Comfort, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1965

152 N.L.R.B. 1074 (N.L.R.B. 1965)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Comfort, Inc. and International Association of Machinists, Dis-
trict Lodge 105, AFL-CIO. Case No. 18-CA-1731. June 2.1965
DECISION AND ORDER
On June 23, 1964, Trial Examiner Frederick U. Reel issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices violative
of Section 8(a) (1), (3), and (5) of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Examiner's Decision and sup-
porting briefs. In addition, Respondent filed an answering brief to
the General Counsel's exceptions.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its power in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Trial Examiner's
Decision, the exceptions and briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner as modified herein.
The Trial Examiner found that employees James Benedict and
Floyd Palmer were not discriminatorily discharged and consequently
recommended that the complaint as to them be dismissed. We dis-
agree with this conclusion.
With respect to employee Benedict, the record shows that he was
employed by Respondent from October 3 to 16. On his first day of
employment, Benedict attended a union meeting which was under
surveillance by Respondent Vice President Burkhiser. On the follow-
ing day, Company Official Last observed that Benedict was wearing a
union button, asked him his name, and wrote the name on a list of
button wearers which Last was compiling, with the notation "new."
During the time Benedict worked for Respondent he was engaged in
various jobs. There was no evidence to show that Respondent was
displeased with Benedict's performance or voiced any complaints to
him.
On October 15, Benedict was granted permission to leave work at
regular quitting time rather than work overtime, in order to attend a
National Guard meeting. On October 16, Benedict requested that he
not work overtime, explaining that he had to call for his sister at
'Respondent' s request for oral argument is denied , as in our opinion the record In-
cluding exceptions and briefs adequately presents the issues and positions of the parties.
152 NLRB No. 106.
COMFORT, INC. 1075
school. Foreman Netzley asked Benedict if the latter might return
to work after completing his errand. When Benedict said he could not
return, Netzley granted him permission to leave. Prior to his depar-
ture from the plant, however, Benedict remembered that he had failed
to fill out a certain yellow slip and consequently returned to the work
area where he saw Netzley conversing with Plant Superintendent
Pannell. Netzley called over Benedict at this time and discharged
him, allegedly because he had twice requested permission to be excused
from overtime work.
Assuming that Benedict's conduct is generally deemed by Respond-
ent to be adequate cause for discharge, the testimony of the Company's
two supervisors demonstrates that Benedict was not discharged because
he twice requested early release from work. Thus, both Pannell and
Netzley testified that they had decided on the morning of October 16
to discharge Benedict. At this time, however, Benedict had made only
the one request for early release to attend a National Guard meeting.
Respondent does not contend that Benedict was discharged because of
his first request, and indeed, it cannot because this request was approved
as being for a proper purpose-approved without hint or warning that
the practice was frowned upon and that repetition of the request would
result in discharge. Furthermore, if the decision had already been
made to discharge Benedict, it is difficult to comprehend why Netzley
did not inform Benedict that afternoon when a request was made for
a second early release. Instead, Netzley sought to have Benedict return
from his errand and continue the overtime work, and only informed
him of the discharge when Benedict, by chance, returned to the work
area before he left the plant. Such conduct by Respondent is com-
pletely inconsistent with its explanation that Respondent had already
concluded that Benedict should be discharged.
Pannell, in support of his claim that Benedict was discharged because
of his failure to work the necessary hours, testified that Benedict in less
than 2 weeks left work early "several times" and "a half dozen times"
before his discharge. Neither Netzley's testimony nor other evidence
in the record supports these statements. Netzley testified that Bene-
dict had requested early release on only two occasions. If other
requests for early release had been made, it does not seem likely that
Netzley would have overlooked these matters in his testimony. Addi-
tional testimony by the two supervisors, which we see no reason to
recount in detail, the Trial Examiner properly dismissed as being
"beyond belief," "confusing and inconsistent," and "in part palpably
false." Respondent's evidence not only fails to support its claim that
Benedict was discharged for cause, it exposes the pretextous character
of the reasons assigned for the discharge.
Accordingly, as Respondent has not shown any credible evidence as
to the reasons for Benedict's discharge, the General Counsel's case
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stands unrebutted and contrary to the Trial Examiner we find that
Benedict was discharged because of his union activities in violation of
Section 8 ( a) (3) and (1) of the Act.
Similarly, the record supports a conclusion that employee Palmer
was discharged because of his union activities. The Trial Examiner
found that Palmer was a "union leader," that he was active in circulat-
ing union cards, and that his name appeared on Last's list of union
button wearers. The evidence also reveals that Foreman Bennett was
aware of Palmer's association with the Union and was so angered by
Palmer's union activities that he once attempted to enlist an antiunion
employee 's help in a scheme designed to entrap Palmer in a fight so as
to furnish a pretext for the discharge of Palmer. Furthermore,
Respondent Vice President Burkhiser, in his surveillance of the union
meeting on October 3, observed Palmer's car near the union hall and
reported this fact to Foreman Bennett.
On October 30, a union meeting protesting the discharge of employee
De Geus was held and attended by approximately 48 employees, all of
whom failed to report to work on that day. This day marked the first
day of the strike. Two days later, when employee demands had not
been met, the strikers commenced picketing Respondent's plant. The
record shows that Palmer did not report to work on the first day of the
strike and participated in the subsequent picketing.
The Trial Examiner concluded, however, that the General Counsel
failed to prove his case because there was no direct evidence that
Palmer's absence on October 30 was related to his participation in the
strike and in view of Palmer's earlier unexcused absences in the month,
Respondent could properly discharge him for cause pursuant to its
absentee rule. The absentee rule states that successive unexcused
absences can be the basis for a discharge. In the Trial Examiner's
view, if Palmer had been on strike, the discharge for an unexcused
absence would have been unlawful, but if he had been absent for other
reasons, it would not have been unlawful.
We agree, of course, that Respondent may properly discharge an
employee for unexcused absences. However, an employer is not enti-
tled to terminate an employee where the employee's absence was because
of lawful strike action, even though the employer was unaware of such
statutory justification for the absence; 2 nor may an employer lawfully
discharge an employee because it believed the employee to have been
absent for participating in a protected strike, regardless that this
employee had not been so engaged 3 Although Palmer appeared on
the picket line a day or two after the strike's inception, the record does
not clearly establish his strike participation on October 30. The law-
fulness of his discharge turns, therefore, on Respondent's motivation
2 N.L R B. v. Burnup and Sims, Inc., 379 U.S. 21.
3 Cf. Gibbs Corporation, 131 NLRB 955 , 962, enfd 308 F. 2d 247 (C A. 5).
COMFORT, INC. 1077
in terminating him. Rarely is there direct evidence on such issues 4
and we accordingly must resolve the matter upon consideration of all
the surrounding circumstances.
Our inquiry into Respondent's motivation begins with the fact of
Palmer's unexcused absences earlier in October. Balanced against that
fact are the following considerations : Respondent's treatment of all
absences for reasons of strike activity as "unexcused" absences;
Respondent's failure to inquire concerning the reason for Palmer's
October 30 absence; and Respondent's demonstrated intent to rid itself
of Palmer because of his prominent role in union activities, even going
so far as soliciting another employee shortly before October 30 to pick
a fight with Palmer, to provide a pretext for discharging Palmer.
The circumstances clearly show, in our opinion, that Respondent
associated Palmer with the strike on October 30 and that it discharged
this leading union adherent for union considerations, thereby violating
Section 8(a) (3) and (1) of the Act.
THE REMEDY
The Respondent excepts to the Trial Examiner's recommendation
that it be ordered to reinstate the striking employees and make them
whole for loss of wages suffered from the date of November 19, 1963,
the date on which the Union proposed that the striking employees
return to work. Respondent contends, in essence, that the offer to
return to work was conditioned on the return of a nonstriker, DeGeus,
and therefore created no obligation on Respondent's part to offer the
strikers reinstatement, and that, in any event, as it had replaced 28
strikers, it was under no obligation to offer reinstatement to more than
13 employees whose jobs had not been filled by replacements, and that
it, in fact, did offer to take back 13 employees.
We agree with the Trial Examiner that the strikers are entitled to
reinstatement and to backpay for the period commencing Novem-
ber 19, 1963, the date on which they offered to return to work.
The record shows that on November 18, 1963, representatives of the
Respondent and the Union met to discuss the Union's proposal that
"all employees that are outside return to work tomorrow morning,
November 19, 1963." At that meeting, there was some discussion as to
whether the proposal included all of the employees who had been dis-
charged prior to the strike as among those offering to return to work.
While there is some conflict between the testimony of Plant Manager
Last and Union Business Representative Slavins as to what was said
concerning this matter, their testimony indicates that both parties
understood that the proposal did encompass DeGeus and Palmer as
within the group of "outside employees" whose return to work was pro-
' F. W. Woolworth Company v. N.L.R.B., 121 F. 2d 658, 660 ( CA. 2).
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed . Pursuant to a request of Slavins, Last responded by letter
delivered to the employees prior to a meeting they had scheduled for
2 p.m. that day. The letter made reference to "your proposal that `all
employees that are outside return to work tomorrow morning"' and
stated that because of "excess absenteeism," Respondent had perma-
nently replaced 28 "former employees," but had openings in 13 posi-
tions as indicated in 2 lists attached to the letter.5 The letter then
stated that Respondent "would consider the applications of any of our
former employees who had previously done [the work of the positions
in which it had openings]" and that it also would "accept ... job appli-
cations from any others for consideration in filling future vacancies."
Respondent's offer to consider its "former employees" application was
rejected by the strikers.
It is apparent from the foregoing that Respondent accepted the
Union's proposal as an offer by the strikers to end their strike if they
were taken back to work. Thus, though Respondent questioned the
Union as to whether DeGeus was included within the group offering to
return to work, it did not reject the proposal on the ground that
DeGeus' inclusion made the proposal a conditional offer to return on
the part of the individual strikers." Instead, directing its response
only to the strikers listed on the two lists, Respondent informed them
that it was willing to accept the application of these "former employ-
ees" and would consider such applicaions in filling present and future
vacancies. Viewed against the background of Respondent's letter of
November 2, 1964, which informed the strikers that, if they continued
to absent themselves from work, their employment records would be
closed with the notation that the strikers had "voluntarily quit," and
its later notice to each striker that such notation had indeed been placed
in his file, and the file marked closed, it is apparent that Respondent's
reply to the employees' offer to return was the final and conclusive
notice to the strikers that Respondent had discharged them for strik-
ing in violation of Section 8(a) (3), as found by the Trial Examiner.
Moreover, such reply, by indicating that even the 13 "unreplaced"
strikers were to be regarded as merely applicants for new employment,
5 A comparison of the 2 lists reveals that 7 employees who were included in the list of
28 had the same job classifications as did 5 employees included in the list of 13 Review
of the lists also reveals that names of the employees whose discharges were litigated in
this case as independent violations of Section 8(a) (3) were not included on either list.
O Whether the Union 's proposal was in fact conditioned on the return to work of
DeGeus, as the Trial Examiner found, is open to some doubt, for it is at least arguable
whether the discussion between Last and Slavins settled anything more than that De-
Geus was one of the employees who was offering to return to work unconditionally.
However , in view of Respondent 's apparent acceptance of the offer as indicating the
willingness of the strikers to return to work if they were put back to work, we deem it
unnecessary to determine whether the Trial Examiner 's finding, to which no exceptions
were filed , is correct.
COMFORT, INC. 1079
demonstrated not only that the discharges were not simply a tactical
maneuver designed to induce the employees to end their strike and
return to work, but that any offer to return to work, however phrased,
was futile for purposes of achieving the full reinstatement to their
former status to which they, as unfair labor practice strikers, were
entitled.
In view of the foregoing, we find that, as Respondent accepted the
strikers' offer as a sufficient indication of their readiness to return to
work, Respondent was therefore obligated to offer the strikers full and
unconditional reinstatement to their former positions. This it did not
do, and we therefore find that the strikers were entitled to reject
Respondent's offer to consider them as applicants for present and
future vacancies, without forfeiting their right to backpay from the
date of their offer to return to work.7 Accordingly, we shall order
Respondent to offer to reinstate the strikers and to make the strikers
whole in the manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy," for any loss of pay suffered by reason
of the discrimination practiced against them from and including the
date of November 19,1963. In applying the terms of our order, Palmer
shall be treated as a discriminatorily discharged striker."
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
Respondent, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order with the
following modifications.
1. Substitute the following paragraph for paragraph 2(b) of the
Recommended Order :
"2(b). Offer to reinstate Donald Coltrain and James Benedict and
each of the employees named in the attached Appendix A, as well as
Floyd Palmer, to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and
make each of them whole in the manner described in the portion of the
Trial Examiner's Decision entitled `The Remedy' for any loss of earn-
ings suffered by reason of the discrimination against them."
7N.L.R B. v. Poultrymen's Service Corporation, 138 F. 2d 204, 210 (C.A. 3) ; Corning
Glass Works v N.L.R.B., 129 F. 2d 967, 969 (C.A 2).
'We find it unnecessary to determine at this time whether striker Gary Caldwell was
guilty of misconduct so as to forfeit his right to reinstatement and/or backpay from
the period of the alleged misconduct. That issue can be determined more appropriately
in the compliance stage of this proceeding.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute the following paragraph for the second paragraph
of the Notice To All Employees : s
WE WILL OFFER Donald Coltrain his former job and pay him
for wages he lost since October 2, 1963, and James Benedict his
former job and pay him wages he lost since October 16, 1963.
6 Add the following immediately below the signature line at the bottom of the notice:
NOTICE.-We will notify Donald Coltrain and James Benedict and each of the
employees named in the attached Appendix A, as well as Floyd Palmer , if presently
serving In the Armed Forces of the United States, of their right to full reinstatement
upon application in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948 , as amended , after discharge from the
Armed Forces.
The telephone number of Region 18 given below the signature line at the bottom of the
Appendix is amended to read: Telephone No. 334-2011.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Frederick V. Reel at Ottumwa , Iowa, on
January 27 through 31, 1964,1 pursuant to a charge filed October 8, 1963,2 and a
complaint issued November 12 (and substantially amended at the opening of the
hearing), presents questions as to whether Comfort, Inc., herein called the Company
or Respondent , engaged in unfair labor practices violative of Section 8(a)(1), (3),
and (5 ) of the Act. Upon the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of the exhaustive briefs filed
by able counsel for Respondent and for General Counsel , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY , AND THE LABOR ORGANIZATION INVOLVED
Respondent is an Iowa corporation engaged at Ottumwa in the manufacture and
sale of reclining chairs. Its annual interstate sales are in excess of $ 1,000 ,000, and
it is admittedly engaged in commerce within the meaning of Section 2 ( 6) of the
Act. International Association of Machinists, District Lodge 105, AFL-CIO, herein
called the Union , is admittedly a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction-the managerial hierarchy and the chronology of events
The operating head of the Company since its inception has been Robert Last; his
chief lieutenant is Clair Burkhiser . On September 17, 1963, a plant superintendent
was added to the staff, Ross Pannell. Other supervisors include Foremen Wayne
Netzley and Robert Bennett, Forelady Lena Ream, and Jerry Rankin, who at the
time of the events in question was head of "quality control" and was concededly a
supervisor . The Company had approximately 70 production and maintenance
employees in the latter part of September 1963 when the union drive started.
1 The issuance of this Decision has been unavoidably delayed by the delay in receiving
the typewritten transcript . The transcript of the last day's testimony was not received
until the latter part of April, and briefs were filed on May 11 The transcript indicates
that the last two volumes were transcribed by a reporter other than Murphy, who
attended the hearing and took it down in shorthand This circumstance undoubtedly
accounts for some of the numerous errors in the typewritten record, notably the use of
the names Voss and Welk, which should read , and are hereby corrected to read, Ives
and Wilt , respectively . I also note and correct the following material errors : page 342,
line 12, change "30" to "12" ; page 008, line 14, change " Coltrain" to "Last " ; page 707,
line 7 , change "Exhibit" to "September " This by no means exhausts the errors in the
transcript , but I am of the view that it is sufficiently accurate and intelligible to permit
of adequate review. The parties may, if they are so disposed , stipulate to further correc-
tions and move the Board to accept such a stipulation.
2 All dates herein refer to the year 1963 unless otherwise indicated.
COMFORT, INC. 1081
Organizing efforts commenced September 23, and by September 26 the Union had
obtained authorization cards from 38 employees. By the end of the first week in
October nine more cards were signed . The leader of the organizational effort was
Donald Coltrain, whose discharge on October 2 is discussed below. On that same
date the Company received from the Minneapolis office of the Board a copy of a
representation petition filed by the Union on September 30. The petition recited,
inter alia , that the Union had requested recognition on September 26 and had
received no reply; actually the Union's initial request for recognition was contained
in its letter dated September 30 to the Company which received it October 3.
On the evening of October 3 the employees held a union meeting; the allegation
that Burkhiser spied on this meeting is discussed below. The next morning a num-
ber of employees wore union buttons at work; Last compiled a list of those he saw
wearing buttons. On October 14, 15, and 29, the Company discharged employees
William Wilt, James Benedict, and Frank DeGeus, respectively. Each of these
discharges is alleged as an unfair labor practice and is discussed more fully below.
Various other statements and actions by the Company during October are likewise
alleged as unfair labor practices, including, inter alia, its refusal to recognize the
Union as the employees' bargaining representative.
On October 30 approximately 45 employees went on strike and picketing com-
menced shortly thereafter. The Company notified each of the strikers that he would
be regarded as having "voluntary quit" if he remained absent after November 5. One
employee, Palmer, who had two previous unexcused absences, was discharged for
his absence on October 30 on the theory that he had a third unexcused absence on
that day. On November 18, the strikers offered to return to work, but the Company
replied that a number of them had been replaced. The employees continued on
strike, and the question whether the offer to return on November was "unconditional"
is discussed below. In January 1964 employees Feehan and Ives made unconditional
applications for reinstatement but were advised that they had been replaced.
With this brief survey of the course of events we turn to a more detailed consid-
eration of the incidents alleged to have violated Section 8(a)(1), or (3), or (5).
B. Interference, restraint, and coercion
1. Last's list
The employees wore union buttons to the plant for the first time on October 4.
That morning Last, the operating head of the business, went to each employee wear-
ing a button and compiled a written list of the button wearers, writing the employee's
name on the list in the presence of the employee. The first name on the list was that
of James Benedict, who had started work the day before; Last asked him his name
and wrote the word "new" next to it. In the course of compiling his list, which
totaled 41, Last asked many of the employees if they had signed union cards. Last
testified that his manner on this occasion was friendly and jocular (qualities which
were not apparent to the employees he was accosting) and that his purpose (which
he at no time disclosed prior to the hearing) was to ascertain whether the Union
enjoyed the majority status it had claimed in the representation petition he had
received from the Board the day before. I find that Last's conduct on this occasion
constituted interference, restraint, or coercion violative of Section 8(a)(1). Com-
ing as it did on the heels of Burkhiser's surveillance of a union meeting (discussed
below) and in the light of the subsequent violations of the Act herein found, Last's
conduct cannot be dismissed as mere isolated interrogation, and it certainly cannot
be equated to the secret poll in N.L.R.B v. Protein Blenders, Inc., 215 F. 2d 749
(C.A. 8), cited by the Company. The Company argues that Last was entitled to
ascertain the extent of the Union's strength, pointing out that the Union's business
agent, Slavens, refused to produce the cards turned in by the employees. But at the
time Last compiled his list, Slavens had not communicated with Last, and the latter
could scarcely have anticipated the later refusal. Moreover, a mere check of the
Union's numbers would not have required Last to write the names of the employees
wearing buttons.
2. Burkhiser's spying
The night before the above episode, the Union held a meeting for the company
employees at the union hall in Ottumwa. Originally scheduled for 4 p.m., the meet-
ing was delayed until 6, as some of the employees had to work overtime. During
the afternoon hours between 3 and 6 a number of employees saw Burkhiser in the
vicinity of the union hall. For a period of time he was standing on a street corner
nearby, and thereafter he was observed sitting in his car, first in a parking lot next
to the hall and later on the street a block away and facing it. Burkhiser, admitting
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was in the vicinity on that occasion , testified under oath that he was unaware
of the meeting or even of the location of the union hall at the time, and that he
spent the afternoon in that area ( a) getting his car greased at the service station
which happened to be next to the union hall, (b) going to the bank, which he dis-
covered was closed from 2 to 6 p.m. that day, (c) waiting on a street corner for
the better part of an hour in a vain effort to find a particular friend with whom he
hoped to plan a hunting trip some 3 weeks later, (d) placing an order for plate glass,
and (e ) parking and waiting for his hunting friend, in a mistaken impression that
he had found the latter's car. Finally, according to Burkhiser, he drove to the post
office where he found his hunting associate, talked to him for 30 or 45 minutes, and
proceeded to the bank at 6. Burkhiser testified that he had seen only one of his
employees , Marvin Masters, that afternoon.
Burkhiser's story, in short, is that he, a busy plant executive who normally stayed
close to the plant during working hours, or hurried back to it if he had to go down-
town , merely happened to choose the day of a union meeting to spend 3 hours loit-
ering near the union hall, waiting for a bank to open, and hoping to encounter a
friend to plan a hunting trip for 3 weeks later. Perhaps the story is not incredible
on its face . But its falsity is revealed by the testimony of Foreman Bennett, a wit-
ness called by the Company, who testified that on the day following the meeting in
question he told Burkhiser that some of the employees at the meeting the preceding
day had seen Burkhiser there, to which Burkhiser replied that he had been there,
had seen employee Stevens go in, and had also seen employee Palmer there. Recalled
as a witness by the Company, Burkhiser testified that he had noted the automobiles
owned by Stevens and Palmer in the area on the afternoon in question because their
cars are particularly conspicuous, and he remembered mentioning this to Bennett.
On this state of the record, I find that Burkhiser spied on the union hall on the
occasion in question , and in the light of his sworn testimony on this matter, read in
the light of the entire record, I find him totally unworthy of belief and to be cred-
ited only where his testimony is corroborated by other, more reliable witnesses. The
espionage , of course, plainly violated Section 8(a) (1) of the Act.
3. Other alleged prestrike violations of Section 8(a) (1)
Testimony of General Counsel's witnesses establishes that Forelady Ream had
told employee Terrell late in September that Ream was afraid the advent of the
Union would "cause trouble and cause the doors to be closed," that Foreman Bennett
asked employee Roy Hobbs what the latter thought about the union buttons and
whether certain named employees were for the Union, and that Superintendent
Pannell inquired of employee Feehan why the latter was wearing a union button.
Roy Hobbs further testified that Bennett, on learning that Hobbs had received a
union button from Floyd Palmer, told Hobbs he "ought to stuff it down [Palmer's]
neck," and later suggested that if Hobbs could provoke a fight with Palmer, both
would be fired, but Hobbs would probably be hired back and probably be paid while
he was off. I credit the testimony of Terrell, Hobbs, and Feehan summarized above,
and find that in these incidents the Company interfered with, restrained, and coerced
employees in the exercise of their statutory rights, thereby violating Section 8(a)(1).
Considerable testimony at the hearing concerned the reactions of employee Kathy
Hobbs to the Union, and conversations she had with Last and with her neighbor,
Jane Allen, who was Last's secretary. Without detailing all the testimony, it suffices
to note that I credit Mrs. Hobbs insofar as she testified that at Last's suggestion,
relayed to her through Allen, she attended several union meetings and reported back
to Last or Allen what had been said at the meetings. In directing Mrs. Hobbs to
serve, to this extent, as a spy on the union meetings, the Company further violated
Section 8(a) (1) of the Act.
The interrogation, espionage, and threats described thus far by no means exhaust
the allegations of interference, restraint, and coercion leveled against the Company.
I see no need, however, to go into further alleged violations of Section 8(a)(1)
(except insofar as they relate to other topics discussed below) as findings thereon
would add nothing to the remedial order recommended below. The violations already
found require a broad cease-and-desist order designed to prevent any future inva-
sions of employee rights.
C. The individual discharges
1. Coltrain
Donald Coltrain, who had spearheaded the union drive between September 23 and
26, was discharged October 2, allegedly for unsatisfactory work. The issue, of
course, is whether his union activity was a motivating factor in his discharge.
COMFORT, INC. 1083
I reject the Company's claim that it was unaware of Coltrain's union activity at
the time of his discharge. I find that Coltrain and other employees had discussed
the Union with Jerry Rankin, a supervisory employee, on September 25 (as testified
by Coltrain, Union Business Agent Slavens, and employee Muchow), rather than
after Coltrain's discharge (as testified by Rankin).3 It should also be noted that Col-
train's union activities were far from surreptitious, and that as early as September 27,
Forelady Ream spoke to employee Terrell about the union movement in the plant.
General Counsel also points out that Mrs. Hobbs, who had signed a union card at
Coltrain's urging on September 24, advised Allen of the card signing, and Allen told
Last, but I cannot find any support in the record for General Counsel's claim that
Hobbs told Allen on September 24 or on any other date before Coltrain's discharge;
Last's testimony would place the date of the Hobbs-Allen conversation about Octo-
ber 10. In any event, I find that the Company was aware of Coltrain's leadership
of the union drive (he obtained the signatures of nearly half the 70 employees
between September 23 and 26) at the time of his discharge the afternoon of October
2, the day the Company learned of the Union's petition to the Board.
The Company presented testimony by Coltrain's supervisor, Wayne Netzley, that
Coltrain was discharged on October 2 at Pannell's direction because of a failure to
keep the work place clean and because of mistakes he was making in "blowing
backs." Netzley also testified that both Pannell and Burkhiser told him that after-
noon that they had discussed with each other the discharge of Coltrain. According
to Netzley, he had had occasion to speak to Coltrain about the latter's work deficien-
cies from time to time, and Coltrain "took it [the criticism or suggestion] all right"
and "generally speaking" followed Netzley's advice.
Pannell testified that he had not discussed the discharge with Burkhiser that day,
and also that Netzley had reported to him that Coltain resented correction. These
inconsistencies between Pannell's testimony and Netzley's do not, of course, enhance
the Company's case. In general I regard Pannell as a thoroughly untrustworthy and
unreliable witness, a judgment resting in part on his demeanor, in part on the incon-
sistencies just pointed out between his self-serving testimony and the contrary testi-
mony of Netzley, and in part on the inherent improbability that within 2 weeks
after he reported to this new job he was able to observe the impact of absenteeism
on production, establish and change production quotas, put into effect several new
piecework rates after studying each job, and still form a final judgment on Coltram's
capacity and attitude.
Finally, with respect to Coltrain, the record is clear that he shared responsibility
for both the back work and the "housekeeping" with one Julius Tortat, and indeed
had trained Tortat in the work. Netzley corroborated the testimony of Tortat and
Coltrain that there was no way of ascertaining which of them was at fault in these
respects at any given time. Netzley further testified that on the day of the dis-
charge the "housekeeping" was not unusual , and that the particular work of which
Pannell complained might have been done by either Tortat or Coltrain. Indeed,
Tortat thought he had done most of the backs at this time , but neither Pannell nor
Netzley investigated the matter or warned Tortat at the time Coltrain was discharged.
The Company points to other matters, notably Coltrain's tendency to spend exces-
sive time in the washroom, and the fact that he had been discharged the preceding
February for unsatisfactory work in another department. Neither of these matters
appears related to his discharge on October 2.
In sum as to Coltrain, no credible reason appears for Pannell's singling him out
for discharge on this date other than his leadership of the union drive. I find that
he was discharged for this activity, that the excuse advanced by Pannell at the time
and at the hearing was fictitious, and that the discharge violated Section 8(a) (3) and
(1) of the Act.
3 The credibility resolution, which is vital, has not been easy. Unlike some of the
company witnesses (notably Burkhiser and Pannell), Rankin did not by either the con-
tent or manner of his testimony strike me as inherently and totally unworthy of belief.
On the other hand, I also find no basis in demeanor for discrediting Slavens, Muchow,
and Coltrain. Rankin claimed that he learned of Coltrain's discharge at this meeting.
I reject this testimony because in Rankin's version this fact came out casually and in-
cidentally during the conversation, and it is highly unlikely that the matter would have
been so submerged if in fact Coltrain had been discharged that day, allegedly for poor
work, especially as Rankin was in charge of quality control. Also, Coltrain, Muchow,
and Slavens were engaged in joint activities on September 25 ; there is no evidence, other
than Rankin 's, that they were so engaged on October 2.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Wilt
William Wilt was hired September 23 and discharged October 14, allegedly because
he was the junior man in his department and the Company discovered it could spare
him. Wilt had signed a union card and his name appears on the list of union button
wearers which Last compiled on October 4. General Counsel's affirmative case
amounts to no more than that, but he also notes that the Company retained several
employees junior to Wilt and hired three new employees in October after Wilt's
discharge. Judging by their clock numbers (cf. General Counsel's Exhibits Nos. 12
and 28), the retained junior employees and the new employees were not in Wilt's
department. General Counsel also points to an alleged inconsistency in the Com-
pany's defense, as Wilt testified that at the time of discharge he was engaged in
springing, rather than with helping, Roy Hobbs on setup, and it was Hobbs' productiv-
ity that enabled the Company to let one man go. The testimony of Foreman Bennett
is in conflict with that of Wilt; according to Bennett, Charles Cary and Wilt were on
setup work, and when Cary moved to springing, the experienced Hobbs came to
work with Wilt and rendered Wilt's work unnecessary. Even if Wilt's version be
credited, however, the evidence shows that at one time he and Cary were considered
in the same department, and Cary, who was Wilt's senior in employment, was
retained. The most that can be said for General Counsel's case is that the Company's
union animus and the suspect quality which I attach to any testimony or action by
Pannell gives rise to a suspicion of discrimination against Wilt. I therefore recom-
mend dismissal of the complaint as to him on the ground that General Counsel failed
to sustain his burden of proof.
3. Benedict
James Benedict worked for the Company from October 3 to 16, inclusive. On
October 4 Last saw Benedict wearing a union button, asked him his name, and wrote
it on the list of button wearers with the notation "new." Benedict's was the first
name on the list. Although this circumstance rendered him a slightly more marked
employee than the other 40 on Last's list, the real strength of General Counsel's
case arises out of the peculiar circumstances attending Benedict's discharge, and the
testimony of Foreman Netzley and Plant Superintendent Pannell concerning it.
Although Benedict's department was working overtime, he asked and received
permission to leave work at the regular quitting time on October 15 to attend a
National Guard dinner meeting. Shortly before the end of the regular shift on
October 16, he again asked permission not to work overtime with the others, explain-
ing that he had to call for his sister at school. Netzley, after trying unsuccessfully
to get him to agree to return later that afternoon, gave him permission to leave, but
Benedict after going to punch out remembered that he had failed to fill out a certain
yellow slip and returned to his work area to do so. He saw Netzley conversing with
Pannell, and Netzley then called him over and discharged him for refusal to work
the hours Netzley needed. Thus far, the incident appears to furnish a valid ground
for discharge, but the problem arises out of Netzley's and Pannell's testimony that
they had decided that morning to discharge Benedict that day. If this were true,
why did Netzley give him permission to leave at the end of the day and say nothing
about discharging him until Benedict chanced to return, unexpectedly, to the work
area? And Pannell's contribution to the situation, as usual, was less than helpful;
he testified on cross-examination that Benedict in his less than 2 weeks' employment
left work early "several times," "certainly" "a half dozen times before [the last epi-
sode]." Netzley made no mention of any such practice, but on the contrary testified
specifically as to Benedict's departure on two occasions. It is beyond belief that if
Benedict had any such record Netzley would not have mentioned it, that the Com-
pany would not have developed the fact on direct examination of Netzley and Pan-
nell, and that it would have failed to produce all Benedict's timecards to justify so
patent a cause for discharge, instead of merely producing the last one. On the other
hand, the Company should not be unduly penalized because of Pannell's proclivity
to prevaricate. Netzley's testimony is also confusing and inconsistent; less than 35
lines of testimony separate his statement that he had not talked to Pannell in the
afternoon of October 16 with respect to Benedict from his statement that he had.
The case is made no clearer by the fact that the termination notice, prepared by
Netzley and approved by Pannell (but not signed by Benedict), is dated October 15,
the day before the last day of Benedict's employment.
In brief, Benedict, a known union adherent, gave the Company good cause to
discharge him by making two successive requests for early release within the first 2
weeks of his employment. The issue is whether the Company in discharging him
was motivated in part by his union activity. Although the circumstances give rise
COMFORT, INC. 1085
to considerable doubt, and although the testimony in support of the Company is in
part palpably false, I am constrained to find that here again the evidence does not
preponderate in favor of General Counsel's case, and I recommend dismissal of the
complaint as to Benedict.
4. DeGeus
Frank DeGeus, discharged October 29 after 18 months' employment, signed a
union card, wore a union button on October 4, and like 40 other button wearers was
noted as such on Last's list. On October 28 his wife telephoned to report that he
would be absent because he had to take their sick child to the doctor in a nearby
town. When the child improved, the visit to the doctor was canceled, and DeGeus
took his car to the garage for repairs instead of coming to work. When these cir-
cumstances came to light, the Company discharged DeGeus, who had received two
prior disciplinary notices for unexcused absences that month. The Company felt
that DeGeus had been something less than candid concerning his absence on Octo-
ber 28, and quite apart from the fact that I tend to share that view, nothing in the
record suggests that DeGeus' union activity was such as to cause him to be singled out
for discriminatory treatment. I find that DeGeus was not discharged for union
activity, and recommend that the complaint as to him be dismissed.
5. Palmer
Floyd Palmer had been guilty of unexcused absences on October 10, 16, and 17.
When he failed to report for work on October 30 he was discharged for absenteeism.
October 30, however, was the first day of the strike, and Palmer was only 1 of some
45 eniployees without excuse. Under the Act, however, the employees were immune
from discharge based on their having struck. In other words, if Palmer's "unexcused
absence" on October 30 was the result of his having gone on strike that day, the
discharge was unlawful. If his absence that day were occasioned by some other
cause (e.g. drunkenness, as on an earlier occasion that month), the discharge would
be lawful.
The record is devoid of direct evidence as to why Palmer was not at work on the
crucial day. Picketing commenced 2 days later, and he was among the first to picket.
He had also been active in circulating union cards. His name appeared on Last's
list of union button wearers. Foreman Bennett knew that Palmer had circulated
cards, and once suggested a plan for getting rid of Palmer, and Burkhiser eventually
remembered having seen Palmer's car near the hall on October 3 and mentioning
the fact to Bennett the next day. Palmer's name was included as an alleged discrimi-
natee in the second amended charge filed November 18; he was named as a dis-
charged striker in the complaint issued December 12, and his name was added to
the list of individual discriminatees by amendment at the opening of the hearing
While the facts of record as to Palmer establish that he was a union leader, and
hence furnish strong reason for inferring that his absence on October 30 was the
result of participation in the strike, they are not conclusive on the matter. Only 2
weeks before he had been absent drunk, but had the strike occurred then, all the
factors which would lead to an inference that he was participating in the October 30
strike would have been equally present on October 16. To be sure, it is permissible
to draw inferences, and circumstantial evidence may be probative. But General
Counsel put on witnesses for over 2 days and closed his case without producing
Palmer himself, and without eliciting a word of testimony that established Palmer's
participation in the union meeting on the day of the strike. Under the circum-
stances, I find a failure of proof as to Palmer, and recommend dismissal of the
complaint as to him. I should add that if reviewing authorities find otherwise, any
backpay for Palmer would be subject to the limitations spelled out below with respect
to the other strikers, for Palmer's status was at best that of a discharged striker.
D. The strike and the status of the strikers
On October 29, the day DeGeus was discharged, several of the employee union
leaders arranged with Don Slavens, the Union's business representative in Ottumwa,
to hold a meeting on the morning of October 30. Approximately 48 employees
attended the meeting. At the meeting a committee was selected to meet with man-
agement, and at 11 that morning management met with the committee at the }plant.
Management at this meeting made clear that it was not recognizing or dealing with
the Union, but rather with a group of employee representatives. Various grievances
and working conditions were discussed, including DeGeus' discharge, after which the
meeting adjourned at 1:50 p.m., and the committee returned to the union hall to
report to the assembled employees. After a short meeting, the employees sent DeGeus
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and employee Max Stevens back to the plant for a further discussion of DeGeus'
case, and the employees again waited at the hall. When DeGeus and Stevens returned
with a report that the Company "would consider the situation in the next few days,"
the employees were dissatisfied and decided to remain away from work.
Also on October 30 the Company sent letters to each of the employees absent that
day stating in part: "Your unexcused absence today was noted by a pink slip being
put in your file. Continued absence will result in additional notices being included
in your file."
On October 31, the employees, some 45 in number, met at the union hall in the
morning and decided not to go to work, but to proceed to the plant that afternoon,
which was payday, to collect their checks. At the plant, the employees waited out-
side, and were called into the office in groups of two and three, at which time they
were handed their checks together with another warning notice about not calling in.
On November 1 the employees commenced picketing the plant. On November 2,
the Company sent letters to the absent workers noting their successive days of
absence and stating, "We must therefore assume that you have voluntarily quit your
employment with Comfort, Inc." The letter continued:
As of this writing we have not closed our file on your employment record.
However, if you ... continue to absent yourself . . . after 7:00 a.m. Tuesday
morning, November 5th, we will have no choice but to believe that you have
voluntarily quit your employment with Comfort, Inc., without notice, and your
employment record will be so marked and our file closed on your employment.
On November 5 or 6 Union Representative Slavens conferred with Company
Counsel Webber, discussing, inter alia, the possibilities of a card check, a consent
election, and the reinstatement of Coltrain, DeGeus, Palmer, Wilt, and Benedict (see
General Counsel's Exhibit No. 21). They came to no agreement and the strike con-
tinued. On November 7 the striking employees again went to the plant for their
paychecks, and again the Company called them into the office one or two at a time
to hand them their checks. On this occasion each of the 43 strikers (not including
Palmer) received together with his paycheck a form headed "Notice of Change in
Employment Status." The notice, dated November 5, recited that the "employee is
considered a voluntary quit, without notice, since he failed to report for regularly
scheduled work on Oct. 30, Oct. 31, Nov. 1, Nov. 4 and Nov. 5, all in the year 1963.
Employee failed to notify company of any reason for absence."
Between the start of the strike on October 30 and November 5 the Company hired
only two new employees. Between November 6 and 17, however, the Company hired
21 new employees, and it added 6 more on November 18. On that date the striking
employees offered to return to work. It is clear from the testimony that their offer
did not encompass Coltrain, Wilt, and Benedict, who were the subject of an unfair
labor practice charge filed October 29, but it did encompass DeGeus and Palmer,
who were first named in a charge filed in Minneapolis on November 18. The Com-
pany considered the mass application and replied by letter on that date that because
of the "excess absenteeism" it had permanently replaced 28 employees but had jobs
open for 13. The Company offered to "consider the applications" of former employ-
ees for the 13 jobs, and "to accept ... job applications" from any others for consid-
eration in the filling of future vacancies? The employees decided to reject the offer
and continue the strike Two months later, one of the strikers, Helen Carnes, applied
for employment at the Company and was hired; the record is not clear as to whether
she was "reinstated" in terms of enjoying seniority and other rights based on uninter-
rupted employment. About the same time; i.e., in January 1964, two other strikers,
Feehan and Ives, applied for reinstatement but were told their old positions were
filled and that they would be given preferential treatment over other applicants as
soon as openings occurred.
On these facts it seems clear that the Company violated Section 8(a) (1) of the
Act by threatening to discharge employees for continuing to strike and violated
Section 8(a)(3) of the Act by discharging them for striking. See, e.g., N.L.R.B. v.
David G. Leach and Doyle H. Wallace d/b/a Brookville Glove Company, 234 F. 2d
400 (C.A. 3). The discharge of the strikers prior to their replacement was an unfair
labor practice, whether the strike be viewed as an economic strike or a strike caused
in part by unfair labor practices. I find, moreover, that although DeGeus' discharge,
4 The 43 who received the notice of November 5 Included employees Wynn and Long,
whose jobs were not listed in the Company's letter of November 18 Wynn had notified
the Company he had quit to accept another job; the record affords no clue as to the
exclusion of Long.
COMFORT, INC. 1087
which was not an unfair labor practice, was the immediate cause of the strike, the
unfair labor practices described above, including the discharge of Coltrain and the
other illegal antiunion actions, played a contributory role in bringing about the deci-
sion to strike. See Slavens' testimony that Coltrain's discharge was among the mat-
ters discussed at the union meeting on October 30, and that "a number of employees
stated if they returned to work the situation would get worse than it had been. A
number of other people would be written up and action taken against them." The
strike was therefore an "unfair labor practice strike," so that the strikers enjoyed
statutory protection against replacement as well as against discharge. (This matter
becomes academic, of course, unless reviewing authorities disagree with my con-
struction of the Company's notices to the employees as effectuating their discharge.)
On one of the early days of the picketing, Last, using an ordinary "snapshot"
camera, took pictures of some of the pickets as they were walking back and forth at
the plant entrance. None of the photographs (all of which were introduced as an
exhibit) was taken at close range, but the identity of the particular pickets can be
discerned therefrom. Last testified that his purpose was to have a record of this
event in the plant's history. One of the photographed pickets testified that she turned
her back to avoid being photographed again. Case authority appears to support
General Counsel's claim that Last's conduct violated Section 8(a) (1) of the Act,
apparently on the theory that it amounted to surveillance, or an invasion of privacy,
or gave rise to a fear that the Company wanted to identify the pickets for purposes
of later reprisal. See N.L.R.B. v. Preston Feed Co, p , 309 F. 2d 346, 351 (C A. 4),
enfg. 134 NLRB 629, 643; Radio Indushies, Inc, 101 NLRB 912, 914, 925; cf.
Newell v. Chauffeurs Union, 181 Kan. 898, 317 P. 2d 817, 828-829. The matter
does not seem to me to be of high significance, but repetition of such conduct will
be interdicted under the general cease-and-desist order recommended below.
The record contains conflicting testimony as to whether Last did or did not offer
to give Mr. and Mrs. Hobbs 2 days' pay in cash to induce them to abandon the strike,
and whether Last did or did not tell Feehan and Ives when they first broached the
possibility of returning to work that they were not to go on strike again and were to
"keep [their] noses clean." These statements, if made, violated Section 8(a)(1) of
the Act. The order recommended below will therefore furnish such protection as
the Board may give against any future such statements. A finding that any of the
statements alleged was in fact made would add nothing to the Recommended Order,
and I therefore see no need to, and do not, resolve these credibility issues at this time.
E. The refusal to bargain
As noted above the Union filed a representation petition with the Board on Sep-
tember 30, reciting therein that it had sought recognition on September 26, whereas
the Union's actual request of the Company for recognition was made in a letter dated
September 30 and received October 3. On October 4 Last ascertained that 41 of his
70 employees were wearing union buttons. On that same date company counsel
wrote the Board's Regional Office stating, inter alia, that the Company was asking
the union representative "to present his evidence of representation for an appropriate
card check," and promising company cooperation in determining the representation
question. The Union obtained authorization cards from 47 employees by the end
of the first week in October, but in accordance with the practice of this Union the
cards were mailed to its Minneapolis office rather than retained by its Ottumwa
representative.
During the latter part of October the Company considered but rejected the sug-
gestion of the Union and the Board's Regional Office that the representation matter
be disposed by a consent election. At the hearing, Last explained that he opposed a
consent election because he wanted time to campaign against the Union. While
declining to agree to a consent election, the Company requested that the Union pro-
duce the authorization cards, which, however, were no longer available in Ottumwa.
At some time during October, Last asked his supervisors to indicate their views as
to how they thought the employees would vote in an election to determine the ques-
tion of representation. Although Last testified that the report to him from the fore-
man showed a nearly 50-50 division in the plant, the actual report he compiled at
the time was introduced in evidence and shows 21 employees marked with a minus
sign and 41 marked plus. Last testified that "plus" denoted "for the Company," but
I am compelled to reject his testimony on this as the "plus" group included such
avowed and well-known prounionists as Wynn, Muchow, Terrell, and Palmer, and
the "minus" group included Mr. and Mrs. Hobbs on whom the Company relied as
being opposed to the Union. Moreover, as events proved, the "minus" and "plus"
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
groups correlated roughly with those who opposed or supported the strike, respec-
tively. As noted above, over 40 employees went on strike and were discharged
therefor.
Although the statute imposes a duty on an employer to recognize and bargain
collectively with a union which represents a majority of his employees, the law is
well-settled that an employer may lawfully refuse to extend such recognition if he
harbors a good-faith doubt that the union in fact represents a majority. The statu-
tory election machinery may then be used to resolve the question raised by the claim
and good-faith denial, respectively, of the union's majority. But where an employer,
professing a "good-faith doubt" of majority, engages in unfair labor practices pre-
venting the holding of a fair election and tending to destroy by unlawful means the
union's support, he will not be heard to assert that his alleged doubt of majority was
bona fide, and he will be required to bargain with the union if it commanded majority
support at the time of the employer's refusal or of his unfair labor practices, a fact
(majority support) which must be determined from sources other than a Board elec-
tion which the employer foreclosed by his unlawful conduct. These settled principles
control this case.
The Company, after the Union's request for recognition, engaged in the violations
of Section 8(a)(1) and (3) described in the preceding sections of this Decision.
These violations prevented the holding of a fair election, and we are reduced to
other means of ascertaining the validity of the Union's claim to majority support.
This majority is demonstrated by the union cards introduced in evidence, by Last's
list of button wearers, probably by Last's report from his supervisors as to the
Union's strength, and finally by the fact that well over half the employees supported
the Union's strike. See Southern Pine Electric Cooperative, 104 NLRB 834, 845,
enfd. 218 F. 2d 824 (C.A. 5), cert. denied 350 U S. 830; N.L.R.B. v. Harris-Woodson
Company, Inc, 179 F. 2d 720, 723 (C.A. 4); N.L.R.B. v. National Seal Corporation,
127 F. 2d 776, 777, 778 (C.A. 2).
The Company emphasizes that the Union rejected the Company's requests to see
the authorization cards which, if produced, would have substantiated the Union's
claim to majority status In the ordinary case I would be impressed by the Company's
protestations that it asked for and was not furnished this proof. But at the same
time it was unsuccessfully seeking the cards, the Company was also refusing to agree
to a consent election Of course, the Company was not obligated to agree to a
consent election, and I draw no inference from its refusal. But in the light of the
Company's determination not to consent to an election and to use time to campaign,
it can hardly complain over the failure of the Union to produce cards If the Com-
pany would not expedite the matter by the consent machinery, it follows, a fortiori,
that the producing of the cards would not have expedited recognition One may well
wonder why the Company wanted to see the cards at all, as its determination to
campaign and its rejection of a consent precludes the possibility that it would have
extended recognition based on the card showing. In any event the Company's
"campaign" took the form, at least in part, of unfair labor practices.
The Company also argues that the Union did not represent an uncoerced majority.
There is some evidence that at the union meetings immediately preceding the strike.
Slavens, the union business representative, hinted very broadly that while the strikers
should behave with decorum near the plant, they might settle their scores with strike-
breaking employees out "in a cornfield." This circumstance casts some doubt on
the proof of majority insofar as such proof rests on the fact that over 40 employees
struck. It does not, however, affect the other proofs of majority listed above. There
is also some evidence that Kathy Hobbs, one of the employees who signed a card,
wore a button, and went on strike (and, indeed, testified against the Company in this
case), had been fearful during the union campaign that if she opposed the Union, she
or her family might suffer harm Nothing in her testimony or in that of any other
witness affords any basis for such fears as she may have experienced in the prestrike
period. Accordingly, even if her own support of the Union be discounted, the record
affords no basis for any further whittling down of the Union's claims, and its majority
would be unaffected by the elimination of Mr. and Mrs. Hobbs.
In sum, it is clear that the Union had made a request to bargain, that it was press-
ing this request through October and into the early days of November, that it enjoyed
majority status throughout this time, and that the Company not only refused to bar-
gain but engaged in unfair labor practices which rendered a fair election impossible.
Under these circumstances, I find that the Company unlawfully refused to bargain
with the Union, thereby violating Section 8(a)(5) and (1) of the Act. I should add
that even if the Union had lacked a majority at the time of its original request to
bargain, a bargaining order would be appropriate here to remedy the violations of
COMFORT, INC. 1089
Section 8(a) (3) and ( 1) found above. Cf. Greystone Knitwear Corp. and Donwood,
Ltd., 136 NLRB 53, 575-576, and the last six cases cited at footnote 4 thereof, enfd.
311 F. 2d 794 (C.A. 2).
General Counsel alleges that the Company further violated Section 8(a) (5) and
(1) by changing conditions of employment during October without bargaining with
the Union. Much time and testimony was devoted to whether new rules as to absen-
teeism were first posted before or after the Union's initial bargaining request. Mani-
festly, the bargaining order and the cease -and-desist order hereinafter recommended
will encompass any future unilateral action of this nature, and I cannot see that it
serves any useful purpose to resolve the dispute as to the date for the initial posting of
the absentee rules. Unlawful unilateral action is also alleged in the granting of two
pay raises in October. At least one of these raises , the "merit increase" to Roy Hobbs,
constitutes unilateral action of the type condemned in such cases as N.L.R.B. v.
Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 745-746,
and N.L.R.B. v. I. H. Allison & Company, 165 F. 2d 766, 768-770 (C.A. 6), cert.
denied 335 U.S. 814. As just noted , however, I see no need for a specific order with
respect to this violation , which was a natural concomitant of the Company's general
refusal to recognize the Union. The same can be said of the Company' s notices to
the strikers which technically also violated Section 8 (a) (5) but which are discussed
above as violations of Section 8 (a) (3) and (1) .
CONCLUSIONS OF LAW
1. By the interrogation , espionage , and threats described above the Company has
interfered with, restrained, and coerced its employees in the exercise of their Section
7 rights, thereby committing unfair labor practices affecting commerce within the
meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act.
2. By discharging Donald Coltrain for union activity and by terminating the
employment of the striking employees on November 5, 1963, the Company engaged
in unfair labor practices affecting commerce within the meaning of Section 8(a)(3)
and (1 ) and Section 2(6) and (7) of the Act.
3. By refusing to bargain with the Union as the representative of the production
and maintenance employees the Company has engaged in an unfair labor practice
affecting commerce within the meaning of Section 8(a) (5) and ( 1) and Section 2(6)
and (7) of the Act.
III. THE REMEDY
I shall , of course , recommend issuance of an order directing the Company to cease
and desist from violating Section 8 ( a) (1), (3), and (5) of the Act. A broad order
directing the Company to stop invading the employees' rights in any manner seems
manifestly appropriate as the threats, interrogation , surveillance , and discrimination
suggest the likelihood that the Company might explore other avenues of interference
unless all are closed . Affirmatively the situation calls for an order directing the
Company to bargain with the Union upon the latter 's request , an order appropriate
not only because of the violation of Section 8(a)(5), but also to restore the status
quo ante the violations of Section 8(a)(3) and (1). With respect to the discharges,
I shall recommend the reinstatement of Coltrain with backpay from the date of his
discharge October 2, 1963. This may represent something of a windfall for Coltrain,
who would probably have joined the strike 4 weeks later, but I have been cited to no
authority which authorizes diminution of his backpay based on such speculative rea-
soning. With respect to the strikers , I find that they were unlawfully discharged on
November 5 and that they were entitled to reinstatement on application , both because
they were unfair labor practice strikers and also because they were unlawfully dis-
charged on that date. I further find, however, that their mass request for reinstate-
ment on November 18 was not an unconditional application because it included, and
was conditioned on, the reinstatement , inter alia, of DeGeus, a nonstriker .5 Whether
or not DeGeus' discharge was an unfair labor practice ( and I have found it was not),
the strikers cannot be said to have made an unconditional application for reinstate-
ment on November 18, as he was included in the request for reinstatement Although
their application was "conditional" in that sense, however, the Company in rejecting
c Palmer was also included in the application for reinstatement As discussed above,
the record fails to establish that he was on strike at the time of his discharge In view
of the clouded nature of the record as to Palmer , I have confined the discussion here
to the clearer case of DeGeus.
789-730-66-vol. 152-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the application made no reference to that "condition"; its rejection of the application
was based exclusively on the fact that a number of strikers had been replaced, and
it declined to reinstate them.
I am, of course , aware of the host of Board precedents that striking employees
get no backpay prior to their having applied unconditionally for reinstatement. But
I am also familiar with the settled principle , applicable to Board matters as well as
in other fields of law, that the law does not require the doing of a futile act and
particularly does not require a futile application for employment . See N.L.R.B. v.
A. B. Swinerton, et al., d/b/a Swinerton and Walberg Company, 202 F. 2d 511, 515
(C.A. 9), cert. denied 346 U.S. 814. In determining what remedy for the strikers
will effectuate the purposes of the Act in this case , we are therefore confronted with
conflicting principles : the Board policy, recently reaffirmed over the dissent of Mem-
ber Brown , that the Board will not award backpay to strikers , even though they have
been unlawfully discharged, for any period prior to their application for reinstate-
ment (Baldwin County Electric Membership Corporation, 145 NLRB 1316, Sea-
Way Distributing, Inc., 143 NLRB 460), conflicts with the Board policy that victims
of discrimination are not required to make futile applications for employment before
backpay starts to run . In my judgment this conflict should be resolved by looking to
the reasons underlying the conflicting policies.
In withholding backpay from strikers in the absence of their unconditional appli-
cation to return to work, the Board has often stated that it will not "subsidize" a
strike. Every striker is always ready to return to work "on condition" that the
employer give in to the strikers ' demands. To require the employer to pay backpay
for the period of the strike is in that sense to "subsidize" the strike, for the strikers
although withholding their labor would be compensated for the time on strike and
the employer would be forced to capitulate to their demands to stop the running of
backpay. This would seem palpably unjust in the event that any of the demands are
"economic ." Even if the sole cause of the strike is an unfair labor practice, the
Board has been of the view that strikers should not be "subsidized," and that the
Board's machinery should be used to remedy the underlying unfair labor practice
without underwriting the strikers' withholding of their labor to effectuate that result.
Even where the employer has discharged the strikers for striking , their backpay should
not start to run until they have indicated their readiness to abandon the strike, for
until that time they have not incurred any losses because of the unfair labor practice
against them ; their losses have been self-inflicted as part of their attempt to win con-
cessions from their employer. Furthermore, in striking a balance between the com-
peting interests of strikers, strike replacements , and the employer, the Board has pro-
tected the jobs of unfair labor practice strikers against replacement , and of economic
strikers until replaced, but it has recognized the right of an employer to operate his
business during a strike , and it has not penalized him, even in the event of an unfair
labor strike, by requiring him to pay wages both to replacements and to strikers who
were not willing to work unless their demands were granted.
But should the foregoing reasoning control the result in this case? To be sure, the
strikers in this case made a "conditional " application in the sense that their offer to
return to work embraced DeGeus, a nonstriker. If the Company had replied that it
was adhering to its position on DeGeus, or even if it had simply refused the offer
without comment, the strikers under settled Board doctrine would get no backpay
for the period in which they continued to strike. But the Company in rejecting the
mass application to return made clear that its position was bottomed on its theory
that the strikers were no longer employees . It said it had hired replacements, and
as to positions not filled it "would consider the applications of any of our former
employees who have previously done this work." If the Company had replied in
terms of not reinstating DeGeus, the employees could have considered making another
application which excluded him. Indeed, such an application might well have been
made, as a new charge was filed in behalf of DeGeus and Palmer at that time, and
the application previously made had excluded Coltrain, Wilt, and Benedict, as to
whom charges had been filed. If the Company's reply had been a general rejection of
the application, the Company might be given the benefit of the doubt as to why the
application was rejected. But the Company's reply to the mass application was
couched in such terms as to make unmistakably clear that a further application which
excluded DeGeus would meet with an identical reply. Under these facts, I believe it
would be highly artificial to require the strikers to make a second and palpably futile
application . The Company, having made clear in its letter of November 18 that
further application would be futile, is liable for backpay from that date. This liability
extends to all the strikers including the 13 it expressed a readiness to reemploy at that
time. Robert S. Abbott Publishing Company, 139 NLRB 1328, 1330-1331, enforce-
COMFORT, INC. 1091
ment denied on other grounds 55 LRRM 2994 (C.A. 7) '[331 F. 2d 209].8 The back-
pay due Coltrain and the strikers under the order hereinafter recommended should
be computed in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co,., 138 NLRB 716.
The strike was apparently attended by some misconduct on the part of both
strikers and nonstrikers. Only one employee was positively identified as having
engaged in wrongdoing, striker Gary Caldwell, who was guilty of slashing tires. The
record is silent as to the date of this misconduct. The record does show, however,
that Caldwell was one of the strikers from whom the Company on November 18 was
prepared to accept a job application and to give it "every consideration as production
requirements dictated . . . ." This would appear to operate as a "condonation" of
any misconduct prior to that date. See N.L.R.B. v. Sam Wallick and Sam R.
Schwalm, d/b/a Wallick and Schwalm Company, et al., 198 F. 2d 477„ 483-484
(C.A. 3), and cases there cited; see also Eagle-Picher Mining and Smelting Company
v. N.L.R.B., 119 F. 2d 903, 915 (C.A. 8); N.L.R B. v. Aladdin Industries, Inc., 125
F. 2d 377, 382 (C.A. 7), cert. denied 316 U.S. 706. In the absence of a showing
that Caldwell's misconduct was subsequent to November 18, I perceive no ground
for withholding from him the relief here recommended for the other strikers; in
other words the defense of misconduct as a bar to reinstatement is an affirmative
defense, and the burden of proof as to the date of the misconduct is on the Company?
Finally, I shall recommend the posting of an appropriate notice. For reasons
explicated in Melrose Processing Company, 146 NLRB 979, I shall insert the refer-
ence to the Armed Forces in the Recommended Order, but not in the notice.
RECOMMENDED ORDER
Accordingly, on the basis of the foregoing findings and conclusions and on the
entire record, I recommend, pursuant to Section 10(c) of the Act, that the Respond-
ent, Comfort, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against any employee for having engaged in activity on behalf
of International Association of Machinists, District Lodge 105, AFL-CIO, or in any
other concerted activity for mutual aid or protection.
(b) Interrogating, spying on, or threatening employees because of their union
activities, or in any other manner interfering with, restraining, or coercing employees
in the exercise of their rights under Section 7 of the Act.
(c) Refusing to bargain with the aforementioned District Lodge 105, as the exclu-
sive bargaining representative of the Respondent's production and maintenance
employees (excluding office employees and professional employees, guards, watch-
men, and supervisors as defined in the Act).
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the above-named labor organization
as the statutory representative of the employees in the above-described unit.
(b) Offer to reinstate Donald Coltrain and each of the employees named in the
attached Appendix A to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make each of them
whole in the manner described in the portion of the Trial Examiner's Decision
entitled "The Remedy" for any loss of earnings suffered by reason of the discrimina-
tion against them.
(c) Notify any of the above-described employees who are serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
0If reviewing authorities disagree with this view of the backpay obligation, backpay
for the strikers would apparently be limited to Feehan and Ives for the period after
their unconditional applications.
7If reviewing authorities disagree with this view of the burden of proof, they will
presumably limit Caldwell's backpay to the period between November 1S and whatever
subsequent date he committed the misconduct, a date to be established in compliance
negotiations or proceedings. Clay M. Bishop and Robert E. White, co-partners, doing
b usiness as New Hyden Coal Co., 108 NLRB 1145, 1149, enfd. 228 F. 2d 68 (C.A. 6).
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its plant at Ottumwa, Iowa, copies of the attached notice marked
"Appendix B." 8 Copies of such notice, to be furnished by the Regional Director for
Region 18, shall, after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 18, in writing, within 20 days from the
date of the receipt of this Decision, what steps the Respondent has taken to comply
herewith.9
8 In the event that this Order is adopted by the Board, the words "as Ordered by"
shall be substituted for "as Recommended by a Trial Examiner of" in the notice. In
the further event that the Board's Order be enforced by a decree of a United States Court
of Appeals the words "a Deciee of the United States Court of Appeals, Enforcing an
Order of" shall be inserted immediately following "as Ordered by."
0In the event that this Order is adopted by the Board, this provision shall be modified
to read, "Notify said Regional Director, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
Striking employees entitled to backpay for period following November 18, 1963.
Zilba Bacus Nonean Johnson Norma Pickrell
Donald Baker Ronald Johnson Marvin Prose
Harvey Black Mary Lou Kephart Marie Rooker
Gary Caldwell Jake Linder Douglas Rumley
Helen Carnes Jeanette Lingren Maxine Sanford
Charles Cary George Long Robert Sea
Junior Clark Gerald Morrison Leonard Sharp
Norma Cole William Muchow Henry Shepherd
Donald Cook James O'Dell Joanne Stevens
James Feehan William O'Dell Max Stevens
Bernice Gates Kenneth Orman Josephine Terrell
Kathryn Hobbs William Orman John Tetmeyer
Kendall Hobbs James Peden Julius Tortat
Gerald Ives Barbara Peterson Richard Walker
APPENDIX B
NOTICE TO ALL EMPLOYEES
As Recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of the rights guaranteed them in
the National Labor Relations Act:
WE WILL bargain with International Association of Machinists, District Lodge
105, AFL-CIO, as the representative of our employees.
WE WILL offer Donald Coltrain his former job and pay him for wages he
lost since October 2, 1963.
WE WILL offer their old jobs to the strikers who applied for reinstatement on
November 18, 1963, and we will pay them for wages lost since that date
All our employees have the right to join or assist a union. WE WILL NOT
question them as to whether they support a union, threaten them or discharge
them for doing so, spy upon their union activities, or interfere with them in any
way because of their union activity.
COMFORT, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 316
Federal Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No.
339-0112, Extension 2601, if they have any questions concerning this notice or com-
pliance with its provisions.