Atlas Linen and Industrial Supply

National Labor Relations Board - Board Decisions

Feb 28, 1961

130 N.L.R.B. 761 (N.L.R.B. 1961)

ATLAS LINEN AND INDUSTRIAL SUPPLY 761
Fred H . Johnson , trustee under the will of Clay M. Thomas,
deceased , doing business as Atlas Linen and Industrial Supply
and Mollie S. Taylor, Mary J. Wagner, Inez L. Bostic, Juanita
Donaldson, Grace Karnes, Phillip E. McBee, Floyd Hall, Minta
Justice, Otis Kinney, David W. Hall, Dicie P. Newell , Victoria
Branham , Mary B. Galbreath, Della M. Gleason , Beulah Kuli,
Marie H . Holbrook, Albert T. Rucker, Betty E. Hall, Harold
James Comer, and Francis C. Burnard . Cases Nos. 9-CA-1925,
9-CA-1926, 9-CA-1928, 9-CA-1939, 9-CA-1930, 9-CA-1931,
9-CA-1932, 9-CA-1935, 9-CA-1937, 9-CA-1938, 9-CA-1939,
9-CA-1941, 9-CA-1944, 9-CA-1946, 9-CA-1952, 9-CA-1953,
9-CA-1955, 9-CA-1956, 9-CA-1972, and 9-CA-1975. February
28,1961
DECISION AND ORDER
On May 9, 1960, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provision of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner with certain modifications.
1 On the eighth day of the hearing herein, and at a time when the General Counsel had
rested his case, except for the possible introduction of any new records which he deemed
material and had not had an opportunity to examine , and the calling of witnesses in
relation to such documents , Respondent moved for production of prehearing statements
of General Counsel's witnesses . This motion was denied by the Trial Examiner. We find
no error in the Trial Examiner's ruling. The proper time for requesting a prehearing
statement is at the close of direct examination of a witness . It would thoroughly dis-
organize hearings if, after a witness had been fully cross-examined and left the hearing
room, a respondent was given the right to demand prehearing statements and, on that
basis, recall a witness for further cross -examination . See Walsh-Lump kin Wholesale
Drug Company , 129 NLRB 294.
2 We note and correct the following errors in the Intermediate Report. The Trial
Examiner found that all Charging Parties inquired about their jobs subsequent to April 15,
1959. However, five Charging Parties-Mollie Taylor, Betty Hall, David Hall, Juanita
Donaldson , and Dicie Newell-testified that they made no request for reemployment sub-
sequent to April 15, and no testimony was offered concerning Charging Parties Della
Gleason or Mary Galbreath as to whether they made requests for reemployment subsequent
to April 15. As the record establishes that the reinstatement of all Charging Parties was
requested on April 14 and again on April 15, the fact that some may not have made further
requests is immaterial to the issues here.
The Trial Examiner also termed Betty Hanna " a charging party." Although Betty
130 NLRB No. 56.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent excepts to the Trial Examiner's finding that the Charg-
ing Parties were discriminatorily discharged on the first day of the
strike. We find merit in this exception. We note that the complaint
herein did not allege discriminatory discharges; rather the com-
plaint alleged that the Charging Parties engaged in an economic
strike and that Respondent violated 8(a) (3) by failing to reinstate
them. Moreover, the issue as to whether they were discharged was
not fully litigated at the hearing. Accordingly, we do not adopt the
Trial Examiner's finding in this report. However, we do find, in
agreement with the Trial Examiner and as alleged in the complaint,
that the Respondent violated Section 8 (a) (1) and (3) of the Act by
failing to reemploy the Charging Parties.
The record establishes that on April 14, Respondent was informed
that the strike was abandoned and that striking employees desired
reinstatement. As economic strikers these employees were entitled to
reinstatement unless they had been permanently replaced. The record
does not establish that any of the Charging Parties had been so re-
placed. While it appears that some new hires were made during the
course of the strike, there is nothing in the record to indicate that the
new hires filled any of the jobs of the Charging Parties. Accord-
ingly, we find that Respondent discriminatorily refused to reinstate
the Charging Parties, and thereby violated Section 8(a) (3) and (1)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate the pol-
icies of the Act.
Having found that Respondent refused discriminatorily to rein-
state the Charging Parties who unconditionally requested reemploy-
ment we will order that Respondent offer to all of them, except David
Hall, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed by them, discharging,
if necessary, any new employees hired subsequent to the date of their
request.
We shall also order that Respondent make all Charging Parties,
except David Hall, whole for any loss of pay they may have suffered
by reason of Respondent's unlawful refusal to reinstate them, by pay-
ment to them of a sum of money equal to the amount they would nor-
mally have earned as wages during the period April 15, 1959, the
Hanna testified at the trial in behalf of the General Counsel the record shows she is not
a Charging Party.
The Trial Examiner further found that 26 employees who went out on strike were re-
hired on various dates subsequent to the strike The record in fact reflects that at least
33 were rehired subsequent to the strike.
ATLAS LINEN AND INDUSTRIAL SUPPLY 763
date of Respondent's unlawful refusal to reemploy them, to the date
Respondent offers them reinstatement, less their net earnings during
said period in accordance with F. W. 'Woolworth Company, 90 NLRB
289.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Fred H. John-
son, trustee under the will of Clay M. Thomas, deceased, doing busi-
ness as Atlas Linen and Industrial Supply, its representatives, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in District 50, United Mine Work-
ers of America, or International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local No. 413, or in
any other labor organization, by discriminatorily refusing to rein-
state or reemploy its employees, or by discriminating against its em-
ployees in any other manner in regard to their hire or tenure of em-
ployment or any term or condition of their employment, except to
the extent permitted by Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
(b) Interrogating employees concerning their union and concerted
activities and sympathies and as to whether they had signed union
cards in a manner violative of Section 8(a) (1) of the Act.
(c) Threatening employees with economic reprisals for engaging
in union and concerted activities, promising economic benefits if a
union is not selected as bargaining representative, asking employees
to turn in their union cards, and conditioning employment upon turn-
ing in their union cards or papers signed in connection with any un-
fair labor practice charges.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the above-named Unions, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, or to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such
right may be affected by an agreement authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Mary B. Galbreath, Mollie S. Taylor, Minta Justice,
Betty E. Hall, Della M. Gleason, Dicie P. Newell, Inez L. Bostic,
Victoria Branham, Mary J. Wagner, Beulah Kuli, Juanita Donald-
son, Marie H. Holbrook, Grace Karnes, Harold James Comer, Fran-
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cis C. Burnard, Floyd Hall, Otis Kinney, Phillip E. McBee, and
Albert T. Rucker immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their sen-
iority or other rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason of the discrimina-
tion against them, in the manner set forth in the section of this Deci-
sion and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plants at Columbus, Ohio, copies of the notice at-
tached hereto marked "Appendix A." 3 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed by Respondent's authorized representative, be
posted by Respondent immediately upon receipt thereof, and be main-
tained 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 to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Ninth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in District 50, United
Mine Workers of America, or in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local No. 413, or in any other labor organization, by discrimina-
torily refusing to reinstate or reemploy any employees, or by dis-
criminating against our employees in any manner in regard to
their hire or tenure of employment or any term or condition of
employment, except to the extent permitted by Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT interrogate any employees concerning their union
and concerted activities and sympathies and as to whether they
ATLAS LINEN AND INDUSTRIAL SUPPLY 765
had signed union cards in a manner violative of Section 8(a) (1)
of the Act.
WE WILL NOT threaten any employees with economic reprisals
for engaging in union and concerted activities , nor promise eco-
nomic benefits if a union is not selected as bargaining representa-
tive, nor ask employees to turn in their union cards , nor condition
employment upon turning in their union cards or papers signed
in connection with any unfair labor practice charges.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization , to form, join, or assist the above -named Unions, or
any other labor organization , to bargain collectively through rep-
resentatives of their own choosing , or to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such ac-
tivities except to the extent that such right may be affected by an
agreement authorized by Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to the following immediate and full reinstate-
ment to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges, and we
will make them whole for any loss of earnings they may have
suffered by reason of the discrimination against them :
Mary B. Galbreath Mollis S. Taylor
Minta Justice Betty E. Hall
Della M. Gleason Dicie P. Newell
Inez L. Bostic Victoria Branham
Mary J. Wagner Beulah Kuli
Juanita Donaldson Marie H. Holbrook
Grace Karnes Harold James Comer
Francis C . Burnard Floyd Hall
Otis Kinney Phillip E. McBee
Albert T. Rucker
All our employees are free to become or refrain from becoming
members of the above -named or any other labor organization.
FRED H. JOHNSON , TRUSTEE UNDER THE
WILL OF CLAY M. THOMAS, DECEASED,
DOING BUSINESS AS ATLAS LINEN AND
INDUSTRIAL SUPPLY,
Employer.
Dated---------------- By--------- ----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon separate charges filed by 20 individuals, herein sometimes called the Charg-
ing Parties, the General Counsel of the National Labor Relations Board, by the
Regional Director for the Ninth Region (Cincinnati, Ohio), issued his consolidated
complaint, dated October 28, 1959, against Fred H. Johnson, trustee under the will
of Clay M. Thomas, deceased, doing business as Atlas Linen and Industrial Supply,
herein called the Respondent. With respect to the unfair labor practices, the com-
plaint alleges, in substance, that: (1) certain named agents and representatives of Re-
spondent engaged in specified acts of interference, restraint, and coercion; (2)
Respondent's employees, including the Charging Parties, engaged in an economic
strike from April 9 to 14, 1959; (3) thereafter Respondent refused to reinstate or
reemploy the Charging Parties, upon their unconditional request, because of their
union and concerted activities; and (4) by such conduct Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the
Act. In its duly filed answer, Respondent admits the facts alleged as to its business
operations, and denies the unfair labor practices allegations.
Pursuant to due notices, a hearing was held before the duly designated Trial Ex-
aminer during February 1 to 10, 1960, in Columbus, Ohio. The Respondent and the
General Counsel were represented at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce relevant evidence,
to present oral argument at the close of the hearing, and thereafter to file briefs as
well as proposed findings of fact and conclusions of law. Respondent's motion to
dismiss the entire complaint, made before the close of the hearing and upon which
I reserved ruling, is hereby denied in accordance with the findings and conclusions
made below.' After the close of the hearing, I received briefs which I have fully
considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a business enterprise operated by Fred H Johnson under a testa-
mentary trust established by the will of Clay M. Thomas, deceased. As such
trustee, Respondent is engaged at Columbus, Ohio, in the business of supplying linen,
uniforms, and industrial clothing to business enterprises in the Columbus, Ohio, area.
During the calendar year 1958, a representative period, Respondent's gross volume of
business exceeded $3,000,000; during that period, Respondent purchased linen and
industrial clothing, valued in excess of $550,000, from suppliers located outside the
State of Ohio.
Upon the above undisputed facts, I find that Respondent is engaged in commerce
or in operations affecting commerce within the meaning of Section 2(6) and (7)
of the Act.2
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the Respondent stipulated at the hearing, and I find that
District 50, United Mine Workers of America, herein sometimes called District 50
or the Union, and International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 413, herein sometimes called the Teamsters,
are each labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In February 1959, District 50 commenced an organizational campaign among
Respondent's employees. A strike for recognition began on April 10, 1959, and
ended on April 14. Respondent refused to reemploy the Charging Parties who had
unconditionally applied for reinstatement or reemployment. The issues litigated in
this proceeding are (1) whether Respondent discriminated with respect to the hire
1 Respondent erroneously states in its brief that I also reserved ruling on a motion to
strike testimony relating to incidents not specifically alleged in the complaint The motion
to strike was denied.
2 See Decision and Direction of Election in Case No. 9-RC-3567, dated June 4, 1959
(not published in NLRB volumes).
ATLAS LINEN AND INDUSTRIAL SUPPLY 767
and tenure of employment of the Charging Parties in violation of Section 8(a)(1)
.and (3) of the Act, (2) whether the strike was illegal and the Charging Parties had
.engaged in unprotected concerted activities, and (3) whether Respondent, through
its admitted agents and supervisors, engaged in acts of interference, restraint, and
coercion in violation of Section 8 (a) (1) of the Act.
A. Respondent's supervisory hierarchy
Respondent is a business enterprise operated under a trusteeship and engaged in
the processing and supply of laundry linens and industrial supplies. In the operation
of this business, Respondent operates two plants in Columbus, Ohio; one is located
at North Grant Avenue and is known as the main plant and office or plant No. 1,
the other is located on North Fourth Street and is known as the smaller plant or plant
No. 2. Warren C. Armstrong is the personal representative of the Trustee, Fred H.
Johnson, and as such is the manager and top management representative of Re-
spondent. Leroy Houck is the production manager of both plants; Richard I. Castrop
is the comptroller; and Fred Comer is the purchasing agent. Armstrong classified
Houck, Castrop, Comer, and himself as executives of Respondent. Under Houck's
jurisdiction are the following foremen: Howard Smith, frequently referred to in
the record as "Mose" Smith, in charge of the third floor of plant No. 1, where about
70 production employees worked; Lester Yenan, in charge of the second floor of
plant No. 1 and part of the first floor, where about 75 production employees Worked;
William Corwin, in charge of the fourth floor and basement of plant No. 1, where
about 29 production employees worked; and Charles Allen, in charge of plniit
No. 2, where about 40 production employees worked.
The Respondent stipulated and admitted that all the above-named persons are
supervisors within the meaning of the Act.
B. Sequence of events
1. Organizational activities leading to the recognition strike 3
About February 15, 1959, Olympio Pacifico, a field representative of District 50,
met with about six or seven of Respondent's employees, including Charging Parties
Mollie Taylor, Francis Burnard, Minta Justice, and Della Gleason, to discuss the
union organization of Respondent's production and maintenance employees. Pa-
cifico explained that as a noncomplying union with the Taft-Hartley Act, District 50
could not petition the Board for an election; he also explained the difficulties involved
in organizing and that sometimes it is necessary to strike for recognition. The group
of employees agreed to participate in an organizational campaign and to solicit
employee signatures to membership cards. Thereafter, other meetings were held at
which the employees submitted to Pacifico signed membership cards which they had
obtained from Respondent's employees. A mass meeting of employees was held at a
local hotel about March 15, attended by about 150 employees. Pacifico announced
that he now had about 200 signed membership cards, that this constituted a majority
of the production and maintenance employees, that the time had come to request
Respondent for recognition, and that if Respondent would not agree to a private
election the only other weapon left was to strike for recognition. The employees
voted to strike if necessary, and authorized Pacifico to use his judgment in advising
them when such action became necessary. Pacifico also passed out union buttons
to the employees for themselves and to distribute to others.
Thereafter, employees, including the Charging Parties, openly wore the union
buttons in conspicuous places on their uniforms while working at the plant.
On March 16, 19, and 31, 1959, Daniel Sandy, regional director for District 50,
wrote letters to Respondent, claiming that District 50 represented a majority of Re-
spondent's production and maintenance employees and requesting recognition as
the employees' bargaining representative. Meanwhile, Sandy met with Respond-
ent's representatives to discuss ways and means of proving District 50's majority
representation claim, as District 50 could not file a petition with the Board. Sandy
suggested a card check against Respondent's payroll by a disinterested party, or
that the Respondent could file a petition with the Board and District 50 would inter-
vene, or arrangements could be made for a third party to conduct an election, or
finally District 50 would have to strike. Respondent indicated that it was concerned
as to whether it was engaged in interstate commerce and as to its legal capacity to
recognize a labor organization because of the trusteeship situation. On April 8,
Sandy left a written statement in the office of Robert Newlon, counsel for the
s There is no serious dispute with respect to the findings in this section.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trustee who had participated with Armstrong in some of the above meetings, out-
lining the procedure available to Respondent for resolving the recognition question,
and later that day advised Armstrong of that fact by telephone.
On Thursday, April 9, a mass meeting of Respondent's employees was held after
working hours on a parking lot across from plant No. 1. Pacifico reported lack of
progress in resolving the recognition question, stated that the time had come to
show their hand, and asked if they were in favor of a strike. The employees indi-
cated their approval by clapping their hands. Pacifico then told them to report back
at 5:30 a.m. the next day at which time a picket line would be placed around the
plant. The strike began the next morning, April 10.
2. Conduct by admitted supervisors prior to the strike
a. By Production Manager Leroy Houck
During the last week in March 1959, Houck stated on the second floor of plant No.
1, in the presence of other employees, that he wished he know who started this
"damn union" here. Before quitting time on Thursday, April 9, Mary Galbreath
overheard Houck tell Foreman Yerian to take down the names of the girls who
went across the street in the parking lot, where Pacifico was waiting for them, and
that if the girls did not come back to work on Friday they no longer had a job.4
b. By Foreman Howard Smith
Early in March, Smith had a conversation with employee Francis Burnard in the
men's room . Smith asked, "What is this I hear about a union," and also asked if Bur-
nard had signed a card. Burnard replied that he had not signed a card but that he
had one, that he would give it due consideration, and that if he decided it was all
right he intended to sign it. Smith then stated that Bunard "better be careful"
what he signed . Smith then mentioned a laundry union and stated that he thought
the laundry union would be better than the Mine Workers Union.
In a conversation with employee Juanita Donaldson during the lunch period at the
plant about the middle of March, Smith stated that this Union [District 50] was
not recognized in Washington, and asked if Donaldson had joined. She replied
that she had.
A few weeks before the strike of April 10, employee Mary Wagner had the fol-
lowing conversation with Smith on the third floor of plant No. 1. Smith said, "I
hear you girls are trying to get a union in here." Wagner replied in the affirmative
and added that "we girls have to work for a dollar an hour, we never get a raise
and some of us have been here a long time and we have a dot of responsibility."
Smith then asked, "Why are you fooling with the Mine Workers, why not get the
AFL or the CIO?" He also stated that "these Teamsters are a rotten Union too." 5
Wagner replied that she had talked to officials of several unions and would talk to
some more before she made a decision about it herself. About a week later, Smith
stopped Wagner at the plant and asked if she had talked to anyone else Wagner
replied that she had talked to Mr. Ross of the United Auto Workers and that he had
assured her that she could not "go wrong." Smith then stated that he had papers on
his desk that he was working on to get the employees a raise and a paid holiday but
that "if we got a Union in it would knock it in the head."
A few days before the strike, Smith spoke to a group of employees on the fourth
floor of plant No. 1. Smith stated that the employees had made a mistake in signing
the cards for the Union, that they should not have signed, and that if he were in their
place he would not have signed.°
c. By Foreman William Corwin
On Thursday, April 9, the day before the strike, Corwin called a meeting of a
group of his employees on the fourth floor of plant No. 1. During the course of his
talk to the group, Corwin stated that he did not like the United Mine Workers Union,
The findings in this paragraph are based on the credited testimony of Minta Justice,
Mollie Taylor, and Mary Galbreath, Charging Parties herein. I do not credit the con-
trary testimony of Houck and Yerian
5 At that time, the Teamsters were seeking recognition for Respondent's drivers and
salesmen.
O The findings in this section are based on the credited testimony of Francis Burnard,
Juanita Donaldson, Mary Wagner, and Harold Comer. I do not credit Smith's contrary
testimony.
ATLAS LINEN AND INDUSTRIAL SUPPLY 769
that the employees were "crazy" to want the Union, that if they selected a laundry
union that would be best for the Company, and that as far as he, was concerned he
would fight against the Union and for the Company " until he dropped dead."
Before the strike, Corwin also spoke to a group of employees in the basement of
plant No. 1. During the course of his talk, Corwin stated that the Union was not
recognized by the Company, that the Company did not like the Union, and that if
the employees joined the Union they "probably would be laid off " 7
d. By Foreman Charles Allen
While employee Victoria Branham was engaged in soliciting employee signatures
to union membership cards during lunch period at plant No. 2, Allen saw her, called
her over to his desk, and asked what she was doing. She replied,that they were try-
ing to get the United Mine Workers Union in. Allen stated that "that Union is no
damn good," and asked why they did not try to get a laundry union. Branham
stated that "we don't want a laundry union because it is no good."
On April 9, the day before the strike, Allen announced in a loud voice, in the
presence of a number of employees, that "they say there is going to be a strike up
here," that all those who did not report for work the following day need not come
back at all, and that "they will never work for this company again." 8
3. The strike and its termination; employees sign Teamsters cards
As previously noted, the strike began on Friday morning, April 10, 1959. About
5 a.m. the employees began picketing the plants, and only about 50 production em-
ployees out of a total of approximately 300 in the requested unit reported for work
that day. That afternoon, the Respondent obtained a restraining order in an exparte
proceeding, limiting the number of pickets, and District 50 complied with the terms
of the order. Except for Sunday, the picketing continued until Tuesday, April 14.
,On Tuesday morning, Pacifico reported to Sandy, his superior, that some of the
strikers had gone back to work, that this had upset some of the women, that he
thought the strike was "falling apart," and that he would like to turn it over to the
Teamsters. Sandy told Pacifico to use his best judgment in the matter. About 11
o'clock that morning, Pacifico told Mollie Taylor, a Charging Party, to telephone to
Leroy Houck at the plant and to tell him that the strikers wanted to go back to work.
Pacifico also telephoned to Mr. Roof, a Teamsters representative, informed him that
he was calling off the strike and asked if he would like to take the people over. Roof
stated that he would have to discuss the matter with Pfeiffer, another Teamsters
representative. Pursuant to prior arrangement, Pacifico then discussed the matter
with Dale Mann, the Teamsters' president, at the latter's office, and it was agreed
that a Teamsters representative would solicit the strikers to sign Teamsters member-
ship cards. That afternoon, the strikers assembled at the Green Derby Cafe, located
near the plant. Pacifico informed the strikers that the strike was being called off,
suggested and recommended that they sign Teamsters cards because he believed that
the Teamsters could do more for them than he could, and advised them to report
back for work. Roof, the Teamsters representative, was present at the meeting
and passed out Teamsters membership cards to the assembled strikers who signed
them and returned them to Roof 9 Pacifico also told Mollie Taylor to get the group
together and to go over to the plant in person to apply for their jobs, which was
done, as hereinafter described.10
4. The refusal to reemploy the Charging Parties upon their applications
a. On Tuesday , April 14
As previously noted, about 11 a.m on Tuesday, April 14, Pacifico told Mollie
Taylor to call Production Manager Houck on the telephone and tell him that the
7 The findings in this section are based on the credited testimony of employees Phillip
McBee, Otis Kinney, Floyd Hall, David Hall, and Albert Rucker. I do not credit Corwin's
contrary testimony.
s The findings in this section are based on the credited testimony of employees Victoria
Branham, Inez Bostic, Dicie Newell, and Betty Hall. I do not credit Allen's contrary
testimony
9 Some of the strikers who were not present at this meeting signed Teamsters cards
later that day or the next day.
10 The findings in this paragraph are based on undisputed testimony.
597254-61-vol. 130-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers wanted to go back to work. Taylor made the call, identified herself, and
told Houck that "we want our jobs back." Houck asked whether she was speaking
for herself or just a few of them. Taylor replied that she was "speaking for everyone
that walked out." Houck then stated that it was out of his hands, that Armstrong
could not be reached at that time, and that if she would leave a telephone number
he would call her if he got in touch with Armstrong. She gave him a number but
Houck never called back."
As previously stated, on Tuesday afternoon, April 14, Pacifico advised Mollie
Taylor to go to the plant in person with the group of strikers to apply for their jobs.
Taylor and a large group of the strikers, including the Charging Parties, then went
to plant No. 1. Taylor told Production Manager Houck that she was the spokesman
for the group and that they had come back to ask for their jobs. Houck replied
that he could not do anything for them at that time, that he would first have to con-
tact Armstrong, and that Armstrong was not at the plant office at that time. The
group then returned to the Green Derby Cafe where they were advised by Pacifico
to report back to the plant at 6:30 the following morning, Wednesday, April 15.
b. On Wednesday, April 15
The strikers, including the Charging Parties who worked in plant No. 1, went
back to that plant about 6:30 the next morning. Houck and Foremen Smith, Yerian,
and Corwin, among others, were present. The foremen called out the names of the
strikers who were to be reemployed in their respective departments and they were
interviewed in separate groups. The foremen then spoke to the remaining strikers
of their respective departments; told them to write down their names, addresses, and
telephone numbers, and that they would be called when they were needed. The
strikers did as they were told. Foreman Smith admitted that he lined up all the girls
from his department; that he asked each one if she had signed with the Teamsters,
stating that he had heard rumors to that effect; that he asked those who answered in
the affirmative if they would get their Teamsters card and bring it back to him; that
some of the girls went out and brought their Teamsters cards to him; and that he
turned those cards over to Comer, one of Respondent's executives.12
The record also shows that the foremen made additional statements in some indi-
vidual cases that morning. Thus, when Betty Hanna, a Charging Party, told Fore-
man Smith, in response to his question, that she had signed a Teamsters card, Smith
told her ,that if she would get the Teamsters card for him, she could go back to work.
When Hanna replied that she would think about it, Smith said that it was up to her.
Smith also told Marie Holbrook that if she wanted to get the Teamsters card which
she signed sand bring it back to him, he might be able to put her back to work. When
she replied that she did not know about it, Smith stated that it was up to her. Hol-
brook then went to the Green Derby Cafe, got her Teamsters card, and brought it
back to Smith. Smith looked at it and said, "Marie, this is a rough bunch. We don't
intend to have them in the laundry and if I put you back to work and they come
around again they will pull you off the job " When Holbrook replied that she was
here to work if Smith wanted her, Smith said that he had her telephone number and
would call her if he could use her. Whei Beulah Kuli asked Smith about her job
that morning, Smith stated that he thought she had quit when she did not come in to
work the next day, referring to April 10, the first day of the strike. Kuli replied that
she had not quit and had no intention of quitting. Smith then stated, "You know
you were automatically out when you didn't show up the next day for work," refer-
ring to the first day of the strike. He then took her name, address, and telephone
number and asked if she would get her Teamsters card and bring it back to him.
Foreman Corwin called a group of men into the drivers room, including Otis Kinney,
Albert Rucker, David Hall, and Francis Burnard, Charging Parties. Castrop,
Respondent's comptroller, was also present and stated that the plant had operated
during the strike and would continue to do so, that "you folks" who had failed to
report for work on the morning of the strike had quit your jobs, and that Corwin
would take their names and addresses and they would be called if needed. Corwin
then took their names, addresses, and telephone numbers and stated that he was
it The findings In this paragraph are based on the credited testimony of Mollie Taylor.
Houck did not deny having such a telephone conversation with Taylor He merely testi-
fled, in this respect, that the first knowledge he had about the strike ending was about
2 :30 p.m on Tuesday, April 14, when a group of employees came into the front office
12 There is no serious dispute with respect to the findings in the last two paragraphs.
ATLAS LINEN AND INDUSTRIAL SUPPLY 771
taking their applications just as if they were new people applying for jobs and that
he would call them if they were needed.13
A group of 9 or 10 strikers, including the Charging Parties who had worked at
plant No. 2, went to plant No. 2 at 6:30 that same morning to ask for their jobs.
Freeda Hammond acted as spokesman for the group and spoke to Foreman Allen.
Allen told them that they had their chance once and had not taken it and that he had
told them the day before they went out on strike that those who did not report for
work need not come back. He then told them to wait for Leroy Houck, the produc-
tion manager. While waiting for Houck, Eugene Brown, who was the foreman of
Della Gleason, a Charging Party, came into the plant. In reply to Gleason's query
as to where her card was, Brown stated that "I had to replace you." Houck came
to the plant about 2 hours later, at which time the employees went into the office and
asked him for their jobs. Houck replied that they had been replaced and asked how
many of them had signed Teamsters cards. When no one answered, Houck stated
that they might as well tell him and that he had the Teamsters cards in his pocket.
Houck then took out a group of Teamsters cards from his shirt pocket and waved it
in front of them. Houck also told them that they had made a mistake in changing
horses in midstream and that the United Mine Workers had sold them out. Della
Gleason said, "You know I have been sick." Houck replied that he could do nothing
about it and that she would have to talk to Foreman Comer. At Houck's request, all
the girls, including the Charging Parties who were there, left their names, addresses,
and telephone numbers, and Houck stated that they would be called if needed.14
c. On subsequent occasions
All the Charging Parties made further requests for jobs on subsequent occasions,
some more than once; all were told that there were no vacancies and that they
would be called when jobs were available. On some occasions , the foremen made
additional statements to the Charging Parties and to other strikers applying for
work.
Production Manager Houck told Charging Party Otis Kinney the following Mon-
day that "some of us would be put back to work and some would not get back."
Houck added, "You know who I mean." About a week later, Myrtle Hall tele-
phoned to Houck about getting her job back. Houck asked if she had joined the
Teamsters. Hall replied that she had and that she could get her card if he would
give her her job back. Houck stated that she would have to see Armstrong and
that it was out of his hands. Hall went to the Green Derby Cafe, got her Teamsters
card from Representative Roof, and then telephoned Houck again and told him
that she had her card. Houck stated that he had seen so many Teamsters cards
that it might be a duplicate and that the real card had gone into the Teamsters'
office. He told her that she would have to see Armstrong. About 2 weeks later,
when Charging Parties Mary Wagner and Grace Karnes went back to the plant to
see about their jobs, Houck told them that some of them would be taken back and
that some of them would never be taken back. On one such occasion Houck told
Charging Party Phillip McBee that "we shouldn't have walked out like we did."
When McBee asked if there was any use in coming back again for a job, Houck
shook his head in the negative. On one occasion in August or September, Charg-
ing Party Victoria Branham talked to Foreman Yerian on the telephone about
getting her job back. Yerian asked if she had signed the unfair labor practice
papers with the Labor Board. When she replied in the affirmative, he asked if she
still had them. She stated that she had some of them and that the others had been
sent in . Yerian told her that she could go to work if she would bring them in to
Leroy Houck. When she refused to do so, Yerian stated, "Okay, suit yourself." 15
13The findings in this paragraph are based on the credited testimony of Betty Hanna,
Marie Holbrook, Beulah Kuli, Francis Burnard, Otis Kinney, Albert Rucker, and David
Hall. I do not credit the contrary testimony of Foremen Smith and Corwin and of
Comptroller Castrop. Nor do I credit the testimony of Victoria Branham, a Charging
Party, that Foreman Yerian told her that morning that she was "too damn strong for
the union."
14 The findings in this paragraph are based on the credited testimony of Inez Bostic,
Dicie Newell, Betty Hall, and Della Gleason, and the admissions of Houck. Brown did
not testify. I do not credit the contrary testimony of Allen and Houck. Nor do I credit
the testimony of Victoria Branham, a Charging Party, that on this occasion Foreman
Allen told her that she was "too damn strong for the union."
15 The findings in this paragraph are based on the credited testimony of Otis Kinney,
Myrtle Hall, Mary Wagner, Grace Karnes, Phillip McBee, and Victoria Branham. I do
-not credit the contrary testimony of Houck and Yerian.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The rehiring interviews
Beginning with Wednesday morning, April 15, Respondent interviewed the strik-
ers, whom it had decided to reemploy, in groups of from 4 to 14. These rehiring
interviews continued for some time after April 15. Present at each group meeting
was the foreman of the department where the strikers were to be reemployed, plus
one of the Respondent's executives such as Armstrong, Houck, Castrop, or Comer.
Armstrong admitted being in and out of 7 or 8 such meetings, totaling about 50 to
60 employees, on April 15. The subject for discussion at these meetings was "re-
employment." Armstrong testified that "we were employing the people whom we
were talking to in these groups." Armstrong admitted that he told the strikers that
they were being hired back today as new employees, that as far as he was concerned
they had no seniority or priority except as of today, that they were not coming back
as being entitled to a vacation based on their past service, and that if at any time
he determined upon a different policy he would have to communicate it to Mr.
Houck. He further admitted that the employees in these group meetings were
asked if they had signed Teamsters cards but that he did not tell them why he
wanted that information. He also testified that he told the employees that their
previous union activity had nothing to do with the problem they were to discuss.
Armstrong further admitted that he instructed the other supervisors to make sub-
stantially the same statements to the groups addressed by them.
At the group meeting attended by Mildred McBee on April 15, Production Man-
ager Houck also said that "we shouldn't have come out like we did," and asked
McBee if she had signed for the Union She replied that she had signed for the
United Mine Workers. At the group meeting attended by Myrtle Hall about April
23, Armstrong stated that he hoped "we don't have the trouble with you girls that
we had before," that he did not see why "we got mixed up like that in all that
trouble," and that he was going "to take this bunch back" but that "there are some
on the outside who will never come back." When Charlene Damron was recalled
to work about 2 weeks after April 15, Foreman Yerian first asked her if she had
her Teamsters card. When she replied that she had given it to the Teamsters man
and could not get it back, he stated that it was all right and that "the union was
out anyhow." When Betty Hanna was recalled for work about the first of June,
Foreman Smith first talked to her in his office. He asked her how she felt about
the Union She replied that she felt about the Union the same way that she felt
about the Company, that "if it gets in, alright, if it don't alright." Smith then dis-
cussed different unions , saying that the Teamsters was a "crooked organization," that
the United Mine Workers was a Communist organization which was not recognized
by the Government, and that if they had a choice they would rather have a laundry
workers union.16
6. Company-employee relations meetings
Beginning about May 1, Respondent instituted a program of talking to all the
employees in the production and maintenance unit about company-employee rela-
tions about what the Company planned to do for the employees, and about what
the Company hoped the employees would do for it. This program was carried out
by holding a series of group meetings of employees These meetings, which lasted
for about a half hour to an hour, were continued for sometime after May 1. A
Teamsters petition for an election was pending with the Board at that time Arm-
strong testified that he told the employees in the groups addressed by him that they
would be treated fairly regardless of any labor activity up to that time, and asked
them to tell him their problems about wages, seniority, vacations, and working
conditions. Houck testified that when the subject of vacations was raised at the
group meetings addressed by him, he told the employees that Armstrong had stated
that they would be entitled to their vacations 17
At the group meetings attended by Myrtle Hall, Charlene Damson. and Mildred
McBee. the following statements were also made by Armstrong and Houck:
Houck asked Myrtle Hall why she got mixed up with this Union She told him
that she came from Kentucky where the Mine Workers Union had improved working
conditions and that she thought that if they got a union in the plant they would have
a much better place to work and more money. Houck jokingly replied that miners
could mine coal but could not wash clothes. Houck wanted to know who had
"The findings in this paragraph are based on the credited testimony of Mildred McBee,
Myrtle Hall, Charlene Damron , and Betty Hanna These employees were still wetkine fer
Respondent at the time of their testimony and had been subpenned by the General Counsel
I do not credit the contrary testimony of Armstrong , Houck, Smith , and Yerian.
17 The findings in this paragraph are admitted.
ATLAS LINEN AND INDUSTRIAL SUPPLY 773
started the Union. When there was no answer, Houck stated that "if we work for
the company, we would have to forget District 50 and Mollie Taylor." At one
such meeting, Houck asked the employees why they joined the Union. Some of
the girls replied that it was for more money and better working conditions. He then
wanted to know why the employees had not come to him about these matters. He
then discussed the pending election. In reply to a question as to whether all the
girls would get called back, Houck stated that some of the girls would never get
back. Houck then asked, "Who started all this, anyhow?" When nobody answered,
he said, "That is alright, I pretty well know anyhow." At another meeting Arm-
strong "wanted to know our reasons for walking out." Armstrong stated that some
would be called back but that there would be others who would never be called
back.18
C. Discrimination with respect to hire and tenure of employment
1. Charging Parties were discriminatorily discharged as of April 10, 1959
Armstrong admitted that on Thursday, April 9, he was informed by Production
Manager Houck that he had definite evidence that the employees were probably
going out on strike and that Houck wanted to talk to him about it. He further
admitted that he thereupon had a general discussion with Houck, Castrop, and
Comer, whom he regarded as Respondent's executives, and told them that if the
people did not show up for work they were to be "considered discharged." Arm-
strong testified that his instructions merely implemented an existing rule to the
effect that any employee who does not report for work, without calling in, is im-
mediately discharged.
As previously found, (1) before quitting time on April 9, in plant No. 1, Houck
told Foreman Yerian that if the girls did not come back to work the next day they
no longer had a job; (2) that same day Foreman Allen announced in a loud voice at
plant No. 2, in the presence of a number of employees, that he heard there was going
to be a strike here and that all those who did not report for work the following day
need not come back at all as they will never work for the Company again; (3) when
Beulah Kuli spoke to Foreman Smith about her job on April 15, Smith told her that
she was automatically out when she did not show up for work on April 10, the first
day of the strike; (4) Castrop told a group of strikers who were applying for their
jobs on April 15 that they had quit their jobs by failing to report for work on the
morning of the strike; and (5) Foreman Allen told the group of employees who
were applying for their jobs at plant No. 2 on the morning of April 15, that they had
had .their chance once and had not taken it and that he had told them on the day
before they went out on strike that those who did not report for work need not come
back.
Moreover , Castrop , Respondent 's comptroller , testified that he received a list of
names from the foremen of all those who did not report for work during the first day
of the strike and that about April 17, after the end of the strike, the following
notation was placed on the employment history cards of all the strikers who had not
been reemployed up to that time, including the Charging Parties; "Date separated
4/10/59; Reason Vol. Quit-Failed to Report to Work." Foreman Smith admitted
that this means that the individual 's employment has been terminated . All of Re-
spondent 's representatives well knew that the employees had not reported for work
because they were on strike for recognition of District 50 as their bargaining agent.
Finally, all strikers who were taken back after the termination of the srike ad-
mittedly were rehired as "new employees ." Armstrong admitted that at the rehiring
interviews he specifically told the strikers who were being rehired that "you are
taken back as a new person ," and that he instructed his foremen to tell them sub-
stantially the same thing. He further admitted that he informed the strikers that
they were being taken back with loss of seniority and vacations and that their
standing as an employee began "as of today." 19
Upon consideration of the foregoing and the entire record as a whole, I am con-
vinced and find that Respondent discharged the Charging Parties as of April 10, 1959,
15The findings in this paragraph are based on the credited testimony of Myrtle Hall,
Charlene Damron, and Mildred McBee I do not credit the contrary testimony of Houck,
Armstrong, and Yerian.
19 Respondent later decided to grant vacations to the reemployed strikers. Respondent's
contention in its brief that it was not unlawful to deprive the reemployed strikers of their
seniority standing is without merit. This is not a case where an employer promised re-
placements and nonstrikers superseniority in an effort to protect and continue his busi-
ness. See Bolles Egg Products , Inc., 125 NLRB 342, and cases cited therein.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they engaged in a strike instead of reporting to work (except for Della Glea-
son whose case is treated separately) and thereby violated Section 8(a)(1) and (3)
of the Act.20
Della Gleason: Gleason was a member of the original employee organizing group
which met with Pacifico in the middle of February, at which time she signed a District
50 card. She wore her union button conspicuously at the plant from the time they
were distributed. She did not participate in the strike because she became ill on
Tuesday, April 7. About 6:30 that morning, her husband, Hall Gleason, telephoned
Foreman Allen, reported that his wife was ill, and asked Allen to inform Eugene
Brown, Gleason's foreman, that his wife was down with the flu and would be in as
soon as she could. Allen agreed to do so.21 On April 14, when she learned that
the strike was over, she went to the Green Derby Cafe and told Pacifico that she
believed her timecard would be pulled. He told her to report to work, and she
signed a Teamsters card. That afternoon she was with the group at plant No. 1,
when Mollie Taylor spoke to Houck about the strikers coming back to work. She
was also with the group at plant No. 2 the next morning when Freeda Hammond
acted as spokesman in talking to Houck. At that time she mentioned to Houck that
she had been out sick. Before Houck's arrival, she had asked Foreman Brown about
her timecard Brown merely replied that he had to replace her.
Della Gleason's name was on the list furnished to Castrop of all those involved in
the strike who had not been reemployed, and her employment history card was
marked as having been separated on April 10, 1959, for the reason that she volun-
tarily quit by having failed to report for work that day. At some undisclosed
later date, Castrop admittedly changed the notation to read, "Date separated-
4/7/59; Reason-discharged, violating Company rule absenteeism-Failure to
call in ." Castrop testified that he made the change when he was informed by Fore-
man Brown that Gleason had been discharged on April 7 for being absent without
calling in.
As previously found, Gleason's absence because of illness had been reported to
Foreman Allen. When Gleason spoke to Brown on the morning of April 15, he
made no mention of the alleged claim that she had been discharged before the
strike, as previously found. Respondent contends in its brief that in any event no
finding of discrimination can be made in her case because she did not participate in
the strike. However, I am convinced and find, from the foregoing and the entire
record, that Respondent believed that she was one of the employees who chose to
strike rather than to report for work, discharged her along with the other strikers
in that category as of April 10 because of such a belief, and later siezed upon her
absenteeism as a pretext to cloak its discriminatory motive. I therefore find that
by discharging Della Gleason on April 10, 1959, because of a belief that she joined
in the strike Respondent also violated Section 8(a) (1) and (3) of the Act as to her.
2. Failure to reemploy Charging Parties on and after April 15, 1959,
was discriminatory
As I have found that the Charging Parties were unlawfully discharged as of April
10, 1959, Respondent was obligated to reinstate them when they indicated their
unconditional willingness to return to work by applying for their jobs on April 14 and
15, 1959, after the termination of the strike, even if their jobs had been filled during
the strike. Respondent's failure to reemploy them at that time constituted further
discrimination against them in violation of Section 8 (a) (1) and (3) of the Act.
The record shows that Respondent also discriminated against the Charging Parties
by failing to recall them when vacancies arose on subsequent occasions. As previ-
ously found, and this is not disputed, the only reason given to the Charging Parties
for not taking them back when they all applied on April 15 was that they had
been replaced and that no work was available. It is not disputed, as previously
found, that the foremen requested all of them to leave their names, addresses, and
telephone numbers (which all the Charging Parties did) and promised to call them
when they were needed. It is also not disputed, as previously found, that all the
20 See, e.g ., Ekco Products Company ( Sta-Brite Divi8ion ), 117 NLRB 137 , 145-146;
Brookville G love Company, 114 NLRB 213, enfd. 234 F . 2d 400 ( C.A. 3) ; Ed4torial "El
Imparrnal," Inc., 123 NLRB 1585.
u The findings as to this telephone conversation are based on the credited testimony of
Sall Gleason . When Allen was asked by Respondent ' s counsel if he had any telephone
conversation with Hall Gleason on this subject a few days before the strike, he testified,
"No sir , I don't believe I did." I do not credit Allen 's contrary testimony . Brown did
not testify.
ATLAS LINEN AND INDUSTRIAL SUPPLY 775
Charging Parties inquired about their jobs on subsequent occasions and were again
told that there were no vacancies and that they would be called when needed.
The General Counsel introduced into evidence the employment history cards of
all of Respondent's employees who were, at one time or another, employed on or
after January 1, 1959.22 These records show that the "Vol. Quit" notations were put
on the cards of 98 of the employees who went out on strike, including the Charging
Parties. Of this number, 26 were subsequently rehired by Respondent as follows:
11 in April, 8 in May, 4 in June, 2 in July, and 1 in August 1959. The remaining
72 employees, including the 20 Charging Parties, have never been recalled or re-
employed. On the other hand, the records show that approximately 150 new em-
ployees were hired after the strike, 23 an overwhelming number of them to fill jobs
formerly manned by the Charging Parties.24 Thus, the ratio of the rehire of the
"Vol. Quit" employees to that of totally new employees seems significant, to say the
least. Moreover, Production Manager Houck testified to the overwhelming turn-
over and to the large number of new employees hired after the strike to perform,
the type of work formerly done by the Charging Parties.25 Respondent did not
explain why it failed to keep its promise to recall or reemploy the Charging Parties,
who had such long service records,26 and instead hired new employees in their place.
The Charging Parties had all joined District 50, some of them being members of
the original employee organizing committee; they all wore their union buttons con-
spicuously at the plant before the strike; all, except Della Gleason, participated in
strike activity; and all of them signed Teamsters cards. Mollie Taylor had obtained
over 90 signed membership cards. Foreman Allen had interrogated Victoria Bran-
ham after observing her soliciting employees to sign cards during her lunch period,
as previously found. Also, as previously found, the strikers were screened and in-
terrogated about their Teamsters membership when they applied for work on April
15. All strikers who were not taken back at that time had the "Vol. Quit" notation
placed on their employment history cards. On subsequent occasions, as previously
found, Houck told Charging Parties Kinney, Wagner, and Karnes, when they asked
about their jobs again, that some of them would never be taken back; he told"
Charging Party Phillip McBee that "we shouldn't have walked out like we did" and
indicated there was no use in McBee coming back. At the rehiring interviews, as
previously found, Houck told the group that he did not see why they "got mixed
up like that in all that trouble" and that while he was going to take "this bunch"
back, "there was some on the outside who will never come back." At the company-
employee relations meeting, as previously found, Houck and Armstrong again stated
that some of the strikers would never be called back, and Houck also stated that if
the employees were to work for the Company they "would have to forget District 50,
and Mollie Taylor," a Charging Party who was the first employee contacted by
Pacifico in February 1959, and thereafter became the most active employee or-
ganizer. Finally, in August or September, as previously found, Foreman Yerian
told Charging Party Branham that she could go back to work if she would bring
Houck the papers which she signed in connection with the unfair labor practice
charge filed with the Board. When she refused to do so, he told her to "suit your-
self."
In view of the foregoing, and upon consideration of the entire record as a whole,
I am convinced and find that Respondent's failure to reemploy the Charging Parties
after April 15, 1959, was discriminatorily motivated because of their union and
concerted activities.27 By such conduct, Respondent further violated Section 8(a) (1)
and (3) of the Act.28
22 Respondent administratively divided these cards into two categories : active-which'
were the cards of employees employed as of the date of the bearing herein, and inactive-
which were the cards of employees who were employed at some period after January 1,
1959, but who were no longer employed as of the date of the hearing. The data in
Appendixes B to F, inclusive, is taken from these employment history cards.
23 See Appendixes C and D.
24 Compare Appendixes C and D with B.
28 The unusual number of vacancies which occurred in the type of work performed by
the Charging Parties are shown by a comparison of Appendixes D, E, and F, with
Appendix B.
26 See Appendix B
27 See, a g., Wilson t Company v. N.L R B., 123 F. 2d 411, 416 (C A 8), where the
court held that failing to call back employees after promising to do so, and hiring new
employees instead, warranted a finding of discrimination because of union activities.
211 find no merit in the contention first raised by Respondent 's counsel at the hearing,
but presumably abandoned in his brief, that one of the reasons for not reemploying
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent's defenses
The Respondent contends in its brief that the Charging Parties are not entitled
to reinstatement because they were participants in an alleged illegal strike 29 and
engaged in alleged mass obstructive picketing, and that in any event certain named
Charging Parties are not entitled to reinstatement because they engaged in alleged
acts of misconduct. It should be noted at the outset that at no time did Respondent
discharge or refuse to reemploy the charging parties because of any claim that they
participated or engaged in any unlawful or unprotected conduct. Nor did Re-
spondent plead any such matters in its answer to the complaint 30 Indeed, Arm-
strong testified that the reason he considered the strike illegal was because it oc-
curred while he was still studying Sandy's proposals for resolving the recognition
issue and because Sandy had never given him a deadline, obviously, as Respondent's
counsel recognizes, not a valid basis for rendering the strike illegal or unprotected31
These defenses were raised for the first time by counsel for Respondent at the hear-
ing in this proceeding. The entire record as a whole convinces me, and I find,
that Respondent did not even entertain, let alone establish, any good-faith belief that
the Charging Parties had engaged in unlawful or unprotected activity. Therefore,
contrary to Respondent's assertion in its brief, the General Counsel did not have the
burden of proving that the Charging Parties had not engaged in unprotected activity
or misconducted themselves within the meaning of the Board's decision in Rubin
Bros. Footwear, Inc., and Rubin Brothers Footwear, Inc., 99 NLRB 610. In any
event, as hereinafter shown, this burden has been adequately met by the General
Counsel.
a. The contention concerning District 50's majority representation
Respondent contends that the General Counsel failed to prove that District 50
represented a majority of Respondent's employees in the production and maintenance
unit at the inception of the strike on April 10, 1959, and maintained that majority
representation until the termination of the strike on April 14. As a result of this
failure of proof, Respondent argues, the strike was a minority recognition strike
and hence was unlawful and unprotected, thereby depriving all participants of the
right to reinstatement. This contention is raised for the first time in Respondent's
brief. The issue of majority status was never raised by Respondent in the pleadings
or in the testimony or argument at the hearing. Respondent at no time indicated
that it had any good-faith doubt as to the Union's majority representation. As
there is no refusal -to-bargain allegation in the complaint ,32 the burden was on Re-
spondent to prove that District 50 represented only a minority of the employees in
the appropriate unit during the strike. The Respondent adduced no evidence in this
respect and admittedly failed to meet this burden. In any event, Respondent's argu-
Charging Party Mary Galbreath was that on the day before the strike she had allegedly
threatened Foreman Yerian to have her husband cut him up when Yerian called her a
"damn liar." I credit Galbreath's testimony that she made no such threat. It seems
significant that Yerian had not discharged her on the spot if in fact she had made such
a threat Indeed, Yerian later admittedly apologized to Galbreath's husband for having
used such strong language to his wife and thereafter considered the incident a closed
matter. In any event, assuming such a threat had been made, it clearly was condoned
and was not the real reason for failing to reemploy her, as Yerian admitted reporting
the incident to Foreman Smith that same day. (See discussion on condonation in section
C, 3, e, infra.)
2D Respondent's counsel recognizes the well-settled law that it was not unlawful to
strike for recognition of a union which had not complied with the filing requirements of
the sections of the Act then in effect. Ekoo Products Co., 117 NLRB 137; Brookville
Glove Company, 114 NLRB 213, enfd 234 F 2d 400 (C.A. 3) , and United Mine Workers
of America v. Arkansas Oak Flooring Company, 351 U.S 62.
30 Cf. New Hyden Coal Company, 108 NLRB 1145, 1148, relied on by Respondent, where
the answer specifically alleged that the three alleged discriminatees had been part of the
mob that had picketed the mine and had engaged in such illegal activity as barred
their reinstatement
91 See, e g, Cowles Publishing Company, 106 NLRB 801, enfd 214 F 2d 708 (C A 9),
cert. denied 348 U.S. 876, 960; Globe Wireless Ltd., 88 NLRB 1262, enfd 193 F. 2d
748 (C.A 9).
33 No such allegation could be based upon any charge because District 50 had not com-
plied with the filing requirements of Section 9(f), (g), and (h) of the Act then in effect.
ATLAS LINEN AND INDUSTRIAL SUPPLY 777
ment is a non sequitur. It does not automatically follow that where the record is
insufficient to warrant a finding of majority representation, it per se proves that the
Union represented only a minority of the employees. Finally, assuming that a strike
for recognition by a minority union is an unprotected concerted activity,33 the record
shows that District 50 did represent a majority of the employees in the production
and maintenance unit at all times during the strike.
According to the testimony of Armstrong and Production Manager Houck, there
were between 300 and 310 employees in the production and maintenance unit.
Pacifico, District 50's representative, credibly testified, without contradiction, that
by March 15, 1959, when a mass meeting of the employees was held at a hotel, he
had received about 200 membership cards signed by Respondent's production em-
ployees. The Union's letter to Respondent, dated March 16, claimed a "substantial
majority" representation of Respondent's production and maintenance employees.
During the ensuing conferences with Respondent's representatives before the strike,
the Union offered to prove its majority by having a disinterested party check the
signatures of the membership cards against Respondent's payroll, or by a Board
election with Respondent filing a petition with the Board and the Union intervening,
or by arranging for a third party to conduct an election. The record shows that
Respondent's representatives at no time expressed any doubt as to the Union's ma-
jority representation; their failure to agree on a method of resolving the recognition
issue was based solely on their belief that Respondent was not engaged in interstate
commerce and on their uncertainty of Respondent's legal capacity to recognize
a labor organization in view of the trusteeship situation 34 Finally, the undisputed
evidence shows that on the first day of the strike, April 10, about 200 production
employees engaged in picketing activity at plant No. 1, about 20 to 30 at Respondent's
garage and warehouse across the street from plant No. 1, and about 23 to 25 at plant
No. 2. Respondent's representatives testified that only about 50 production employ-
ees reported for work on the first day of the strike, which was terminated 4 days
later on April 14.
Upon consideration of the foregoing and the entire record as a whole, I am con-
vinced and find that on April 10, 1959, when the strike began, District 50 represented
an overwhelming majority of Respondent's employees in the appropriate unit. Under
these circumstances, "there would be a presumption that such a majority continued
for at least a reasonable time and would justify" the finding, which I make, that it
continued until the strike was terminated on April 14.35
b. The contention as to the application of the Midwest Piping doctrine
The Respondent contends that other unions claimed to represent a majority of
Respondent's production and maintenance employees both before and during the
strike, that Respondent would have committed an unfair labor practice by recog-
nizing District 50 as the exclusive bargaining agent in the face of such rival claims
within the meaning of the Board's doctrine first enunciated in Midwest Piping &
Supply Co., Inc, 63 NLRB 1060, and that therefore the strike for recognition was
illegal from its inception.
Armstrong admitted that District 50's request for recognition as exclusive repre-
sentative of Respondent's production and maintenance employees, made in its letter
of March 16, 1959, was the first such request he had ever received from any labor
organization. He further admitted that, except as hereinafter indicated, he there-
after received no demand for exclusive recognition as such bargaining representative
by any other labor organization. He testified that he had learned that two other
unions were interested in his employees but admitted that neither of these unions
made any claim upon Respondent or its agents to represent a majority of its em-
ployees It is conceded, as Armstrong testified, that on April 16, 2 days after the
termination of the strike, Armstrong received a letter from the Teamsters, dated
March 14, claiming majority representation and requesting recognition for the pro-
duction and maintenance unit, and that the Teamsters filed a petition to that effect
with the Board on April 16. It is thus clear, and I find, that Respondent was not
83 The Supreme Court has recently held that such a strike is not unlawful N L R.B v.
Drivers, Chauffeurs, Helpers, Local Union No 639. etc. (Curtis Brothers), 362 U S 274.
94 As previously noted, a charge alleging a refusal to bargain could not serve as the basis
for the inclusion of such an allegation in the complaint because of District 50's non-
compliance with the filing requirements of the sections of the Act then in effect
"'Stewart Dee Casting Corporation v. N.L.R.B , 114 F. 2d 849, 855 (CA. 7), cert.
denied 312 U S. 680
'778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faced with any conflicting representation claims at any times material herein and
'that the Midwest Piping doctrine is not applicable.
Respondent, however, further contends in its brief that a claim of representation
and demand for recognition was made by the Teamsters on April 14 before the ter-
mination of the strike on that day and that therefore all strike participants thereafter
forfeited their right to reinstatement. This contention is based on Armstrong's here-
say testimony that on the morning of April 14, Mr. Comer told him that Dale Mann,
president of the Teamsters, had telephoned and stated that he represented the pro-
duction workers and had requested Armstrong to call back. Armstrong admitted
that he did not telephone to Dale Mann. Although Comer testified as a witness
for Respondent, he was not questioned about this alleged telephone conversation.
Aside from the lack of probative value of this kind of testimony, Armstrong was
vague and uncertain as to when and in what manner he had learned about the Team-
sters' interest in the production employees. Thus, he had first testified on direct
examination that he was the one who had received the telephone call from Dale
Mann and that it "may have been" on April 14 because he received notice from the
Board of the Teamsters' petition on April 16. Armstrong was obviously confused
and must have had in mind the Teamsters letter which he received on April 16 be-
cause the petition itself was not filed until April 16. It was only on cross-examination
that he admitted that his reference to the telephone call was to the message which
Comer had relayed to him. Moreover, at another point, Armstrong testified that on
the afternoon of April 14, he told his supervisors that he had received information
"by rumor" that there was evidence that another union was interested in the same
unit. And at still another point, he testified that when he came to the plant on the
morning of April 15, be told Production Manager Houck that "I received the infor-
mation at that time that the Teamsters-and this was more than the rumor I had
had the day before-that the local Teamsters group had started an organizational
drive at the Green Derby Cafe and were taking cards." I am convinced by all the
foregoing that the record does not contain sufficient probative evidence to warrant
a finding that a telephonic claim for recognition and majority representation in the
same unit was made by the Teamsters on April 14, and I so find. Moreover, I am
further convinced and find from the entire record, including Pacifico's discussions
with the Teamsters representatives and the manner in which Teamsters cards were
signed by the strikers on April 14, Mollie Taylor's telephonic request for reinstate-
ment, upon behalf of all the strikers, at 11 a.m. that day, and the personal requests
for reinstatement by the strikers that afternoon, all as previously found, that if any
telephonic claim for recognition and majority representation was made by the Team-
sters, it occurred after the termination of the strike and after the strikers' request
for reinstatement.
I conclude and find that at no time prior to the termination of the strike was
Respondent faced with any conflicting representation claims which raised a real
question concerning representation, the test applied by the Board for invoking its
Midwest Piping doctrine.36
c. The contention with respect to alleged mass obstructive picketing
Respondent contends in its brief that all Charging Parties, except Della Gleason,
participated in mass obstructive picketing on April 10, 1959, and therefore are not
entitled to reinstatement. This defense was not mentioned in Respondent's answer
to the complaint and was raised for the first time by Respondent's counsel at the
hearing in this proceeding. As previously noted, Respondent at no time prior to
the hearing indicated any belief that the Charging Parties had engaged in any alleged
unprotected activity and at no time informed the strikers that it discharged or
would not reemploy them for that reason; on the contrary, Respondent discharged
the Charging Parties because they did not report for work on April 10, without
calling in, as Previously found, and also told the Charging Parties at the termination
of the strike and thereafter that it could not reemploy them solely because they
had been replaced during the strike and promised to call them when vacancies oc-
curred, as previously found. Moreover, the record shows that the nature of the
picketing was not such that Respondent might well believe that the Charging Parties
were engaged in activity which would bar their reinstatement 37 I find that Re-
86 See , e.g, Shea Chemical Corporation, 121 NLRB 1027; Lundy Manufacturing Corpo-
ration, 125 NLRB 1188; and Novak Logging Company, 119 NLRB 1573
$IThus, the instant case is distinguishable from New Hyden Coal Company, 108 NLRB
1145, relied on by Respondent as being most similar , where the Board found (1) "picket-
ATLAS LINEN AND INDUSTRIAL SUPPLY 779
spondent has not established that it entertained a good-faith belief that the Charg-
ing Parties had engaged in misconduct, the condition precedent to making it incum-
bent upon the General Counsel to prove that the strikers had not in fact miscon-
ducted themselves under the Rubin Bros. decision, supra 38
In any event, the record shows that the Charging Parties did not engage in any
unprotected conduct by their picketing activity on that day. Until served with a
restraining order about 4 p.m. on April 10, 1959, limiting the number of pickets,
about 200 pickets were around plant No. 1, about 25 at Respondent's garage and
warehouse across the street from plant No. 1, and about 20 at plant No. 2.39 Pacifico
told the strikers to get in line and to keep moving; he also told the picket chairman
too see that the pickets were kept in order, to see that there were no disturbances
of any kind, and to tell the pickets not to talk or discuss anything with anybody.
Pacifico placed the pickets 3 feet apart in front of the garage. The pickets followed
the streets and alley surrounding plant No. 1 and walked slowly around the build-
ing, some of them carrying picket signs. The pickets did not lock arms nor form
a solid unyielding mass and, except for the minor incident hereinafter discussed,
there was no blocking of ingress or egress at any of the plants. Trucks went in and
out of the plant grounds; cars went through the picket line; the driver salesmen went
to work at the garage; nonstrikers went to work at both plants; and applicants had
no trouble going into the office to apply for work. Aside from some name calling
such as "scabs," the only untoward incident which occurred was a minor pushing
incident on the loading dock at plant No. 1, in which none of the Charging Parties
participated. Gladys Cramblett and three other employees, all nonstrikers, arrived
in their regular car pool to go to work that morning. The pickets were in front of
the driveway but moved on to let the car drive in. When Cramblett and the other
girls got out of the car and went on the dock to enter the plant, Lucy Gaylord and
a few other strikers left the picket line and got in front of them. When Gaylord
said to Cramblett, who weighed about 150 pounds, "You are not going in there,"
Cramblett replied, "The hell I am not. You are on Atlas property." Cramblett
then started pushing those in front of her out of the way. Cramblett admitted
that all that happened was that Gaylord and Cramblett put their hands out and
pushed each other. At that point, Foreman Yerian came out and took Cramblett
into the plant 40 Gladys Cramblett admitted that she reported this incident that
same morning to her foreman, Smith, who was also the foreman of Lucy Gaylord.
Despite this knowledge, Lucy Gaylord was reemployed the following Monday, be-
fore the termination of the strike. It is thus apparent that Respondent is exagger-
ating the importance of an incident which Respondent itself condoned. Later that
afternoon, a restraining order was issued limiting the number of pickets at all plants,
and the strikers complied with this order in all respects.
Upon consideration of the foregoing and the entire record as a whole, I find no
basis for holding that the Charging Parties forfeited their rights to reinstatement
because of the picketing activity which occurred on April 10, 1959.41
d. The contention that named Charging Parties engaged in strike misconduct
The Respondent contends in its brief that Charging Parties Mary Galbreath,
David Hall, and Marie Holbrook engaged in specific acts of misconduct and there-
fore have forfeited their right to reinstatement. Again, it must be emphasized that
these matters were raised for the first time by Respondent's counsel at the hearing
in this proceeding. I will discuss each case separately.
log which caused an access road and bridge to be blocked. The scene was attended by
considerable violence, and in fact it was not possible to reach Respondent's mine until
the police cleared the road later in the morning," and (2) Respondent's answer had
alleged that the alleged discriminatees had been part of the mob that had picketed the
mine on that occasion and had engaged in such illegal activity as barred their reinstate-
ment (p. 1148).
38 HARD-TV, 122 NLRB 222, 226, enfd. 277 F. 2d 579 (C.A. 10).
3B Charging Parties Inez Bostic and Dicie Newell picketed only at plant No 2; Charging
Party Phillip McBee picketed only at the warehouse ; Charging Party Della Gleason did
not picket at all ; and the remaining Charging Parties picketed at plant No 1.
4O The description of this incident is based on the credited testimony of Gladys
Cramblett, a witness for Respondent, who impressed me as being the most impartial and
neutral witness in this respect. I do not credit any contrary testimony of Foreman
Yerian and nonstriker Alice Lazelle.
41 See, e.g., HARD-TV, supra; and Ekco Products Company (Sts-Brite Division), 117
NLRB 137, 224-231.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary Galbreath: Respondent contends that Mary Galbreath was in the group of
strikers who left the picket line on the morning of April 10 and got in front of the
nonstrikers who were on the dock platform seeking to enter the plant when Gay-
lord and Cramblett engaged in the pushing incident, hereinabove described. Re-
spondent relies on the testimony of Foreman Yerian and nonstriker Lazelle as iden-
tifying Galbreath in this group. Foreman Yerian testified that on this occasion he
heard Galbreath say, "Let them go. We'll get them later." Lazelle testified that
Galbreath was within 5 or 6 feet of the platform incident. However, nonstriker
Cramblett, whom I regard as the most impartial and neutral witness in this respect,
testified that she was "not sure" if Mary Galbreath was in the group and that she
did not recall anything else being said other than what she already described, as
previously found. Mary Galbreath denied that she was on the platform or that she
tried to stop anyone from going into the plant. I have already found that Fore-
man Yerian is not a credible witness. Under all the circumstances, including my
observation of the demeanor of the witnesses, I find that Galbreath was not in the
group of strikers who were on the platform in that incident and that she did not
make the statement attributed to her by Yerian.42
In any event, assuming that Galbreath did engage in the alleged misconduct on
this occasion, it was clearly condoned by Respondent. Thus, Cramblett admitted
that she informed Foreman Smith of this incident that same morning. Nevertheless,
Lucy Gaylord, the participant in the pushing incident, was reemployed the following
Monday, before the termination of the strike, and, despite Yerian's testimony, Gal-
breath was told after the termination of the strike, along with the other Charging
Parties, that she could not be reinstated because no jobs were available and that she
would be called when vacancies occurred. Having condoned any alleged miscon-
duct, Respondent is now barred from raising it as a defense.43 Moreover, it is clear,
and I find, that any such alleged misconduct was not the real reason for the discharge
of, and failure to reemploy, Mary Galbreath.
David Hall: Joseph Wells, a striker who was reemployed at the termination of the
strike on Tuesday, April 14, testified that (1) on the evening of the first day of the
strike, Friday, April 10, he, David Hall, and another striker were standing in front
of a drugstore located about a street from plant No I when one of them suggested
that they buy some tacks and throw them just "to get at the company," (2) all three
agreed and bought some roofing tacks in the drugstore, and (3) the next morn-
ing all three threw the roofing tacks on the Company's parking lot and where the
trucks are parked next to plant No. 1. The record further shows that some cars,
parked on the lot, got flat tires from these tacks. Hall did not deny having partici-
pated in this conduct.
I find that Hall participated in throwing the roofing tacks and that by his conduct
in this respect he forfeited his right to reinstatement.44 Nor can any finding of
condonation be made in his case, as the undisputed evidence shows that Respondent's
supervisors did not become aware of the identity of the participants in this incident
until about a week before Well's testimony in this proceeding.
Marie Holbrook: Broderick Thomas, a nonstriker, testified that in a telephone
conversation on Saturday, April 11, with Mary Holbrook (1) he stated that he was
going to insist that his wife, a striker, return to work because he had heard that the
jobs were being filled and he had a stake in his house and his job, and (2) that
Holbrook said, "Well, you know that people who have nice homes and nice cars can
get them blowed up." He further testified that he reported this alleged threat to
Foreman Smith on Monday morning and did nothing more about it, and that noth-
ing untoward happened although his wife did return to work that Monday. Although
Smith testified at length, he was not asked as to whether Thomas had reported this
incident to him.
Holbrook admitted that she had telephoned to Thomas' home that day to speak to
his wife about meeting her for picket duty and that Thomas also talked to her on
that occasion. She further testified that (1) Thomas asked her if the strikers would
draw unemployment compensation if they did not return to work, (2) she replied
she did not know, (3) Thomas then stated that he had told his wife that "you girls"
should go back to work because they are putting new girls on the jobs every day and
42 In view of my subsenucnt findings with respect to David Hall, it l ocomer unnecessary
to determine whether he was also present on this occasion, as Respondent contends
43 See cases cited in footnotes 44 and 45, infra
44 In view of this finding, it becomes unnecessary to discuss Hall's participation in con-
nection with the unloading of a coal truck the following Monday morning.
ATLAS LINEN AND INDUSTRIAL SUPPLY 781
he did not think they would be able to go back to work after the strike, (4) she
replied she did not know about that but intended to stay out until "our representa-
tive" calls us back, (5) he said he heard the Union was not recognized in Washing-
ton, and (6) she replied she did not know about that and explained the benefits which
the Union had obtained for the coal miners. She specifically denied having made the
threat attributed to her by Thomas or any threat of any nature.
Upon my observation of the demeanor of the witnesses, I credit Holbrook's ver-
sion and find that she did not make the threatening statement attributed to her by
Thomas. Moreover, even if Thomas' testimony were credited, I find that, as in the
case of Galbreath, such conduct was condoned and therefore not now available as a
defense, in view of Smith's knowledge of the incident and in view of Smith's state-
ment to Holbrook when she applied for work on April 15 that he might be able to put
her back to work if she wanted to get her Teamsters' card and bring it back to him,
as previously found. Moreover, I find that this alleged threat was not the real reason
for the discharge of, and failure to reemploy, Marie Holbrook.
e. Condonation of any alleged unprotected activity
As previously found, Respondent at no time told any of the Charging Parties, or
any of the other strikers for that matter, that they were discharged or refused re-
employment because they had engaged in unprotected activity or misconduct at any
time. And this is so despite the supervisors' observation of the individuals engaging
in picketing activity on April 10 or their knowledge, except in the case of David Hall,
of their participation in the alleged acts of misconduct, as previously found. Indeed,
also as previously found, the Charging Parties were told at the termination of the
strike on April 15 that they could not be taken back solely because they had been
replaced and they were specifically promised at that time and on subsequent occa-
sions to be recalled when work became available for them. Their alleged un-
protected activity or misconduct was urged as a basis for denying them reinstatement
for the first time at the hearing in this proceeding.
Upon the basis of the entire record considered as a whole , I find that, even assum-
ing that the Charging Parties had engaged in the unprotected activity and miscon-
duct claimed by Respondent, such conduct was condoned 45 by Respondent and there-
fore, under well-established precedents ,46 "may not serve as a defense to what would
otherwise be unlawful discrimination by Respondent ." 47 Moreover, I find that the
Charging Parties were neither discharged nor denied reemployment because they
engaged in , or because of any good-faith belief that they engaged in , any unprotected
activity or misconduct.
D. Interference, restraint, and coercion
As previously found, Production Manager Houck and Foremen Smith , Yerian,
and Allen interrogated employees about their union and concerted activities and
sympathies on behalf of District 50 and the Teamsters, and asked employees who
started the Union (referring to District 50) and whether they had signed Team-
sters cards. By such interrogation, which I find to be coercive under the circum-
stances disclosed by this record and in the context of Respondent's other unfair labor
practices , Respondent interfered with, restrained , and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act and thereby violated Section
8(a)(1) of theAct48
is Except in the case of David Hall , as previously found.
98 Union Twist Drill Co, 124 NLRB 1143 ( see discussion and citation of cases in
Intermediate Report under heading of `Concluding Findings on Condonation ") ; Plasti-
Line, Incorporated, et at., 123 NLRB 1471 ; The Hoover Company, 90 NLRB 1614, 1622
( mass picketing ), set aside on other grounds in 191 F. 2d 380 (C.A. 6).
47 California Cotton Cooperative Association Ltd., also known as Calcot Cotton Com-
press, 110 NLRB 1494, 1500.
481 have not included the interrogation by Armstrong and Foreman Corwin because,
unlike the others, their names were not specifically mentioned in the complaint . Contrary
to Respondent's contention in its brief, the record plainly shows that the interrogation
concerning the signing of Teamsters cards was not made for the purpose of ascertaining
the validity of the Teamsters subsequent claim of majority representation and request for
recognition. Indeed, Houck admitted that he had not been informed of the Teamsters
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also, as previously found, (1) Houck asked employees if they would get their
Teamsters cards and turn them over to him, threatened employees with loss of their
jobs if they did not report for work on the first day of the strike, and at the company-
employee relations meetings threatened the strikers who had been reemployed with
loss of their jobs if they did not forget District 50 and Mollie Taylor, (2) Smith
asked employees if they would get their Teamsters cards and turn them over to him,
told employees they made a mistake in signing cards for District 50 and should not
have done so, told Mary Wagner, about a week before the strike, that he was work-
ing on papers to get the employees a raise and a paid holiday but that if the em-
ployees got the Union in, "it would knock it in the head," and on April 15 promised
to reemploy Betty Hanna and possibly Marie Holbrook if they would get their
Teamsters cards and bring them back to him; (3) Allen threatened all employees
who did not report for work on the first day of the strike with loss of their jobs; and
Yerian in August or September conditioned Branham's reemployment upon her
turning over to Houck the papers which she had signed in connection with the unfair
labor practice charges filed with the Board. By the foregoing conduct, threats of
economic reprisals, promises of benefits, and impositions of illegal conditions, Re-
spondent engaged in additional acts of interference, restraint, and coercion violative
of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its business operations described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce 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 that Respondent has engaged in and is engaging in unfair labor
practices violative of Section 8(a)(1) and (3) of the Act, I will recommend that it
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent discriminated with respect to the hire and tenure
of employment of the Charging Parties, I will recommend that Respondent offer to all
of them, except David Hall, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to the seniority or other rights
and privileges previously enjoyed by them. As these Charging Parties were discrimi-
natorily discharged as of April 10, 1959, in violation of Section 8(a)(1) and (3) of
the Act, the Respondent shall discharge any new employees hired on and after that
date, if necessary, in order to make room for the reinstatement of the discriminatees.
However, as the Charging Parties remained on strike until April 14, their backpay
will run from the date of their request for reinstatement and not from the date of
their discharge.49 Accordingly, I will recommend that Respondent make whole each
of the Charging Parties, except David Hall, for any loss of pay suffered because of
the discrimination against them by payment to each of them of a sum of money
equal to the amount each normally would have earned from April 15, 1959,50 to the
date of Respondent's offer of reinstatement, less the net earnings of each during that
period, to be computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, 291-294.
In view of the nature and extent of the unfair labor practices herein found, I am
convinced that the commission of similar and other unfair labor practices by Re-
spondent reasonably may be anticipated. I will therefore recommend that Re-
spondent be ordered to cease and desist from in any other manner infringing upon
the rights guaranteed to employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
claim for recognition until about 3 days to a week after the termination of the strike
and that he did not know what percentage of signed cards a union must have in order to
file a representation petition with the Board.
40 Brookville Glove Company, 114 NLRB 213, 215; Cowles Publishing Company, 106
NLRB 801, 802.
60 Although a request for reinstatement was first made during the day of April 14, 1959.
I find it more reasonable to run the backpay from April 15 when the Charging Parties all
reported for work at 6:30 in the morning
ATLAS LINEN AND INDUSTRIAL SUPPLY 783
CONCLUSIONS OF LAW
1. District 50 and the Teamsters are labor organizations within the meaning of
Section 2(5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of the
Charging Parties on April 10 and 15, 1959, and thereafter, thereby discouraging
membership in said labor organizations, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By the above conduct and by engaging in the conduct detailed in section III, D,
supra, Respondent has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com--
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX B
EMPLOYMENT HISTORY CARDS OF THE TWENTY CHARGING PARTIES
Hired Name Floor Dept Class
I0/26/51___ Galbreath, Mary B_______ __ 2nd--------- Pi o_____ Ind press opr
3/15/50____ Taylor, Mollie S__________ __ 2nd-------- Pi o_____ Do
2/21,55____ Justice, Minta____________ __ 2nd------ -- Pro_____ Pre-conditioner.
9/9/53_____ Hall, David W____________ __ 4th ---------- 700______ 710
4/29/58___- Hall, Betty E------------- -- Pli 2____-__ Pro Utilit y
1/5/59_____ Gleason, Della____________ __ Pit 2 ------- Pro..... Stockroom.
4/22/53____ Newell, Dicie P___________ __ Pit 2_______ Pro_____ Mangle
9/30/57____ Bostic, Inez L_____________ _ Pit 2_______ Shaker
1]/17/58___ Branham, Victoria________ __ Pit 2_______ Pro_____ PW
10/10/50___ Wagner, Mary J__________ __ 3rd---------- Pro_____ Flat work
1/6/53_____ Kuh, Benlah______________ __ 3r