was, As the Jobs for them open up we would
bring them back that they were qualified for"
12 Perri described the relationship between the Respondent and the
Jackson County Woodworks as follows
A The relation is they helped us install, put the building into
shape There was a period where we had to establish payroll in this
area, and they would, at that time they would assume the
responsibility until such time we were able to set up our own
Q So that they paid your employees, and you reimbursed them9
A Yes There was a cross-lining, a mutual understanding
between the two companies
Q Do they still do some work for you9
A Yes
Q Pallets, and skids, and that sort of thing9
A Yes
Q Have you employed people at their facilities and paid them on
the National Tape checks or with the National Tape checks')
A Yes, we have
11 The Trial Examiner is of the opinion that the work at the Jackson
Lumber Woodworks was not substantially equivalent to the work
performed by these employees at the Respondent 's plant Such work was
more arduous and required a greater exposure to inclement weather
Moreover the Jackson County Woodworks' jobs did not afford the
utilization of the employees ' skills to the same extent as did their Jobs at
the Respondent's plant
14 The uncontradicted and credited testimony of Pulley
15 The uncontroverted and credited testimony of Barr
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
every 2 weeks. Shalita opened a box of tape packed by Barr
and found first-rate tape packed with second-rate tape. He
directed Barr's immediate discharge.
Freely R. Barnett , a mill operator, was discharged on
November 23, 1968, by Foreman Joseph Rizzo, Jr., for
"unsatisfactory work." According to Rizzo, Barnett had
been a good worker and he had discussed with him the
possibility of advancement. The basis for his discharge
explained by Rizzo was "that he had one man working with
him at the time and he was making the man do most of the
work." Prior to Barnett's discharge Rizzo had been
hospitalized and had been released around November 18.
At the time of Barnett's discharge Rizzo was not working
but did visit the plant for several hours a day. Rizzo
testified that the day before he discharged Barnett "the man
that was working with him complained about him." Rizzo
could not remember the name of this employee who no
longer works for the Company. Rizzo was asked whether he
took the matter up with Barnett. He answered, "I didn't see
him. I saw him but I didn't take it up with him at all. I just
sent him a telegram on that certain day that specified."
Rizzo also testified that he had not observed Barnett's work
before he discharged him. Pem and Henningson approved
the discharge.
Thereafter Barnett was notified by the Respondent to
report to work on January 27, 1969, at 3 o'clock. He
reported for work and worked that day and the following
day. On the following day Rizzo came to him and told him
that when he had finished his shift he was to report the next
morning at 7 o'clock at Jackson County Woodworks north
of Murphysboro. Barnett replied that he could not make it
and "besides [he] was hired out for National Tape as a mill
operator and not for Jackson County Woodwork." Rizzo
did not tell Barnett in detail what kind of a job he would
have at the Jackson County Woodworks. He said it was
"just woodworking, carpentering, and stuff like that."
Barnett told him he wasn't a carpenter. The plant was about
30 miles from Barnett's home; National Tape was about 8
miles . Barnett did not report for work at the Jackson
County Woodworks.is
Conclusions and Reasons Therefor
First: The Violations of Section 8(a)(1) of the Act
In the light of the entire record and in the context used
the Trial Examiner finds:
1. The Respondent, by Foreman Paul Maes' interroga-
tion of employee Pedigo on October 22, 1968, as to whether
he had a union card, interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
by Section 7 of the Act.17
2. The Respondent, by Foreman Maes' removal of
blank union cards from employee Beshears' pocket
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act.
3. The Respondent, by Mildred Lacy's remark to
employee Beshears, to wit, "You better not be signing cards
... we have got rid of guys that were passing out union
cards," threatened Beshears with reprisal for union activity
and thereby Respondent violated Section 8(a)(1) of the Act.
4. The Respondent, by Foreman Maes' statement to
employee Beshears that he could not talk about the Union,
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act.
5. The Respondent, by Maes' interrogation of Morber
as to whether he had a union card and his removal of a
union card from Morber's pocket, interfered with, re-
strained, and coerced employees in the rights guaranteed by
Section 7 of the Act.
6. The Respondent, by Mildred Lacy's interrogation of
employee Barr as to whether she had been approached by
the Union and her request that Barr not sign a union card,
interfered with, restrained, and coerced employees in the
rights guaranteed by Section 7 of the Act.
7. In that Rizzo's statements to Barnett constituted a
threat that employees would be discharged for union
activity, by these statements the Respondent interfered
with, restrained, and coerced employees in the rights
guaranteed by Section 7 of the Act.
8. The Respondent, by Rizzo's interrogation of Barnett
in respect to employee Oglesby's union connections,
interfered with, restrained, and coerced employees in the
rights guaranteed by Section 7 of the Act.
9. Lacy's statements to Barr and Pulley to the effect that
they were being continued on layoff because of union
activities interfered with, restrained, and coerced employ-
ees in the rights guaranteed by Section 7 of the Act.
Second: The discharge of Kenneth Pedigo and Martell
McAnelly.
On October 23, 1968 , the Respondent "got rid of the guys
that were passing out union cards." Kenneth Pedigo had
passed cards to several employees and had been coercively
interrogated by Foreman Maes ; McAnelly had passed
cards to Pedigo and others. Thus Pedigo and McAnelly fit
the description of "guys that were passing out union cards."
Moreover, they were the only "guys that were passing out
union cards" who were separated from employment on
October 23.i8 That the Respondent intended to discharge
Pedigo and McAnelly is trenchant from their replacements
by employee Flambrough on November 4 and employee
Jackson on November 5, although Pedigo and McAnelly
were considered as competent employees. Such replace-
ments reflect the pretextual nature of the Respondent's
conduct since Maes' respect for the qualifications of these
employees was such that he had asked McAnelly to leave
Allen Industries to work for the Respondent and had
indicated to Pedigo that he should not take a job elsewhere
during his layoff. With this in mind, it is obvious why Maes
was unable to explain why McAnelly and Pedigo were not
recalled. Incredibly Maes testified that their recall had not
entered his mind. From these facts, as well as from those
revealed in the record as a whole, the motive of the
Respondent to discourage membership in a labor organiza-
i6 The Respondent advanced no reason for Barnett's transfer to that such questioning was pursuant to the Employers legitimate business
Jackson County Woodworks interests Cf Winchester Spinning Corporation, 402 F.2d 299 (C.A. 4).
17 The clear purpose of Maes' question was to aid the employer in the 18 Barnett, the only other employee who passed out cards, was not
furtherance of its antiunion campaign Pedigo's dissembling indicated an separated from employment until November 23, 1968
apprehension of reprisal . Moreover , the Respondent has shown no proof
NATIONAL TAPE CORPORATION 333
tion is unmistakable . Accordingly, the Trial Examiner finds
that the "real motive" 19 of the Respondent was to
discourage membership in a labor organization and that by
the Respondent 's termination of the employment of Pedigo
and McAnelly on October 23, 1968 , the Respondent
violated Section 8(a)(1) and (3) of the Act.
Third: The discharges of Thelma Pulley and Lillian Barr
The record is clear that Thelma Pulley and Lillian Barr
were not returned to employment after their layoffs because
the Respondent believed they were union card signers.
Since the Respondent 's motive , in this respect , was to bar
them from employment because of suspected union
activities , their initial layoffs, in view of their timing and the
Respondent 's union animus , may not be disassociated from
the same motive . Nor does the credible record gainsay this
conclusion . Thus the Trial Examiner is convinced that the
"real motive" behind their separations from employment
was their suspected union activity and that their separations
from employment , and the reasons therefor revealed to the
employees , discouraged membership in a labor organiza-
tion . Nor is it essential to such finding that the Respondent
be correct in its belief that the employees were union card
signers since the employer intended that its action taken in
respect to these employees discourage employees from
union affection . Cf. N.L. R.B. v. Piezo Manufacturing
Corporation, 290 F .2d 455 (C.A. 2). Accordingly, the Trial
Examiner finds that by Pulley and Barr 's separations from
employment the Respondent violated Section 8(a)(1) and
(3) of the Act.
Fourth : The discharge of Freely R. Barnett
Barnett was the employee instigator of the union card
solicitations on the Respondent 's premises . Direct proof of
the Respondent 's knowledge of Barnett's role as a union
activist is not essential since the Respondent 's knowledge of
Barnett 's union activity may be properly inferred from the
small size of the Respondent 's complement of employees.
East Bay Rambler, Inc., 168 NLRB No. 143; Quest-Shon
Mark Brassiere Co., Inc., 80 NLRB 1149, 1150 , enfd. 185
F.2d 285 (C.A. 2); American Grinding & Machine Co., 150
NLRB 1357, 1358; Angwell Curtain Company, Inc. v.
N.L.R.B., 192 F.2d 899 , 903 (C.A. 7). Such inference draws
support from the employer's interrogations directed toward
eliciting information in respect to union activities. Moreo-
ver, the circumstances themselves under which Barnett was
discharged lend support to the inference that the employer
knew of his union connection and that the employer
discharged him to discourage employees from union
adherence . Factors in this respect are ( 1) the abruptness of
is " the 'real motive ' of the employer in an alleged 8(a)(3) violation
is decisive " N.L R.B. v. Brown Food Store, 380 U.S. 278, 287 "It is
the 'true purpose ' or 'real motive ' in hiring or firing that constitutes the
test ." Local 357, International Brotherhood of Teamsters [Los Angeles-Seattle
Motor Express] v N L.R B, 365 U S 667, 675
20 The Court of Appeals for the Ninth Circuit stated in Shattuck Denn
Mining Corporation v. N L R B, 362 F 2d 466 (C A 9)
If [he] trier of fact . finds that [the) stated motive for a
discharge is false , he can infer that there is another motive and can
infer that the motive is one that the employer desires to conceal, an
unlawful motive , at least where [as in this case ] the surrounding facts
tend to reinforce that inference.
2i In N L R B v Melrose Processing Co, 351 F 2d 693 (C.A. 8), the
court opined.
If one can show that every other alternative except the fact
Barnett's discharge, (2) his satisfactory work record, and (3)
the implausibility of the reasons given for his discharge.20
According to Rizzo, Jr., Barnett was summarily discharged
upon the complaint of Barnett's helper without his personal
observation of Barnett's alleged unsatisfactory work or a
discussion with him about it. While Rizzo, Jr., advanced
this cause for Barnett's discharge, his demeanor on the
stand indicated that he did not expect anyone to believe
that he so abruptly discharged a seemingly satisfactory
employee upon the one complaint of his helper. The Trial
Examiner is convinced that Rizzo, Jr., was concealing the
true reason for Barnett 's discharge and that Barnett, in fact,
was discharged because of his union association and to
discourage membership in a labor organization.21 The
assigned reason for Barnett's discharge was a pretext
tailored to give color to an obvious discriminatory act. By
reason of the pretextual nature of Barnett 's discharge the
Trial Examiner finds that the "real motive" of the
Respondent was to discourage membership in a labor
organization and that by the discharge of Barnett on March
25, 1968, the Respondent violated Section 8(a)(1) and (3) of
the Act.22
Case 14-CA-5070 and Case 14-CA-5132
First: About the middle of January 1969 Lacy asked
employee Ann Gartner whether she had signed a union
card. Gartner answered, "Well, I hear they are wanting a
union," to which Lacy responded, "Oh, my, let's don't talk
union, Ann." Later in the month Lacy again asked Gartner
whether she had signed a card. When Gartner answered in
the negative, Lacy commented, "I'm glad you haven't, Ann,
and don't sign them, we don't want to have no trouble." 23
In the context of the Respondent's other coercive activity,
Lacy's continued interrogation of employees about whether
or not they had signed union cards is coercive and violates
Section 8(a)(1) of the Act.
Second: In January 1969 employee Linda Murphy was
told by Charles Will, a supervisor, that she "shouldn't talk
about the union at the plant" and that she should "never
enter it in [her] mind." Such limitation imposed upon
employee Murphy clearly violated Section 8(a)(1) of the
Act.
Third: When Bruce Smith applied for work at the
Respondent's plant in the forepart of February 1969,
Supervisor Charles Will asked him if he was in the Union.
Smith answered, "No," to which Will responded, that "that
was good, that he didn't want anybody in the union or
anybody that would push for a union, the company was
sought to be proved is not true , you indirectly prove that fact is true.
By excluding every other reasonable hypothesis that fact is left
standing alone as proved
22 While Barnett was recalled to work at the Respondent 's plant on
January 27, 1969 , as a mill operator ; on January 28, 1969 , he was directed
to report to the Jackson County Woodworks. The Trial Examiner does not
consider the Respondent 's putative reinstatement of Barnett for such a
brief tenure as a mill operator, followed almost immediately by his transfer
to more arduous and unpleasant tasks at the Jackson County Woodworks,
as satisfying the Respondent 's obligation to offer him full reinstatement to
his former or substantially equivalent position or to toll backpay.
Moreover , in that the record is barren of any credible explanation for
Barnett's transfer , it appears that the transfer was a continuation of the
Respondent 's prior discriminatory conduct.
23 The uncontroverted and credited testimony of Gartner.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
young and he didn't feel they could stand a union right at
the time." A few days later Will told Smith, "We have men
that are pushing for a union, but one by one we are getting
rid of them."
Smith was assigned by Will to check the bathroom to
ascertain who was writing union references on the walls and
to keep his "ears open with the men" and report anything
he heard about the Union. Will said the Respondent would
terminate employees who were writing on the bathroom
walls. Smith quit on March 21, 1969, rather than make the
reports.24
The Trial Examiner finds that by Will's conduct detailed
above the Respondent interfered with, restrained, and
coerced employees in the rights guaranteed by Section 7 of
the Act and thereby violated Section 8(a)(1) of the Act.
Fourth: On February 25, 1969, Lacy approached
employee Stephany Menkoski and said, "You didn't sign a
card, did you." Menkoski falsely answered that she had not
signed a card.25 By such coercive interrogation the
Respondent violated Section 8(a)(1) of the Act.
Fifth: On February 23, 1969, a union meeting was held.
Among Respondent's employees present were Ruth
Gurley, Marvin Lee Hickey, Harvey Donald Bloodworth,
Freely R. Barnett, and Ambrose Beshears. Gurley, Hickey,
and Bloodworth were laid off on February 25, 1969. The
General Counsel claims these layoffs were discriminatory
and were directly related to the employees' attendance at
the February 23 union meeting.
Hickey was hired on October 20, 1968, as a slitting
machine operator. Bloodworth was hired as Hickey's helper
on November 24, 1968. Both employees signed union cards
at the union meeting of February 13, 1969. When Hickey
was laid off he was told by Amo Hand that "they didn't
have the material to make the tape out of." Bloodworth
remembered that Hand had said to him that "it was a
shortage of material, cloth or something."
Three slitters and three helpers worked on each shift. Of
these slitters and helpers, in addition to Hickey and
Bloodworth, Larry Crider, Guy Gibbia, Jim Davis,
Kenneth LeMasters, and Bobby Henson were present at
the union meeting of February 23. These employees were
not laid off. The jobs of Hickey and Bloodworth were not
filled.
While the layoffs of Hickey and Bloodworth following
almost immediately after they had attended a union
meeting are of a suspicious nature in view of the employer's
union animus, the Trial Examiner is of the opinion that the
General Counsel has not established a prima facie case in
regard to their layoffs,26 and that the allegations in the
complaint involving Hickey and Bloodworth should be
dismissed.
Sixth. Ruth Gurley went to work for the Respondent
January 1, 1969, at the insistance of Mildred Lacy who
arranged it so that Gurley's son could be hired for the same
shift. Gurley was hired because she was an experienced
hand. Gurley worked as a rewinder and packer.
Gurley attended the February 23 meeting of the Union at
which she signed a union authorization card. On February
25 Mildred Lacy came to Gurley's machine and asked her if
24 The uncontradicted and credited testimony of Smith
25 The uncontradicted and credited testimony of Menkoski
she had signed a union card. Gurley answered, "Yes, I did."
Shortly thereafter Supervisor Amo Hand appeared and told
her she was laid off. Later she asked him the reason. "He
said they were talking, they were to move [her] machine
... to the rehabilitation center." Gurley was operating a
rewinder on the day shift. Two rewinders were in operation.
About a week previously Hand had informed Gurley that
six more rewind machines were to be added . Measurements
of her machine were taken in preparation for making the
additional machines.
At the time of Gurley's layoff there were three girls who
were packing, a task which Gurley was qualified to do. One
had worked for the employer less time than Gurley. There
is no credible proof that the rewinder machine used by
Gurley was moved to the rehabilitation center.
While working for the Respondent, Gurley's perform-
ance was satisfactory. Perri had once told her that she was
doing a "fine job." In fact Gurley had taught a packer who
was retained when Gurley was laid off. At the time of
Gurley's layoff there was "tape waiting to be packed."
On the basis of the foregoing facts and an examination of
the record as a whole, the Trial Examiner finds that Lacy's
interrogation of Gurley as to whether she had signed a
union card was coercive in nature and constituted a
violation of Section 8(a)(1) of the Act.
In view of the Respondent's union animus, the satisfacto-
ry character of Gurley's services , her experience and
desirability as an employee, and her senior seniority, the
precipitous nature of her layoff prior to the end of a pay
period and the adequate workload at the time of her layoff,
the Trial Examiner is of the opinion that the abrupt layoff
of Gurley was motivated by union considerations and was
touched off by Lacy' s ascertainment that Gurley had
signed a union card. Moreover, there is no credible proof
that the reason for Gurley's layoff as related to her was the
true reason. The Trial Examiner finds that the "real
motive" for the Respondent's layoff of Gurley was to
discourage membership in a labor organization. The Trial
Examiner further finds that by the layoff of Gurley on
February 25, 1969, the Respondent violated Section 8(a)(1)
and (3) of the Act.
Seventh: On March 19, 1969, the Union filed a petition
for a representation election. A union meeting was held on
March 23, 1969, at which, with others, Ambrose Beshears,
Ann Gartner, Jack Eugene Morgan, James Harold
Morgan, Ernie Williams, Larry L. Crider, Alan Bundren,
and Melvin Morber attended. On March 24, 1969,
Ambrose Beshears , Ann Gartner, Jack Eugene Morgan,
James Harold Morgan, Ernie Williams, Larry L. Crider,
and Alan Bundren were laid off and Melvin Morber was
transferred to Jackson County Woodworks. The General
Counsel maintains that the layoffs of the above employees
and the transfer of Morber were discriminatory. In respect
to these layoffs Jack Eugene Morgan testified that he
received a telegram in which he was informed that he was
laid off for lack of work. Later in the day he inquired of
Maes why he had been laid off. Maes said "that they
couldn't sell tape and they just couldn't keep that many
men employed." Maes told James Harold Morgan that
26 See Mallory Capacitor Company, A Division of P R Mallory & Co.,
Inc, 169 NLRB No 5
NATIONAL TAPE CORPORATION
"they was having a cut back ... he didn't know the reason,
they just told him they was having a cut back and told him
how many men to keep . . . he wasn't keeping them by
seniority or anything, just job classification." Maes told
Ernie Williams that he was going to lay off seven. Crider
was told that "they was cutting back, and they had more
tape out there than they could run, than the slitters was
running then, to keep up with ...."
The Trial Examiner has carefully reviewed the entire
record and finds no credible facts which either by inference
or otherwise support a prima facie case for the General
Counsel as it concerns the above-mentioned employees.
Accordingly the Trial Examiner recommends that the
allegation in the complaint involving Ambrose Beshears,
Ann Gartner, Jack Eugene Morgan, James Harold
Morgan , Ernie Williams, Larry L. Crider, and Melvin
Morber be dismissed.
Eighth- At 9 a.m. on March 26, 1969, a group of
employees met in a union meeting . The employees laid off
on March 24 made up the majority of the employees
present. Their plight was aired to the group and a strike,
recommended by Union Representative Ford, was ap-
proved by the group. Picket lines were established at the
employer's premises at 10 p.m. on the same date. Certain
employees who did not attend the March 26 meeting
nevertheless respected the picket line even though the cause
of the strike was unknown to them. Employee witnesses
advanced diverse reasons for the strike. The real reason, as
disclosed by the record, was the protest against the layoff of
the employees on March 24, 1969.27 Since the Trial
Examiner has found that these layoffs were not unlawful, it
follows that the strike protesting such layoffs was not an
unfair labor practice strike and that the strikers could have
been replaced prior to the termination of the strike as they
were.
Ninth: After the strike was commenced striking employ-
ees Ernie Williams, Alan Bundren, and James Morgan were
sent telegrams dated April 1, 1969, as follows: "Report to
your regularly scheduled shift April 2, 1969 or you will be
permanently discharged." The General Counsel contends
that these telegrams sent by the Respondent were threats to
discharge strikers if they did not give up their strike activity
and return to work, and thus the Respondent violated
Section 8(a)(1) of the Act. Since it is clear that these
telegrams coercively interfered with employees' rights to
engage in union activities guaranteed by Section 7 of the
Act, the Respondent violated Section 8(a)(1) of the Act.
Stewart Hog Ring Co., Inc., 131 NLRB 310, 339.
Tenth: On May 19, 1969, in a union meeting, employees
voted to terminate the strike. The strike was terminated on
May 21, 1969, on which date a letter was also addressed to
the employer by the Textile Union. The letter contained an
unconditional offer on behalf of the striking employees to
return to work immediately. Thereafter some of the strikers
were returned to work. Under the Laidlaw doctrine 28
certain strikers were not recalled who, had the Laidlaw
doctrine been applied, were eligible for employment in that
after May 21, 1969, there existed availablejobs vacated by
27 The General Counsel observes, "Thus it appears from the credible
evidence that the layoffs after the TWU meeting on March 23 were the
trigger for the strike " Counsel for the General Counsel's brief to the
335
striker replacements. Since the availability of suchjobs and
the placement of the strikers in available jobs will depend to
some extent on whether the Trial Examiner may be in error
in respect to the determination of the job rights of the
alleged discriminatees, the Trial Examiner has made no
resolution of the specific reinstatement status of each
striker. The matter of Laidlaw is best referred to the
compliance stage of these proceedings, at which time by
reason of the final adjudication of the job rights of the
alleged discriminatees an accurate and meaningful applica-
tion of the Laidlaw doctrine can be effected.
Eleventh: On June 20, 1969, a representation election was
conducted (see, infra). On July 28, 1969, a fire occurred at
the Respondent's Herrin, Illinois , establishment which
rendered unfeasible further operations at such site.
Operations of the Herrin plant are being continued by the
Respondent in Woodbine, New Jersey.
CONCLUSIONS OF LAW
1. The Unions are labor organizations within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By unlawfully separating from employment Martell
McAnelly, Kenneth C. Pedigo, Thelma Alice Pulley, and
Lillian Barr on October 23, 1968, discharging Freely R.
Barnett on November 23, 1968, and laying off Ruth Gurley
on February 25, 1969, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed them by
Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It
having been found that the Respondent unlawfully
separated Martell McAnelly, Kenneth C. Pedigo, Lillian
Barr , and Thelma Alice Pulley on October 23, 1968,
unlawfully discharged Freely R. Barnett on November 23,
1968, and unlawfully laid off Ruth Gurley on February 25,
1969, and thereby violated Section 8(a)(3) and (1) of the
Act, it is recommended that the Respondent remedy such
unlawful conduct in accordance with Board policy,29 by
making Martell McAnelly, Kenneth C. Pedigo, Lillian
Trial Examiner, p 30
28 The Laidlaw Corporation, 171 NLRB No 75.
29 See The Rushton Company, 158 NLRB 1730, fn 2
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barr, Thelma Alice Pulley, Freely R. Barnett, and Ruth
Gurley whole for any loss of earnings30 they may have
suffered as a result of the discrimination against them by
the payment to them of a sum of money equal to the
amount they would have earned between the dates of their
discrimination and the dates31 on which their jobs would
have normally ceased by reason of the Respondent's
termination of its Herrin , Illinois , operations32 less their net
30 In that by reason of the fire on July 28, 1969 , and the lack of facilities
in the Herrin area, it does not appear that the Respondent in the
foreseeable future will again operate in the Herrin area and, in that the
General Counsel has not requested reinstatement for the discrimmatees at
the Respondent's New Jersey plant , the Trial Examiner is not
recommending that the Respondent offer the discrimmatees reinstatement
Furthermore , in view of these facts and the fact that there is no evidence
that any of the Respondent 's New Jersey employees have been exposed to
the Respondent 's unfair labor practices , the Trial Examiner is not, as
requested by the General Counsel, recommending that a notice be posted
at the Respondent 's New Jersey plant or mailed to the former employees of
the Respondent's Herrin plant.
31 Since there is no credible evidence that Lillian Louise Barr was
discriminatorily discharged in violation of Section 8(aX3) of the Act after
she had been reemployed on November II, 1968, the Respondent's
backpay liability as to Barr shall terminate on November 11, 1968.
Since Thelma Louise Pulley on January 27, 1969, refused the
Respondent 's offer of the job she had filled when she was separated from
earnings during such period (Crossett Lumber Company, 8
NLRB 440). Said backpay to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, together with interest
thereon at the rate of 6 percent per annum. Isis Plumbing &
Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]
employment, the Respondent 's backpay liability as to Pulley shall
terminate on January 27, 1969
Since Martell McAnelly, Kenneth C Pedigo , Freely R Barnett, and
Ruth Gurley were not offered their former or substantially equivalent
positions , without prejudice to their seniority or other rights and
priviledges, the Respondent's backpay liability (less net earnings)
continued throughout the backpay period for them
32 In that the record reveals that each of the discriminatees would not
have worked during the period of the strike (March 26, 1969, to May 21,
1969) backpay liability is tolled during this period. However, since certain
of these employees were not offered their former or substantially
equivalent positions, without prejudice to their seniority or other rights and
privileges prior to the strike (which the Respondent was obligated to do in
order to toll backpay), the Laidlaw doctrine is not applicable to them
Being discnmmatees they were not subject to replacement during the stake
or at any other time ; they remained on the Respondent's payroll during the
period of their discrimination as employees of the Respondent entitled to
the full rights and privileges of an employee