Brookville Glove Co.

National Labor Relations Board - Board Decisions

Oct 6, 1955

114 N.L.R.B. 213 (N.L.R.B. 1955)

RR00KVILLE GLOVE COMPANY- t 213
-employees at, its Kalamazoo , Michigan,- operations , excluding .-office
clerical employees , guards, and supervisors,as defined in the Act.
[The Board certified Independent Union of Sutherland Paper Com-
pany Employees, Inc., affiliated with United Paper Workers of Ameri-
ca, CIO , as the designatedicollective -bargainingrepresentative of the
employees of ^ Sutherland Paper Company, Kalamazoo , Michigan, in
the unit hereinabove found to be appropriate.],
David G. Leach and Doyle H. Wallace, d/b/a Brookville Glove
Company 'and Westie _ K."Shirk, Shirley Dempsey, Pearl Johns,
Ruth Wright, Geraldine - Deemer, Barbara A. Fritz, Clary,
Cook, Edwin G. Bish, - Beatrice Edna Aikens, Clara -Luther,
Mary Jane McCool, Bessie Viola Plyier , Mona Shaffer, Peggy
A. Snyder Josephine _V. Whitehill , Norma Lee Snyder, Alberta
-Kerr, Lois Jean Boarts, Donna Bowen, Margaret N. Bowen,
and Dale V. Carnahan . Case No. 6-CA-770. October 6,1955
DECISION AND ORDER
On July 16, 1954, Trial-Examiner Sidney L. Feiler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and, were-engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and submitted a supporting
brief.
The Board has-reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record-in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the, modifications, additions, and-excep-
tions stated below.
1. We agree with the Trial - Examiner , that the Respondents dis-
charged the '21" complaining strikers- in this case because they refused
to, abandon an economic strike and return to work within a certain date
designated by the Respondents, in violation of Section ,8 (a) (3) and
(1) of the Act. The. Respondents contend, however, that the strike
was illegal and that the strikers are not entitled to the protection of
the Act because they participated in a strike whose ' objective was recog-
nition of a labor organization not in compliance with Section 9 (h) of
the Act?
114 NLRB No. 52.
214 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
We find no merit in this contention. There is no precedent in sup-
port of the Respondents' position.' On the contrary, in Rubin Bros.,
99 NLRB 610, 619, the Board rejected a contention similar to that now
liiged by the Respondents. The Act does not proscribe bargaining
with a noncomplying union; indeed, consonant with public policy, an
employer may voluntarily recognize and deal with such a union? If
Congress had intended the Act to have the effect urged by the Respond-
ents, it easily could have inserted an express provision in the statute
to accomplish such result. This, Congress did not do. While the union
in this case could not use the processes of this Board to obtain recogni-
tion as bargaining representative in view of its failure to comply with
Section 9 (h) of the Act, we are not persuaded that Congress intended
to withhold protection of the Act against. discrimination from em-
ployees simply because they engaged in acts of self-help, otherwise
legitimate, as members or adherents of a noncomplying labor organi-
zation.' Hence we conclude that the strike in this case was a protected
concerted activity 4
2. The Respondents contend that the strikers are not entitled to
reinstatement because of their conduct on the picket line. The Trial
Examiner concluded in substance that the misconduct which occurred
was too minor to warrant denial of the remedy of reinstatement. We
agree with this conclusion, except as to the conduct of Pearl Johns,
Peggy A. Snyder, Norma Lee Snyder, and Clara Cook.
The Trial Examiner found that these 4 complaining strikers
threatened nonstrikers with acts of violence on 2 occasions. Accord-
ing to testimony of management representatives which the Trial
' The Respondents rely on Ohio Ferro-Alloys Corp. v. N. L. R . B, 213 F. 2d 646 ( C. A. 6).
While the court there held that a strike for recognition by a union , which happened not
to be in compliance with Section 9 (h) of the Act , was not a protected activity , the court
based its holding on the ground , absent here , that the union struck to compel recognition
with notice that a 'rival union had filed a petition for certification with the Board.
2 N. L. R. B. v. Pratt, Read and Company, Inc., 191 F. 2d 1006 (C. A. 2).
.See , N. L. R. B . v. Pratt, Read and Company , Inc, supra, where the court stated
(p. 1009) :
. . While the respondent was not obliged under the Act to bargain with the CIO
union when the latter had not filed non-Communist affidavits , respondent 's employees
could select the CIO union to advise then as to their conduct such as projected
strikes... .
And, at page 1008 of the same case , the court further stated :
If, as the Trial Examiner and the Board found, the six employees were discharged
because of their CIO activities , such activities ( announced intention to campaign for
restoration of 'CIO as bargaining agent shortly after certification of rival union)
would not have justified their discharge since the Act did not forbid voluntary
recognition of the CIO ae the baigaining agent by the respondent.
4 The Respondents also assei t that' the strike was an unprotected activity because com-
pliance with the Union 's demand for recognition would have subjected the Respondents to
unfair labor practice charges in the event the Union did not represent a majority of the
employees . However, 'even if this point has validity as a matter of law , a question
which we do not now decide , so far as appears in this record , the Union did represent a
numerical majority of the employees at 'the time it requested recognition . A grant of
recognition under such circumstances , all other normal requirements being met , would not
have involved the Respondents in the commission of an unfair labor practice.
BROOKVILLE GLOVE COMPANY
Examiner credited, about a week after the strike began, just after
some strikers had returned to work, the four complainants in question,
while stationed on the picket line in front of the Respondents' plant,
brandished their fists and shouted to the nonstrikers, who were en-
gaged at work inside the plant, that the strikers would "kill" them.5
About a week later, the same four strikers, while on the picket liiie,
shouted, in substance, as employees were reporting for work at the
plant, that the strikers would have help the next day and would enter
the plant and throw out the nonstrikers.
While not condoning these statements, the Trial Examiner char-
acterized them as "idle threats not implemented in any way." It is
true that no violence occurred. However, if these threats of violence
had been made by agents of a labor organization, they would amount
to conduct which, in an appropriate proceeding, might properly be
viewed as violative of Section 8 (b) (1) (A) of the Act. We believe
that the conduct of the four complainants in question exceeded per-
missible bounds, and shall therefore not order reinstatement or back
pay for them.'
In section V of the Intermediate Report, entitled "The Remedy,"
the Trial Examiner recommended that the striking complainants who
were unlawfully discharged should be paid back pay for a period
beginning with the date of their discharge, namely September 17, 1953.
As the strikers thereafter continued to strike for union recognition
until October 7,1953, when the strike was abandoned and the Respond-
ents were so notified, we shall direct the Respondents to pay the 17
complainants, herein ordered to be reinstated, back pay for the period
from October 7, 1953, to the date of offer of reinstatement.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations' Board hereby orders that the Respondents, David G. Leach
and Doyle H. Wallace, d/b/a Brookville Glove Company, their agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discharging employees or otherwise interfering with, restrain-
ing, or coercing their employees because of their exercise of the right
to act-concertedly in support of a strike.
5 While one of the management representatives at the scene testified that the machines
were in operation at the time and that none of those threatened knew that they were
being threatened, the Trial Examiner found, based on testimony which he credited, that
one of the nonstrikers threatened reported the incident to management . We conclude
therefore that at least one of those threatened was aware of the threat.
e lntertown Corporation , 90 NLRB 1145, 1150 . Efco Manufacturing, Inc., 108 NLRB
245 (Charles Arnold), relied on by the Trial Examiner , is distinguishable . There,
striker Arnold, in substance, invited a management representative to engage in fisticuffs
as a means of settling an existing labor dispute and 'predicted a pugilistic victory for the
striker in the event of such an encounter.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, 'restraining, or coercing
their employees in the exercise of their right to' self-organization, to
form labor organizations, to join or assist any, labor organization, to
bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection as guaranteed in Section 7 of the
Act, or to refrain from any or all of such activities except to the extent
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to the 17 individuals named in Appendix A hereto imme-
diate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges, in the manner set forth in the section of the Intermedate
Report entitled "The Remedy."
(b) Make whole the aforesaid 17 individuals for any loss of pay
they may have suffered by reason of the Respondents' discrimination
against them, in the manner set forth in the aforementioned remedy
section of the Intermediate Report and in the Order herein.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of back pay due and
the rights of employment under the terms of this Order.
(d) Post at their plant at Brookville, Pennsylvania, copies of the
notice attached hereto marked "Appendix A." I Copies of said notice,
to be furnished by the Regional Director for the Sixth Region, shall,
after being duly signed by the Respondents or their representative, be
posted by the Respondents immediately upon receipt thereof, and
maintained by them for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees customarily are posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
ACTING CHAIRMAN RODGERS took no part in the consideration of the
above Decision and Order.
T In 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." '
BROOKVILLE GLOVE COMPANY - 1 217
APPENDIX A '
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and' Order of the National tabor Relations
Board, and in order, to effectuate the policies of the -National Labor
Relations Act, we hereby notify our employees,that
WE WILL NOT interfere with, restrain, or coerce our employees in
the right to act concertedly in support of a strike.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist any labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the' purpose of col-
lective 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 requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to the individuals named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges enjoyed, and make them' whole for any loss of pay
suffered as a result of the discrimination :
Shirley Dempsey Bessie Viola Plyler
Ruth Wright Mona Shaffer
Geraldine Deemer Westie K. Shick
Barbara A. Fritz Josephine V. Whitehill
Edwin G. Bish Alberta Kerr
Beatrice Edna Aikens Lois Jean Boarts
Clara Luther Donna Bowen
Mary Jane McCool Margaret N. Bowen
Dale V. Carnahan
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any
labor organization.
DAVID G. LEACH AND DOYLE IT. WALLACE D/B/A
BROOKVILLE GLOVE COMPANY,
Employer.
Dated---------------'-- By-'----------------------------------
(Representative ) (Title)
r
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon separate charges filed by 21 individuals the General Counsel of the National
Labor Relations Board I by the Regional Director for the Sixth Region (Pittsburgh,
Pennsylvania ), on January 13, 1954, issued a complaint against David G. Leach
and Doyle H. Wallace, d/b/a Brookville Glove Company, herein referred to as the
Respondents or jointly as the Company , alleging that the Respondents had engaged in
and were engaging 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, as amended,
61 Stat . 136, herein called the Act. Copies of the charges , amended charges, com-
plaint , and notice of hearing were served upon the parties.
With respect to unfair labor practices the complaint , as amended , alleges in sub-
stance that on or about September 17, 1953, the Respondents discharged certain
named employees and refused to reinstate them because they had engaged in con-
certed activities for the purpose of collective bargaining and other mutual aid and
protection and because of their participation in a strike. The complaint alleges that
these acts and certain other acts described in detail in the complaint were violative
of the Act.
The Respondents in their answer dated January 30, 1954, admit certain jurisdic-
tional allegations , admit certain factual allegations as set forth in the complaint,
aver that the employees named in the complaint and others voluntarily elected to
terminate their employment and were replaced with permanent replacements , and deny
the commission of unfair labor practices . During the hearing the Trial Examiner
granted a motion by the Respondents to amend the answer to add as an affirmative
defense the allegation that the individuals who filed charges in this case in reality
were filing those charges for the United Construction Workers, affiliated with
United Mine Workers of America, a labor organization which has not complied with
Section 9 (h) of the Act.
Pursuant to notice a hearing was held at Brookville, Pennsylvania, before the duly
designated Trial Examiner. All parties were represented at the hearing and were
afforded full opportunity to be heard and to examine and cross -examine witnesses.
At the conclusion of the hearing, the General Counsel moved to conform the plead-
ings to the proof as to formal matters. This motion was granted as to all plead-
ings without objection. The Respondents then moved to dismiss the complaint both
on the merits and on the ground that the individuals who filed charges were in
reality fronting for a union which had not complied with the requirements of the
Act established as a prerequisite for the issuance of a complaint.2 Both motions
were argued by the Respondents and the General Counsel. Decision was reserved
on these motions and they are disposed of by the findings and conclusions contained
in this report. An opportunity was afforded for the filing of briefs and/or proposed
findings of fact and conclusions of law or both . A brief was received from the
Respondents containing proposed findings of fact on the fronting issue and presenting
discussion and authorities on that and the other issues in the case.
Upon the entire record , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The Respondents are copartners maintaining their principal office and main plant
at Brookville , Pennsylvania , where under the firm name and style of Brookville Glove
Company they are engaged in the production , manufacture , sale, and distribution of
work gloves. The Respondents also maintain a branch plant at Indiana, Pennsylvania,
where glove manufacturing operations are also performed.
The Respondents in the course and conduct of their business have caused and have
continuously caused , over a long period of time, a substantial part of the raw and
i The term General Counsel as used here Includes the attorney representing the General
Counsel at the hearing The National Labor Relations Board is referred to as the Board.
2 Section 9 (h) of the Act provides In part that no complaint shall be issued pursuant
to a charge made by a labor organization unless there is on file with the Board affidavits
of nonmembership in the Commuiiist Party executed by each officer of such labor organiza-
tion and the officers of any national or international labor organization of which it is an
affiliate or constituent unit.
BROOKVILLE GLOVE COMPANY 219
other materials used in the manufacture of their products at their Brookville and
Indiana, Pennsylvania , plants to be purchased and transported in interstate commerce
from and through States of the United States other than Pennsylvania to their afore-
said plants and have caused and have continuously caused, over a long period of time,
a preponderant part of the products manufactured by them at their aforesaid Brook-
ville and Indiana , Pennsylvania , plants to be sold , shipped , and transported in inter-
state commerce from those plants to, iutb, and through States of the United States.
In the 12-month period preceding this hearing the Respondents purchased for use
at their Brookville , Pennsylvania , plant raw and other materials with a value in excess
of $425,000 , of which in excess of 90 percent was shipped to the Respondents ' Brook-
ville, Pennsylvania , plant from points outside the State of Pennsylvania . In the same
period the Respondents manufactured and sold at that plant work gloves with a value
in excess of $500,000 , of which in excess of 80 percent was sold and shipped to points
outside the State of Pennsylvania . Approximately 100 employees are employed at
the Brookville, Pennsylvania , plant.
The Respondents concede that at all times here relevant they have been engaged
in commerce within the meaning of the Act and the Trial Examiner so finds.
If. THE LABOR ORGANIZATION INVOLVED
United Construction Workers, affiliated with United Mine Workers of America, is
a labor organization within the meaning of the Act. It was stipulated at the hearing
and the General Counsel further advised the Trial Examiner that the above labor
organization was not in compliance with the requirements of the Act dealing with the
filing of certain documents by labor organizations as a prerequisite to their filing
charges upon which a complaint may be issued.
III. THE UNFAIR LABOR PRACTICES
A. The "fronting" defense
This case had its genesis in the unsuccessful efforts by the above-named Union to
organize employees of the Respondents and obtain recognition as their collective-
bargaining representative . The Respondents contend that the individuals who filed
charges herein were in reality fronting for that Union and on that ground the com-
plaint should be dismissed regardless of the merits
Union activity began at the Brookville plant, the only plant about which evidence
was presented at this hearing, on or about September 1, 1953. A representative of
the Union met with some of the employees and signed membership cards were ob-
tained from these employees and others . On September 10, representatives of the
Union met with David Leach and discussed the question of recognition of the Union
as collective-bargaining representative . A detailed recital of what went on at this
meeting is not material here in view of a stipulation between counsel . It is sufficient
for the purposes of this report to note that the Union was dissatisfied with the results
of this conference and that at a meeting held that evening employees of the Company
who were in attendance voted in favor of a strike. This strike had as its primary
objective the obtaining of recognition of the Union as collective-bargaining repre-
sentative of the employees of the Company. Employees also were concerned over
the transfer of one employee . However, this was never directly discussed with the
Company and after the particular employee returned to work in a few days the strike
became solely one for recognition. It was stipulated that the strike which began on
September 11, 1953, and ended on October 7, 1953, was an economic strike.
The individuals named in the complaint as having been discriminated against by the
Respondents participated in the strike from the very beginning and were union mem-
beis or applicants for union membership . This case was originated by separate
charges filed by these 21 individuals. It was stipulated that a union representative,
Robert Smedley, had given these individuals advice on the filing of charges and also
furnished them blank forms. All entries on these forms are identical except for the
name and address of the individual who signed the particular form . Item 2 on the
form , "Basis of the charge ," in each case contains the entry , "The Company has failed
to reinstate me and has hired new persons, following the strike in which I partici-
pated ." Individual first amended charges subsequently were prepared by the General
Counsel and were signed by 20 of the individuals who filed the original charges. On
the basis of this evidence , as amplified in the testimony of several of the witnesses, the
Respondents contend that , the individual complainants were acting as a front for the
Union, were acceding to the wishes of . union representatives , and were doing for the
Union what it could not do for itself.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The law applicable to a situation such as is presented in the instant case has been
summarized by the Board in the case of Lewis Coal Company, Inc., 108 NLRB 887,
in the following language:
1. We agree with the Trial Examiner that Francis M. Burke, an attorney at
law who filed the charges upon which the complaint issued, was not "fronting"
for the United Mine Workers, a noncomplying union, herein called UMW.
Burke signed the charges in behalf of complainants Hix, Harris, and Charley
Mays, "for themselves and all other employees . similarly situated."
Although Burke was introduced to the complainants at the UMW meeting place,
and although he filed charges for other UMW members in another complaint
proceeding,3 we find that the charges were not filed as a "front" for the UMW
as contended by the Respondent.
The Board and the courts have unanimously held that employees acting indi-
vidually may assert their rights before the Board without the restriction of com-
pliance provisions of the Act .4 Furthermore, the assertion of such rights has
been held to be unimpaired where a noncomplying union or its attorney assisted
in the preparation and filing of the charges,5 or where the complainants who were
merely members of the union filed the charges for themselves and other dis-
chargees similarly situated.6 Accordingly, even assuming that the UMW made
the attorney available to these complainants for the purpose of filing the charges,
we conclude and find that, as the charges were in substance the assertion of
individual rights, the complainants did not disqualify themselves by accepting
such assistance .7
8 New Hyden Coal Co , 108 NLRB 1145.
'Augusta Chemical Co., 83 NLRB 53, enfd. 187 F. 2d 63 (C A. 5) ;-Olin Industries,
Inc., 86 NLRB 203, enfd 191 F. 2d 613 (C. A. 5) ; N. L R. B. v Clausen, d/b/a
Luzerne Hide & Tallow Co., 188 F. 2d 439 (C. A. 3), cert denied 342 U. S 868;
W. T. Rawleigh Co. v. N. L R B., 190 F. 2d 832 (C A. 7) ; N. L. R B. v. Alside, Inc.,
192 F. 2d 678 (C A. 6) ; N. L. R. B v. Globe Wireless, Ltd., 193 F. 2d 748 (C. A. 9) ;
Southern Furniture Mfg Co v. N. L. R. B., 194 F. 2d 59 (C. A. 5), cert. denied
343 U. S 964; N L R. B. v. Hipp Bros. Co., Inc., 196 F 2d 195 (C. A. 5) ; N L. R. B.
v. Coal Creek Coal Co, 204 F 2d 579 (C. A. 10) , N. L. R B. v. L Bonn.'." & Sons
Furniture Mfg Co., 206 F. 2d 730 (C. A. 9), cert. denied 346 U. S. 937; and
N. L. R. B. v. Pecheur Lozenge Co., 209 F. 2d 393 (C. A. 2).
6 W. T. Rawleigh Co. v. N. L. R. B., supra, and N L R. B. v. L. Ronney & Sons
Furniture Mfg Co., supra
9 Southern Furniture Mfg. Co v. N. L. R. B., supra. Cf. N L. R. B. v. Alside,
Inc., supra; and N. L. R. B. v. Happ Bros. Co , Inc. supra, in each of which the
charge was filed by the union's president and chief piotagonist, for himself and
others, and fronting was found
't As the wording of the first amended chaige is substantially the same as the
wording of the original charge, and as the Respondent's allegation of variance is
nowhere clarified, we find no merit in Respondent's motion to dismiss the complaint
on this ground. The motion is accordingly denied
See also New Hyden Coal Company, 108 NLRB 1192.
Here as in the Lewis Coal case the individual complainants were asserting their
individual rights before the Board. They were attempting to secure a remedy for
alleged unfair labor practices committed against them. Under these circumstances
the Trial Examiner finds that there was no fronting for the Union and that the indi-
viduals who filed the charges did not disqualify themselves by accepting assistance
from a union representative in the preparation of the charges. The Trial Examiner
accordingly does not adopt proposed findings of fact A, B, C, and D submitted by the
Respondents on this issue.
B. The termination of the employment of the strikers
Picketing at the Brookville plant began on September 11. 1953.
On September 14, the Company sent the following letter to all employees who had
not returned to work on that date:
September 14, 1953.
DEAR EMPLOYEE: We have had quite a number of people telephone us to ask
whether they can return to work without fear of retaliation, of losing their jobs.
We realize that many girls have signed cards because they had been told that
all of their friends had also signed. Others had been led to believe that they
were alone among their fellows in their department in not having signed.
BROOKVILLE GLOVE COMPANY 221
Obviously, there are far too many employees now at work and earning money
for this to be true.
Since so many girls did not have the facts we certainly can not blame them
and we want to assure you that you can return to work without any fear of
punishment or ill will on our part.
Still other girls have asked whether it is legal for them to return to work inas-
much as they have signed cards. The card you signed was an application for
membership and nothing more. You are not even a member of that organiza-
tion and even if you were you would be perfectly free to stop belonging to any
organization any time you want to.
We understand that more employees want to , return to work and we will
welcome you back to your job providing you return by 6:50 A. M. on Thurs-
day, September 17th. AFTER THAT DATE YOU WILL NO LONGER BE
CONSIDERED AN EMPLOYEE.
The factory is working normally and we are hiring new girls as they apply
for work.
On September 18, the Company sent the following letter to those strikers who had
not returned by September 17:
Our letter of September 14th notified you that absence from work after
Thursday , September 17th would mean that you would no longer be considered
an employee.
We regret that you did not respond to that notification and we are sending
you as an enclosure the customary termination notice. Your name has been
removed from the payroll.
This notice is sent to you reluctantly because we are sorry to see you lose the
insurance benefits which have been of such value to many of our employees. The
disability payments , the surgical benefits and the hospitalization coverage have
all been canceled and it is necessary to notify you (and your family, if you are
married ) that you no longer enjoy this protection since you are no longer our
employee.
If you wish to return to work at any time we will be glad to have you come
in to our office and make out an application for employment . In hiring it has
always been our policy to give preference to former employees.
Attached to this letter in each case was a form labeled , "Notification of": An "X"
was typed next to the words "voluntary quit ." The same mark was put in front of a
paragraph which began with the sentence , "Your Group Plan Insurance policy can-
celled as of this date except for the life insurance portion which continues for 31
days." Attention was then called to certain convertibility features of the insurance
policy. The letters of September 14 and September 18 were sent to all the individ-
uals named in the complaint . David Leach, one of the partners in the Company, tes-
tified that the Company's position was that the employees to whom the letters were
sent were considered as having voluntarily terminated their employment and were
treated as such.
The strike continued until October 7, 1953. On that day a meeting of the strikers
was held and it was decided to terminate the strike . Mrs. Margaret Bowen, one of
the strikers , was designated to so notify the Company . She telephoned Leach and
told him of the decision of the strikers and arranged for a meeting between him and
the strikers to discuss their returning to work. Those at the meeting did not wait for
a report from Mrs. Bowen , but proceeded directly to the plant and met with Leach
and his partner.
According to Leach he told the strikers that they were "voluntary quits" and as
such would have to file applications for employment . They would have to requalify
for vacation benefits and would be hired "just exactly on the same basis as any other
new employees ." In response to questions from the former strikers he declared that
they would not all be restored to their jobs since permanent replacements had been
hired . He refused a request that the replacements be discharged . Application forms
identical to those given to all new applicants for employment were then distributed
and were filled out by members of the group.
Company records submitted at the hearing list 45 employees as terminated as of
September 17. Of this group 21 were rehired . Twenty-one of the strikers who were
not rehired are named in the complaint as alleged discriminatees.
Contentions of the Parties; Conclusions
The General Counsel contends in substance that the letters of September 14 and
September 18, 1953, were violative of the Act and that the Respondents by those
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letters and their subsequent conduct, in violation of the Act, discharged the persons
named in the complaint for having engaged in protected concerted activity, namely
a strike. The Respondents, on the other hand, contend that the letters were ap-
propriate notices to the strikers and that thereafter the Respondents proceeded to fill
the remaining vacancies among their personnel in accordance with their rights under
the Act and replaced all the strikers who had not returned by, September 17 before
they abandoned the strike.
It was stipulated the strike which began on September 11 was an economic strike.
The rights of an employer and his employees in such a situation has been dealt with
in detail in the case of N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S.
333, 345-47. An employer, not guilty of any unfair labor practice as defined in the
Act has the right to protect and continue his business by replacing any or all of the
strikers. He need not discharge these replacements when the strikers indicate they
are ready to resume their employment. However, employees have the right to strike
(Section 13 of the Act). Section 2 (3) specifically provides "the term `employee'
shall include . any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair labor practice,
and who has not obtained any other regular and substantially equivalent employ=
ment, .. " Under this definition the strikers remained employees for the purposes
of the Act and were protected against any unfair labor practices. Employees in Sec-
tion 7 of the Act are guaranteed the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid and protection. The strike which was conducted by
some of the employees of the Respondents, including those named in the com-
plaint, was a protected concerted activity. The employees were protected from any
discrimination in regard to their hire or tenure of employment because of their en-
gaging in such activity (Section,8 (a) (3) of the Act).
The Respondents contend that the situation in this case is analogous to that in
certain cited cases where it has been held that an employer is free to call to the at-
tention of economic strikers that he will proceed to replace them with permanent re-
placements if they do not return to work by a certain date. However, it is clear that
the action taken here went a good deal farther than such a notification. The letter
of September 14 specifically stated that the strikers would be welcome back to their
jobs providing they returned by September 17. It was then stated "AFTER THAT
DATE YOU WILL NO LONGER BE CONSIDERED AN EMPLOYEE." The let-
ter of September 18 informed the remaining striking employees that their names had
been removed from the payroll and that their insurance and other employee bene-
fits had been canceled "since you are no longer our employee." The strikers were
invited to fill out applications for employment if they wished to return to work in
the future.
While the termination notice, enclosed with the letter of September 18, labeled the
conduct of the strikers as a "voluntary quit" it is clear that the strikers had not quit
their employment but were actively seeking through strike action to obtain recog-
nition of the Union as their collective-bargaining representative in their employment
relationship with the Company. The letter of September 18 was a notice of dis-
charge.3 The use of the letters of September 14 and September 18 was an unlawful
strike breaking technique violative of Section 8 (a) (1) of the Act .4
The termination of the employment of the strikers because of their engaging in the
protected concerted activities of an economic strike and their refusal to abandon such
activities in response to the ultimatum sent by the Company was violative of Section
(a) (3) of the Act.S The dischargees are entitled to reinstatement with back pay
from October 7, 1953, the date when the strike was abandoned 6
C. The replacement of the strikers
The Respondents maintain that since the strike was an admitted economic strike
they could proceed to replace the strikers with permanent replacements, absent
any unfair labor practices. They further maintain that all the strikers had been
IN L. R. B v. , United States Cold Storage Corp, 203 F. 2d 924, 927, cert. denied
346 U. S 818. '
4 Ken: gan Iron Works, Inc, 108,NLRB 933.
5 N L. R. B. v Mackay Radio & Telegt aph Co., 304 U S. 333, 347 ; N. L. R. B. v. Globe
Wareless. Ltd.. 193 F. 2d 748, 750 (C. A 9)
Cowles Publishing Company, 106 NLRB 801.
BROOKVILLE GLOVE COMPANY 223
so replaced by October 7, the date when the strike was ended and a large group
of the strikers indicated their willingness to return to work . However , it is also
correct as a general statement , that when economic strikers abandon a strike they
are entitled to reinstatement or return to the positions previously held upon their
application if no permanent replacements have been hired to displace them before
they make their request. There is grave doubt in this case whether all or any of
the strikers had been replaced in advance of the mass application for reinstatement
on October 7, 1953.
The strike began on September 11, 1953. The Company 's letter to the strikers
dated September 14 gave them until September 17 to return to work. It is agreed
that no replacements were hired before September 17.
There are 21 persons named in the complaint as alleged discriminatees. Of these,
12 last worked for the Company as sewers , 4 had been inspectors , 2 had been
turners, 1 had worked on the cylinder machine roll, 1 had worked as a cloth spreader,
and 1 as a quilter . Between September 18 and October 7, the Company hired 6
sewers, 3 turners, 2 inspectors ,? 1 cylinder machine roll operator , 1 cloth spreader,
and 1 shipping clerk.8 Company records submitted at the hearing do not show any
terminations between September 17 and October 7 . A comparison of the above
figures makes it clear that at least in the important category of sewer there were
more strikers in that category as of October, 7 than had been hired by that date.
Actually the discrepancy or difference is more substantial.
The number of production employees at the Brookville plant on certain of the
dates involved in this proceeding was as follows:
September 10----------------------------------------- 100 (approximately)
September 14----------------------------------------- 27
September 17------------------------------------------ 53
October 7-------------------------------------------- 66
The number of employees in certain key categories as of the day before the
strike began and the day it terminated was as follows:
September 10 October 7
55 sewers 32
4 - cylinder roll employees 4
12 inspectors 10
5 turners 4
It is apparent that as of October 7 the production staff was at two-thirds of its
size before the strike began , that its sewing staff was substantially below its prestrike
strength , and that while the cylinder roll employees were back to their former
size there were 2 inspectors and 1 turner less than on September 10.
Company records as stipulated in this proceeding , show that 14 new employees
were hired between September 18 and October 7. One of these, Marjorie Johnson,
had actually worked for the Company before the strike , had joined in the strike,
but had abandoned it. The list also included a new employee employed as a turner
whose employment ceased after 3 days.
Leach testified extensively on the issue of the replacement of the strikers.
He testified that 13 of the 21 persons named in the complaint were replaced by
persons hired before October 7 . It is agreed that 3 strikers , Shirley Dempsey,
Barbara A : Fritz, and Lois Jean Boarts did not apply for reinstatement . Another
striker, Donna Bowen wrote the Company on November 14, 1953 , that she wished
to "re-aply [sic ] for a job." The Company replied:
We have ' always found it advantageous to interview all applicants personally.
Therefore the company policy is and always has been to request applicants
to come to the office and we do not accept applications by telephone or letter.
It is conceded that Miss Bowen did not follow the Company 's suggestion and made
no further efforts to obtain reemployment at the Company.
Edwin G. Bish , a quilter, was ready to be transferred to the shipping depart-
ment according to Leach. Leach further testified that Bish was actually replaced
by a new shipping clerk hired on September 28. The Trial Examiner found
Leach 's testimony as to the proposed change in assignment of Bish credible and
credits his testimony . Leach 's testimony as to 13 replacements and 4 whom the
7 This includes one former striker who was rehired on her application . There is no,
information as to who, if anyone , replaced her in work she previously had done.
8 The new shipping clerk was claimed by the Company to have replaced Edwin Bish, a
quilter who , according to Leach , was scheduled to be reassigned as shipping clerk.
224 DECISIONS OF NATIONAL LABOR RE1 ATIONS BOARD
Company did not consider as signifying their intention to return to work leaves 4
of the 21 named in the complaint to be further accounted for. These four are
Pearl Johns, Clara Cook, Clara Luther, and Josephine V. Whitehill. At one point
in his testimony Leach stated that his list on replacements did not include two
persons who were not rehired for reasons that the Company considered justified. He
later testified that there were four employees that- the Company did not consider
entitled to further consideration because of misconduct on the picket line. Two of
these were Pearl Johns and Clara Cook. The other two were Peggy A. Snyder
and Norma Lee Snyder, whom Leach in previous testimony had stated had been
replaced by certain new employees. This leaves two strikers unaccounted for from
the standpoint of replacements, Clara Luther and Josephine V. Whitehill. Both
of these however did not apply until November 3, 1953.
Leach testified that the factory superintendent of the Company made requests
that the positions of specific strikers be filled and that he, Leach, would then pass
on those requests to the personnel director of the Company so that replacements
could be hired. Each replacement was on a departmental basis according to Leach
in order to bring departments up to their necessary strength. However, Leach
admitted that during the strike established production setups were disrupted and
certain departments had to be integrated with others. In later testimony Leach
stated that he had matched the replacements hired between September 18 and
October 7 and determined which would logically have replaced a particular striker
and made his list accordingly. He further testified:
Q. (By Mr. Natick.) Now, the complaining employees, and the people
named in the complaint, if there were five sewers among them and you hired
five sewers, those five would take their places, is that right?
A. That's correct.
Q. And regardless of the machine. For instance, if a machine was available
for that purpose, regardless of the, one they worked on, these replacements
maybe would not take the same positions or machines as the employees that
worked on them before the strike?
A. That is correct.
Company records show that as of October 7 a full complement of replacements for
all the strikers had not been hired. There were 23 fewer sewers than on September
10. Twelve of the twenty-one persons named in the complaint had been employed
as sewers prior to the strike. While Leach testified that there was some specific re-
placement for the strikers by name, it is also clear that in explaining which replace-
ment was hired for a striker who did not return to work he merely matched replace-
ments against the people named in the complaint. It is significant that he could give
no information as to what replacements supplanted other strikers other than those
named in the complaint concerning whom he had been told by his counsel he would
not have to be prepared to testify. The Company had a shortage of sewers on Octo-
ber 7. Its records show that sewers were hired after that date. Under these circum-
stances the Trial Examiner concludes that the 12 former sewers named in the com-
plaint were not replaced as of October 7 when Leach told the strikers that replace-
ments had been hired for their positions. These 12 are Lois Jean Boarts, Mona
Shaffer, Peggy A. Snyder, Norma Lee Snyder, Pearl Johns, Geraldine Deemer,
Westie K. Shick, Bessie Viola Plyler, Barbara A. Fritz, Shirley Dempsey, Donna
Bowen, and Josephine V. Whitehill. Of this group it is clear that the following had
not been replaced as of October 7. and were clearly entitled to be reinstated when
they applied on that date: Mona Shaffer, Geraldine Deemer, Westie K. Shick, and
Bessie Viola Plyler (Ruth Wright actually filed her application on October 9 but the
situation had not changed to any extent from that on October 7). Three of the
strikers never did make a personal request for reemployment at their former posi-
tions-Lois Jean Boarts, Shirley Dempsey, and Barbara A. Fritz.9 Three other sew-
Olt has been argued that Margaret Bowen made an application for reinstatement on
behalf of all the strikers when she telephoned Leach on October 7 and told him that a
decision had been made to call off the strike and that she wanted to arrange a meeting
between him and the strikers to discuss returning to work.
Mrs. Bowen was selected to make the call by those at the meeting. She was not an
official of the Union nor is there any showing that she had any right to speak for those
not at the meeting. Her conversation with Leach was obviously preliminary in nature
and not designed to settle the reinstatement problem. What authority she had was
clearly changed and revoked by the strikers at the meeting when they did not wait for
her report, but went to the company offices and filed individual applications. Their action,
BROOKVILLE GLOVE COMPANY 225
ers also applied on October 7 and were entitled to reinstatement unless the Com-
pany's claim that these former employees were not entitled to reinstatement because
of violence committed on the picket line is sustained. These three are Pearl Johns,
Peggy A. Snyder, and Norma Lee Snyder. This defense will be dealt with in detail
further in this report. Josephine V. Whitehill applied for work on November 3:
Company records do not show the hiring of any sewers after November 2 and the
Trial Examiner concludes that there has not been a showing that there was any va-
cancy as sewer as of the date of this application to which Miss Whitehill was refused
reinstatement. - The same is true in the case of Donna Bowen who signified her desire
to return to work by letter dated November 14. The Trial Examiner rejects the con-
tention advanced by the Company that she never validly signified her desire to re-
turn to work because she did not appear at the Company's office and fill out an ap-
plication on a prescribed form. These regulations were applicable to applicants for
new employment. The Company could not so circumscribe the rights of an eco-
nomic striker. All that is required in the case of such a striker is that she clearly
signify her desire to return to work and that there should be an existing vacancy
in'the position she formerly held The latter is not true in the case of Miss Bowen.
There has not been a clear showing that there was a vacancy in her occupation of
sewer to which she was refused reemployment at the time she made her application.
The next largest category of employees at the plant is that of inspector. Twelve
had been employed on September 10 and there were 10 on the payroll as of October
7. Of those named in the complaint, four had been employed as inspectors- Clara
Luther, Clara Cook, Beatrice Edna Aikens, and Alberta Kerr. Leach testified that
Aikens and Kerr, both of whom applied on October 7, had been replaced by two
other inspectors hired the previous month. Clara Cook was 1 of the group of 4 em-
ployees that Leach maintained were not considered because of picket-line activities.
Her case will be considered in detail later in this report. Clara Luther did not file
her application until November 3. Company figures show that as of October 7 the
Company had not hired or rehired its full complement of inspectors. The Trial Ex-
aminer therefore finds that positions were open for Alberta Kerr and Beatrice Aikens
in the category in which they were employed prior to the strike. The same is true of
Clara Luther who applied on November 3 Two inspectors were hired after her ap-
plication. While the issue is not completely clear in her case it is very clear in the
case of the other inspectors who were not reemployed on October 7 when they filed
applications.
Margaret N. Bowen applied for reinstatement on October 7. She had been em-
ployed on the cylinder roll. Company records indicate that there was a full comple-
ment of employees in this category as of October 7 and the Trial Examiner finds that
it has not been established that there was any vacancy to which she could have been
appointed at the time she filed her application. The Trial Examiner credits the tes-
timony of Leach as to the replacement of Edwin Bish and Dale V. Carnahan prior to
their filing applications. They were employed in specialized occupations where
there was not a large group of employees performing the same work.
The last category of employees among those mentioned in the complaint is that of
turner. Two of those named in the complaint. Ruth Wright and Mary Jane McCool,
had been employed in this category. Company records show that as of October 7,
the date when Mary McCool applied, there was one vacancy in this category. The
Trial Examiner finds that there was an existing vacancy to which Mary McCool
could have and should have been reinstated under all the circumstances. Ruth
Wright filed her application on October 9. The single vacancy had not been filled
as of that date. In addition, two new employees were hired as turners shortly after
Ruth Wright filed her application. Under all of the circumstances the Trial Exam-
iner finds that there was at least one vacancy to which either Ruth Wright or Mary
McCool should have been reappointed in a nondiscriminatory manner.
The issues in this case as to the discharge of the 21 employees named in the com-
plaint have been disposed of in the opinion of the Trial Examiner in the prior section
of this report. However the Trial Examiner has dealt with the replacement of the
strikers without regard to the unfair labor practices committed by the Respondents in
order that there be a detailed presentation of all issues litigated at the hearing. The
record establishes in the opinion of the Trial Examiner that a substantial group of
in effect. was a waiver of any rights they obtained through her action (Efco Maoiufactu, ing,
Inc. 108 NLRB 245).
Under all the circumstances, the Trial Examiner finds that it has not been established
that there had been an authorized joint application on behalf of all the strikers on
October 7.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those named in the complaint were clearly entitled to reinstatement when they ap-
plied even if they be considered solely as economic strikers and not discrimrnatees
discharged in violation of the Act.
After the strike ended the work force at the plant was built up until it approxi-
mated the number employed prior to the strike . Figures -for the size of the produc-
tion force as of different dates are as follows:
September 19__________________ 100 November 28__________________ 101
October 3_____________________ 66 December 12__________________ 100
October 17____________________ 94 December 27__________________ 95
October 21____________________ 98 January 9, 1954_______________ 99
November 14__________________ 100
Of those who joined in the strike 21 were rehired by the Company. With one ex-
ception all of this hiring was in October 1952. In addition 26 new hirings were made
between October 7 and January 1954. The categories in which hirings were made
included sewers, inspectors , turners, and packers and shippers.
In its letter to the strikers on September 18, 1953, the Company, after expressing
its regret that they did not accept the invitation to return to work, concluded the letter
as follows: "If you wish to return to work at any time we will be glad to have you
come into our office and make out an application for employment. In hiring it
has always been our policy to give preference to former employees." Outside of 4
employees whom the Respondents charged with- misconduct on the picket line no
reason was advanced why the other 17 former employees named in the complaint
were not offered employment as new employees. All of them with the possibility
of 2 or 3 exceptions had been employed in the categories in which new hirings were
made. In view of the Company's policy to give preference to former employees the
failure to offer employment to those named in the complaint who had filed applica-
tions for employment on the Company's prescribed form, who were not charged
with picket line violence, and who had been employed in categories subsequently
filled by new applicarrts with no prior experience with the Company, was upon the
preponderance of the evidence presented discriminatory. This group included the
following: Mona Shaffer, Geraldine Deemer, Westie K. Shick, Bessie Viola Plyler,
Clara Luther, Beatrice Edna Aikens, Alberta Kerr, Ruth Wright, Mary Jane Mc-
Cool, and Edwin G. Bish. However the status of these former employees as em-
ployees discharged in violation of the Act warrants them receiving different relief
from that of new applicants discriminatorily refused employment.
D. Misconduct of strikers
Leach testified that four of the strikers were not considered for reemployment by
the Respondents because of their conduct on the picket line. These individuals are
Pearl Johns, Norma Lee Snyder, Peggy A. Snyder, and Clara Cook.
These strikers, Leach testified, were "conspicuous" in shouting threats, jeers, and
insults at employees who had returned to work. Anna Johnson, a floorlady, com-
plained to him twice that employees were being insulted . He also received reports
from General Manager Kinnaird that Pearl Johns had struck him and was jeering,
threatening, and swearing. Leach further testified that on occassions the strikers
stood close together barring entrance to the plant. He could not give the dates of
any such incidents but maintained that these four "were conspicuously present at
all of these incidents."
Picketing began at the Brookville plant on September 11, 1953. Leach testified
that the plant entrances were blocked by'strikers and it was decided not to open the
plant that day. A notice was posted that the factory would reopen on September 14.
The factory was opened that day, and, with police in attendance, it remained open
throughout the strike. No arrests were made for alleged picket-line misconduct and
none were requested. Leach testified that no employee complained to him that she
had been assaulted or prevented from coming to work. He testified that the ob-
jectionable conduct of the four was in cursing and threatening. He also testified to
1 incident, when, after some strikers had returned to work, the pickets, including
these 4 brandished their fists and threatened to kill them. The machines were
running, he stated, and those threatened did not know they were threatened.
About 2 weeks after the strike began, there was another incident, according to
Leach. While employees were coming to work, these four shouted they would
have help the next day and would come into the plant and "rid it out" (throw out
the employees).
Leach also testified that some of the conduct he considered objectionable oc-
curred before September 18, but despite this all pickets would have been given
their jobs back if they had accepted the Company's invitation to return to work.
BROOKVILLE GLOVE COMPANY 227
He never told the four they would never be taken back by the. Company and ap-
plications were accepted from them on October 7.
General Manager Kinnaird testified, that during the strike while he was walking
by.P.earl Johns in a roadway at the side of the plant she hit him with her elbow in
a "striking motion." He was surprised, but was not physically injured.
Kinnaird further testified that an employee reported to him that she had been
grabbed by a picket, Mary Jane McCool (not one of the four Leach mentioned in
his testimony), and had to strike back to free herself. He also testified that on
two occasions cars bringing employees to work were hit by fists as they passed a
group of strikers. He did not see who actually struck the blows.
He further testified that employee Flo Shobert heard the threat to kill her made by
Pearl Johns and others because she reported the incident to him, and he also heard
the remarks but not any singling out of Shobert. (This is the same incident Leach
referred to in his testimony.)
Another employee, Alice Shoup, he testified, reported to him that Pearl Johns
had called her "a whore."
Mrs. Johns denied insulting Mrs. Shoup or threatening any employee and testified
that if she ever cussed or jeered at Miss Shobert she could not recall it. She denied
striking any cars. As to Kinnaird, she testified the incident occurred when neither
would make way for the other and that as she passed him she "upped" her arm.
Peggy A. Snyder also denied threatening Flo Shobert or other employees, pre-
venting employees from entering the plant, cursing at employees, or striking cars.'
Conclusions
The evidence as to misconduct on the part of the four strikers falls into two
categories-incidents not observed by Leach and Kinnaird, the Respondents' witnesses
on this issue, and incidents they maintained occurred in their sight and hearing. Thus
Leach testified that Floorlady Anna Johnson complained to him twice that employees
were being insulted, but she did not testify and supply details from which an evalua-
tion of the incidents could be made. Pearl Johns and Peggy Snyder denied such
conduct. Also Kinnaird testified that he received a report that Mrs. Johns had insulted
Alice Shoup. However, Mrs. Shoup did not testify and Mrs. Johns specifically
denied the report.
Leach and Kinnaird were qualified to testify as to reports they received, but their
testimony was hearsay as far as its use for the truth of the matter contained therein
is concerned. In view of the specific denials of those who were charged with wrong-
doing, it would not be proper to make a finding on the sole basis of this hearsay
testimony . ii This is particularly true in as serious a matter as loss of right of
reinstatement.
As to other evidence, a good deal of it was in generalities such as that there were
threats, jeers, and insults or a general identification of the four individuals involved
being in the vicinity when certain incidents took place but not identifying them as
the persons who actually committed the misconduct charged. The hitting of
passenger cars is an example of this.
The Trial Examiner was impressed with the testimony of Leach and Kinnaird in
that, in the opinion of the Trial Examiner, they were trying to give an accurate
account of what they actually saw and heard and freely admitted limitations on their
observation and did not attempt to glibly fasten blame on the individuals involved
here without any foundation in fact. ,
The-Trial Examiner does credit the testimony of Leach and Kinnaird that the
pickets on one occasion threatened to kill some strikers who had returned to work
and that one of those employees reported the incident to Kinnaird. The Trial
Examiner also credits the testimony of Leach as to shouts by these four that they
would come into the factory and "rid it out."
It has been found that these four individuals, and the others named in the com-
plaint, had been discharged in violation of the Act. Ordinarily, the remedy of
reinstatement and back pay is prescribed by the Board to remedy such unfair labor
practices. However, where misconduct is alleged as a bar to reinstatement, it is for
the Board to determine whether the alleged misconduct occurred and, if so, to weigh
it and determine whether in the particular case the ordinary remedy would effectuate
the policies of the Act. One who commits an unfair labor practice does not retain a
veto over the Board's powers under the Act ii .
10A,nerican Rubber Products Corp v N L. R. B.. 214 F 2d 47 (C A. 7).
u N L R B v. Thayer Company and H N Thayer Company, 213 F 2d 748 (C. A 1)
387644--5 6-vol. 114 16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The threats, which the Trial Examiner has found to have been made by the four
strikers, occurred in a setting where employees went to and from their work without
molestation. The only incident of physical violence about which there is definite
proof is the elbow-bumping of Kinnaird by Pearl Johns, an obviously trivial incident.
The remarks are not to be condoned, but they were idle threats not implemented in
any way. In view- of all the circumstances, it is concluded that the conduct of these
four does not warrant denial of the remedy or reinstatement in their case.i'-
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents described in section III, above, occuring in con-
nection with the operations described in section I, above, have a close, intimate, 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 the Respondents have engaged in and are engaging in certain
unfair labor practices it will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondents discriminatorily discharged 21 employees
as of September 17, 1953, because they engaged in union or concerted activities.
It will be recommended that the Respondents offer the dischargees immediate and
full reinstatement to their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, dismissing if necessary all re-
placements hired on or after September 17, 1953, and not employees of the Respond-
ents as of that date. (Consolidated Frame Company, 91 NLRB 1295, 1321.)
It will be further recommended that the Respondents make whole the former
strikers for any loss of wages they may have suffered as the result of the discrimina-
tion against them by payment to each of them of a sum equal to the amount which
they normally would have earned as wages from the date of his discriminatory dis-
charge namely, September 17, 1953, to the date of the Respondents' offer of rein-
statement less his net earnings during said period (Crossett Lumber Company, 8
NLRB 440, 497-8), said back pay to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. The Re-
spondents upon request shall make available to the Board or its agents for examina-
tion and copying all payroll, social security and personnel records and reports, and
all other records and reports necessary to determine the amounts of back pay due.
The character and scope of the unfair labor practices engaged in indicate an intent
to defeat self-organization of employees and goes to the heart of the Act. It will be
recommended that the Respondents cease and desist from such acts and from in any
other manner interfering with, coercing, or restraining their employees in the exer-
cise by them of the right to engage in concerted activities for the purpose of mutual
aid or protection guaranteed them in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondents David G. Leach and Doyle H. Wallace, d/b/a Brookville
Glove Company, are engaged in commerce within the meaning of Section 2 (6) and
(7) of the Act.
2. By discharging the following employees the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
Shirley Dempsey Mona Shaffer
Pearl Johns Westie K. Shick
Ruth Wright Peggy A. Snyder
Geraldine Deemer Josephine V. Whitehill
Barbara A. Fritz Norma Lee Snyder
Clara Cook Alberta Kerr
Edwin G. Bish Lois Jean Boarts
Beatrice Edna Aikens Donna Bowen
Clara Luther Margaret N. Bowen
Mary Jane McCool Dale V. Carnahan
Bessie Viola Plyler
12 Efco Manufacturing, Inc., supra (Charles Arnold).
GENERAL MOTORS CORPORATION, OLDSMOBILE DIVISION 229
3. By such discrimination including the failure and refusal to reinstate these em-
ployees without prejudice to their seniority and other rights and privileges, and by
the prior conduct of threatening to discharge those employees who continued to par-
ticipate in an economic strike, the Respondents have interfered with , restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7 of the
Act and have thereby engaged in and are 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 within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
General Motors Corporation, Oldsmobile Division, Forge Plant,
Lansing, Michigan and International Die Sinkers Conference,
Lansing Lodge No. 60 (Independent ), Petitioner and Interna-
tional Union, United Automobile , Aircraft and Agricultural
Implement Workers of America , UAW-CIO, and its Local 652.
Case No. 7-RC-2778. October 6,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before L. L. Porterfield, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. At the request of the In-
tervenor, the Board, on August 11, 1955, heard oral argument in this
case. The Board has considered the entire record, the briefs, and the
oral argument and finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. On August 20, 1941, after a consent election, the Petitioner was
certified by the Board as bargaining representative for "all impression
die sinkers employed in the manufacture or maintenance of dies used
to complete forgings, including die sinkers on bench, mill, lathe, and
ether machines, trim die makers, keller men, excluding supervisors"
and other employees.' Since that date, the Employer and the Peti-
tioner have entered into it series of contracts covering the above em-
ployees who currently number 178 employees. The Petitioner, which
has traditionally represented departments similar to the type here re-
quested, is, seeking to add to its existing unit, 43 other employees who
1 34 NLRB 605.
114 NLRB No. 54.