Richardson Transfer & Storage Co., Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1969

176 N.L.R.B. 504 (N.L.R.B. 1969)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richardson Transfer & Storage Co., Inc . and Robert
L. Woodin
Richardson Transfer & Storage Co., Inc. and Calvin
K. Williams
Richardson Transfer & Storage Co., Inc . and Ronnie
E. Gipe
Richardson Transfer & Storage Co., Inc . and Truck
Drivers and Helpers Local Union 696 , affiliated
with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen , and Helpers of
America , Petitioner . Cases 17-CA-3642-1,
17-CA-3642-2, 17-CA-3642-3, and 17-RC-5826
June 10, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On March 26. 1969, Trial Examiner Stanley N.
Ohlbaum issued his Decision in the above-entitled
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action.
as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed
exceptions only to certain portions of the
Recommended Order and Notice of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case 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 General Counsel's limited
exceptions, and the entire record in this case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner , as herein
modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondent,
Richardson Transfer & Storage Co., Inc., Salina,
Kansas, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as modified
herein:
1. Substitute the following for paragraph 2(b)
from the Trial Examiner's Recommended Order:
"(b) Offer immediate, full reinstatement to their
former or substantially equivalent positions, without
prejudice to existing wage rates, seniority, and other
rights, privileges, benefits and emoluments, to all
employees who went on strike on July 31, 1968,
Darlene Hatfield, James McLaughlin, Shannon
Thompson, Fran Wyatt, and all other similarly
situated employees, and make each of them whole
for any loss of earnings, together with interest,
resulting from Respondent's failure and refusal to
reinstate them on and since August 6, 1968, as more
fully set forth in "The Remedy" section of this
Decision; discharging, if necessary, any replacements
or other employees hired in their stead."
2. Add the following to the third line of the
seventh indented paragraph of the notice, after the
name Wyatt. "and all other similarly situated
employees,".
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT
STANLEY N . OHLBAUM , Trial Examiner : These unfair
labor practices proceedings , involving alleged violations of
Section 8 (a)(1) of the National Labor Relations Act (29
U.S.C. Sec. 151, et seq., as amended ; "Act"),
consolidated for hearing with a related Representation
case' were tried before me in the Saline County
Courthouse , Salina, Kansas , on November 13-15, 1968,
with all parties participating and represented throughout
by counsel.
The documentary and testimonial evidence, as well as
the parties ' arguments and briefs , having been carefully
considered , upon the entire record = including my
observation of the witnesses I make the following:
FINDINGS AND CONCLUSIONS
11. PARTIES; JURISDICTION
Respondent, a Kansas corporation engaged in the
business of moving and storing household goods, with its
main office located in Salina, Kansas, annually receives
gross revenues exceeding $50,000 for the transportation of
household goods from points outside of the State of
Kansas. I find that at all material times Respondent has
been and is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
assertion of jurisdiction herein is proper.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues presented are: (1) whether, in
violation of Section 8(a)(1) of the Act, Respondent on
'The consolidated complaint and consolidation order, dated October 3,
1968, of the Board ' s Seventeenth Regional Director (Kansas City,
Missouri) in the unfair labor practices proceedings are based upon charges
filed separately on August 13, 1968 , by alleged dischargees Woodin,
Williams, and Gipe . By further order of the same Regional Director, dated
October 30, 1968, the related issues arising out of Representation Case
l7-RC-5826 were consolidated for hearing with the unfair labor practices
proceedings. The Representation case issues involve an election contlucted
by the Board 's Regional Director on October 18 pursuant to his Decision
and Direction of Election dated September 27 based upon the Union's
petition filed on August 22, 1968.
'Hearing transcript as corrected by my March 5, 1969 , order on notice.
176 NLRB No. 64
RICHARDSON TRANSFER & STORAGE CO.,
July 29 and 30, 1968,' discharged, and has since failed and
refused to reinstate, four employees° because they
participated in protected concerted activity; (2) whether
Respondent's employees went on strike on or about July
31, and if so the cause and nature of that strike and why
it continued, and whether in view thereof striking
employees have the right to be reinstated to their jobs;
and (3) whether certain ballots cast under challenge on
October 18 in a Board-conducted Representation election
are valid and should be opened and counted.
B. Background
Respondent, established some 50 years ago in Salina,
Kansas, is still in the warehouse and moving business
there, in a 50,000 square feet 5-story building. Its primary
activity consists of the packing, crating, and moving of
household goods of servicemen and their dependents
stationed at nearby Armed Forces facilities, perhaps
principally Schilling Air Force Base or "Schilling
Manor." These household goods are usually packed, for
storage or shipment, by Respondent's female part-time
employees,' hauled locally by Respondent's
warehousemen-truckdrivers,' and long-hauled in 32 states
by Respondent's over-the-road vanline drivers.
At all times here material, the active operating head of
Respondent's business was its principal and Managing
Director, Mrs. Viola Larsen. Her husband, Harry Larsen,
apparently formerly an over-the-road truckdriver, has
been less active in the actual day-to-day operation of the
business; according to Mrs. Larsen, he was "in charge of
agency relations, estimates and sales locally." Next under
Mrs. Larsen operationally is Roy L. Fritz, with the title
of Dispatcher; under Fritz, Warehouse Foreman George
Montis. The full rank-and-file warehouse workforce
comprises less than a dozen employees.
C. Events of July 27 - August 2
1. Saturday, July 27'
On Saturday, July 27, Respondent ' s warehouse
employees had a discussion and decided to "do something
with regard to . . wages and working conditions" by
"approach [ ing] Mrs. Larsen [Respondent ' s principal and
Managing Director] and ask[ing ] if we could speak with
her and tell her our dissatisfaction and see if we could
work out some plan that satisfied the entire warehouse."
Matters of concern to the employees included the fact
that , unlike other warehousemen in Salina who were being
paid $1 . 75 and more per hour , Respondent's
warehousemen were only being paid $ 1.60 per hour (the
Federal minimum wage ) notwithstanding that Respondent
was "the largest company" with "the largest moving
'All date references are to 1968.
'Robert L . Woodin , Calvin K. Williams, Ronnie E . Gipe, and Jess
Goodwin Although all except Goodwin filed charges with the Board, each
charge as well as the complaint encompasses all four.
'According to uncontradicted testimony of General Counsel witness
Shannon Thompson , all of the packers are women with the single
exception of Carl Smith , "an old man who packs and drives the truck."
'As explained by General Counsel witness Williams, Respondent's
warehousemen's duties include loading and unloading trucks , driving
locally, stacking goods in the warehouse, and taking inventories.
'Based upon credited testimony of General Counsel witnesses Williams,
Woodin , Thompson, and Montis.
505
business" in town; and the manner in which hours of work
were assigned, so that an employee might work 12 hours
on Saturday, and 12 or 15 in the first days of the week,
aggregating 40 hours early in the week followed by layoff
for the remainder of the week and hiring of others at
regular rather than overtime pay.'
Accordingly, about 10 of the warehouse employees, of a
total complement of 11 or 12, signed union cards; and, as
stated, it was decided to approach Respondent's principal
and active operating managing director, Mrs. Larsen, to
discuss these matters.
2. Monday, July 29'
In accordance with this decision of the warehouse
employees, at about 8 a.m. (the usual starting time) on the
following Monday morning, July 29 (the next working day
after the employees' Saturday meeting), 4 of Respondent's
warehousemen - Calvin K. Williams, Robert L. Woodin,
Ronnie E. Gipe, and Jess Goodwin - presented
themselves outside of Mrs. Larsen's office in the
warehouse for the purpose of speaking to her regarding
"wages , working conditions, and hours."10 After about a
half hour, they asked receptionist Mrs. Burch whether
Mrs. Larsen was there yet and were told she was not."
'In partial corroboration of the foregoing, Respondent 's Warehouse
Foreman Montis testified that on Saturday , July 27, he by chance
encountered some drivers and employees , including the four warehousemen
here involved , at a tavern where he had dropped in with his wife.
Apparently the men indicated they were in process of organizing and
wanted to know where Montis stood . Montis indicated he did not know,
that although he was "sympathetic" he "had an obligation to the
company," and he "discouraged them " However , the men "said that they
absolutely weren't going to work any further until they had conversation
with the management to try to iron out the problem they had, wage , hours,
working conditions However, I dismissed it as a beer talk . it boiled
down to the fact they were unhappy with their situation , and they wanted
to see management as a body [on Monday , July 29]... and talk over the
situation they were in , and see what they could do to iron it out."
'Based upon testimony of General Counsel witnesses Williams , Woodm,
and Montis , and of Respondent's witnesses Burch , Dulohery, Talbert,
Fritz , and Mrs. Larsen.
"The four warehousemen had first notified Warehouse Foreman Montis
that "we were not going to clock in until we had talked to Mrs. Larsen,"
since "We didn 't want to talk to her [Mrs . Larsen] on their [Respondent's]
time " Corroborating this, Warehouse Foreman Montis testified that at
around 8 a . m. on Monday, July 29, the four warehousemen , with Williams
as spokesman , told hum "that they wanted to have a conversation with
Mrs. Larsen before they went to work I went to Mr Fritz [i e.,
Respondent 's dispatcher and Montis' superior] and explained the situation.
... That I had some men that wanted to have a conference with the
management to iron out some difficulties over wages and hours before they
went to work." Dispatcher Fritz denied that Montis told hum this; and
insisted that although he , as the man directly in charge, under Mrs
Larsen , of all Company operations, was told by Montis later that morning
that the four warehousemen - comprising about the total warehousemen
work force - had "walked out," he neverthesless not only did nothing
about it but did not so much as mention it to Mrs. Larsen since he "didn't
think it was [my] responsibility to report this to Mrs Larsen" and that he
did not even ask Montis why the men had walked out since he was "not at
all. . . interested." Based upon Fritz 's foregoing testimony , which I find it
difficult to believe , and Fritz's testimonial performance generally , I credit
Montis' testimony that he informed Fritz at the start of the working day
on Monday , July 29, that the four warehousemen wished to speak to Mrs.
Larsen at once about wages and other work problems
"Describing the configuration of her office and outer rooms,
Respondent 's principal , Mrs. Larsen , testified she occupies a "private
office or conference office [and also an adjoining room] . . next to
[receptionist Mrs.] Della Burch," who sits "immediately inside the front
door"; that paymaster or payroll clerk Mrs . Talbert has a separate office,
to reach which it is necessary to go through two doors - including an
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When, shortly thereafter, the waiting employees learned
from a truckdriver that Mrs. Larsen had left with
receptionist Mrs. Burch for coffee , the four warehousemen
also left for coffee .' 2 Returning to the warehouse , the four
men waited outside of the building for Mrs. Larsen to
return . They there told truckdriver Hoffman that they
were waiting for Mrs . Larsen to "see if we couldn't get
something straightened out about working conditions."
Soon Mrs . Larsen ' s husband drove up , alighted from his
car, and started to walk toward the four waiting
warehousemen , but was intercepted by truckdriver
Hoffman, who walked up to Larsen and spoke to him. At
this point , Mrs. Larsen arrived with Mrs . Burch (the
receptionist). Alighting from her car, before any of the
four employees could say anything to her Mrs. Larsen
told them , "You can all go home . We don ' t need you.""
Although Larsen indicated to his wife that " they just want
to talk ," Mrs. Larsen and Mrs . Burch merely strode into
the building , leaving the four employees standing together
outside."
Thereupon, considering themselves discharged by Mrs.
Larsen , the four warehousemen went to paymaster or
payroll clerk Mrs. Talbert to collect their pay for their
previous Saturday's work.16 Mrs. Talbert "looked at us
funny . . . . [and] said, `Are you quitting?' We said, `No,
we are fired.' "' f
office in whici bookkeeper Mrs. Dulohery works - from Mrs. Burch's
location . Mrs. Larsen conceded on cross-examination that receptionist
Mrs. Burch knew she was in that morning ; nevertheless, Mrs. Larsen
insisted that nobody told her that the men were waiting to see her.
Conceding that she saw the four employees in question in the reception
room on Monday morning before she went to coffee with Mrs. Larsen,
Receptionist Mrs. Burch testified that she could not remember how long
they stayed there and that she could not recall whether any words passed
between them and her; and she testified that she could not remember
whether they asked to see Mrs. Larsen. Comparing testimonial demeanor
and considering Mrs. Burch 's allegedly deficient powers of recollection, I
find that the four warehousemen did in fact indicate to her that morning
that they wished to see Mrs. Larsen and, from what earlier and later
transpired , that Mrs. Larsen knew they were there to see her. Although
Mrs. Larsen repeatedly denied that anybody told her on Monday, July 29,
that the warehousemen wanted to see or talk to her , during
cross-examination Mrs. Larsen testified that "I don't recall anyone
mentioning that they wanted to see me on Monday [July 291." (Emphasis
supplied.)
"The testimony of Mrs . Larsen and of receptionist Mrs. Burch
corroborates that they went out together for coffee, after Mrs. Larsen had
gone over her mail and engaged in some telephone conversations , including
one with her husband , whom she arranged to meet at coffee . According to
both Mrs . Larsen and Mrs . Burch, this was around 9:30. Mrs. Burch
testified she saw the four employees in the reception room "close to 8:30,"
which was about the time of Mrs. Larsen 's arrival according to the latter's
testimony . Mrs. Larsen conceded that she considers it serious and
significant for four employees to "quit" ( in her usage ) in a group. At the
very least, it must have been extraordinary for four warehousemen -
practically the full complement of warehousemen - to present themselves
at her office the first thing Monday morning to talk to her as a group.
Nevertheless, Mrs. Larsen insisted in her testimony that she did not
'discuss any business' with Mrs. Burch at coffee . Mrs. Burch, however,
testified that she was unable to recall whether the four employees were
mentioned or whether the Larsens (Mr. Larsen had joined them as
arranged ) asked what was going on, during their 45-minute coffee session.
Larsen did not testify . Under the circumstances, and considering what had
discussed or even mentioned.
"Respondent 's pay week ends Friday.
"According to Mrs . Talbert, the four employees came into her office
around 8:30 with their timecards and informed her that they had "quit"
and would be back in an hour to pick up their checks . The testimony of
warehousemen Williams and Woodin (in part corroborated by Warehouse
Foreman Montis ) indicates that they merely turned in their timecards
around 8:30 to cover their previous Saturday's work , in accordance with
normal warehouse routines , and that they did not tell Mrs. Talbert at that
The four warehousemen then sought out and acquainted
Warehouse Foreman Montis with these facts. Montis
describes his reaction as, "You could have knocked me
over. . . . I was stunned." Further according to Montis'
testimony, he returned to the warehouse, where Mrs.
Larsen "told me [Montis] that she had a problem and she
wanted me to find out who was involved, and especially
the ringleader, and report to her that afternoon.... I told
her I would." That afternoon, he saw the four employees
(who had returned for their pay, which was not ready). As
recounted by Montis:
. they were stunned, I was stunned, nobody knew
which way to go. The main thing I was interested in
was the terrific work load we had. I had to have the
manpower to carry on the task I was assigned. The
main point in my mind at the time was to get the men
back to work and get this thing settled up and get the
work load off our backs. . . . I asked if they would
come back to work the next morning , to see if I could
talk to Mr. Fritz and Mrs. Larsen to straighten the
thing out.
The warehousemen agreed to return to work the following
morning (Tuesday, July 30), which they did.
3. Tuesday, July 30
In accordance with their arrangement with Warehouse
Foreman Montis on the preceding afternoon, the four
warehousemen reported to work at the warehouse at 8
a.m. on Tuesday, July 30. Credited testimony of
warehousemen Williams and Woodin indicates that at that
time Warehouse Foreman Montis, after checking with
Dispatcher Fritz, told the four warehousemen to "go to
work" and assigned to them various work tasks which
they proceeded to fulfill. The warehousemen's testimony
to this effect is corroborated by credited testimony of
Warehouse Foreman Montis, who swore that "When they
[i.e., the four warehousemen ] came in , I [Montis] asked
them if they were ready to work and they said they were.
I reported to Mr. Fritz and told him that the men had left
the job Monday or were fired, however it happened to be,
were back at the office and were ready to go to work.
And he [Fritz] said , `Do you feel that you really need
them?' I answered, `Why, yes, we need them.' And he
[Fritz] said, 'O.K., put them back to work.'. . . I put them
to work. . . . got the work load allocated and got Mr.
Williams on the road, and the rest of the employees taken
care of. ..." Later, however, when Montis went to see
Fritz about an unrelated matter, a telephone call was
received by Fritz, seemingly from Mrs. Larsen, and
Montis heard Fritz say that "they [i.e., the four
warehousemen] were back to work and we needed them."
(or at any other ) time that they had "quit" or were "quitting ." Testifying
as Respondent 's witness, Respondent 's bookkeeper Mrs. Dulohery, whose
office is only 8 feet from that of Mrs. Talbert, stated she saw the four
employees go into Mrs. Talbert's office at some unremembered time that
morning and "ask for their pay," without any mention of "quitting."
Based upon comparative testimonial demeanor observations , I have no
hesitation in believing Williams in preference to Mrs. Talbert, of whose
veracity I formed an indelibly poor impression , particularly in view of the
attempts to mislead through deliberate alterations of Respondent's
timecard records - impounded in evidence here - as will be described.
Furthermore , it indeed seems strange that if the four employees comprising
virtually the entire complement of warehousemen announced they were
"quitting ," Mrs. Talbert would not (as she claims ) inform Mrs. Larsen
until two hours later , after going out for coffee. (According to Mrs.
Talbert, when she informed Mrs. Larsen at 10:30 that the men had "quit,"
Mrs. Larsen "was lust as dumbfounded as I was, really." It is puzzling
why Mrs Larsen should be "dumbfounded . . really," since she of
course then already knew all about the situation, according to her
testimony.)
RICHARDSON TRANSFER & STORAGE CO., 507
Hanging up the telephone, Fritz explained that Mrs.
Larsen had been on the other end of the wire, and told
Montis "to go out in the warehouse and fire the men, the
four men, by name , and get them off the property. I
[Montis] said , `That is an awfully big order .' And he
[Fritz ] said , ` If you have any trouble , call the police.' And
I said , 'O.K., I will do it .' " Montis thereupon told the
employees that " I had been ordered to fire them . I wasn't
doing it out of spite . It was just my job . I had to get them
off the property at once and if they didn't go , I was to
call the police ." He told Woodin to find Williams and
have him park the truck with its load.
According to Warehouseman Woodin:
I [Woodin] believe we were unloading a truck and I
had worked probably an hour when Mr. Montis came
out and said that we all had to get off the dock , that we
were fired and if we did not leave , he would have to call
the police and he did not want to do that , so he asked
me if I would go out to the base and have Calvin
[Williams] bring the truck back. . . . We went out to
tell Calvin [Williams ] to bring the truck back. . . . He
[Williams , on his return to the warehouse ] parked the
truck and went to the dock and unloaded at the door
and started to take the case in and George [ Montis]
said no, just to leave them , to him , it would be best not
to come in the warehouse....
According to another of the warehousemen , Williams:
It was close to 9 o'clock and I [Williams] had just
finished unloading this packing material and spreading
it around and my car drove up behind the truck. There
was Bob Woodin and Jess Goodwin and Ronnie Gipe. I
walked over to the car and I was told to take the
pickup back. We were fired again . I was to give the
keys to George [ Montis] and get off the property. I
proceeded to do this....
I parked the truck in the normal parking place on
the lot and walked around to the back dock and yelled
at Mr . Montis . He was on the warehouse floor. I
started to step up on the dock. He told me not to. He
said , "You had better stay out of the warehouse. Just
give me the keys and get off the property . If there is
any trouble I have to call the police."
As of this time , according to the testimony of
Warehouse Foreman Montis , the supervisor of the
warehousemen , the four warehousemen in question had
been "good employees ," with no intention on his part or
indication to him to terminate them.
Upon attempting to obtain their pay - for the time
worked that day (Tuesday , July 30 ) as well as the
preceding Saturday (July 27 ), for which they had not yet
been paid , the warehousemen were informed by paymaster
Mrs. Talbert that "we [warehousemen ] couldn ' t pick up
our checks until we talked to Mrs. Larsen ." Warehouse
Foreman Montis ' credited testimony establishes that
"Mrs. Larsen asked me to verify the time that they
worked " on Tuesday morning , which he "verified [as] the
one hour ," and the men later "told me they were paid."
It is appropriate to pause at this point to consider some
of Respondent ' s contentions concerning the aforedescribed
events of Tuesday morning . Respondent appears to
contend that Montis lacked authority to put the
warehousemen back to work on Tuesday morning; that
neither Fritz nor Mrs. Larsen knew that the
warehousemen had returned to work on Tuesday morning;
that the warehousemen did not in fact work for
Respondent on Tuesday morning ; and that the
warehousemen were not paid by Respondent for working
on Tuesday.
Credited evidence" establishes that , as Warehouse
Foreman , Montis not only assigned and directed the work
of warehousemen and told them what to do , but also
possessed and personally exercised the power to hire and
fire employees as well as responsibly so to recommend to
Dispatcher Fritz (who "is in charge of the operation of the
company in the absence of Mr . or Mrs . Larsen"), who
"took my [Montis '] judgment" in that regard. On the
question of Montis ' authority to restore the warehousemen
to work on Tuesday morning as he did, Dispatcher Fritz
first testified that he (Fritz) "had the authority . . . . to
put these four employees back to work without conferring
with Mrs. Larsen" and could not answer as to whether
Montis (Fritz 's subordinate) had the authority since "I
can't speak for Mr . Montis." However , Fritz later
conceded that he (Fritz ) not only had the authority to
restore the men to work and to authorize Montis to do so,
but that Montis also had that authority ." Mrs. Larsen,
after conceding that she "did not tell him [Montis] not
to" restore the warehousemen to work on Tuesday
morning, further conceded that "perhaps it was .
[within Montis' authority to call these four men back if he
wanted to, although] it was possibly not exercising too
excellent a judgment . . . ." On cross-examination, Mrs.
Larsen unreservedly conceded that "He [Montis ] had the
authority to put the [four warehouse ] men to work."
Fritz conceded on cross -examination that around 8 a.m.
on Tuesday, July 30, Montis informed him that the four
warehousemen "were back to work " and that " I [Fritz]
didn't comment . . . . I didn 't give it any thought ...."
According to Fritz , he (Fritz) was "not at all .
concerned about it ." Fritz further conceded that he did
not tell Montis that he [Fritz] did not want the four
warehousemen in question working there , until he received
a telephone call from Mrs. Larsen in which she said this;19
according to Fritz , he had not indicated to Montis not to
restore the men to work since "I [Fritz ] was disconcerned
about them . . . [and] . . . didn't care if they worked or
not."
According to Fritz, while Montis was in his office on
Tuesday morning" he received a telephone call from Mrs.
Larsen "about those men. . . . She told me not to put
them back to work ." 21 He passed this on to Montis -
"Testimony of General Counsel witnesses Williams, Woodm, and
Montis; and of Respondent 's witnesses Mrs. Larsen and Fritz.
"This is not to say that Fritz was consistent in this regard . Fritz weaved
to and fro in his testimony to the extent of contradicting or unconvincingly
attempting to qualify much that he said , conveying the impression of an
ubiquitous prevaricator unskillfully attempting to tailor his testimony to
accord with the supposed best interest of his employer . For example, at
one point he even swore, "I don't do anything on my authority. I am not
that well qualified." At one juncture or another he oscillated in all
directions on the question of Montis ' authority to restore the men to work,
saying that Montis had it, did not have it , "It could have been changed," it
"was changed" (without furnishing any factual substantiation ), and that he
(Fritz) did not know . Upon the basis of the foregoing and the highly
unpersuasive character of Fritz 's testimony in numerous other respects
(some to be detailed ), I was finally left in the state of mind where I would
have difficulty in believing almost anything Fritz testified to here unless
convincingly independently corroborated.
"According to Fritz , this telephone call came in coincidentally while
Montis was in the office for the first time telling him the warehousemen
were "back to work"; but according to Montis it occurred while Montis
was in Fritz's office for an unrelated purpose after Montis had already put
the men to work in accordance with Fritz 's approval . I credit Month.
"See fn . 19, supra.
" Neither Fritz , Mrs. Larsen , nor anybody else indicated how Mrs.
Larsen had learned or why she supposed, that the men were working or
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who, however, as will be recalled, had already restored the
men to work with Fritz's express approbation.
Although there can be no question that the four
warehousemen actually worked in their jobs for
Respondent for about an hour on Tuesday morning until
ordered to stop and leave the premises, and also no
question that they were paid for that time, Respondent, in
an obvious attempt to mislead, crudely altered its
timecards to bolster its contention that the men were not
paid for that hour's work on Tuesday and therefore did
not work on that day. Respondent did so by changing the
amount of time shown by the timecards as having been
worked by these four warehousemen on the previous
Saturday so as to reflect an extra hour on that day. The
alterations are plain, deliberate, and unmistakable. The
original altered timecards have been impounded for the
use of any reviewing authority and for any other purpose
deemed appropriate.
According to the testimony of Respondent's paymaster
or payroll clerk Mrs. Talbert, the four employees'
timecards (Resp. Exhs. 2A2, 2B2, 2C2, & 2D2) in their
present form do not "reflect any payment for any work on
Tuesday [July 30].... [and] reflect payment for Saturday
[July 27] work only." Attached to each timecard is a
white "face sheet" which is "in my [Mrs. Talbert's]
handwriting with their [warehousemen's] signatures at the
bottom, `Accepted as correct,' by each of the four
individuals." Mrs. Talbert conceded that there is an exact
yellow copy of each, which may be retained by the
employee if desired. One such carbon copy was produced
at the trial by one of the four employees, who had
retained it. The original does not correspond to the copy,
the original having been changed by the Employer after
having been signed "Accepted as correct" by the
employee. It is perfectly apparent and I find that, as
contended by General Counsel, Respondent altered the
would be in to work that morning . On cross-examination , Fritz modified
the testimony he had given on direct examination so as to state that when
Mrs Larsen telephoned him that morning she first "asked me [Fritz] who
showed up for work " and that when he thereupon informed her that the
four warehousemen had, she "told me they were not to work ," which
instructions he transmitted to Monts but that he was unable to
"remember" what else he may have told Montis . The character of Fritz 's
general testimony may be savored by his response to the simple question of
whether the four warehousemen worked on Tuesday morning - which
they plainly did as shown above, until actually called off thew jobs and
ordered off the premises
Q. [By Counsel for General Counsel] Do you know, Mr. Fritz,
whether or not those four employees worked that Tuesday9
A [By Fritz] No , they didn't work Tuesday.
Q. Do you know that?
A. Insofar as I know , they didn't work.
Q. And from where did you get that information?
A They were not to work , anyhow.
Q. My question is, do you know whether or not these four employees
worked Tuesday?
A. They could have worked somewhere else
Q. For Richardson Transfer.
A. No, they did not work for Richardson.
TRIAL EXAMINER There is a big difference in saying they were not to
work and saying that they did not work . I think counsel is interested
and I am , too, in finding out from you whether they worked at
Richardson on Tuesday.
THE WrrNESS . They didn ' t work , as far as I know
TRIAL EXAMINER - As far as you know?
THE WrrNESS . Right.
TRIAL EXAMINER That means you don't know one way or the other
other?
THE WrrNESS: I didn't work them
TRIAL EXAMINER You didn't work them , is that what you mean?"
THE WITNESS' Right.
entries on the white "face sheets" after they had been
signed "Accepted as correct" by the four employees, and
also on the original timecards, in a crude attempt by
Respondent to support its claim that the four employees
in question were paid on Tuesday (July 30) only for work
on the preceding Saturday (July 27) and not for any work
on Tuesday (July 30). Thus, for example: (1) The entries
on the white "face sheet" (Resp. Exh. 2D1-Ident.)
allegedly signed "Accepted as correct" by warehouseman
Woodin do not correspond to those on the carbon copy
thereof (G.C.Exh. 3) produced by Woodin; among other
things, the date "July 29" (sic) has been added on the
original signed "face sheet" after the number of hours
("12") shown to have been worked. The same changes
were made on the original "face sheet" of warehouseman
Goodwin (Resp. Exh. 2C1-Ident.)." (2) The original
signed "face sheet" of warehouseman Gipe clearly shows
the number of "Total Hours" for Saturday, July 27, to
have been "12 1/4," visibly overwritten as "13 1/4."
(Resp. Exh. 2A1-Ident.) (3) All four original timecards of
the four warehousemen in question (Resp. Exhs. 2A2,
2B2, 2C2, and 2D2) show unquestionable indications of
having been tampered with and changed so as to reflect
one alleged hour later clocked out on Saturday, July 27
(22:00 or 10 p.m., rather than 21:00 or 9 p.m.) and one
alleged additional hour worked on that day. The timecard
alterations were so crudely manipulated that, for example,
on the original timecard of warehouseman Woodin (Resp.
Exh. 2D2), although the total hours on the right side of
the card were changed from "11:06" to "12:06," the
"Daily Total(s)" is still shown as "11:06" at the bottom
center of the card through neglect to make the
corresponding alteration there; warehouseman Goodwin's
original timecard (Resp. Exh. 2C2) shows an
unmistakable alteration in two places of total hours
worked on Saturday, July 27, from "8:51" to "9:51"; and
the original timecards of warehousemen Williams (Resp.
Exh. 2B2) and Gipe (Resp. Exh. 2A2) likewise show
unmistakable alterations of hours worked on Saturday,
July 27, so as to reflect an additional hour in each case.
(4) The original timecards of 3 of the 4 warehousemen in
question show handwritten (rather than timeclock-printed)
entries of the quitting time on Saturday night (July 27)
since , according to Mrs. Talbert, "the office was not open
for the men to punch it when they got out, off of work."
In the case of Goodwin, however, apparently the office
was still open;" since his quitting time on Saturday, July
27 - alone of the 4 warehousemen in question - was
5:19 p.m., which is timeclock-printed. Notwithstanding
that Goodwin's timeclock-printed timecard (Resp. Exh.
2C2) clearly shows he worked only 8 hours and 51
minutes on that day and his morning and afternoon hours
are so totaled ("4:02" plus "4:49" on the card itself,
presumably by Mrs. Talbert, who swore she made these
entries ), Goodwin was nevertheless paid for an extra hour
"Cross-examined on voir dire regarding this, Mrs Talbert conceded she
had altered the original " face sheet ," swearing that she did this "for
identification purposes only . because at the time that they picked this
check up we didn't even dream that anything like this would come up, so I
did this [added the words] on here [original, after it had been signed by
employee] " Mrs Talbert then stated that she did this "Just before when
we were getting this paperwork ready for this hearing I don't
generally do those things, no I did this time for this hearing only"
Although Mrs Talbert testified that the source of her information for the
"July 29" entry which she thus added to the original " face sheets" after
the employees had signed them, was the original payroll cards, it clearly
appears from each of those original payroll cards ( Resp Exh 2A2, 282,
2C2, and 2D2) that nowhere on those cards does the date "July 29"
appear, but only "July 27 "
"Mrs. Talbert indicated it is usually open until 6 p.m.
RICHARDSON TRANSFER & STORAGE CO.,
nowhere shown on his timecard to have been worked on
Saturday, July 27; the total "8:51" hours having been
crudely altered in two places thereon to "9:51" hours.
Mrs. Talbert's absurdly false explanation for this was that
"I probably readded it and added it wrong." As for the
altered figure "22:00" overwritten on the other three
timecards, Mrs. Talbert conceded that "I did that," but
when asked "What was written on there before you wrote
the 22:00," she replied, "I can't say, sir." Later, however,
she admitted that at least one of the timecards (that of
Williams, Resp. Exh. 2B2) would indicate that it was 9
p.m. (i.e., "21:00" in her system of denotation), or, one
hour earlier before altered so as to make it one hour later.
Confronted with this admission, she then stated that she
changed Williams' timecard from 9 to "22:00" (i.e., 10
p.m.) so as to pay him for an extra hour for Saturday
because the other 3 warehousemen had worked until then.
This is, of course, untrue; indeed, Goodwin's timecard
clearly establishes that he worked only until 5:19 p.m.
Asked why she "corrected" and paid Williams for an
extra hour's work on Saturday, July 27, which he himself
was not claiming, Mrs. Talbert's unconvincing reply was,
"It is better to give an extra hour when in doubt than it is
to take away an extra hour." Mrs. Talbert later conceded
that she changed all of the timecards to reflect an
additional hour of work for Saturday, July 27; asked why
she did this, her reply was, " I can't answer that, sir."
Finally, Mrs. Talbert, Respondent's paymaster or payroll
clerk of 16 years' standing, contended or conceded that
she made an error of one extra hour on each of three of
these timecards on Tuesday, on the simple arithmetic
involved. _'
Upon the record as a whole, I find that Montis
possessed in independent authority to restore the four
warehousemen in question to work on Tuesday morning,
July 30; that Montis in fact exercised the authority, with
the express approbation and further authorization of his
immediate superior, Fritz - who also possessed such
authority - to and did in fact restore the four
warehousemen in question to work on Tuesday morning,
July 30; that the four warehousemen in question, pursuant
to such authorized restoration to work, in fact resumed
their jobs and worked for Respondent for approximately l
hour on Tuesday morning , July 30, until they were
thereupon summarily discharged by Respondent as
described, upon direct order of Mrs. Larsen; that each of
the four warehousemen in question was paid by
Respondent for said hour of work on Tuesday, July 30;
and that Respondent thereafter, in an attempt to
misrepresent and mislead, deliberately altered its payroll
cards for the four warehousemen so as to omit therefrom
or not to show said hour's work performed on Tuesday,
July 30, and so as to make it appear that said hour had
been worked by each of the four warehousemen on the
previous Saturday, July 27.
We return now to the described discharge of the four
warehousemen on Tuesday morning , July 30. As has
already been shown, when they called for their pay they
were told by Mrs. Talbert that they would first have to
speak with Mrs. Larsen. After waiting an hour to see
Mrs. Larsen, the four were admitted to her office, where
she started by telling them, "You all no longer work here.
You won't get your jobs back, but I want to know
what the problem is." The warehousemen "told her that
"Under the circumstances , Mrs. Talbert 's testimony may best be
characterized as little other than a tissue of fabrications.
509
we just wanted to talk to her. She had not given us a
chance." After the employees "told her we would
appreciate higher wages," Mrs. Larsen informed them
that Respondent could not do this in view of losses. There
ensued a discussion of work methods and work caliber in
the warehouse, as well as of the hours of work. "She
[Mrs. Larsen] told us if we were not happy and wanted
more money we could go somewhere else. I [Williams]
said it seemed to me that we were working hard and doing
a good job, that happy, satisfied employees are going to
do a better job. She asked why it was just the four of us
and I informed her it was not just the four of us, that we
were speaking as representatives of the group. She didn't
appreciate this. She said, `If the whole group wanted to
talk to me [Mrs. Larsen], they could come in and talk to
me one at a time after hours.' . the conversation.. .
lasted approximately an hour. The last thing I can
remember that was said was that she thought we had
shown very, very poor judgment in our method or mode
of trying to approach her, such as to say it was on a city
street in Salina because we were at the front of the
building. I told her she had shown equally poor judgment
in her method of discharging us. That ended the
conversation and we walked out and got our checks and
left the building." During this conversation, according to
warehouseman Williams, Mrs. Larsen "inferred we
weren't fired, that when people walked out on her they
quit. . . We said we did not walk out, we wanted to talk. .
.. She said we showed poor judgment in not reporting for
work on a Monday morning and leaving customers
hanging, and we said she [i.e., we! had checked and there
were no pressing pickups and there were no pressing jobs
and what better time was there than Monday morning to
get something worked out."
Mrs. Larsen's account of her meeting with the four
warehousemen in her office on Tuesday, July 30, is, that
her first words to them were, "What is this about?" Then,
according to Mrs. Larsen:
I told them they used poor judgment in that they
appeared beside the building instead of coming in or
asking for a conference, and that I did not conduct
conferences beside the building.... One of them, either
Calvin Williams or Bob Woodin, said, `We would like
to have more money or longer hours.' One of the others
replied that they did not think it was fair to have to
work on Saturday and be laid off on some other day of
the week.... About half way through the conversation,
as I recall it, I asked why they were concerned, since
they no longer, since you no longer work here. . . . I
don't recall [their response to that].... I don't recall
[any of them] stating they had been discharged.
According to Mrs. Larsen, there followed a discussion
regarding various work problems, including increasing
wages from $1.60 to the $1.75 per hour being paid by
other moving companies in town, to which Mrs. Larsen's
answer was that "perhaps they could get a job at one of
these warehouses that paid higher than we did." She then
instructed paymaster Mrs. Talbert to issue the men their
checks paying them off.
The four warehousemen were then given their terminal
paychecks, which, as already shown, included one hour's
work for that (Tuesday, July 30) morning and the hours
worked on the previous Saturday (July 27).
On that evening, Tuesday, July 30, a meeting of all of
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's warehouse employees25 was held in
warehouseman Woodin's home, after the others (i.e., other
than the four warehousemen discharged as described) had
finished work around midnight. According to
warehouseman Williams, there ensued a discussion of
"our difficulties, the hours, wages, and working
conditions. . . . [Employee] Sandy Brown said that it
seemed unfair to her that the four of us [i.e., Williams,
Woodin, Gipe, and Goodwin] would put our jobs on the
line and lose our jobs to try to help the group and for us
to do this the group ought to back us and a vote was
taken. Each person had a say. We all spoke our piece and
our ideas on the matter. A vote was taken and it was
decided that no one would work until we all worked.
When the four of us were re-employed the whole
warehouse crew would be back. The big push was getting
us back to work. . . The decision was unanimous that
the next day we would not go to work until those of us
were taken back to work. . . . Everything said . . . was
along the same line. What had happened was unfair."
According to discharged warehouseman Woodin (in
whose home the meeting was held):
We were all teed up about the reason four of us were
fired and as we said before, that we had all decided that
the four of us would talk to Mrs. Larsen, so this was
not sitting very good with anybody and we talked more
or less about this and what we wanted, different wages,
and we decided that nobody would work Wednesday
morning if she would not put us all back to work.
Female employee Shannon Thompson, who was also
among those at the meeting, described it as follows:
We decided that we would not go back to work until
they had been given their jobs back, because they had
put their jobs on the line for us, because we all wanted
it and we decided we would go out on strike and see if
we could not go back. We wanted to go back to work,
but we wanted better wages and working conditions for
the men and for ourselves.
Further confirming the general tenor of the employees'
meeting following the described discharge of the four
warehousemen, Warehouse Foreman Montis testified that
he worked at the warehouse that night (Tuesday, July 30)
until midnight since "We didn't have adequate manpower
to cover the work load." As Montis left in his car, he saw
warehouseman Williams and others in a car across the
street and still another car which followed his, until
Montis stopped about a block away.26 The employees
invited Montis to accompany them to Woodin's home,
which Montis did. There, according to Montis:
... the general gist of the discussion was the people
were sore because the four men [i.e., Williams, Woodin,
Gipe, and Goodwin] had been sent out and fired for
trying to speak for what they told me [Montis] was the
entire group and they were quite upset that night. And
after listening to them for a while, I didn't want this
thing to erupt to something that couldn't be controlled,
so I more or less pleaded and I talked to them, told
them what they were doing, to the best of my
knowledge, and they held a vote and decided that they
weren't going to work the following day until the men
were reinstated.
"Attending were male employees Williams. Woodin, Gipe, Goodwin,
and McLaughlin . and female employees Thompson. Brown , Hatfield, and
Wyatt, or a total of nine employees On invitation of the rank-and-file
employees , Montis also was there
"When Montis got out of his car , he observed Mrs. Larsen and Fritz
"standing in the middle of the street."
4. Wednesday, July 31
On the following day, Wednesday , July 31,
Respondent ' s warehouse employees" picketed with signs
stating:
"Richard[son] Transfer & Storage warehouse on
strike. No talk, no work"
and
"One for all, all for one. It is all or none."
That afternoon, a meeting was arranged between
management and the striking employees, with Williams
and Montis" designated by the employees as their
spokesmen." When Williams and Montis proceeded into
the warehouse for that purpose that afternoon,
Respondent declined to speak to Williams, and Montis at
the same time. According to Williams, when he and
Montis were seated outside the office waiting for the
conference to start, "After a few minutes Mr. or Mrs.
Larsen came out and said they would speak to Mr.
Montis only, so Mr. Montis went in the conference room,
Mrs. Larsen's office as you call it. He [Montis] was in
there for approximately an hour."
Respondent's Warehouse Foreman George Montis
corroborated Williams' testimony that outside of Mrs.
Larsen's office on Wednesday afternoon, July 31, he and
Williams were told that the Larsens "would speak to me
[Montis] only," or that they would see the two of them
only "separately." For this reason Montis thereupon
entering Mrs. Larsen's office alone, there found, in
addition to the Larsens, Dispatcher Fritz and a
stenographer (Mrs. Virginia Hill, Mrs. Larsen's sister).
Montis described the lengthy discussion which ensued. "I
[Montis] told her [Mrs. Larsen] that the first point I felt
was necessary that there be no reprisals for the men
walking off the job, or however it happened to be. They
all go back to work." Montis also suggested a 15-cent
increase to $1.75 per hour for the warehouse employees,
as well as "a little better conditions to work under,
especially for the female employees." Mrs. Larsen stated
that "the men [picketing] across the street weren't
qualified, for one reason or another," including that one
"was a trouble-maker." Dispatcher Fritz stated "that
according to the law, he [Fritz] was the only legal
bargaining agent for those particular people, the group
that was in the street, the corner. . . the strikers. . . I
[Montis] laughed:
"Well, if you [Fritz] are the only legal negotiator,
maybe I [Montis] had better change chairs and you can
negotiate and I will sit here and watch." And he [Fritz]
said, "I [Fritz] will negotiate with them one at a time."
And I [Montis] said, "Nothing doing. Negotiate with
the whole bunch or none at all." He said, "Under the
Taft-Hartley law I can have you put in jail." And I
said, "I am willing to go to jail if that is what I have to
do.". . Then the conversation ran far and wide and at
"All including Goodwin, excepting two elderly employees, one a
full-time employee who had formerly been warehouse foreman (Carl
Smith) and the other a part-time social security pensioner (Harold
Crompton) Mrs. Larsen testified she observed all of the warehouse
employees except Smith and Crompton picketing
"Montis also stayed out
"It was not until this or the previous day that the signed union cards
were turned in to the Union
RICHARDSON TRANSFER & STORAGE CO., 511
that point the door opened and Mr. Williams came in
with a newspaper and everyone became quite excited.
Mrs. Larsen reached for the phone and started to dial.
She said she was going to call the police. Mr. Larsen
jumped up and I thought at the time he was going to
strike out at Mr. Williams and I started to get up
myself because I didn't want any trouble at all, none
whatsoever. And there were some heated words and Mr.
Williams left.70
After Williams thus left the room, the discussion
continued for perhaps an hour, centering mainly around
what Mrs. Larsen apparently insisted was the lack of
qualifications of the men, while she also took the position
that the employees had "left of their own accord." At the
conclusion of the discussion, a further meeting was
arranged for the next day.31
According to Mrs. Larsen's version of the foregoing
meeting, Montis "introduced the conversation by saying,
'It is strictly an economical strike13 and I [Montis] would
like for you to promise that there will be no reprisals,' "
to which she responded , " I am listening ." Also according
to Mrs. Larsen, Montis did not ask that day, but only on
the next day (August 1) that the employees be reinstated .33
She conceded that although Williams and Montis arrived
for the conference and waited in the corridor together,
"We requested George Montis to come in first, alone."
Fritz's recollection of the meeting consists of little more
than that Montis stated the employees were "on strike"
and "wanted more money"; and that when Montis said he
represented the employees, "I [Fritz] told him [Montis] I
was the [employees '] bargaining representative""
according to Fritz (whom I discredit), Montis "agreed
"Accord ing to Montis, Williams became angered when Mrs Larsen
made a remark which Williams regarded as an " insult . . [to Williams']
intelligence " According to Williams - who was cooling his heels outside
of the office while this conference , from which he had been excluded by the
Larsens, was going on - "I was getting fidgety there with all the office
personnel walking about and I went outside. By this time a Salina Journal,
the local newspaper , had come out and the other strikers had a copy of it
I read the article and there was some tremendous misquotes on both sides
It was all jumbled up and I wanted to show this to Mr . Montis so I took it
back inside and was going to knock on the conference room door , but the
door was open and Mr . Montis was getting ready to leave I stepped in
and handed him the newspaper . Mrs. Larsen said to sit down . I looked
around and I saw Mr. Larsen, Mrs Larsen, Roy Fritz, and a stenographer
taking down what was said . . . This seemed unfair to me that there would
be three of them and one of us if we were bargaining . So I asked Mrs
Larsen if the two of us couldn ' t speak . She said , 'I am done with Mr.
Montis We are ready to talk to you.' I said , 'What is wrong? Are you
afraid two heads are better than one?' She said, 'It would take two of your
heads to be as good as one of ours.' This made me mad and I said, 'Just
don't doubt our intelligence , Viola Larsen' She picked up the phone to call
the police and Mr. Fritz threatened to have the Taft-Hartley laws invoked
and me thrown in jail . Mr Larsen was throwing his arms around and I
walked out the door " On cross-examination , Williams conceded he "got
mad" and "might have" become "pretty loud" because of what he
considered was a "slanderous remark" by Mrs. Larsen , resulting in
Larsen's telling him "not to talk to his wife like that." Williams also
conceded that he slammed the door and "might have" said "You can all
go to hell" as he left after being "threatened to be thrown in jail" He has
never set foot in the premises since then
''Montis had meanwhile returned his key to the premises to Dispatcher
Fritz. But "Fritz tried to give the key back to me [Montis ] and he [Fritz]
said, 'Look, the best thing for you [Montis] to do is back out of this thing
and forget it and come back to work , and we will see you in the morning.'
I said , 'No, I can't do that, I am in too far .' And he said , 'Oh, no, you are
not. You can all back out.' And the question came out , 'Where is your
loyalty? Don't you have any loyalty to the company?' I thought that was
an odd question . I have been laughing about that ever since I didn ' t think
my loyalty would ever be questioned, really. . . I asked absolutely nothing
for myself."
that I [Fritz] was .... It was his [Montis'] belief that I
was correct in assuming that I was...." Larsen, present
at the meeting, failed to testify.
Contrary to my poor impression of the credibility of
Mrs. Larsen and Fritz, I was favorably impressed by
Montis who was forthright and candid and whose words
had the ring of utter truth, and who testified against
interest possibly at the permanent cost of his job." I
accordingly credit Montis' version of the described July 31
meeting.
5. Thursday, August 1
On the following morning (Thursday, August 1) Montis
returned to Mrs. Larsen's office to resume the meeting of
the day before.36 There, according to Montis, whose
testimony I credit for reasons already explained:
I [Montis] opened the meeting by asking if there
was any small point where we could find a common
ground to get together, even just to put the men back to
work, and I said, `Why don't we just set it all up the
way it happened Monday, just go back on the same
wages , same hours, everything just exactly the way it
was until we can iron this thing out.' And Roy Fritz
came right back and said, `What do you want to do, get
Calvin [Williams] back in here so you can organize?'
And I said, 'No, all I want to do is put those people
back to work.' So we went over qualifications again
that same day, and by this time, you have to
understand, I am a man that doesn't take too much to
set him off, and I was trying to fight down the idea, to
keep my temper down and be decent and civil to
everyone concerned. And we went over various things
and I happened to make the remark, 'I think Harriman
is doing better in Paris with Hanoi than I am doing
here. I think I am wasting my time, so I think we had
better close it up.'... Mr. Fritz and Mr. Larsen both
stipulated definitely, repeatedly time and time again,
that the only way anybody would go back to work
would be if they walked across the street and hand
"This is inconsistent with Montis' testimony as well as with that of
Fritz. It impresses me as highly unlikely that Montis would employ such a
phrase (i.e , "economical strike" ), which (i e , "economic strike" ) is known
as a phrase of art among cognoscenti like labor lawyers Poorly impressed
as I was with Mrs. Larsen's testimonial performance, considering her
numerous contradictions , evasiveness , and equivocations , as well as her
demeanor and her strongly evinced interest , I do not believe her testimony
that Montis made the statement it is strictly an economical strike" which
she ascribes to him.
"I credit Montis' version in this aspect as well
"According to Fritz, he "found out later I [Fritz ] wasn ' t", and that he
had based his earlier assertion that he (Fritz ) was the employees'
bargaining representative upon an alleged 1963 decertification (at Fritz's
behest) of a union which according to him had "identified" Fritz as "the
bargaining representative , which I [Fritz ] was, and all of the employees
that were there have all gone by that ." At that time ( 1963), Fritz was an
over-the-road driver
"The motions (upon which decision was reserved at the trial ) to strike
out Mrs. Glendening's testimony regarding an alleged incident during a
previous employment of Montis thought to reflect upon his credibility,
which incident was explained to my satisfaction by Montis and
notwithstanding which incident Montis was subsequently not only rehired
but appointed Warehouse Foreman by Respondent , are denied.
"This meeting was attended by the same persons except that receptionist
Mrs. Burch replaced the stenographer Mrs. Larsen testified that Mrs
Burch 's notes (which Mrs. Burch testified she took in "a personalized form
of speedwriting" and then rewrote in longhand) were "retyped" by Mrs.
Larsen (and Mrs. Glendening) Mrs. Burch testified that she did not
proofread the typed version and does not know what happened to her
notes
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picked the crews. My reaction was, `Who are you going
to pick?' `That is up to the management. We are not
going to tell you.' I said, `If that is the way you are
going to work, we will stay out.'. . . [I indicated they
would return] for exactly the same wage, hours,
conditions it was prior to Monday morning, until we
would reach some sort of agreement. . . [Fritz and
Larsen indicated they] would go across the street and
hand pick the crews. That is the only way they would
consider it.
Montis declined Respondent's proposal that Respondent
would permit the return to work of only such employees
as Respondent itself selected. At this meeting, Fritz again
threatened that Respondent "would have me [Montis]
arrested under the Taft-Hartley law for bargaining
illegally." In support of this view, Fritz displayed "a
decertification of the union some years back. . . . He
[Fritz] went to a lawyer's office and had a document
drawn up. I [Montis] didn't know what document and I
don't know anything about the Taft-Hartley law, really."
Fritz again insisted that "he [Fritz] was the one to
bargain] for the employees," and again invited Montis
that "any time I wanted to go to work I had a job."
In her version of the August 2 meeting, Mrs. Larsen
conceded that at the outset of that meeting Montis stated,
" `I am asking that you put them all back to work on the
same pay rate as before.' Mr. Larsen said, `You mean all
the people?' Mr. Montis replied, `Yes.' I [Mrs. Larsen]
asked why they were wanting to come back at the same
rate of pay. I don't recall the answer." Mrs. Larsen
further conceded that "Mr. Larsen said we would want to
hand pick the ones we put back to work. Mr. Montis said,
`All would come back or none.'. . . The conversation went
on and on about whether we hand picked them, whether
they all" came back or whether part came back. In the
end Mr. Montis said, `I am getting no place, I might as
well quit, I might as well go. You have pushed me to the
end. It is out of my hands,' and he left." Dispatcher Fritz,
who was also present at this meeting, while testifying that
"I can't remember exactly" what anybody said and that
"I didn't say too much. I listened to him[Montis]
mostly," nevertheless conceded that Montis did say "To
put the employees back to work. That was his [Montis']
main idea of being there." Again, Larsen did not testify.
6. Friday, August 2
On the following day, Friday, August 2, as testified by
Mrs. Larsen on direct examination, Union representative
Glenn met with her, stating he represented Respondent's
employees and displayed cards which he offered to show
her but which she "told him I did not wish to see... at
that particular time. . . He asked that we reinstate the
employees immediately." Mrs. Larsen replied that she
wished to obtain legal advice, which might take to the
following week. According to Mrs. Larsen, Glenn did not
return.
On cross-examination, after her attention was directed
to her own transcript of this meeting, Mrs. Larsen
conceded that she also told Glenn, "We will not take
those back who walked out. We are mad, we won't take
them back." Cross-examined further, Mrs. Larsen also
conceded that in connection with the aforequoted words in
"Mrs. Larsen conceded that when Montis insisted "all" employees be
reinstated he included, and said he included, the four warehousemen,
Williams. Woodin. Gipe, and Goodwin.
the typewritten transcript, somebody - allegedly
unknown to her - inserted in handwriting, but then
blotted out, the words "quit and" immediately preceding
the words "walked out." The explanation for this offered
by Mrs. Larsen at the trial was that "These [transcripts]
were for personal use, we didn't intend that they be
subpoenaed to court, and they were only for reference of
our company."
At no time has Respondent had any further discussion
with Montis, Williams, or any of the strikers, nor with
anybody on their behalf, nor has any employee been
reinstated to his or her job.
D. Discussion and Concluding Findings Relative to
Termination of Employment of Respondent's Four
Warehousemen on July 29 and 30, 1968
The complaint alleges that in violation of Section
8(axl) of the Act, on July 29 and 30 Respondent by its
Mrs. Larsen discharged its warehousemen Williams,
Woodin, Gipe, and Goodwin, and has since failed and
refused to reinstate them, because of their participation in
protected, concerted activity. It is entirely clear that this
allegation has been established, indeed overwhelmingly
established, by a fair preponderance of the substantial
credible evidence, and I so find.
In its answer , Respondent alleges that the four
warehousemen in question "resigned" on July 29. 1 find
that this contention has not been established and is devoid
of merit. The credible evidence establishes that at no time
did any of the warehousemen in question resign or give up
their employment with Respondent; on the contrary, these
men repeatedly indicated in the clearest of terms that they
had not quit and were not quitting. It was only in Mrs.
Larsen' s peculiar semantic usage that the employees had
"quit," since - according to her own testimony - she
regards a "walkout" as synonymous (or "approximately"
so) with "quit."" To begin with, the warehousemen did
not "walk out" on Monday, July 29, but merely came to
see Mrs . Larsen to discuss matters touching their and
their fellow-employees' jobs and working conditions at the
warehouse. This they had the right to do, on their own
behalf as well as on behalf of the other employees as
designated representatives of the latter, under the Act's
express guarantee and protection. Mrs. Larsen knew full
well that they were there and wished to speak to her, but
she avoided them. Instead of speaking to them, she
discharged them out of hand, thereby violating the Act in
a most direct way. According to her, when she returned
from her long coffee session that morning with her
husband and receptionist Mrs. Burch, her husband (who
had preceded her-in his separate car and who had had the
opportunity to become apprised, before Mrs. Larsen
returned, of the situation from the truckman who had
been speaking to the four warehousemen outside of the
warehouse), her husband said to her regarding the
warehousemen , "It looks like they are walking out" and
she understood this to mean "That they are quitting."" I
do not believe Mrs. Larsen. She well knew that"the men
were only waiting to talk to her, as indeed her husband
"In this, Mrs. Larsen is plainly in error. See: Elam v. N L R B.. 395
F.2d 611, (C.A.D.C.); J. A Bentley Lumber Co v. N.L.R B.. 180 F.2d
641 (C.A.5); B & P Motor Express Incorporated. 171 NLRB No. 174.
"Mrs Larsen concedes that nowhere in her own transcripts (37 pages) of
conferences she held on July 31, August 1 , and August 2 did she ever say
that the employees had "quit ," but only "I said they walked out, and got
RICHARDSON TRANSFER & STORAGE CO.,
expressly told her Cf. Electromec Design and
Development Company, Inc, 168 NLRB No. 107, fn. 5.
She nevertheless summarily discharged them. This was on
Monday morning , July 29. When the four men returned to
work on Tuesday, July 30, as they had been told to do the
previous afternoon by Warehouse Foreman Montis, and
actually went to work on Tuesday morning by explicit
direction of both Montis and Dispatcher Fritz, either one
of whom had the authority to so direct, they were
nevertheless again abruptly discharged by personal order
of Mrs. Larsen. The discharge of July 30, as well as that
of July 29, was because of their engaging in protected
concerted activity and for no other reason. For the same
reason, Respondent has since that time refused to
reinstate the employees.
I find that on July 29 and again on July 30, 1968,
Respondent, through its principal and Managing Director
Mrs. Viola Larsen discharged from its employ, and has at
all times since July 30, 1968, failed and refused to
reinstate or readmit into its employ, its employees Calvin
K. Williams, Robert L. Woodin, Ronnie E. Gipe, and
Jess Goodwin, solely because of their participation in
protected concerted activity, and that those actions on
Respondent's part have been and are in violation of
Section 8(a)(1) of the Act.
E. Discussion and Concluding Findings Relative to
Nature of Strike of Respondent's Warehouse
Employees Commencing July 31, 1968
It is eminently clear from the substantial credible
evidence that the primary and real reason for the strike by
Respondent's warehouse employees commencing on July
31, 1968, was Respondent's unlawful discharge of the
employees' designated spokesmen Williams, Woodin,
Gipe, and Goodwin on the day before. As persuasively
explained by the employee witnesses and corroborated by
Warehouse Foreman Montis at the cost of his job, the
employees met right after) finishing work at midnight of
Tuesday, July 30, the day when Mrs. Larsen had for the
second time precipitately\ discharged the employees'
spokesmen, the four warehousemen. The sentiments
expressed at the employees' midnight meeting of
resentment over Respondent's unfair discharge of their
spokesmen, the unanimous decision to strike in protest,
the carrying out of that decision the next morning, the
picket signs' wording, the strike and picketing by
substantially the entire warehouse work force, and Montis'
messages to Respondent in meetings of July 31 and
August 1, betoken beyond peradventure that the strike
was in protest over Respondent's unlawful discharge of
the four warehousemen, and accordingly an unfair labor
practice strike. The fact that the employees also had
aspired to obtain higher wages and better working
conditions in the abortive attempt of their four spokesmen
to meet with Mrs. Larsen, and that Montis included these
matters in his discussions , and that the employees
continued to aspire to engage in fruitful discussion of
these matters with Respondent, does not alter the
character of the strike as an unfair labor practice strike.
General Drivers and Helpers Union, Local 662 (Rice
Lake Creamery Co.) v. N.L.R.B., 302 F.2d 908, 911
(C.A.D.C.), cert. denied 371 U.S. 827. See also N.L.R.B.
their pay - isn't that quitting?.... They struck, they said they were on
strike.... They really quit, also walked out." She explains that in her
linguistic usage "walk out" is "approximately" the same as "quit" -
namely, "cease work - Both mean cease work." On recross-examination,
Mrs. Larsen conceded that she previously had not said that the four
employees had "quit." but merely that "they walked out Monday [July
291."
513
v. Fitzgerald Mills Corporation , 313 F.2d 260, 269 (C.A.
2), cert. denied 375 U.S. 834 ; Northern Virginia Steel
Corporation v. N.L.R . B., 300 F . 2d 168 ( C.A. 4); Philip
^'arey Mfg Co v. N L.R B, 331 F .2d 720, 729 (C.A.6)
cert. denied 379 U.S. 888; San Antonio Machine &
Supply Corp , 147 NLRB 1112, 1113 n. 1, enfd . 363 F.2d
633 (C. A. 5). "The strike , which in fact did take place,
was . . . an unfair labor practice strike, even though other
reasons were also present , since one of the reasons for it
was to protest an unfair labor practice [citing cases]."
N L.R.B . v. West Coast Casket Co , Inc., 205 F.2d 902,
907 (C.A. 9). "Having violated the Act, the Respondent
cannot choose the one of several causes of the strike that
is most favorable to its position." N.L R.B v. Louisville
Chair Company, Inc , 385 F.2d 922, 929 (C.A. 6), cert.
denied 390 U . S. 1013. Nor , of course , does Respondent's
manifestation to Montis of possible willingness to
reinstate some of the strikers to its employ , but only on a
hand-picked selective basis at Respondent ' s own choice,
alter the character of the strike or interrupt Respondent's
obligation to reinstate all, not merely some, of the unfair
labor practice strikers . Cf. N.L R B. v. D'Armigene, Inc ,
353 F. 2d 406 (C.A. 2).
I find that the strike of Respondent 's employees on and
since July 31 , 1 968, was and has since its inception
continued to be, an unfair labor practice strike,
occasioned by Respondent ' s unfair labor practice of
discharging its employees Calvin K . Williams, Robert L.
Woodin, Ronnie E. Gipe, and Jess Goodwin from its
employ on July 30, 1968, in violation of Section 8(a)(1) of
the Act , because of the participation of said employees in
protected concerted activity. I further find that
notwithstanding the August 1, 1968, unconditional request
for reinstatement on behalf of unfair labor practice
strikers Darlene Hatfield, James McLaughlin , Shannon
Thompson , and Fran Wyatt , Respondent has on and since
August 1 , 1968, failed and refused to reinstate said
strikers to their jobs with Respondent , in further violation
of Section 8(a)(1) of the Act.
IV. REPRESENTATION CASE ISSUES
As indicated at the outset, certain related issues arising
out of Representation Case 17-RC-5826, involving an
election conducted on October 18, 1968, on behalf of the
Board by its Seventeenth Regional Director (pursuant to
his Decision and Direction of Election dated September
27, 1968, on union petition filed on August 22, 1968) have
been consolidated for hearing with this Complaint case.
The referred issues involve challenges to each of the I1
ballots cast in that election, six being challenged by the
Employer and five by the Union.'° The six votes
challenged by the Employer (i.e., Ronnie E. Gipe, Darlene
Hatfield, James McLaughlin, Shannon Thompson, Robert
L. Woodin, and Fran Wyatt) were those of discharged or
striking employees. Inasmuch as all six of these were
either unlawfully discharged (i.e., Ronnie E. Gipe and
Robert L. Woodin) or unfair labor practice strikers (i.e.,
Darlene Hatfield, James McLaughlin, Shannon
Thompson, and Fran Wyatt) who were challenged for no
reason other than that they had allegedly quit their
The bargaining unit is described as "All warehousemen -local truck
drivers and packers \ employed at the Salina , Kansas warehouse of
Richardson Transfer & Storage Co , Inc , including regular part-time
employees, but excluding office clerical employees , over-the-road truck
drivers, the dispatcher, the warehouse foreman , and professional
employees , guards, and supervisors within the meaning of the Act."
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment" when in fact and in law they had not, they
were clearly eligible to vote, and the Employer's
challenges to their ballots should be overruled and the
ballots which they cast should be opened and counted.
Act, Sec. 2(3). With regard to the five challenged by the
Union, it is claimed without being controverted, and a
stipulation in the record indicates , that three (Eddie
Brown , Clarence Henley, and Carl Honomichl) were
replacements for unfair labor practice strikers; and their
ballots were so challenged , without any showing there or
here that they were other than replacements for the
discharged or striking employees . Cf. Elam v. N.L.R.B..
395 F.2d 611 (C.A.D.C.); Old King Cole. Inc. v.
N.L.R.B.. 260 F.2d 530, 532 (C.A. 6). As such
replacements for unlawfully discharged employees or for
unfair labor practice strikers , they did not displace the
unlawfully discharged employees or the unfair labor
practice strikers in the unit ; and the Union' s challenges to
their ballots should be sustained , and the ballots which
they cast as such replacements should be voided and not
opened or counted . N.L.R.B. v. Lawrence Typographical
Union No. 570 (Kansas Color Press, Inc.), 376 F.2d 643,
648 (C.A. 10); C. A. Froedge Delivery and Trucking
Service, Inc.. 172 NLRB No. 8; Coast Radio
Broadcasting Corporation d/b/a Radio Station KPOL.
166 NLRB No. 72, cf. Times Square Stores Corporation.
79 NLRB 361, 363, ff. Insofar as the ballots of the
remaining two voters challenged by the Union - i.e.,
Harold Crompton and Carl Smith - are concerned,
inasmuch as each was a regular former and not a
replacement employee , the Union 's challenges to their
ballots should be overruled and their ballots should be
opened and counted.
Upon the foregoing findings of fact and the entire
record , I state the following:
CONCLUSIONS OF LAW
1. At all material times , Respondent Richardson
Transfer & Storage Co., Inc. has been and is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Assertion of jurisdiction in this proceeding is proper.
3. By discharging from its employ on July 29, 1968,
and again on July 30, 1968, and failing and refusing since
then to reinstate to its employ, its employees Calvin K.
Williams, Robert L. Woodin, Ronnie E . Gipe, and Jess
Goodwin, because of their participation in protected
concerted activity, Respondent has violated and is
continuing to violate Section 8(a)(l) of the Act.
4a. On July 31, 1968, Respondent ' s employees
commenced to engage and have uninterruptedly since
continued to engage in a concerted work stoppage or
strike.
b. Said concerted work stoppage or strike was in its
inception due to and caused at least in substantial snd
controlling part by Respondent ' s unfair labor practices,
and each of them found herein , consisting of Respondent's
discharge and failure to reinstate its aforementioned four
employees because of their participation in protected
concerted activity.
c. Said concerted work stoppage or strike has been
prolonged and is continuing by reason of the aforesaid
unfair labor practices on Respondent 's part.
d. Said concerted work stoppage or strike was in its
inception, has at all times since its inception continued to
In the complaint case here , however, the Employer takes the position
that the strikers "engaged in an economic strike."
be, and is an unfair labor practice strike constituting
protected concerted activity under the Act, and
Respondent 's employees who engaged therein were and
are unfair labor practice strikers.
5. On August 1, 1968, all of Respondent ' s striking
employees made an unconditional ,offer to return to their
jobs in Respondent ' s employ (which jobs then and
thereafter existed ), which offer Respondent refused and
has continued to refuse ; and Respondent has at all times
since the inception of said unfair labor practice strike on
July 31, 1968, failed and refused to reinstate said striking
employees - namely , Darlene Hatfield, James
McLaughlin, Shannon Thompson, and Fran Wyatt.
6. By its said actions in (a) discharging and failing and
refusing to reinstate said unlawfully discharged employees,
namely Calvin K. Williams, Robert L. Woodin, Ronnie E.
Gipe, and Jess Goodwin , and (b ) failing and refusing to
reinstate said unfair labor practice strikers , namely
Darlene Hatfield , James McLaughlin , Shannon
Thompson, and Fran Wyatt, and by each of said actions,
Respondent has interfered with , restrained , and coerced,
and is continuing to interfere with, restrain , and coerce,
employees in the exercise of rights guaranteed in Section
7, in violation of Section 8(a)(1), of the Act.
7. The aforesaid unfair labor practices and each of
them affect commerce within the meaning of Section 2(6)
and (7 ) of the Act, and are continuing to have an adverse
impact and effect on commerce.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it be required to
cease and desist therefrom and take certain affirmative
action designed to effecutate the policies of the Act.
A. The Four Unlawfuliv Discharged Warehousemen
Having found that Respondent discharged four
employees (i.e., Calvin K. Williams, Robert L. Woodin,
Ronnie E . Gipe, and Jess Goodwin ) because they engaged
in protected, concerted activity , I shall recommend that it
be required to reinstate them to their previous or
equivalent employment without prejudice ; dismissing, if
necessary , any replacement employees . I shall further
recommend that those four unlawfully discharged
employees be made whole for any loss of earnings suffered
as a result of their unlawful discharges , by payment to
each of a sum of money equal to that which each
respectively would normally have earned as wages from
the date of said discharge until the respective dates of
Respondent ' s offers of reinstatement , less net earnings if
any during that period , together with interest on the
resulting amount ; backpay and interest to be computed in
the manner prescribed by the Board in F. W. Woolworth
Co., 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Alleged Strike-Picket Misconduct
Respondent urges that warehousemen Williams and
Woodin , and strikers Darlene Hatfield and Shannon
Thompson should in any event be denied reinstatement
because of picketing misconduct . While it is recognized in
general terms that strike misconduct of sufficient
magnitude may under appropriate circumstances result in
forfeiture of the misbehaving employee ' s right to
RICHARDSON TRANSFER & STORAGE CO., 515
reinstatement," "The question in each case is whether,
under the circumstances, the alleged misconduct of the
striker is sufficient to justify the refusal to reinstate." W.
J. Ruscoe Co. v. N.L.R.B., 406 F.2d 725 (C.A. 6). "..
where an employer who has committed unfair labor
practices discharges employees for unprotected acts of
misconduct, the Board must consider both the seriousness
of the employer's unlawful acts and the seriousness of the
employees' misconduct in determining whether
reinstatement would effectuate the policies of the Act.
Those policies inevitably come into conflict when both
labor and management are at fault. . . . [A]utomatic
denial of reinstatement prevents the Board from
protecting the rights of employees, but may not be
essential to the protection of legitimate interests of
employers and the public. We conclude that the teaching
of the Thayer /N.L.R.B. v. Thayer Co., 213 F.2d 748
(C.A. 1), cert. denied 348 U.S. 883] case is sound and
must be followed in order to assure the Board's
compliance with the statutory command that its remedial
orders effectuate the policies of the Act." Local 833,
Automobile Workers (Kohler Company) v. N.L.R.B., 300
F.2d 699, 702-703 (C.A.D.C.), cert. denied 370 U.S. 911.
In assessing the gravity of alleged strike or picket
misconduct, deference must be accorded to the freedom of
expression guaranteed by the Constitution and confirmed
by the Act, since "Strikers may, of course, attempt to
persuade non-strikers to join their protest. . ." Ruscoe,
supra. However, "such [persuasive] efforts must be
confined within reasonable limits if they are to be
protected." Id.; see also, Oneita, supra, 390-391. Behavior
of this type is also not to be measured by Troy-weight or
micrometer-like standards, due regard being required to
be given to the hardnosed realities of the conduct of
industrial relations as catalogued by the Board in its
day-to-day administration of the Act in the exercise of its
legislatively assigned responsibilities. Thus, as instructed
by controlling authority, the Board tolerates a reasonable
degree of "animal exuberance"" or impulsive conduct by
all sides in connection with picket lines , in carrying out
the policies of the Act.
As an aside which may be of assistance in the
maintenance of evenhanded perspective in this case, it
may be of interest to observe that it is undisputed that
early in the strike a member of Respondent's office staff,
billing clerk-assistant dispatcher Mrs. Glendening, seized
and carried off into the warehouse office one of the picket
signs , threatening to call the police if she was interrupted
in the accomplishment of this mission. Apparently the
picketing employees took this in their stride, since they
merely replaced the confiscated sign with several other
signs after inquiring and being advised by the police that
the signs were permissible. Under the circumstances,
insistence by Respondent that the picketers should
nevertheless have conducted themselves in strict
accordance with Marquis of Queensberry standards might
be regarded as somewhat overdrawn.
There is no evidence that at any time Respondent
attempted to enforce or invoke any public or private
discipline against any of the discharged or striking
employees for picket or strike misconduct, nor that
"C.f., e.g ., Oneita Knitting Mills. inc .. v. N. L. R. B., 375 F 2d 385, 391
(C.A. 4): Rubin Bros. Footwear , Inc. v. N L.R.B., 203 F .2d 486, 487
(C.A. 5); W. T. Rawlelgh Co . v. N L.R. B., 190 F .2d 832 , 838, 839 (C.A.
7).
"Milk Wagon Drivers Union v . Meadowmoor Dairies. Inc.. 312 U S.
287, 293.
Respondent made any such contention prior to the trial of
this case. (Not even in its answer is any such contention
raised.) We shall nevertheless examine the two alleged
incidents of "misconduct" which Respondent now insists
bar reinstatement of the employees in question.
The first incident centers around a replacement
employee, Gene Alexander, hired by Respondent on or
about the second day of the strike (i.e., August 1). Called
as Respondent's witness, Alexander testified that as he
and his friend Eugene Warren (another striker
replacement) came out of the warehouse after work,44 they
were approached around the corner by Williams, Woodin,
Shannon Thompson, and possibly Darlene Hatfield, who
. asked me, didn't I know I could get in trouble by
crossing the picket line and I said I didn't see no picket
line and I thought if they had been picketing they would
be in front of the place, across the street, I guess, they
were being picketed across the street and someone said
out of the crowd, I don't know which one, but they said
they could do anything to me that they wanted to. .. .
They could do anything to me that they wanted and
wouldn't be anything done because I crossed the picket
line."
On direct examination Alexander confined himself to
the foregoing and also swore that he did not know who
said this. On cross-examination, however, he added that
when the pickets spoke to him "they were using profanity
and cursing and gesturing." Alexander's notion of
"profanity and cursing" - as observed by me he was an
athletic young man not manifesting any shrinking or
diffident manner - may be gleaned from the following
account which he supplied on cross-examination: "I
[Alexander] walked across the street and they come up to
me and asked me did I know I could get in trouble for
crossing the picket line, and I told him I didn't cross the
picket line. They asked me, didn't I see they had a picket
on Richardson Transfer Company, and I told him no, that
they were across the street and I didn't pay any attention
to them. I said, 'If they picket Richardson Transfer
Company, they would be in front of it.' I didn't know
what was going on. And a lady, some lady said that we
are striking for higher wages, and she said that long as
they can get God damn people like me and Eugene
Warren working for them, their chances are lessened as
long as they can get people working for them under
wage." Alexander nevertheless returned to work the next
day, when, still according to his testimony, he again saw
the striking employees "standing out front that day, but
they didn't say anything to me .1141 Conceding that none of
the strikers "directly" said he or they would do him any
"physical harm," Alexander also swore that he was "more
or less sympathetic with the strikers." He quit the job at
the end of his second day, after his friend Warren had
quit at 1 p.m.
According to discharged warehouseman Williams, on
the second day of the strike (Thursday, August 1) he
observed a car containing three men (one of whom was
Alexander) readying to park near the warehouse. The
driver, seeing the picket signs, asked: " 'Is this a strike or
"Alexander testified that they had been driven to work by a third man,
who did not go in to work.
On cross-examination , however , Alexander swore that he did not see
the pickets "because we went in the back door ." He then added that he
saw them "after I was in the building ." Observing Alexander closely, I
could not avoid the impression that his narrative was not limited to
accurate recall but tended toward embellishment . This impression was
fortified when I heard the countervailing testimony
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a picket line?' And we said, 'Yes, sir, we had a problem
and we are going to get it settled, but we can't get
anything if the people break our strike'line.' And he said,
'Well, that is fine. . . . I have been involved in labor
disputes. I won't cross your line. You guys are working
for something. If it is worthwhile, I hope you get it.' In
the meantime , the other two got out of the car. Alexander
had gone into the door and the other one, Mr. Warren, I
believe his name was, was approaching the door, and the
third gentleman, Mr. Smith, hollered at them. He spoke
to them for a moment. Mr. Smith went and got back in
his car. Mr. Warren came back, Mr. Warren caught Mr.
Alexander, spoke to him, the two of them came and got
back in the car and the car drove off, and I didn't see
them again until later on that day." According to
Williams, he had no knowledge that Alexander or Warren
worked or may have worked at the warehouse that day -
since he did not see them enter the building - until he
saw them come out after work and walk rapidly away.
Williams, Woodin, Gipe, Thompson, McLaughlin, and
Hatfield then followed them around the corner, where: "I
[Williams] said I was going to speak for the group. And I
spoke with the two men and told them that there was
something going on here, we were trying to better the
conditions and the situation and, again, I told them we
wouldn't get anything if people broke our strike line, and
without cooperation the place would stay in the rut it was
in. And they . . . said, 'I can see that.' . . . Mr. Alexander
made the comment they were new in town and we need
the jobs, too, but we are trying to better the situation.'
And we, again reiterated the fact that we couldn't get
anywhere if people continued to cross our picket line. We
needed their cooperation. And the last thing that was said
was by me, because I had been warned previously by Mr.
Montis and by the police whatever I do don't threaten
anyone or say anything that would be taken as a threat.66
And the last thing I said to the two of them was, 'I don't
mean to say anything to you that you would take as a
threat to harm you. We mean you no harm. We are trying
to solicit your cooperation we need. If you continue, this
will break what we are working for.' . They said all
right, and we walked off and they walked off." Williams
adamantly denied that he or anybody in his group made
any threat or employed any expression such as that "we
can do anything we want to you. " as testified by
Alexander. Williams conceded that although his "best
recollection" was that he used no "profanity" on the
occasion, it is possible he might at most have uttered "A
hell or a damn, maybe."
Neither of Alexander's companions Warren or Smith
testified, nor was their failure to do so explained.
As already indicated, I was less than favorbly
impressed with Alexander's testimony. On the other hand,
I was extremely well impressed with Williams - a
cleancut, personable student at Kansas State Teachers
College - who testified with openness, candor, sincerity,
and convincingness. Accordingly, I have no hesitancy in
preferring and crediting Williams' account of the
described episode.
"Explaining this , Williams testified that in conjunction with police
advice to the striking employees , following Mrs . Glendening 's confiscation
of one of their signs , that display of their signs was not unlawful "Officer
Brown , a gentleman on the force that a lot of us know , and he told us
what we could do and couldn ' t do. Don ' t block traffic, don't get on the
street , keep your sign so the cars can be marked and don't threaten
anyone , or say anything that could be considered as a threat . And I took it
to heart."
Crediting Williams' account, I find that the described
incident constituted no more than an attempt on the part
of himself and those with him to persuade Alexander to
honor their picket line, and involved no misconduct."
The other alleged incident of "misconduct" which
Respondent now contends precludes reinstatement of
Williams was testified to by Mrs. Virginia Hill, who acted
as the stenographer at one of the conferences between
Mrs. Larsen and her associates and Montis, which has
been recounted in another connection. According to Mrs.
Hill, on Thursday or Friday (August 1 or 2) she saw
Alexander (the replacement employee who testified
concerning the other incident of alleged "misconduct")
helping to load a truck at the back dock of the warehouse
when she observed "some young man, who was blond
haired and round faced, came up from the north end of
the dock and . . . told him [Alexander] if he didn't leave
he'd make him." Mrs. Hill then successively testified that
"I think," " I am sure ," and finally, "I am positive it was
Calvin Williams.' 149
A difficulty with Mrs. Hill's testimony is that, as
observed by me, Williams does have blond hair and swore
that he never did. According to Mrs. Hill, Williams' hair
"was bleached a lighter color. . . It was very blond."
Williams denied he had ever bleached his hair or that it
has ever been any color other than the brown which it is
now. He also denied involvement in the incident described
by Mrs. Hill. On cross-examination, Mrs. Hill testified
that it was not Alexander whom she had seen on the dock
on the occasion in question, but Alexander's "friend
[presumably Warren]. . . . [I] got the names mixed up,"
conceding she "get[s] names confused quite often." Mrs.
Hill (like Mrs. Larsen) referred to the four warehousemen
as having "quit" because "they're no longer down there."
Mrs. Hill further explained that she had volunteered to
work at the warehouse during the strike, she being not
only a stockholder of Respondent but the sister of Mrs.
Larsen.
The other alleged participant in the episode described
by Mrs. Hill - Alexander's "friend," presumably Warren
was not produced to testify nor was any explanation
offered for the failure to do so. Under all of the
circumstances and weighing testimonial demeanor, I find
that it has not been established by substantial credible
evidence that Williams or any other of the discharged
employees or strikers with which the instant proceeding is
concerned was involved in the alleged incident described
by Mrs. Hill.
I, accordingly, find that Respondent has failed to
establish by substantial credible evidence that any of the
discharged employees or strikers herein at any time
misconducted himself or herself, or was at any time
involved in any misconduct such as to forfeit his or her
right to reinstatement or any other remedy recommended
herein . Cf. Milk Wagon Drivers Union v. Meadowmoor
"It will in any event have been noted that the incident even as described
by Alexander involved no violence whatsoever (such as the assaults,
mauling or pushing, object-hurling , car-rocking, or blocking of ingress and
egress, typically encountered in cases where reinstatement is denied). Cf,
e.g. N L R B v. Plastic Applicators. Inc, 369 F.2d 495, 496-498 (C A.
5); Trumbull Asphalt Co. of Delaware, 327 F.2d 841, 844-845 (C A. 8). It
was plainly not "so violent or of such serious character as to render the
employee unfit for further service." N L R B. v. Illinois Tool Works, 153
F.2d 811, 816 (C.A 7).
"On cross-examination, Mrs. Hill added that the young man "with the
bleached hair" did nothing other than make the described remark and
leave at once - "He jumped up on the dock . . and he immediately got
back off [and] .. left "
RICHARDSON TRANSFER & STORAGE CO., 517
Dairies, Inc., 312 U.S. 287, 293, 295; N.L.R.B. v. Deena
Artware, Inc., 198 F.2d 645, 652 (C.A. 6), cert. denied
345 U.S. 906; N.L.R.B., v. Kelco Corporation, 178 F.2d
578, 580, 582 (C.A. 4); Reed & Prince Mfg. Co., 118 F.2d
874, 887-888 (C.A. 1), cert denied 313 U.S. 595; Butcher
Bov Refrigerator Door Company, 127 NLRB 1360, 1371,
enfd . 290 F. 2d 22 (C.A. 7); Reeves Brothers,
Incorporated, 116 NLRB 422, 435; Efco Manufacturing,
Inc., 108 NLRB 245, 249-250, 261, enfd. 227 F.2d 675
(C.A. 1); Vermont American Furniture Company, 82
NLRB 408, enfd. 182 F.2d 842 (C.A. 2).
B. The Unfair Labor Practice Strikers
The strike of Respondent's employees which
commenced on and has continued since July 31, 1968, was
and is an unfair labor practice strike occasioned by and in
protest against Respondent's unfair labor practices. It is
elementary that unfair labor practice strikers may not be
discharged for such a strike and that they are entitled to
nonprejudicial reinstatement upon proper application.
Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278;
Serv-Air, Inc. v, N.L.R.B., 395 F.2d 557, 561-562 (C.A.
10), cert. denied 393 U.S. 840; N.L.R.B. v. Park Edge
Sheridan Meats, Inc., 323 F.2d 957, 958-959 (C.A.2);
N.L.R.B. v. Sunrise Lumber & Trim Corp., 241 F.2d
620, 625 (C.A. 2), cert. denied 355 U.S. 818; N.L.R.B. v.
Wooster Division of Borg-Warner Corp., 236 F.2d 898,
905-906, 907 (C.A. 6), affd. in part and reversed in part
on other grounds 356 U.S. 342; cf. N.L.R.B. v. Fleetwood
Trailer Co., Inc., 389 U.S. 375.
Unfair labor practice strikers may not be permanently
replaced while unfair labor practices, as here, continue
unremedied. Mastro Plastics Corp., supra; N.L.R.B. v.
D'Armigene, Inc. 353 F.2d 406 (C.A. 2). Notwithstanding
an unconditional offer made on behalf of the unfair labor
practice strikers on August 1, 1968, to return to work '41
Respondent has failed and refused to reinstate the strikers. so
I shall accordingly recommend that Respondent be
required to offer each of the unfair labor practice strikers9i
- namely, Darlene Hatfield, James McLaughlin,
Shannon Thompson, and Fran Wyatt - immediate and
full reinstatement to his or her former or substantially
equivalent position, without prejudice to seniority or other
rights and privileges, if necessary by discharging
replacement employees. In addition, Respondent should be
required to make those employees whole for any loss of
earnings which they may have suffered by reason of
Respondent's refusal to reinstate them pursuant to their
unconditional application of August 1, 1968, by payment
to them of a sum of money equal to that which the
employees normally would have earned as wages during
the period beginning 5 days after the date (i.e., August 1,
1968) on which such employees applied for reemployment
or reinstatement - namely, beginning on August 6, 1968
- and terminating on the date of Respondent's offer of
employment. The amounts payable and interest thereon
should be computed in accordance with the formulas
stated in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 617.
If, after dismissal of replacement employees, there are
insufficient positions remaining for employees covered by
the reinstatement order, those for whom no employment is
immediately available should be placed on a preferential
hiring list, with priority determined among them by such
nondiscriminatory system as heretofore applied in the
conduct of Respondent' s business or any other
nondiscriminatory practice, and thereafter, in accordance
with such list, they should be offered reinstatement as
positions become available and before other persons are
hired for such work." Respondent should further be
required to indemnify such employees for any loss which
may result to the employees from Respondent's failure to
establish and properly hire them from such a preferential
hiring list , if it is necessary that such list be established.
The Recommended Order will also include a provision
that if any of said employees should currently be serving
in the Armed Forces of the United States, Respondent
shall be required to notify him of his right to full
reinstatement upon application after discharge from the
Armed Forces, in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended.
Respondent should also be required to make available
all necessary records for computation of backpay due, or
otherwise necessary to carry out the terms of the Order.
Appropriate corrections should also be made in records to
reflect the fact that none of the employees in question quit
his or her job as claimed by Respondent.
The unfair labor practices committed by Respondent,
namely the out-of-hand discharge of four employees for
merely attempting to speak to their employer so as to be
able to try to exercise basic rights guaranteed to them by
the Act, followed up by Respondent' s continuing refusal
to reinstate them or other employees striking for that
reason , betoken an obtuse indifference to longstanding
basic requirements of the law of the land and are of a
character undermining the roots of employee rights
safeguarded by the Act. I shall accordingly recommend
that Respondent be required to cease and desist from
infringing in any manner upon employee rights guaranteed
in Section 7 of the Act.
I shall further recommend that Respondent be required
to post an appropriate notice.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
proceeding, and pursuant to Section 10(c) of the Act, it is
recommended that Respondent Richardson Transfer &
Storage Co., Inc., its officers, agents, successors, and
assigns , shall:
1. Cease and desist from.
(a) Discharging or refusing or failing to reinstate with
full backpay, or interfering with, restraining, or coercing
in any other manner, or threatening so to do, any
employee by reason of his or her exercise or attempted
exercise of the right to engage in protected concerted
"Contrary to Respondent 's contention, it matters not that this offer was
transmitted to Respondent by the employees through Warehouse Foreman
Montis , a supervisor or former supervisor of Respondent The employees
were free to choose their message transmission conduit to their employer.
"As already indicated , Respondent ' s manifestation of possible
willingness to reinstate only such of the striking employees as Respondent
might itself hand -pick , was unavailing to extinguish , toll, or alter its
obligation to reinstate all. Cf. N L R.B. v. D'Armigene, Inc , 353 F.2d 406
(C.A. 2)
"As established and conceded by Mrs. Larsen , all warehouse employees
except Carl Smith and Harold Crompton went out on strike on July 31,
1968. Although Warehouse Foreman George Montis joined the employees
in their strike , no complaint is made nor remedy sought for him in this
proceeding , cf. N.L.R.B. v. I. D Lowe. d/b/a Thermo-Rite Mfg Co. 406
F.2d 1033, (C.A. 6).
"Cf. Butler Knitting Mills. Inc.. 127 NLRB 68
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity under the National Labor Relations Act as
amended; including, but not limited to, the right to
communicate, confer, grieve, and deal concertedly with
Respondent concerning wages, hours, and other terms and
conditions of employment.
(b) Failing or refusing to reinstate, with appropriate
backpay and without prejudice, any employee striking
because of any unfair labor practice by Respondent, upon
the unconditional application of such employee to be
reinstated to his or her job.
(c) In any other manner interfering with , restraining, or
coercing any employee in the exercise of his right to
self-organization ; to form , join , or assist any labor
organization; to bargain collectively through
representatives of his own choosing ; to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to refrain
from any and all such activities.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Offer to Calvin K. Williams, Robert L. Woodin,
Ronnie E. Gipe, and Jess Goodwin immediate, full
reinstatement to their former positions as warehousemen,
or substantially equivalent positions, without prejudice to
existing wage rates, seniority and other rights, privileges,
benefits and emoluments, and make each of them whole
for any loss of pay (including overtime, holiday and
vacation pay, and insurance benefits if any), together with
interest, in the manner set forth in "The Remedy" section
of this Decision; discharging, if necessary, any
replacements or other employees hired in their stead.
(b) Offer immediate, full reinstatement to their former
or substantially equivalent positions, without prejudice to
existing wage rates , seniority , and other rights , privileges,
benefits and emoluments , to all employees who went on
strike on July 31, 1968 - that is to say, Darlene Hatfield,
James McLaughlin, Shannon Thompson, and Fran Wyatt
- and make each of them whole for any loss of earnings,
together with interest, resulting from Respondent's failure
and refusal to reinstate them on and since August 6, 1968,
as more fully set forth in "The Remedy" section of this
Decision; discharging, if necessary, any replacements or
other employees hired in their stead.
(c) Expunge or correct any personnel or other record,
entry or report indicating that any of the foregoing named
persons quit the employ of Respondent at any time on or
since July 29, 1968.
(d) Place all striking employees of Respondent for
whom no employment is available upon a preferential
hiring list, with priority in accordance with such system of
seniority or other nondiscriminatory practice heretofore
applied by Respondent in the conduct of its business; and
thereafter offer such employees reinstatement as such
employment becomes available and before other
employees are hired for such work. In the event
Respondent fails to do so, Respondent shall reimburse
each employee for losses sustained by reason of such
failure.
(e) 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 ascertain and analyze the amount of
backpay, benefits and emoluments due under the terms of
this Order, or otherwise necessary to carry out the terms
of this Order.
(f) Notify each of said employees entitled to
reinstatement who may currently be serving in the Armed
Forces of the United States of his or her right to full
reinstatement upon application after discharge from the
Armed Forces in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended.
(g) Post in its warehouse premises in Salina, Kansas,
copies of the attached notice marked "Appendix."13
Copies of said notice , on forms provided by the Regional
Director for Region 17, shall, after being duly signed by
Respondent's authorized representative, be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(h) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply therewith.60
In the Representation election conducted on behalf of
the National Labor Relations Board by the Regional
Director for Region 17 in Case 17-RC-5825 on October
18, 1968, in Salina , Kansas:
(a) The challenges and each of them interposed by the
Employer therein, Richardson Transfer & Storage Co.,
Inc., to the votes and ballots cast by Ronnie E. Gipe,
Darlene Hatfield, James McLaughlin, Shannon
Thompson, Robert L. Woodin, and Fran Wyatt, are
hereby overruled; and said ballots and each of them shall
forthwith be opened and counted by said Regional
Director.
(b) The challenges and each of them interposed by the
petitioning Union therein, Truck Drivers and Helpers
Local Union 696, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, to the votes and ballots cast by
Eddie Brown, Clarence Henley, and Carl Honomichl, are
hereby sustained, and said ballots and each of them, being
void and of no effect, shall not be opened or counted; and
the challenges and each of them interposed by said
petitioning Union to the votes and ballots cast by Harold
Crompton and Carl Smith, are hereby overruled, and said
ballots and each of them shall forthwith be opened and
counted by said Regional Director.
(c) Upon the opening and counting of said ballots in
accordance herewith and pursuant to applicable Board
Rules, Regulations and practices, the results of said
election shall thereupon be duly certified.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the Notice . In the further
event that the Board's Order is enforced by decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps have been
taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, an
RICHARDSON TRANSFER & STORAGE CO.,
Agency of the United States Government, and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Richardson Transfer
& Storage Co., Inc., violated the National Labor
Relations Act, and we have been ordered to post this
notice.
The National Labor Relations Act gives you, as an
employee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
your own choosing
To act together with other employees to bargain
collectively or for other mutual aid or protection
If you wish, not to do any of these things.
Accordingly, we give you these assurances:
WE WILL NOT do anything that interferes with any of
your rights listed above.
WE WILL NOT discharge, or fail or refuse to reinstate
with full backpay, or interfere with, restrain or coerce
in any other manner, or threaten so to do, any
employee because he or she does or tries to do anything
he or she has the right to do under the National Labor
Relations Act, as amended, such as, communicating or
trying to communicate or meet with us in order to
grieve and deal concertedly with us about wages, hours,
or any other term or condition of employment.
WE WILL NOT fail or refuse to promptly reinstate to
his or her job any employee who goes on strike because
of any unfair labor practice committed by us, and who
applies to us for such reinstatement.
WE WILL NOT in any other manner interfere with,
restrain, or coerce any employee in the exercise of his
or her right to self-organization; to form, join, or assist
any labor organization; to bargain collectively through
representatives of his or her own choosing; to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to
refrain from any and all such activities.
WE WILL offer immediate, full reinstatement to
Calvin K. Williams, Robert L. Woodin, Ronnie E.
Gipe, and Jess Goodwin, to their former jobs as
warehousemen (or substantially equivalent positions),
and grant each of them full seniority and all other
rights and privileges lost or missed since we discharged
them on July 29 and 30, 1968. WE WILL pay each of
them, with interest, for all wages and other moneys,
benefits, and advantages lost because of those
discharges. WE WILL also have their personnel and
other records corrected to show that they did not quit
their jobs with us. If necessary, we will discharge any
and all employees hired to replace them.
519
WE WILL offer immediate, full reinstatement to
Darlene Hatfield, James McLaughlin, Shannon
Thompson, and Fran Wyatt, to their former (or
substantially equivalent) positions, and grant each of
them full seniority and all other rights and privileges
lost or missed since we failed and refused to reinstate
them when they applied for reinstatement on August 1,
1968, after they went on strike on July 31, 1968,
because of our discharge of Williams, Woodin, Gipe,
and Goodwin on July 30, 1968. WE WILL pay each of
them, with interest, for all wages and other moneys,
benefits, and advantages lost since August 6, 1968 (that
is, 5 days after their request for reinstatement) because
of our failure and refusal to reinstate them. WE WILL
also have their personnel and other records corrected to
show that they did not quit their jobs with us. If
necessary, we will discharge any and all employees
hired to replace them. In the event that, after the
discharge of all replacements, there are insufficient jobs
open for the purpose of reinstatements, we will set up
and hire unreinstated striking employees from a
preferential hiring list on a nondiscriminatory seniority
basis; and if we fail to do so, we will reimburse those
employees in full, with interest, for any such failure on
our part.
WE WILL notify each employee entitled to
reinstatement who may currently be serving in the
Armed Forces of the United States of his or her right
to full reinstatement upon application after discharge
from the Armed Forces in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended.
WE WILL deal and cooperate with your authorized
representatives in every way that the law requires, so
that you may meet and deal concertedly with us if this
is what you desire; without any interference, restraint,
or coercion from us or from any of our owners,
officials, supervisors, or agents, in any way, shape, or
form.
Dated By
RICHARDSON TRANSFER &
STORAGE CO., INC.
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , 610 Federal
Building , 601 East 12th Street , Kansas City, Missouri
64106 , Telephone 816-374-5181.