Nickell Moulding

National Labor Relations Board - Board Decisions

Jun 8, 1995

317 N.L.R.B. 826 (N.L.R.B. 1995)

826
317 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 All dates hereinafter are 1994, unless otherwise indicated.
2 The parties referred to those employees choosing to work during
the strike as crossover employees.
NMC Finishing, Inc., d/b/a Nickell Moulding and
United Steelworkers of America, AFL–CIO,
CLC. Case 26–CA–16264
June 8, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On March 22, 1995 Administrative Law Judge Wil-
liam M. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, NMC Finishing, Inc., d/b/a
Nickell Moulding, Inc., Malvern, Arkansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Bruce E. Buchanan, Esq., for the General Counsel.
Spencer Robinson, Esq. (Ramsay, Bridgforth, Harrelson &
Starling), of Pine Bluff, Akansas, for the Respondent.
Jim Brumley, Staff Representative, of Benton, Arkansas, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is an
unfair labor practice prosecution brought in the name of the
National Labor Relations Board’s (Board) General Counsel
by the Acting Regional Director for Region 26 through a for-
mal complaint he issued on November 4, 1994,1 against
NMC Finishing, Inc. d/b/a Nickell Moulding, Inc. (Com-
pany) after investigating a charge filed on July 8 by the
United Steelworkers of America, AFL–CIO, CLC (Union). I
heard the case on February 23, 1995, in Little Rock, Arkan-
sas.
The issue in this case is whether, at the end of an eco-
nomic strike, the Company was justified in discharging its
employee Cleata Draper (Draper) on July 1 based on her
picket line conduct.
On the entire record and my observation of the demeanor
of the witnesses, I will, as hereinafter more fully explained,
conclude the Company was not justified in discharging Drap-
er and I will order that she be reinstated to her former or
substantially equivalent job and that she be made whole for
lost wages and other benefits she suffered as a result of the
Company’s unlawful actions.
FINDINGS OF FACT
I. JURISDICTION
The Company is a corporation with an office and place of
business in Malvern, Arkansas, where it is engaged in the
manufacture of wood moulding. During the year preceding
issuance of the complaint herein, a representative period, the
Company sold and shipped from its Malvern, Arkansas facil-
ity, goods valued in excess of $50,000 directly to points lo-
cated outside the State of Arkansas. During that same period,
the Company purchased and received at its Malvern, Arkan-
sas facility goods valued in excess of $50,000 directly from
points located outside the State of Arkansas. The complaint
alleges, the evidence establishes, the Company admits, and I
find it is, and at material times has been, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The record evidence establishes, the parties admit, and I
find that United Steelworkers of America, AFL–CIO, CLC is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE FACTS
On August 19, 1993, the Union became the collective-bar-
gaining representative for the Company’s production and
maintenance employees. Thereafter, the Company and Union
commenced bargaining towards a collective-bargaining
agreement. Following a period of good-faith bargaining the
Company made its final offer to the Union on May 5, and
the Union presented same to the unit employees on May 7.
The unit employees rejected the Company’s final offer and
authorized an economic strike against the Company. On June
6, the unit employees commenced an economic strike and on
that date the Company obtained a state court restraining
order limiting the pickets to three at each entrance and exit
to the Company’s facility. On June 13, the Company imple-
mented the terms and conditions of its final offer. During the
course of the strike the Company continued to operate with
supervisory personnel, crossover, and temporary employees.2
The Union established a picket line manned with employees
who carried picket signs. On June 16, striking employee
Draper carried a homemade sign that read ‘‘Who Is Rhonda
F [with an X through the F] Sucking Today?’’ The sign
made reference to crossover employee Rhonda Yarborough
827NICKELL MOULDING
3 Draper described a brown noser as one who attempted to make
points with management.
4 Pilgreen acknowledged the sign in question was utilized on June
16 only.
5 The video was received in evidence.
6 Even if I credited Statkeiwicz’ testimony that he observed Draper
on two occasions and at two locations on the day in question, such
would not alter the outcome herein.
(Yarborough) who worked throughout the course of the
strike. On July 1, the parties met at the Union’s request and
agreed on a collective-bargaining agreement and settlement
of the strike. Pursuant to the terms of the strike settlement
agreement all strikers with the exception of Draper, who was
terminated, were offered unconditionally the right to return
to work. The Company fired Draper based solely on the
picket sign in question that she carried on June 16.
Five-year employee Draper testified regarding her strike
related activities on and before June 16. Draper who had
worked as a ‘‘feeder catcher’’ in the wrapping room partici-
pated in the strike that started on June 6. Draper testified that
on June 16 she obtained the homemade picket sign in ques-
tion from Priscilla Rogers (Rogers) and carried it for ap-
proximately 5 minutes (4:25 to 4:30 p.m.) at the shipping
and receiving gate. At the time she carried the sign, Com-
pany vans were leaving the plant transporting crossover and
other employees away from the facility. Draper testified this
was the only time and gate at which she carried the sign.
Draper described Yarborough as a ‘‘brown noser’’3 who
from time to time used profanity in the workplace. Draper
said the language on the sign made reference to Yar-
borough’s brown nosing activities and was not meant to con-
vey any sexual connotation.
Eight-year employee Rogers testified that on June 15 she
made five or six signs at her home including the one in ques-
tion. Rogers took the signs in her automobile to the plant just
before 6 a.m. on June 16. Rogers testified Draper ‘‘just
grabbed’’ a sign from Rogers’ automobile that afternoon in
time to have it on the picket line as the crossover employees
and other personnel left the facility at approximately 4:30
p.m. Rogers testified Draper returned the sign to Rogers’
automobile after the crossover employees left the facility and
never thereafter carried or displayed the sign. Rogers said
she meant the words she selected for the sign to question
who Yarborough thought she was ‘‘fooling’’ or brown nos-
ing and not any other meaning.
Company General Manager Michael Pilgreen (Pilgreen)
testified the Company continued to operate during the strike
with 15 of the 65 or so unit employees, with temporary em-
ployees and management personnel. General Manager
Pilgreen testified the Company employed the Phillips Group,
from Atlanta, Georgia, to provide security during the strike
and to transport those working into and away from the facil-
ity.
Pilgreen testified Yarborough was upset by what the sign
implied and after discussing the matter with the co-owner
and legal counsel, he terminated Draper as a result of the
language on the sign.4
Phillips Group Security Representative Mike Statkeiwicz
(Statkeiwicz) testified he observed Draper with the sign in
question twice on June 16 at two different entrances.
Statkeiwicz testified Yarborough complained to him about
the sign. Statkeiwicz videotaped Draper at the shipping and
receiving gate with the sign in question.5
Draper testified on rebuttal that she picketed only once
with the sign on June 16 at the shipping and receiving gate.
Union Staff Representative Jim Brumley (Brumley) testi-
fied the Union provided professionally printed signs for the
pickets that read ‘‘Steelworkers on Strike, No Contract No
Work.’’ Brumley said he became aware of homemade signs
including the one in question on June 22 and directed that
signs with individual names not be utilized.
Notwithstanding Drapers’ and Rogers’ protestations to the
contrary, I am persuaded they knew and intended for the sign
to have the sexual connotation that a cursory reading of the
sign indicates. I am, however, persuaded Draper carried the
sign for approximately 5 minutes only on one occasion, at
one gate on June 16. I am persuaded Security Representative
Statkeiwicz was mistaken in his testimony that he observed
her twice at more than one location on June 16.6
At the end of an economic strike, an employer, unless jus-
tified by legitimate and substantial business reasons, must re-
instate striking employees—otherwise their discharges penal-
ize the employees for exercising their right to strike pursuant
to Sections 7 and 13 of the Act. See, e.g., General Chemical
Corp., 290 NLRB 76 (1988). A showing that a striking em-
ployee has engaged in serious picket line misconduct justifies
a refusal to reinstate after a strike has ended.
In Clear Pine Mouldings, 268 NLRB 1044 (1984), the
Board set forth the appropriate standard for determining the
reinstatement rights of employees engaging in strike-related
misconduct. The standard the Board adopted was one formu-
lated by the United States Court of Appeals for the Third
Circuit in NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 527
(3d Cir. 1977). The Board’s objective test for determining
whether verbal threats directed at fellow employees justify an
employer’s refusal to reinstate is:
whether the misconduct is such that, under the cir-
cumstances existing, it may reasonably tend to coerce
or intimidate employees in the exercise of rights pro-
tected under the Act. [Clear Pine Mouldings at 1046,
quoting McQuaide at 527.]
In Clear Pine Mouldings the Board did not order reinstate-
ment for two striking employees because threats the employ-
ees made tended to coerce and intimidate other employees in
the exercise of their rights under the Act. The threats in
Clear Pine Mouldings were:
(1) that a nonstriking employee was taking her life
in her hands by crossing a picket line and would live
to regret it;
(2) that a nonstriking employee’s house might be
burned;
(3) that the hands of certain employee’s should be
broken; and
(4) that an employee should be straightened out.
The Board in Clear Pine Mouldings specifically rejected
the proposition that words alone can never, without more,
warrant a denial of reinstatement.
The Board also noted in Clear Pine Mouldings at 1047:
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We believe it is appropriate . . . to state our view
that the existence of a ‘‘strike’’ in which some employ-
ees withhold their services does not in any way privi-
lege those employees to engage in other than peacful
picketing and persuasion. They have no right, for exam-
ple to threaten those employees who, for whatever rea-
son, have decided to work during the strike. . . . As we
view the statute, the only activity the statute privileges
in this context, other than peacful patrolling, is the non-
threatening expression of opinion, verbally or through
signs . . . similar to that found in Section 8(c). [Em-
phasis added.]
The Board in Catalytic, Inc., 275 NLRB 97 (1985), ad-
dressing its Clear Pine Mouldings standards related to denial
of reinstatement noted at 98:
We are, of course, mindful that in certain circumstances
a profane epithet unaccompanied by an overt or indirect
threat might also be coercive or intimidating if it raises
the reasonable likelihood of an imminent physical con-
frontation.
A further review of certain Board cases is instructive at
this point. For example in Catalytic a striking employee tele-
phoned the wife of a nonstriking employee and called her a
‘‘God damned bitch’’ and hung up the telephone without
identifying himself. The nonstriking employee’s telephone
was equipped with a tap and a tracer and the striking em-
ployee was identified and arrested. Thereafter the striking
employee pleaded guilty to a criminal offense under the
criminal code of the State of Alabama and was fined $110.
The employer therein discharged the striking employee. The
Board, while noting that an anonymous telephone call is of-
fensive and intrusive to privacy irrespective of the actual
words used by the caller, nonetheless concluded the single
telephone call did not contain either an overt or implied
threat nor the reasonable likelihood of imminent confronta-
tion thus the evidence was insufficient to establish a reason-
able tendency to coerce or intimidate and ordered reinstate-
ment of the offending employee. In Calliope Designs, 297
NLRB 510 (1989), the Board adopted Judge Jerrold Sha-
piro’s finding that a striking employee was entitled to rein-
statement even though she had directed offensive, embarrass-
ing, obscene, insulting, and indecent language at a nonstrik-
ing employee and her nonstriking daughter. The striking em-
ployee called the nonstriking employee a ‘‘whore’’ and a
‘‘prostitute’’ and accused her of having sex with the employ-
er’s president. The striking employee also told the nonstrik-
ing employee she (the nonstriking employee) could earn
more money by selling her nonstriking daughter at a flea
market. Judge Shapiro concluded the offensive language did
not threaten the person or property of the nonstrikers nor
were the statements violent in character. Thus Judge Shapiro,
with Board approval, concluded that measured against the
Clear Pine Mouldings standard the language did not reason-
ably tend to coerce the nonstriking employees in the exercise
of their Section 7 rights.
Judge Earldean V. S. Robbins, with Board approval, in
Coors Container Co., 238 NLRB 1312 (1978), ordered an
employee reinstated who had called employer guards ‘‘moth-
er-fuckers.’’ In doing so, Judge Robbins noted the use of
vulgarities and obscenities is a reality of industrial life. Judge
Robbins further noted that not every impropriety committed
in the course of Section 7 activity deprives the offending em-
ployee of the protective mantle of the Act. In General Chem-
ical Corp., 290 NLRB 76 (1988), the Board ordered rein-
stated an employee who during a strike called the employer’s
director of manufacturing a ‘‘liar,’’ ‘‘crook,’’ and a ‘‘thief.’’
In Gloversville Embossing Corp., 297 NLRB 182, 194
(1989), the Board adopted Judge Harold B. Lawrence’s con-
clusion that a male striker’s demonstration of machismo to
nonstriking female employees (‘‘pulled down his pants’’ and
‘‘pulled out his private parts’’) while censurable is:
within the bounds of permissible picket line mis-
conduct—permissible, that is, solely in the sense that it
is not sufficiently grave to justify termination or refusal
to reinstate.
In Wayne Stead Cadillac, 303 NLRB 432, 437 (1991),
Judge Michael D. Stevenson observed ‘‘behavior that is rep-
rehensive and violates the commonly accepted norms of civ-
ilized behavior is not necessarily behavior which warrants
discharge.’’ In the case before Judge Stevenson a customer
and his 8-year-old daughter were trying to leave the employ-
er’s premises when one of a number of striking employees
mouthed the words ‘‘Fuck You!’’ When the customer ex-
plained that he and his daughter simply desired to leave the
premises the striker stated, ‘‘Fuck you, tough shit. You came
here’’ then ‘‘grabbed his testicles.’’ ‘‘gyrated his hips back
and forth . . . while mouthing the words ‘Fuck You.’’’
Judge Stevenson concluded, with Board approval, that the
employer was not justified in discharging the striking em-
ployee in question for his above-described conduct.
Considering the above legal principles and Board teach-
ings was the Company herein justified in discharging Drap-
er? I conclude it was not.
The facts underlying Draper’s discharge establish the fol-
lowing. On June 16, some 10 days after commencement of
a strike directed against the Company, striker Draper carried
a homemade sign directed at nonstriking employee Rhonda
Yarborough. The sign read ‘‘Who Is Rhonda F [with an X
through the F] Sucking Today?’’ Draper carried the sign for
approximately 5 minutes on one occasion only. There were
other pickets with picket signs at the time; however, the ac-
tivities of the other pickets and the content of the other signs
are not in dispute. There is no contention that anyone other
than Draper carried the sign in question. It is undisputed that
the picketing related to the strike which ended on July 1,
when the parties agreed upon a collective-bargaining agree-
ment. Pursuant to the terms of the parties’ strike settlement
agreement, all strikers except Draper, who was terminated,
were unconditionally offered the right to return to work. The
Company terminated Draper based solely on her carrying the
sign in question.
Initially, I recognize the sign in question is offensive; how-
ever, my task is to determine if the conduct at issue reason-
ably tends to coerce or intimidate within the meaning of the
Act. The sign carried by Draper did not directly or indirectly
threaten either Yarborough’s person or property. The sign
was not violent in character. There is no showing on this
record of the likelihood of an imminent physical confronta-
tion as a result of the sign. It is undisputed that those work-
ing during the strike were transported as a group into and
829NICKELL MOULDING
away from the company facility. There is no conclusive evi-
dence Yarborough saw the sign in question. There is no
showing that Draper was in any manner involved in a cam-
paign or plan of harassment directed at nonstriking employ-
ees or otherwise engaged in unlawful conduct.
While the sign Draper carried is clearly offensive, it does
not rise to the Clear Pine Mouldings standards such as to
justify the Company’s denial of reinstatement to Draper.
The Company relied on several cases in defense of Drap-
er’s discharge. I find the cases inapplicable or distinguish-
able. In Newport News Shipbuilding & Dry Dock v. NLRB,
738 F.2d 1404 (4th Cir. 1984), some employee conduct was
found to be protected by the Act while other employee con-
duct fell outside the Act’s protection. In reviewing the Com-
pany’s defenses I shall look only at conduct in the cited
cases that was found to fall outside Section 7 protection. The
court in Newport News stated the standard for determining
whether conduct falls within or outside Section 7 protection
is whether the conduct is intended to threaten or intimidate
nonstrikers and not the egregiousness of the conduct. The
court stated it ‘‘necessarily excludes from the definition of
serious strike misconduct behavior which may be abusive
and uncalled for but which does not reasonably tend to co-
erce or intimidate.’’ (Emphasis added.) One situation in New-
port News involved a striker physically blocking a nonstrik-
er’s entrance to the shipyard and, but for police intervention,
never voluntarily allowed the nonstriker to pass. The striker,
while blocking the entrance, also called the nonstriker a
‘‘motherfucker.’’ The court upheld the employer’s discharge
of the striker not based on the name calling, but the striker’s
conduct in physically blocking the entrance, thereby creating
the dilemma for the nonstriker of either ‘‘turning back or
fighting on;’’ thus, the striker clearly intended to coerce and
intimidate the nonstriker. The court upheld the employer’s
discharge of another striker whose conduct the court con-
cluded was intended to coerce and intimidate a nonstriker.
The striker in that instance, yelled at a nonstriker: ‘‘Hey
scab, yeah you, I’m gonna screw your wife, sure you get an
early start in the morning, I want to have plenty of time to
take care of your home life.’’ Newport News at 1411. The
nonstriker, upon hearing this, immediately wheeled around
with fists clenched and, but for police intervention, a fight
would likely have taken place. The court concluded this con-
duct was well beyond the use of obscene and insulting lan-
guage and amounted to a real threat of future harm and thus
not protected by the Act. In the instant case the language on
the sign is abusive and uncalled for, but cannot reasonably
be seen as a threat of immediate or future harm, intending
to coerce or intimidate Yarborough. There is no contention
that Yarborough’s entrance to or departure from the plant
was blocked by Draper or any other nonstriker.
In two additional cases relied on by the Company, conduct
was found unprotected by the Act. In Sullair P.T.O., Inc. v.
NLRB, 641 F.2d 500 (7th Cir. 1981), an employee called one
of the managers a ‘‘fucking poor manager,’’ and upon the
news the employer was taking away one of the employees’
fringe benefits stated the employees were being ‘‘fucked.’’
The employee directed this type profanity toward two man-
agers, even after being asked to cease doing so. Although the
employee aimed his remarks at management, he did so in
front of other employees and was discharged for insubordina-
tion. The court, reversing the Board, concluded the insubor-
dinate conduct justified the discharge. Although the court
found the employee was engaged in protected activity when
he used the language, it concluded such ‘‘vulgarities directed
at management . . . in front of other employees’’ need not
be condoned. The court concluded the overriding reason for
the discharge was the insubordination and not involvement in
protected activity. Insubordination was found to be a valid
reason for discharging an employee in a case similar to
Sullair. In Piper Realty Co., 313 NLRB 1289 (1994), an em-
ployee disliked a new program the employer was implement-
ing. At a meeting with a manager, the employee remained
in the manager’s office after being instructed to leave, and
continued to argue loudly about the new program. The em-
ployee told the manager that:
(1) he did not treat the men like men, but like animals;
(2) nobody had the ‘‘balls’’ to tell him; (3) the manager
was ‘‘fucking with his job,’’ and (4) a lot of employees
thought the manager was ‘‘a fucking asshole.’’
The Board found the conduct not protected because, although
employees are given some latitude for impetuous behavior
when engaged in concerted activity, the latitude is balanced
against an employer’s right to maintain order and respect.
The Board reasoned that even if it was common to swear in
the workplace, the behavior in Piper Realty was distinguish-
able because it was directed at a supervisor, in his office,
after the employee had repeatedly resisted a work assign-
ment. The Board concluded the discharge was for insubor-
dination. In the instant case there is no contention of any in-
subordination. The sign herein was directed at a fellow em-
ployee and not at supervisors or management.
Additional cases relied on by the Company that involved
name calling directed at management, or for alleged insubor-
dination are NLRB v. Thor Power Tool Co., 351 F.2d 584
(7th Cir. 1965), and United States Postal Service, 250 NLRB
4 (1980). Neither case supports a contrary result than arrived
at herein. United States Postal Service followed Thor’s ra-
tionale therefore, I will only discuss United States Postal
Service. In United States Postal Service, an employee, acting
as union steward, while discussing a possible grievance relat-
ed to a unit employee, allegedly called the supervisor a ‘‘stu-
pid ass.’’ The Postal Service suspended the employee for 5
days for the ‘‘unprovoked name calling of another human
being for the pure purpose of ‘effect.’’’ The Board found the
expression occurred during the course of protected activity,
was part of the res gestae and did not lose the protection of
the Act.
In NLRB v. Vought Corp., 788 F.2d 1378 (8th Cir. 1986),
also relied on by the Company, an employee was discharged
for insubordination when he refused to sign a written warn-
ing and told the supervisor, ‘‘I’ll have your ass.’’ The em-
ployee’s refusal to sign the written warning resulted from the
employer’s having unlawfully singled him out as a result of
his union organizing activities. The court affirmed the
Board’s finding that even if the employee’s comments were
insubordinate, the employer could not rely on such insubor-
dination to discharge the employee when it provoked the em-
ployee’s conduct by its own unlawful conduct. In the instant
case, the expression was not directed at management and is
clearly distinguishable from this and other cases involving
insubordinate employees.
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Finally, the Company cites Linn v. United Plant Guard
Workers, 383 U.S. 53 (1966), in which the Supreme Court
addressed the extent the National Labor Relations Act super-
sedes state law with respect to libel published during labor
disputes. The Court held state remedies for libel are limited
to those instances in which the complainant can show the de-
famatory statements were published with malice and caused
injury. Linn at 65. This case (Linn) does not address the
issue of whether a striker’s misconduct rises to a level that
removes the employee from the protection of the Act.
In summary I find none of the cases relied on by the Com-
pany would provide it with a valid defense for discharging
Draper.
CONCLUSIONS OF LAW
1. NMC Finishing, Inc., d/b/a Nickell Moulding, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL–CIO, CLC is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Company violated Section 8(a)(3) and (1) of the
Act by on July 1, 1994, discharging its employee Cleata
Draper because of her union and other protected activities.
4. The foregoing unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
REMEDY
It having been found that the Company has engaged in
certain unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
It having been found that the Company on July 1, 1994,
unlawfully discharged Cleata Draper, it is recommended the
Company be ordered to offer her reinstatement to her former
position without prejudice to her seniority or other rights and
privileges or, if such position no longer exists, to a substan-
tially equivalent position and to make her whole for any loss
of earnings she may have suffered by reason of the Compa-
ny’s unlawful conduct with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987). Backpay
shall be computed in the manner described in F. W. Wool-
worth Co., 90 NLRB 289 (1950).
On these findings of fact and conclusions of law and the
entire record, I issue the following recommended7
ORDER
The Respondent, NMC Finishing, Inc., d/b/a Nickell
Moulding, Inc., Malvern, Arkansas, its officers, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because of their membership in, or activities on be-
half of, the Union or because they engaged in other protected
concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Cleata Draper immediate and full reinstatement
to her former job or, if her former job no longer exists, to
a substantially equivalent position without prejudice to her
seniority or any other rights or privileges previously enjoyed,
and make her whole for any loss of earnings (with interest)
suffered because of the unlawful action against her.
(b) Remove from Cleata Draper’s files all references to her
discharge and notify her in writing this has been done and
that evidence of her unlawful discharge will not be used
against her in any way.
(c) Preserve and, on 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 ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its Malvern, Arkansas facility, copies of the at-
tached notice marked ‘‘Appendix.8’’ Copies of the notice, on
forms provided by the Regional Director for Region 26, after
being signed by the Company’s authorized representative,
shall be posted by the Company immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Company has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid and protection
To chose not to engage in any of these protected
concerted activities.
831NICKELL MOULDING
WE WILL NOT discharge our employees because of their
activities on behalf of United Steelworkers of America,
AFL–CIO, CLC or any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise in the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Cleata Draper immediate and full reinstate-
ment to her former job or, if her former job no longer exists,
to a substantially equivalent position without prejudice to her
seniority or any other rights or privileges previously enjoyed
and WE WILL make her whole for any loss of earnings and
benefits resulting therefrom less any net interim earnings,
plus interest.
WE WILL remove from our files any reference to Draper’s
discharge and WE WILL notify her in writing this has been
done and that evidence of her unlawful discharge will not be
used against her in any way.
NMC FINISHING, INC., D/B/A NICKELL
MOULDING, INC.