Advance Carbon Products, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1972

198 N.L.R.B. 741 (N.L.R.B. 1972)

ADVANCE CARBON PRODUCTS, INC. 741
Advance Carbon Products , Inc. and International
Brotherhood of Electrical Workers, Local 1969,
AFL-CIO. Case 20-CA-6747
August 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On March 10, 1972, Trial Examiner E. Don Wilson
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions' and brief
and a separate motion and brief urging nonsuit and
judgment for Respondent. The General Counsel filed
an answering brief.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of Respondent's motion
of nonsuit and judgment for Respondent3 and the
exceptions and briefs and has decided to affirm the
Trial Examiner's rulings, findings, and conclusions
and to adopt his recommended Order.
ORDER
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: An initial charge was
filed by International Brotherhood of Electrical Workers,
Local 1969, AFL-CIO, herein the Union, on May'12, 1971,
and amended by the Union on June 24, 1971. Upon the
charge as amended, the General Counsel of the National
Labor Relations Board, herein the Board, issued a
complaint alleging that Advance Carbon Products, Inc.,
herein Respondent, has violated Section 8(a)(1) of the
National Labor Relations Act, herein the Act, and notice
of hearing, dated June 25, 1971. Respondent's answer to
the complaint was timely filed.
Pursuant to due notice, a hearing in this matter was held
before me in San Francisco, California, beginning October
7, 1971, and ending October 18, 1971. All parties but the
,Charging Party fully participated. Oral argument was
'waived. Briefs were received January 6, 1972.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a California corporation, engaged at its
San Francisco, California, location, in the manufacture
and sale of carbon brushes and, specialty products of
carbon and graphite. During the past year, in the course of
its business, it sold and shipped products valued in excess
of $50,000 directly to customers located outside the State
of California.
At all material times, Respondent has been an employer
engaged in commerce within the meaning of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Advance Carbon Products, Inc.,
San Francisco, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's recommended Order.
1 Although Respondent's exceptions are designated "objections" to the
Trial Examiner's Decision, we find that they may properly be treated as
exceptions under the requirements set forth in the Board's Rules and
Regulations, as amended. Accordingly, the General Counsel's motion to
strike these exceptions is hereby denied.
2 Contrary to Respondent's contention, we find that the General
Counsel's answering brief complie's with the requirements set forth in the
Board's Rules and Regulations, as amended, and therefore is properly
before us for consideration.
3 We have carefully considered the several grounds urged by Respondent
in support of its motion, and we find no evidence that the rulings of the
Trial Examiner have in any way been prejudicial to the rights of
Respondent. Accordingly, Respondent's motion of nonsuit and judgment
for Respondent is hereby denied.
198 NLRB No. 106
II. THE LABOR ORGANIZATION
At all material times„ the Union has been a labor
organization within the meaning of the Act.
In. THE UNFAIR LABOR PRACTICES,
A. The Issues
The material issues are whether Respondent terminated
Nathaniel King on April 26, 1971,1 and terminated Bruce
Backus on or about May 6, because either or both engaged
in protected concerted activities, thereby violating Section
18(a)(1) of the Act and if King were so terminated, should
he be reinstated with backpay.
B. Background
On January 29, the Board, in the absence of exceptions,
adopted Trial Examiner Irving Rogosin's Decision of
I
I I Hereinafter , all dates refer to 1971 , unless otherwise stated
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 16, 1970, finding Respondent had violated
Section 8(a)(1), (3), and (5) of the Act. Some of the
credibility findings therein are similar to some I shall make
herein.
C. Concerted Activities Not Related to King's and
Backus' Dealings With the FEPC
While each and both griped and complained, etc., about
working conditions between themselves and with other
employees, in the comparatively small plant area, and
probably to the knowledge of management, so did other
employees and I find insufficient probative evidence that
Respondent resented or had an animus against such
activities in those broad circumstances. I shall find
Respondent did have an animus against the activities of
King and Backus and the extent to which their gripes, etc.,
were tied in to their FEPC activities, e.g., their meeting
with Respondent's representatives and Bob Michaud, the,
FEPC consultant or investigator, when King and Backus
were vociferous in stating complaints about working
conditions,2 arising out of King's charges filed with the
FEPC.
I find, based on the entire record, that whatever
concerted activities King or Backus may have engaged in
they had no bearing on their respective terminations, with
the one exception of their various dealings with the FEPC.
I shall further find that the reasons advanced by
Respondent for terminating King and Backus were
pretextual and designed to cover the real reasons, King's
and Backus' conjunctive cooperation with the Fair Em-
ployment Practices Commission, in connection with
charges there filed involving the working conditions of
employees.
D. King, in Particular, and in Part, Backus, Until
King's Discharge on April 26
King was hired May 14, 1970, and terminated April 26.
For real or other reasons, he filed a charge against
Respondent with the FEPC on March 19.3 On the previous
day, King had called the FEPC from a telephone located
on Respondent's premises.4 He told a young lady there
that he had been referred to the FEPC by another agency
which advised him the FEPC could help him. He observed
Respondent's vice president, Hubert Hyde, standing right
next to him, and then cut the conversation short by saying
he couldn't speak freely because some one of management
was standing next to him and could hear what he was
saying. In the meanwhile, he had narrated most of the
substance of his complaints. By subterfuge he received
time off, the next day, and visited the FEPC, spoke to its
2 Fellow employee Kaiser was also then present but did little talking.
3 At that time, Respondent had about nine employees. King was the only
black. Other employees were Filipinos, Mexican-Americans, and a few
whites. Respondent's officers were whites and, for the most part, closely
related.
4 His demeanor impressed me very favorably. In light of the entire
record, I find he tried to be and was an honest witness. I credit his
testimony.
5 There is no evidence that on this day Respondent knew King had
already filed his charge with the FEPC. King had been advised in no way
that he was going to get this raise
6 Parker was later rehired and was the white employee with whom King
consultant, Bob Michaud, and filed charges against
Respondent with that government agency. When he
returned to work that afternoon, he received his paycheck,
along with other employees. Secretary and Shop Superin-
tendent William Crader, Sr., hereinafter called Crader Sr.,
to distinguish him from his son, William Crader, Jr.,
Respondent's president, while giving King his check,
smilingly asked him if he noticed anything different. King
noticed, and then replied he got a raise. Crader Sr. told him
he had been doing good work. This was the fourth or fifth
raise King had received during his employment of less than
a year. Considering the record as a whole, I find this raise
was, particularly in light of its timing, given to discourage
King from continuing complaints to the FEPC as over-
heard by Hyde on the preceding day.5
The charge filed with the FEPC by King contained a
variety of allegations, including alleged misconduct by an
ex-employee named Jerry Parker.6
Soon, Michaud visited Respondent's plant and served a
copy of King's FEPC charge upon Hyde. After first stating
the complaint was untrue, Hyde indicated he was upset
and inquired why King had not first gone to Respondent.
Hyde continued, saying "Jerry Parker was a s-it disturber
and we terminated him a long time ago." 7
Crader Sr. in no way impressed me as an honest witness.
He appeared determined to serve Respondent's cause
without regard to the truth of his testimony, which I do not
credit unless it is against Respondent's interests or is
corroborated by otherwise credited testimony. He admitted
that members of management, and particularly he, didn't
"like" the filing of a charge with the FEPC by King. About
an hour or two after Michaud served Hyde with a copy of
the charge, Crader Sr. came into the shop area with an
FEPC poster and loudly stated Respondent did not
discriminate. The sign was posted by Respondent.
Shortly thereafter, on April 7, Respondent called all the
employees together for a meeting in the soldering area.
Crader Sr. handed King a letter,8 having told the
employees they had seen King's FEPC complaint. Crader
Sr. told King to read the letter he had been given aloud to
his fellow employees. King read part of it, as ordered, put it
down and called it "garbage." Fellow employee Kaiser
read about three-fourths of the balance and then said he
wished to read no more. King then finished reading it
aloud after Crader Sr. asked him to.
The April 7 letter just referred to is a long two-page letter
addressed to "All Employees" and was signed by President
William Crader, Jr. It amply and clearly reveals the
animosity King's charges of discrimination filed with the
FEPC aroused in Respondent. That King was required to
read it aloud to his fellow employees makes abundantly
had a serious fight, or fights, for which King was allegedly discharged at a
later date
T This finding is based on the credited testimony of Michaud, who
impressed me as a completely honest witness . That he had earlier in his
career worked for unions has been considered by me but affects my
credibility finding not at all. He was honest and forthright in his manner
and appearance. In passing, it may be noted that Parker had not been
terminated by Respondent in the past but rather had quit his employment
with Respondent on two occasions in 1970. He was rehired April 15, after
Respondent had been served with the FEPC charge.
8 G.C. Exh. 3.
ADVANCE CARBON PRODUCTS, INC. 743
clear Respondent's virulent reaction to King's charges. It
would serve no useful purpose to here restate the entire
letter.
In part , the April 7 letter refers to King's charges as
"outright slander ." It describes one of King 's charges as
"an outright distortion of the truth and facts."9 It further
states, "Last but not least you will note the sworn
statement may [sic] under penalty of perjury, signed by
Nathaniel King . I don't know how the rest of you feel
about this , but I feel , based on facts not fiction, that this
statement is perjury ." In this letter, Respondent acknowl-
edged it was neither required to post King's FEPC
complaint nor even to discuss it, nonetheless it required
King to read aloud to his fellow employees Respondent's
long answer including an allegation that King was a
perjurer, in Respondent 's eyes. I, find that this was a
deliberate effort by Respondent to demean , degrade, and
derogate King because he had filed charges of discrimina-
tion against his employers with the FEPC. Respondent
ended its long statement to its employees with an obviously
sarcastic request that "everyone-be nice to Nathaniel
King" and announced that the balance of the week would
be, "Be kind to Nathaniel King Week ." 10 King was
instructed by Crader Sr. to return to work when he
concluded reading Respondent's April 7 letter aloud to his
fellow employees.
After work, King advised Michaud about the day's
developments and was advised Michaud would visit the
plant and speak to management . Crader Jr. called
Michaud the next day and said King was causing all kinds
of trouble but would not elaborate on that.
On April 9, Michaud visited Respondent 's plant and
announced he wished to question each of the employees
who were present on April 7.11 Crader Jr. told Michaud
King's production had fallen off and the conversation
became heated to the extent that Crader Jr.'told Michaud
he was all wet on the complaint and none of it was true and
Michaud was "an asshole." 12
On April 19 , Crader Jr . again called Michaud by phone
and said King was messing up production and deliberately
destroying property.13 Michaud said he'd have to come
over and see the evidence and he'd be there the next day.
Michaud visited Respondent 's plant on April 20, meeting
with Crader Jr., Crader Sr., Ron Crader , and Hyde. In an
effort to resolve the entire problem , Michaud arranged for
King, Backus, and Kaiser to be called into the meeting.
Backus, King, and Kaiser, the last to a much lesser extent,
brought up and discussed a variety of grievances they
believed they had. Crader Jr. showed a box filled with
9 Of particular note, for future discussion, Crader Jr refers to Jerry
Parker in this letter as follows: "Jerry Parker was warned on numerous
occasions to cease his hostilities and to cease using derogatory and
degrading terminology. Jerry Parker left our employ about 7 months ago."
(He was rehired by Respondent about 1 week after the letter was read.)
to I find none of the "humor" Respondent allegedly intended to evoke
by this proclamation
11 He did so excepting for one employee who was absent.
12 King received no warning or warning letter, because of lack of
production.
13 No credible evidence of truth of such allegations.
14 Crader Jr. testified he considered Backus had a very argumentative
and surly manner and he had to tell him, "Just sit down " He considered
carbon products alleging that King had deliberately fouled
them up. There was much discussion back andiforth.14 At
the conclusion of the meeting, Michaud left, stating his
hope that matters could be resolved, although the discus-
sions on both sides, excepting perhaps for Kaiser, became
rather heated, particularly in so far as Crader Sr. was
concerned.
Thereafter, Crader Sr. regularly came to the production
area where King and Backus worked and complained daily
that production was too low. He would pull out a little
black book and write in it and King was often reprimanded
by him. They were required to punch in and out , on
production timecards.15 Crader Sr. reprimanded King for
the least flaw in his work.16 Parker was rehired by
Respondent on April 15, shortly before the Michaud
meeting. Crader Sr. brought Parker to various employees.
Crader Sr. brought Parker to King and said, "Nat, Jerry is
back with us now. He won't call anyone any names. He
won't make any threats or anything like this." 17 King
replied it was all right with him, and King was doing his
job.
The employees were told they would accept their orders
from Parker and "he would not cause any more trouble."
(Emphasis supplied.) is
In September 1970, King had physically struck Parker
outside the plant. In early 1971, Parker punched Vice
President Ron Crader outside the plant 19 Reference may
be made to Respondent's April 7 letter to all employees,
particularly with reference to Parker's "hostilities" and use
of "derogatory and degrading terminology." 20
Not long after- Parker was rehired, on the afternoon of
April 26, Crader Sr., about 2:30 p.m., came to King, gave
him a letter in an envelope, and told King to read the letter
back to Crader Sr. The letter was signed by Crader Jr. and
was dated April 26. In part, it stated Respondent
understood King had threatened employees Leo Maxwell
and Jerry Parker with physical violence. The letter
obviously assumed these to be facts, stating that King was
to "cease and desist uttering such threats" or in any other
manner harassing company employees, adding that a
repetition would require "appropriate disciplinary action."
King explained to Crader Sr. that he did not know, what
the letter was all about and asked if he could speak to
someone about it. Crader Sr. told King to get back to work.
King asked whom he had threatened. Crader Sr. replied,
Maxwell and Parker, and again told King to get back to
work. King asked Crader Sr. for a' private conference. He
was again told to get back to work, in very loud tones.
King tried, but he could not work. He "had gotten the
shakes." The record discloses that King had had about 3
Backus, in his discussions at this meeting called by the FEPC representative,
to be guilty of "gross insubordination."
15 Perhaps this had been done on other occasions,
16 He had not so acted prior to the FEPC complaint Bear in mind that
Backus made it plain that he joined with King in his activities, at the
Michaud meeting.
17 Obviously, Crader Sr. was aware of Parker's past misdeeds.
18 Obviously, more awareness of Parker' s traits.
19 Supposedly by invitation.
20 Much was made by counsel for both sides about new and old
misdeeds of King and Parker. But, Crader Jr. testified the reason for firing
King was his fight with Parker on April 26.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
active years' service as a United States Marine, with about
1 year's combat service in Vietnam where he was wounded.
He was thereafter a victim of apparently uncontrollable
shaking when subjected to states of great tension.21
Management had been made aware before King filed his
FEPC charges that King was subject to this condition.
Respondent had never inquired of King about these
alleged threats before serving him with the April 26
warning letter.22
Upon finding himself unable to work because of the
"shakes," King approached Parker and asked him if he,
King, had ever threatened him and Parker replied, "No."
King pointed to the warning letter and Parker then said,
"Oh, yes, you did." 23 King then requested permission of
Parker to go up to the office and speak to management.
This was refused. King nonetheless took the liberty of
going up to the office. He knocked on the door and Crader
Jr. asked him what he wanted. King said he couldn't work
under the adverse conditions and denied that he had
threatened anybody and he couldn't work under the shop
conditions as,they were right then. King was still nervous
and shaking zCrader Sr. who had just recently given King
the warning letter, slammed shut a phone book, jumped up
and said, "Get the hell back to work. Get out of here."
King asked if they could discuss the matter, pointing out
that he had the "shaakes" and couldn't work. Crader Jr. told
King to talk to him at 4:30. Crader Sr. kept yelling that
King should get back to work. King explained that he
couldn't work under existing conditions and would like to
discuss his problem then. He repeated that he had the
"shakes," and showed them his hands. He tried to explain
his, mental and emotional condition to the Craders. Crader
Jr. repeated that King should see him at 4:30 and Crader
Sr. continued to tell him to "get the hell out," finally again
opening and slamming the phone' book. Crader Jr. then
said, "Well, Nat, punch out and go home and take the rest
of the day off and we'll see you tomorrow." King thanked
him and started down the steps from the office to the work
area. Crader Sr. was right behind, telling him to get out.
King again inquired what he had done and Crader Sr. said
to him, "You punch out, get the hell out of here now. Get
his check." 24 I find that then and there Crader Sr.
terminated King.25 I shall hereinafter elaborate on the
reasons for the termination.26 Here, I state only that I shall
find King was discharged by Crader Sr. because he
21 While on the stand, tears appeared in King's eyes when questioned
about somepf his service experiences. A recess was quickly taken and the
questioning on this line ceased.
22 Parker admitted in his testimony that from the time' Parker was
rehired on April 15, until the time of a fight with King on April 26, later to
be discussed, King had never threatened him with any kind of violence. He
admitted that he had only told Respondent that King had asked him to sign
a union card and that upon his refusal, King had told Parker he probably
wouldn't be working after April 26.
23 Respondent's witness, Gabriel Vicano, corroborates this portion of
King's credited testimony.
24 Obviously to someone else. I do not know whom.
25 I have carefully noted and considered and do not credit Crader Sr 's
denial that he fired King on this occasion. I note that Crader Sr who had
ample opportunity to deal with Backus and King throughout their
employment, considered each not to be untruthful in the workshop. Crader
Sr admitted that he issued the warning letter of April 26 without checking
the truth or falsity of the statements contained therein with King at any
time. The discharge was because of King's filing the charge with the FEPC
on behalf of himself and other workers and in cooperating in its
engaged, at least with Backus, in protected concerted
activities in connection with .the FEPC.
Immediately after this discharge, King went to Backus'
work station, not far from Parker's place of work. King
spoke to Backus, explaining that he had just been fired and
asked for his tools. Backus and King shook hands. Parker
turned around during this brief conversation and said,
"You niggers are all alike." King turned around, looked at
Parker, walked over to him and asked Parker what he had
said. Parker first mumbled and when King again asked
Parker what he had said, Parker repeated, "You damn
niggers." 27 Then and there in the work area which was in a
potentially dangerous condition for such activity, King
took a swing at Parker, did not connect, but for the next
minute or two, Parker and King engaged in a rough and
tumble altercation involving much wrestling, blows, per-
haps kicks and knocking or shoving each other into various
pieces of machinery.28 Each of the participants received
visible injuries, Parker bleeding from the mouth and
possibly elsewhere, and King bleeding from the inside of
the ear, subsequently requiring 14 stitches. The fight was
broken up by Crader, Sr. and Crader Jr.29
Both Backus and King truthfully testified Parker had
called King a "nigger" before any violence occurred
between them. Parker denied saying anything to King,
even when King allegedly taunted him to hit King.30
Respondent's witness, Ashton, testified he observed Parker
turn his head and say "something" before the fight but he
didn't know what 31 Respondent's witness, Vicario, testi-
fied that for a couple of seconds before the "first" fight
King and Parker were loudly yelling back and forth at each
other. I do not find Parker to have been an honest or frank
witness. He testified he quit his job in September 1970
because he "got tired of getting [his] ass chewed out by Bill
Crader, Sr." He denied that the reason for his quitting in
September 1970 was because of a fight he had had with
King. In a pretrial affidavit, Parker swore he quit in 1970,
because King broke his nose, "and I said `the hell with it.' I
don't know why I got into a fight with Nat." He testified he
didn't know if King received any injuries in the April 26
fight and noticed no blood on King. He made the same
statement in an affidavit he gave to Respondent after the
fight. However, later in his testimony, he admitted he saw
blood in King's ear and that the inside of King's ear was
red and bloody. In passing, I note that Crader Sr. also
investigation along with Backus.
26 I have carefully considered the testimonies of the Craders , Jr. and Sr.,
as to the events in the office on April 26 and immediately thereafter I credit
King's version.
27 Or something similar.
28 I find incredible testimony from various witnesses that prior to this,
the so-called first fight, King had walked or raced around the plant with a
"crazy laugh" or had "sung" or made sounds something like, "La-de-da,"
etc.
29 Respondent called many fellow employees to testify about the fight
and to establish that Respondent sought their versions before sending King
a telegram of discharge the next afternoon . In most instances, these
witnesses contradicted their statements , or their own or each other's
testimony It is enough that I have found the first fight started with King
being in a state of great tension, having been called an opprobious racial
epithet and having cast the first unavailing blow.
30 Such never happened
31 Ashton also testified his relationship with King was not good. King
had done him a wrong.
ADVANCE CARBON PRODUCTS, INC.
testified he never observed any injury with respect to King
and swore there was no blood on King at all and King was
unmarked. I find, based on the probative evidence, that
King had a bloody ear and also a contusion or swelling on
his forehead.32
Shortly after this "first" fight was broken up, Parker left
for the washroom. Backus told the Craders he saw what
had just happened and he heard Parker call King a
"nigger." Crader Sr. told Backus he had seen nothing and
to get back to work. Crader Jr. admitted hearing Backus
say, "I seen him [Parker] call him [King] a nigger."33'
With that fight broken up, Crader Sr. said to King, "I
thought I told you to get the hell out. Did you punch out?"
King said he had but wouldn't leave without his tools.
Crader Sr. again told him "to get the hell out now." After
more bickering between Crader Sr. and King, Crader Sr.
said,he thought he had told King to punch out and get his
check. I find Crader Sr. was here referring to his earlier
discharge of King near the office and before the fight. King
made references to his tools being stolen and called
management and perhaps Crader Sr. a thief.
They, particularly Crader Sr., Crader Jr., and King,
moved to another area. Again there is much conflict in
detail as to just what happened here, the scene of the so-
called second fight. I explicitly do not credit Crader Sr.'s
testimony that on this occasion King reached his arm
through a crowd of employees and rubbed or ripped or
otherwise placed his open hand across Parker's face, from
the rear. Such finds no support from the many other
conflicting witnesses to this incident 34 I again credit
King's version, not materially controverted by others
excepting Crader Sr. In this new area, King was still
arguing with the Craders about not leaving without his
tools when he again observed Parker, this time with a smile
or grin on his face, while Crader Sr. kept "saying to King,
"Get out and get out now, get the hell out, get the hell out,
get out now." Observing the grin on Parker's face, King
again swung at Parker, this time connecting. Parker fell off
the desk, jumped up, saying, "I'll kill the black bastard"
and King challenged him, saying, "Kill me." They wrestled
briefly, Crader Jr. and Sr. trying to break it up. Crader Jr.
32 Crader Sr. must have been aware of it.
33 Crader Sr. incredibly dewed hearing this
34 Such was untrue
35 Obviously, participation in concerted activities protected by the Act.
36
He at least could have been reached by phone or through Michaud.
7 Crader Jr., at least, knew from Backus that Backus claimed to have
heard Parker call King a "nigger." I find he heard Parker refer to King as a
"black bastard" after the second fight began. Ina letter to all his employees,
2-1/2 weeks earlier, he told them, "Jerry Parker was warned on numerous
occasions to cease his hostilities and to cease using derogatory and degrading
terminology." Parker dewed he was ever so warned. Crader Jr., while
admitting Parker "was just too agressive in his approach" and while
admitting that the derogatory, etc matter was in his April 7 letter,; testified
he did "not in that sense" warn Parker ono numerous occasions to cease
using derogatory and degrading terminology. Fifty pages later, he swore the
statement about Parker and his language in the April 7 letter wa$ a "true
statement" Acibedo testified Parker had referred to him as Ila "lazy
Mexican." He was Respondent' s witness.
38 Before any "investigation."
39 He had heard, personally, immediately after the first fight, that it had
started right after Parker called King a "nigger." Yet, although he
conducted an "investigation" among his employees, excepting Backus and
King, he did not ask any of his employees if they had heard Parker refer to
King as a "tugger." Such would be a form of degrading or derogatory
745
called upstairs to Hyde and yelled, "Call the police." King
broke loose, ran out of the plant, into and away in his car,
drove to his home where he saw a police car, continued to
his mother's home, and there phoned Michaud. Michaud
brought him to a hospital where his inuries received
attention.
Immediately after the second fight, Backus told Crader
Sr. he was clocking out and was going to the FEPC to file
charges. Crader Sr. told him there was no need for him to
do so because he had already called the FEPC. Backus
clocked out and gave his timecard to Crader Sr. and went
to the FEPC.35
After consulting their attorney, management sought
statements from Respondent's employees that evening and
the next day, asking them to write what they observed and
whether they saw Parker hit King with a box or pipe.
Notably, they did not ask King for his version.36 That
evening Michaud told Crader Jr. on the phone that Backus
and King stated Parker had started the fight and had called
King a "nigger." 37
In spite of Crader Jr.'s admission that right after the first
fight Backus had told him Parker had called King a
"nigger," Crader Jr. "suspended" King but not Parker on
April 26,38 and in spite of being told on the evening of
April 26 by Michaud that Backus and King claimed that
Parker provoked the fight by calling King a "nigger" and
in spite of my finding that Crader Jr. heard Parker call
King a "black bastard" during the second fight, Respon-
dent did nothing with respect to Parker. Crader Jr. testified
that if he had known that the fight started because Parker
had called King a "nigger," he would have fired Parker
(and presumably not King). He testified he had no reason
to feel Backus wouldn't tell the truth 39
As noted already, during the evening of April 26 and
early the 27th, Respondent made an "investigation" of the
events of the 26th so far as King and Parker are
concerned 40 Statements from some employees, then taken,
are in evidence and employees testified. Statements are
incomplete, in many instances contradictory, e.g., King
and "crazy laughs," or "singing" or "La-de-da-da" - and
Parker saying nothing before the first fight, or Parker and
language he had previously warned Parker about on numerous occasions.
He testified he didn't believe that if Parker had called King a "nigger" it
would be sufficient provocation for any resort to physical, violence. Yet a
few pages earlier he had testified he would have fired Parker if he knew the
fight started because Parker called King a "nigger ." He also testified, when
asked if he didn't think it important to determine in his investigation
whether or not Parker had called King a "nigger," "No , I wanted to see
what he would admit in his statement and compare it with what the other
employees would say:' Crader Jr. testified he wouldn 't expect anybody to
react in a violent manner, even a black, wounded, Marine combat veteran,
if he were called a "nigger " He added he wouldn't expect anybody to react
in a violent manner to anything Of course , he and his father used some
physical force in twice separating Parker and King, Crader Jr. had written
the unsubstantiated warning letter to King on April 26, although he testified
he didn't recall Parker telling him that King had threatened Parker with
physical violence and he further testified that before the warning letter of
April 26, Leo Maxwell had never told him that King had threatened
Maxwell with physical violence Of course, before the warning letter, King
had never been asked if he had threatened either Maxwell or Parker with
physical violence or for an explanation. Crader Jr. certainly hadn't made a
"complete investigation " as he testified he was advised to do by counsel.
40 Crader Sr. certainly knew he had previously discharged King because
he resented King stirring up trouble with the FEPC.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
King yelling loudly at each other before the first fight, etc.
The, various testimonies of these employees in many
instances were not consistent with their statements and in
many instances contradicted each other. Crader Sr. and
Crader Jr., in material matters, contradicted each other,
e.g., did Backus tell the Craders that Parker had called
King a "nigger" before the first fight, did King hit Parker
with his fist at the beginning of the second fight or reach
through a crowd of employees surrounding Parker and
drag his open hand across Parker's face from the rear.
I reemphasize that I have found Crader Sr. terminated
King right after King's visit to the office and before the
Parker fights. I note further Respondent's failure to inquire
directly of King and Backus, especially after the latter had
full opportunity to consult a "higher authority," 41 and the
fact that Respondent was told by its counsel to take no
action until it had discussed "the evidence or facts" with
counsel. Allegedly it was only then, according to Crader Jr.,
after a full consideration by the "Review Board," that it
was decided to terminate King.
At 2:27 'p.m. on April 27, Crader Jr. sent King a
telegram42 advising him there had been a complete
investigation of the altercations of April 26 and the
"Review Board" found that King "initiated" the assaults,
and therefore King's employment was being terminated
immediately. There would not appear to have been
sufficient time for the "Review Board" to have met and
thoroughly review available evidence, etc 43 Had Crader Jr.
told the review board that he had been told by Backus
immediately after the first fight that Parker had called
King a "nigger" before there was any physical violence? It
is interesting that Crader Jr. refrained, perhaps scrupulous-
ly, from asking Parker or any other employee, or King, if
Parker had first called King a "nigger." Crader Jr.
admitted he would have fired Parker, if he had known
Parker had first called- King a "nigger." Yet he either didn't
question Backus' honesty in this regard, or deliberately
refrained from seeking corroboration of Backus or even a
refutation. This is the same Crader'Jr. who issued the April
26 warning letter to King without ever inquiring of Parker
or Maxwell if King had indeed made threats of physical
violence to them and who completely ignored King or any
of his possible admissions, denials, or explanations in
connection with the threats King was supposed to have
made.44
E. Backus From April 27, Until His Termination
on May 6
Backus45 worked in the production department. He was
hired March 6, 1971. He, for a short time prior, worked for
an automobile dealer. He was a journeyman machinist,
member of the IAM, and had worked for Boeing more
than 3 years. He had been in the U.S. Navy for 2 years.46
As noted, he was at the Respondent's meeting with
Michaud of the FEPC on April 20, along with King and
Kaiser, the last having little, if anything, to say, and
Backus and King brought many grievances to Michaud's
attention in the presence of Respondent's officers. He
clearly demonstrated that he had aligned himself with King
in his complaint to the FEPC. It was the beginning of a
"bad time" for Backus. Crader Jr. considered that Backus,
in making his complaints known to Michaud, had a very
"argumentative and surly manner." 47 Crader Jr. also
considered Backus to be "grossly insubordinate" at this
meeting to which Backus had been invited.48 It is a fact
that Backus punched out after King and Parker had their
fights, Backus having told Crader Sr. he was gq'ing to the
FEPC.49 Crader Jr. testified he had no idea why Backus
left early that day and, he had made no inquiry of Backus.
He further testified Backus' leaving "was only attributable
to gross insubordination and arrogance." He never asked
Backus where he had gone or why, when he left early.50
Other than Crader Jr. 's estimate of the nature of Backus'
manner at the meeting with Michaud51 and Backus having
clocked out early on April 26,52 I see little evidence that
Backus was "grossly" insubordinate and arrogant 53
Without ever questioning Backus about it, Crader Jr., in
the midst of his "investigation" of the Parker-King
disturbances, found time to have typed a warning letter to
Backus about his "gross insubordination and arrogance"
particularly in "walking off the job without permission" on
April 26. Backus was warned on the 27th that any action of
a same or similar nature would require disciplinary
action.54 Crader Jr. had never discussed with Backus his
demeanor or alleged arrogance and insubordination at the
Michaud meeting, or his leaving on April 26, or any other
imagined misconduct of Backus.55
After Michaud visited Respondent and met with
Respondent's officers, King, Backus, and Kaiser, Crader,
Sr. came around King and Backus, watched them, wrote in
a little black book, and checked their work. On the Friday
before King was fired, Crader Sr. came to Backus and
41 The FEPC.
42 G.C Exh. 5.
43 I am mindful of the alleged participation by the union attorney who
never testified.
44 The "Review Board" allegedly consisted of Crader Jr, Crader Sr,
Ronald Crader, Hyde, Cassell, and the Union's attorney, Davis. (Davis did
not testify) Crader Sr. testified the four first named met and then Cassell
and Davis conferred by phone. During the few years Crader Sr. had been
with Respondent there had, been about 25 terminations by Respondent.
King's was the only instance in which there was a "Review Board."
45 1 find he was an honest witness who at all times tried to and did
answer questions truthfully.
46 As compared with the apparent qualifications of his fellow employees,
he was eminently qualified
47 Throughout his presence in the hearing room, Backus impressed me as
having a very pleasing and gracious manner.
49 Parker, who was Backus' "supervisor" or leadman, testified he never
saw Backus display insubordination. Backus just did his job.
49 More concerted protected activity.
50 There is no doubt in my mind that Crader Sr. knew where Backus was
headed on April 26. Also on the 26th, Crader Jr. testified Michaud phoned
him and gave him the versions of King and Backus as to the encounters with
Parker Crader Jr. might have guessed-correctly and easily that Backus had
gone to Michaud even if one were to assume Crader Jr. did not overhear
Backus' statement to Crader Sr. about punching out and reporting to the
FEPC or that Crader Sr. had not told him.
51 "Insubordination" at concerted grievances.
52 With full knowledge of and no refusal of superiors
53 I find he was not. He was not terminated for these reasons. I find
Respondent dug them up to suit its ulterior motives.
54 G.C. Exh. 7. A copy was sent to Respondent's counsel.
55 Respondent hasn't contended that any of this alleged misconduct
entered into Backus' termination.
ADVANCE CARBON PRODUCTS, INC. 747
King and told them not to work together because he knew
what they were talking about. Crader Sr. started using the
little black book about April 15 56 Backus only saw Crader
Sr. make notations in that book with respect to King and
Backus. Crader Sr. also "yelled" at King and Backus more
than at other employees.57 When Backus clocked out after
the fights on April 26, he first told Crader Sr. he was
clocking out and going to the FEPC to file charges. Crader
Sr. replied there was no need because he had already
phoned the FEPC and "they knew what had happened." I
find Crader Sr. could not have done so by that time. When
Backus clocked out he handed his timecard to Crader Sr.
Thus he left with the full knowledge of the plant
superintendent who expressed no disapproval. I find the
April 27 warning letter to Backus was a not-subtle device
in preparation for the unlawful get-riddance of Backus as
Respondent had done with King on the day before.
Excepting for Backus' activities protected by Section
8(a)(1) of the Act which Respondent considered "insubor-
dinate," Backus at least as of April 27 and, in fact, until his
discharge, was an ideal employee.58 Parker, his "supervi-
sor," or leadman, swore Backus was at least an average
employee. I find Respondent "dragged up" alleged failings
of King and Backus as reasons for their terminations even
though they did not "rely" on them as reasons for their
terminations. They were not reasons. Respondent mightily
tried to blacken the black King and the white Backus as
justification for reasons of termination not related thereto.
Respondent's testimony, in its final analysis, claims that
King was discharged for attacking Parker and Backus was
terminated for lack of work. Respondent insists that in
spite of its unseemly treatment or unlawful treatment of
Backus prior to and consonant with his discharge, his
discharge was dictated and necessitated by Respondent's
"economic reasons." Backus truthfully testified he had
more work to do when he was "laid off." 59 He had
seniority in point of time of hire over ' at least two other
employees, including Parker.60 Backus had work waiting
for him when he was "laid off."&1 I here find the "laid off"
deal was "phony" and Backus was gotten rid of, fired, or
discharged.62 Backus, the journeyman machinist, was
assigned to assembly work with which he was not familiar
right before his discharge, without sufficient instruction,
and did not perform as a fully trained assembly man
although he was a fully trained journeyman machinist.
Respondent allegedly found fault with this. Backus was
improperly or insufficiently trained for this new but simple
work. Backus truthfully testified he had work of his usual
type to do when he was laid off. Backus, out of his line of
work, was reprimanded by Crader Sr. for not properly
performing work for which he never received proper
training. I find Respondent was inartfully building up
Backus for an unlawful discharge. I find his "lay-off" was a
56 When Parker was rehired.
57 No evidence they were not good and faithful employees
59 He should have been. He was a journeyman machinist.
59
Crader Sr had been, day after day, 5 or 10 niches from Backus,
breathing down his neck while Backus was working.
60 There is no evidence that Parker was, but there is credible evidence
that Backus was a journeyman machinist.
61 Respondent hired four employees between January and Backus'
layoff, although business was allegedly falling off. Parker was hired April
15.
mere phrase of art, designed to conceal his discharge for
engaging in protected concerted activities, including his
joining with King in pursuing charges with the FEPC. I
cannot, and refuse to, ignore Respondent's failure to
introduce into evidence records, maintained by it in the
regular course of its business, that its business had been or
was declining so as to require Backus' layoff. I heard
testimony from Respondent's witnesses that such was a
fact. An affirmative response was given by Respondent as
to whether such records were maintained and were
available. Such were never produced by Respondent. I
have listened to and been attentive to Respondent's
witnesses' testimonies that Backus was laid off because of a
decline in business, a decline in orders, a decline, etc., of all
means of keeping the expert Backus over a junior Parker
and another employee, hired after Backus. I find most
significant with respect to Backus that Respondent offered
no records with respect to Backus and its business. Between
January and April 15, Respondent hired new employees,
including those revealed herein by the record.
The testimony of Respondent's witnesses as to the
decline in, and unavailability of, work for the skilled and
knowledgable Backus was woefully weak in light of
Respondent's failure to produce much stronger available
evidence; i.e., its available books and records which would
establish the facts. Backus was terminated because Res-
pondent had a most strong animus against his joining with
King in presenting and carrying through on King's original
charge with the FEPC.63 That these findings are correct
finds support in the fact that Respondent dug up much
alleged misconduct by both King and Backus, although
Respondent in its many days of hearing contended only
that King was discharged because he started and engaged
in a fight with Parker under dangerous conditions and
Backus was terminated or 'laid off' only because there
was not enough work for him to do. I find the failure to
produce and introduce available record evidence as to lack
of work for Backus is evidence that such books and
records, if introduced, would have established the contrary
as the true fact 64
Concluding Findings
I conclude that King and Backus engaged in concerted
activities protected by Section 8(axl) of the Act, particu-
larly the filing by King of a charge with the FEPC and the
joint pursuit of and endeavors to maintain and support the
charge by King and Backus. The record amply discloses
that Respondent had great animus against such activities
by King and Backus; e.g., Respondent's unseemly epithet
directed against Michaud; Crader Sr.'s insistence that King
read aloud the April 7 letter; Crader Jr.'s characterization
of Backus' strong (and protected) presentation of griev-
62 I have considered Respondent's letters to him as to his availability for
work, etc., but find them to be mere facades
63 The record makes such animus clear since even before April 7.
64 Allegedly, business began declining about the beginning of January.
Yet Respondent hired about four new employees from that date until
Backus' termination Parker was hired only about 20 days before Backus
was terminated and while junior to Backus, the latter was terminated
although he may have been a much more skilled employee than Parker. He
was a journeyman machinist and apparently got along very well with his
fellow employees.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antes before Michaud and Respondent as arrogant and
insubordinate; delivery of the April 26 warning letter to
King by Crader Sr., without King having been asked even
a question as to the merits of its contents; the treatment of
King in Respondent's office on the afternoon of April 26,
when King sought only an explanation of the unexpected
warning letter and an opportunity to reply while King was
in a visibly upset and nervous condition caused by the
letter and occasioned by his experiences as a United States
Marine; and Crader Sr.'s selection of Backus for continu-
ance of harassment prior to King's discharge until Backus'
termination.65 I conclude also that the April 26 warning
letter to King was designed only to set the stage for his
termination for pretextual reasons. The great amount of
evidence as to the alleged prior misdeeds of King was
introduced only to blacken the 'character of King and not
as grounds for termination because Crader Jr. and
Respondent's witnesses made it abundantly clear that the
one and only reason for King's discharge was his fight, or
fights, with Parker on April 26 66 I have already found and
here conclude that Crader Sr. discharged King after his
unsuccessful attempt to be heard by Respondent in
connection with the April 26 warning letter and before any
fight with Parker.67 I conclude further that Respondent's
great animosity against the protected activities of King and
Backus through the FEPC was the motivating reason for
the termination of each. Thus, I conclude each was
terminated in violation of Section 8(a)(1) of the Act.
There remains for conclusion whether the actions of
King in taking the first swing at Parker and fighting with
him twice, after Crader Sr. discharged King , disqualifies
King from the usual remedy of reinstatement and backpay.
I conclude that under all the circumstances of this case,
King was not, and is not, so disqualified.68
The type of employee Parker was was spelled out in
Crader Jr.'s April 7 letter to all employees, at least parts of
which King was required to read aloud to his fellow
employees and Crader Sr. Respondent knew it had had to
warn Parker on numerous occasions "to cease his hostili-
ties" and "to cease using derogatory and degrading
terminology." It was told by Backus, right after the first
fight, that Parker caused it by calling King a "nigger." I
have already found this to be the truth.
Grader Jr., while testifying that if he had known this to
be a fact he would have fired Parker, also testified that he
believed in the oft-repeated adage that "Sticks and stones
may break my bones, but names will never hurt me." I
have found a proper, full investigation of the April 26 fights
was never made by Respondent.
I recognize that these fights in the plant, as distinct from
those out in the street, were potentially most hazardous, as
Respondent's counsel ably argues. He adds that "verbal
epithets, racial or not, do not justify physical assault under
65 E.g., Crader Sr. breathing down Backus' neck
66 Note his prior four or five raises.
67 This was because of his protected concerted activities.
68 1 am satisfied , and find, having considered the entire record , that if
Respondent fully and faithfully complies with the Order recommended
herein, it is most unlikely that King will again engage in a violent altercation
with anyone in Respondent's premises. Compliance with the recommended
Order will, eliminate most of the circumstances which gave rise to the
instances of serious violence which here arose involving King and Parker.
any conditions and particularly in circumstances where
physical injury or death could result ."69 I have pondered
this as well as counsel for Respondent's other reasonable
arguments with considerable and respectful attention. We
would all like to forget the not-so-far-gone era70 when
almost any number of words were "fighting words." I am
not here concerned with imagined cases where a blow and
a fight and perhaps a death was occasioned by an
obscenity, a charge of outrageous impurity on the part of
one's wife or mother, or other grossly improvident
verbiage. I am faced with this man, King, who obviously
had been a good worker when his numerous wage increases
are considered, who honestly but perhaps mistakenly
believed he and his fellow employees were being discrimi-
nated against by Respondent because of their races, who
had filed charges with the FEPC on such basis, who had to
work with or under a man, Parker, who had been warned
by Respondent on numerous occasions about making
degrading statements to fellow employees, who had
received a warning letter about threatening Parker and
Maxwell with physical violence without having been asked
by Respondent about it, who unsuccessfully sought to get
an explanation from and give his side to Respondent, who
was thereupon unlawfully fired, who was most emotionally
upset, and who was not only personally referred to as a
"nigger" but was told, "All you niggers are alike." That
man, King, the wounded veteran, the black man, is the
man I am here considering . I observed him. Based on all
the evidence in this case, I conclude that King was not a
completely free actor in his response to Parker when
Parker, having first been given the opportunity by King to
withdraw or in some other fashion explicate himself from
having called the black King a "nigger," instead reiterated
the galling word and words which, in this day and age, and
particularly in San Francisco, are much more than a
"mere" epithet. Parker was the man who, being aware of
King's discharge, increased a thousandfold King's miser-
y71 by calling King a "nigger." Perhaps a Martin Luther
King or a St. Martin de Porres would have humbly
submitted himself to the bitterness of such indignity in all
the circumstances. Is there a black man who thinks he
could have successfully replied in kind by calling Parker
"Whitey" or "Honkie" or some other forceless name or
epithet? I am not at all surprised that King reacted as he
did in these particular circunzstances.72 When the term
"nigger" is used and blacks and whites are involved, what
does a "reasonable" man do? Whatever a mythical
"reasonable" man should or would do, King reacted to the
probably insufferable circumstances of this case in a
completely foreseeable, if not ethically proper way.73
Of course, I do not condone violence nor do I condone
Parker's instigation of King, who had been going through
his own traumatic experiences, by repeating what Respon-
69 Unfortunately , in our present day society, racial epithets are not to be
considered lightly, particularly where the object thereof has been subjected
to the type of unfair, labor practices found herein.
70 But fortunately no longer present.
71 Occasioned by his unlawful discharge.
72 We are not considering the calling of a black man "nigger" in a
vaccuum.
73 Foreseeably by me. Foreseeable by Respondent who had intimate
knowledge of Parker.
ADVANCE CARBON PRODUCTS, INC.
dent in its April 7 letter stated it had on numerous
occasions wisely warned Parker not to do; i.e., use of
degrading and derogatory remarks to his fellow employee.
I find that King should be reinstated with full backpay
because he was discharged in violation of Section 8(a)(1)
and that his provoked and, under the circumstances,
reasonably foreseeable violence in reaction to gross
provocation by a man who had on numerous occasions
been warned to cease his hostilities and degrading and
derogatory terminology' does not disqualify him from
reinstatement.74 Remember that Crader Jr. testified he
would have fired Parker if he had known as a fact that
Parker called King a "nigger" before the fight. Crader Jr.
now knows that, after 1,000 pages of testimony and many
exhibits, and I find, after much study, that was and is the
fact.
-I find Backus was not "laid off" for economic reasons
but was discharged because he engaged with King in
statutorily protected concerted activities. I reemphasize
that Respondent failed to offer in evidence records it had
in its possession which if produced might have sustained its
position. Such failure to produce is substantial evidence
that the records would not have sustained its position and
that the contrary is true. Backus is to be reinstated with full
backpay. The preponderance of the probative and substan-
tial evidence establishes that each was discharged because
of his protected concerted activities and that Respondent's
assigned reasons were pretextual or of no moving force.75
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that, on or about April 26, Respondent
terminated the employment of Nathaniel King because he
engaged, substantially along with Bruce Backus, in
protected concerted activities, especially in filing and
assisting in the investigation of a charge of discrimination
by Respondent against its employees, with the Fair
Employment Practices Commission, and that, on or about
May 6, Respondent terminated the employment of Bruce
Backus because he engaged, substantially along with
Nathaniel King, in protected concerted activities, especial-
ly in assisting in the investigation of a charge of
74 If Respondent had policed its numerous warnings to Parker, we would
not have this problem.
75 Nowhere herein do I find an employee may freely react with violence
to a racial or other epithet in the absence of extreme circumstances.
76 In the event no exceptions are filed as provided by Sec. 102.46 of the
749
discrimination by Respondent against its employees, filed
by Nathaniel King with the Fair Employment Practices
Commission, I shall recommend that Respondent offer
King and Backus , each , immediate and full reinstatement
to his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges. I shall further
recommend that Respondent make King and Backus,
each, whole for any loss of pay each may have suffered by
reason of his discharge in violation of Section 8(a)(1) of the
Act, in the manner set forth in F. W. Woolworth Company,
90 NLRB 289, with interest on backpay computed in the
manner described in Isis Plumbing & Heating Co., 138
NLRB 716.
The Board, in its January 29, 1971, Order, heretofore
referred to, has already issued a broad cease-and -desist
Order against Respondent, and I find no need for
recommending the issuance of another one.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAw
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By discharging King on or about April 26 and by
discharging Backus on or about May 6 and thereafter
failing and refusing to reinstate each one , because of his
protected concerted activities, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(l)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the entire record, including the foregoing findings
of fact and conclusions of law, I hereby issue the following
recommended:
ORDER 76
Respondent, its officers, agents , successors, and assigns,
shall:
1. Cease and desist from terminating or otherwise
discriminating against any of its employees because of his
concerted activities protected by Section 8(a)(1) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Offer King and Backus, each, immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
(b) Make King and Backus, each, whole for any loss of
earnings he may have suffered by reason of Respondent's
discrimination against him, in the manner set forth in The
Remedy portion of this Decision.
(c) Notify Nathaniel King or Bruce Backus, if either is
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presently serving in the Armed Forces of the United States
of America, of his right to full reinstatement, upon
application, in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents all records necessary or useful to
determine or compute the amounts of backpay due King
and/or Backus, if any.
(e) Post at its plant in San Francisco, California, copies
of the attached notice marked "Appendix." 77 Copies of
said notice on forms to be furnished by the Regional
Director for Region 20 shall, after being signed by a duly
authorized representative of Respondent, be posted imme-
diately upon receipt thereof and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that such notices are not altered, defaced or covered
by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.78
77 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
78 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20, in wasting, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OP THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discriminate in regard to the hire and
tenure of employment or the terms and conditions of
employment of any employee by discharging and
thereafter failing and refusing to reinstate said employ-
ee because he has filed charges with the Fair Employ-
ment Practices Commission or cooperated in an
investigation conducted by said Commission, or has
otherwise engaged in concerted activities protected by
Section 8(a)(1) of the Act, or in any other manner
discriminate against employees for engaging in concert-
ed activities protected by Section 8(a)(1) of the Act.
WE WILL offer Nathaniel King and Bruce Backus,
each, immediate and full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges.
WE WILL make said Nathaniel King and Bruce
Backus, each, whole for any loss of earnings he may
have sustained by reason of our discrimination against
each and both of them, in the manner set forth in the
provision of the Decision and recommended Order of
the Trial Examiner entitled, "The Remedy."
WE hereby notify each of our employees that under
Section 7 of the Act he has the right to self-organiza-
tion, to form, join, or assist labor organizations, to
bargain collectively through representatives of his own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection, and shall also have the right to
refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act.
Dated By
ADVANCE CARBON
PRODUCTS, INC.
(Employer)
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of their 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.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 13018
Federal Building, Box 36047, 450 Golden Gate Avenue,
San Francisco, California, Telephone 556-3197.