Elmira Machine and Specialty Works, Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1964

148 N.L.R.B. 1695 (N.L.R.B. 1964)

ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1695
NOTE.-We will notify the above -named employees , if presently serving in the
Armed Forces of the United States, of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
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, Room
2023, Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No.
381-2200, if they have any question conceining this notice or compliance with its
provisions.
Elmira Machine and Specialty Works, Inc.; Youngstown Steel
Door Company ; Elmira Machine and Specialty Works, Inc.,
subsidiary of Youngstown Steel Door Company and District
No. 58 , International Association of Machinists , AFL-CIO.
Case No. 3-CA-1793. October 1.5, 1964
SUPPLEMENTAL DECISION AND ORDER
On March 18, 1963, the Board issued a Decision and Order in the
above-entitled case,' finding that the Respondent had discriminated
against certain employees because of their concerted activities, and
directing the Respondent to offer them immediate and full reinstate-
ment and to make them whole for any loss of pay caused by the
Respondent's discrimination against them.
On August 16, 1963, the Board's Regional Director for Region 3
issued and served on the parties a backpay specification and notice
of hearing , setting forth the names of the employees to be reinstated
and the amounts of backpay due each of them. On September 6,
1963 the Respondent filed an answer thereto. Pursuant to notice, a
hearing was held before Trial Examiner Abraham H. Mailer for the
purpose of determining the Respondent's reinstatement and backpay
obligations . The amounts of gross backpay, as computed in the back-
pay specifications and amended at the hearing, for the periods set
forth therein, were stipulated by the parties at the hearing to be
accurate.
On March 5, 1964, the Trial Examiner issued his Supplemental
Decision , attached hereto, in which he found certain of the claimants
listed therein to be entitled to reinstatement and/or specified amounts
of backpay. Thereafter the Respondent filed exceptions to the Trial
Examiner's Supplemental Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
1138 NLRB 1393.
148 NLRB No. 164.
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
at the supplemental hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the entire record in this case, including the Trial Examiner's
Supplemental Decision and the Respondent's exceptions and brief,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following additions, modifications, and
exceptions.
1. As set forth in the Trial Examiner's Supplemental Decision, in
early April 1962 the unfair labor practice strike against the Respond-
ent was terminated and, on April 9, the Union sent the Respondent a
letter "requesting unconditionally that any or all of the employees
whose names appear on the enclosed list be returned to work as
quickly as possible." Attached to this letter was a list of 112 em-
ployees, which included all the claimants herein. The Respondent
contends that the Union's letter was not an adequate request for rein-
statement because it failed to designate with sufficient specificity
those employees the Respondent was requested to reinstate. The
Trial Examiner found, however, and we agree, that the letter indi-
cates with sufficient clarity that the request was intended to include
all the listed employees.
2. The Trial Examiner found that claimant Vera Louise Baker
was not reinstated after the strike to her former or substantially
equivalent job, that she walked out after protesting in vain the
Respondent's refusal to restore her to her original job, and that she
was eiititled to an offer of reinstatement and backpay from Janu-
ary 2, 1963, the date of her original reinstatement, as well as for the
earlier period. The Respondent contends that she was properly rein-
stated on January 2, that she voluntarily quit her employment, and
that its obligation to her therefore terminated on January 2.
Baker had worked on the assembly line affixing handles to coffee-
makers prior to the strike, and, as the Respondent knew, had done
assembly-line work before being hired. Nevertheless Baker was
assigned to an 18-ton punch press upon being reinstated after the
strike. Before the strike, her foreman told her several times that she
would be required to work on the punch press, but Baker protested
that she was afraid of the punch press. After her reinstatement,
Baker requested reassignment to the assembly line, and again pro-
tested that she "was scared to death of the punch press," but she was
required to continue the punch-press work, and, in fact, after a few
{lays was assigned to an even larger 24-ton punch press., Finally,
after fruitless appeals to the general manager, Baker appealed to the
personnel manager in charge of labor relations, but did not succeed
in being transferred back to the assembly line. She asked the gen-
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1697
eral manager at one point, "Why am I being treated like this?" He
replied that it was "because you went over my head ..." to the per-
sonnel manager. He also told her she could continue to work on the
punch press or quit. Baker left, after explaining that she was not
quitting her job but was afraid of the punch press.
At the time Baker was placed on the punch-press work, several of
the striker replacement continued to do the assembly-line work for-
merly performed by Baker. While the Respondent contended that
all the employees in that operation are required at times to operate
the punch presses, the general manager testified that employees are
ordinarily kept at the task for which they are best suited and at
which they have been regularly employed, and that girls from the
assembly tables operate the presses on Saturday, which is not a regular
workday, only if they wish to earn extra pay. In view of the facts
that Baker had worked exclusively on the assembly line prior to the
strike, had never before operated a punch press, and had expressed
fear of the punch press prior to the strike, we agree with the Trial
Examiner that she was not reinstated to her former job or to a sub-
stantially equivalent position. Further, as several of the employees
working on the assembly line had been hired since the strike, it is
apparent that there were assembly jobs available. Accordingly, we
shall adopt the recommendation that the Respondent be required to
offer reinstatement to Baker with backpay as provided in the Trial
Examiner 's Supplemental Decision.2
3. The Trial Examiner found claimant Edmond Murray entitled
to reinstatement and backpay. The Respondent excepts to the award
of a remedy to Murray on various grounds . The Chairman and
Member Leedom find merit in some of the Respondent's contentions
as to Murray , for the reasons set forth below.
Murray testified at the hearing on two occasions , first as the Gen-
eral Counsel 's witness and later as the Respondent's witness. In his
first appearance , he testified that he received the Respondent's letter
of July_ 14, 1962, offering him reinstatement , but did not respond
thereto; that his first communication with the Respondent thereafter
2 Member Leedom would find that Baker voluntarily left her employment after being
properly reinstated . The record shows that Baker had been employed by the Respondent
only 1% weeks before the strike , and that her foreman had told her before the strike that
she would be required to perform both assembly -line and punch -press work . The work on
the punch press was not dangerous , as the references to their weight might indicate, and
involved merely feeding a small piece of metal,into the press , stepping on a pedal, and
flicking out the punched metal piece . Further, Baker herself admitted that prior to the
strike she had observed the shifting of girls between the assembly line and the presses,
and that upon her reinstatement to the punch press she was told to take her time and
learn the job. Member Leedom is of the opinion , therefore , that Baker was properly re-
instated, that she quit her job voluntarily , and that, to require her to be reinstated again,
with backpay , would be to place her in a,better position than she had before the strike
and in a better position than other employees in the same department , according to the
claimant 's own testimony.
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was on September 20, 1962, when Campbell, the Respondent's recep-
tionist, called and asked him to "report back to work"; and that he
came to the plant on September 25, but was not put to work on the
ground that he had been scheduled to report the preceding day. In
his second appearance, Murray testified, contrary to his original testi-
mony, that he came to the Respondent's plant 2 or 3 days after
receiving the Respondent's letter of July 14, but was not put to work.
The Trial Examiner noted the inconsistency in Murray's testimony,
but credited his second version on the grounds that "Murray gave the
appearance of a confused person somewhat lacking in perception,"
and that his second version was supported by Campbell's use of the
phrase "report back to work" in the September 20 conversation.
The Chairman and Member Leedom are in agreement that Murray
should not be reinstated, but for different reasons, and they would,
therefore, terminate his backpay on different dates. The Chairman
would not credit Murray's testimony that he accepted the offer in the
Respondent's July 14 letter in view of the contradictory nature of his
testimony. Moreover, unlike the Trial Examiner, the Chairman does
not find "substantial support" for Murray's second version in Camp-
bell's use of the words "report back to work," a normal expression in
view of the fact that Murray was a former employee of the Respond-
ent. The Chairman, therefore, would cut off Murray's backpay as of
July 21, 1962, the final date on which the Respondent's July 14 letter
required that applicants notify it of a desire for reinstatement. As
Murray is one of the claimants who rocked the cars of individauls
trying to enter the plant during the strike. Member Leedom as indi-
cated hereinafter, would find this to be serious misconduct which
warrants the denial of reinstatement and backpay. Accordingly,
Member Leedom would cut off Murray's backpay as of late
November 1961, when, the record shows, Murray engaged in such
misconduct.
Member Brown, for the reasons set forth by the Trial Examiner
in his Supplemental Decision, would affirm the Trial Examiner's
findings that Murray is entitled to reinstatement and backpay.
In accordance with the determinations of the Chairman and Mem-
ber Leedom, Murray will not be awarded reinstatement. As the
Chairman and Member Leedom would cut off Murray's backpay on
different dates, we shall require the Respondent to pay backpay to
Murray until the latter of these two dates, July 21, 1962, in view of
Member Brown's determination that Murray is entitled to full
backpay.
4. The Trial Examiner recommended reinstatement and backpay
for claimants James R. Kelsey, Donald Moore, and Donald Schrom.
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1699
The Respondent excepts to this recommendation on the ground that
these individuals had engaged in serious picket-line misconduct. As
the Trial Examiner found, each of these claimants engaged in strike
conduct such as impeding ingress to and egress from the Respond-
ent's plant by picketing the driveway to the Respondent's parking lot
in such close formation that cars were forced to stop, following cars
of nonstriking employees, and rocking cars of persons entering or
leaving the plant parking lot. The Trial Examiner noted, however,
that the strike was caused by the Respondent's unfair labor practices;
that although the strike lasted almost 5 months, there were relatively
few incidents; that no cars were in fact overturned; and that there
was provocation by nonstrikers, who drove through the picket line
with such speed that they forcibly pushed three of the picketers out
of the way. On the basis of these facts, the Trial Examiner con-
cluded that the conduct of the claimants here involved was not suffi-
ciently serious to bar their reinstatement and backpay. We agree.3
5. The Trial Examiner found that claimant Harry F. Coxhead was
entitled to backpay. We agree. Coxhead testified that during the
strike he had instigated the throwing of rotten eggs at the Respond-
ent's plant, several of which struck nonstrikers. The Trial Examiner
found the egg throwing to be misconduct sufficiently serious to bar
reinstatement and backpay of claimant Bailey, as to whom the
Respondent had alleged, in its answer to the complaint, a refusal to
reinstate because of misconduct. In the absence of exception, we
adopt pro forma the Trial Examiner's recommendations as to Baley.
As no such allegation had been made with regard to Coxhead, the
Trial Examiner denied the Respondent's motion, made at the hear-
ing, to amend its answer to charge Coxhead with misconduct on the
ground that the motion, made after Coxhead testified, was not timely.
We affirm this rulings as in our view the Respondent's reliance on
such conduct was clearly an afterthought.
ORDER
On the basis of the entire record in this case, the National Labor
Board hereby orders that the Respondent, Elmira Machine and
Specialty Works, Inc.; Youngstown Steel Door Company; Elmira
Machine and Specialty Works, Inc., subsidiary of Youngstown Steel
Door Company, its officers, agents, successors, and assigns, shall rein-
'3 Kohler Co , 148 NLRB 1434 Member Leedom would find that the car rocking in-
cidents constituted serious misconduct , and that the claimants involved in this activity
thereby forfeited their rights to reinstatement and backpay . In Member Leedom's opinion,
the car rocking was tantamount to a physical assault upon the occupants of the cars in-
volved , most of whom were women . Several of these women testified that they feared
that the cars , rocked by several men , might be overturned and they might suffer serious
injury, and that they screamed in fright. - Member Leedom, therefore , would find that such
misconduct was not cured or mitigated by the extraneous circumstances relied on in the
majority opinion.
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state and pay backpay to the claimants as set' forth in the Trial
Examiner's Supplemental Decision, as modified herein, and ary addi-
tional undetermined amounts accumulating from the date of the
backpay specifications; and that the Regional Director for for Re-
gion 3 is authorized to take appropriate steps consistent with this
Supplemental Decision and Order, without prejudice to the conduct
of additional backpay proceedings.
TRIAL EXAMINER'S SUPPLEMENTAL DECISIOIi T
STATEMENT OF THE CASE
This supplemental proceeding was brought for the purpose of determining the
amounts of backpay due certain employees under a prior Board Decision and Order.1
Hearing was held before Trial Examiner Abraham H. Mailer in Elmira, New York,
on September 11, 12, 13, and 30, and October 1 and 2, 1963, based on the Regional
Director's backpay specification and notice of hearing issued August 16, 1963, and the
Respondent's answer thereto.2 All parties were afforded full opportunity to examine
and cross-examine witnesses, to introduce evidence, to present oral argument, and
thereafter to file briefs. Briefs were received from counsel for the General Counsel
and from the Respondent.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each of the witnesses,3 I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. BACKGROUND
In its Decision and Order, the Board found that as a result of certain unfair labor
practices committed by the Respondent, its employees engaged in an unfair labor
practice strike. The Board ordered the Respondent to reinstate the discriminatees
(listed in appendix A to the Order) and the unfair labor practice strikers (listed in
appendix B) and to make whole the discriminatees for any loss of pay they may have
suffered by reason of their layoff on November 13, 1961, and until the date sometime
after November 18, 1961, on which work was actually offered them. The Board
further found that on November 18, 1961, Respondent sent letters to all employees
who had been laid off on November 13, as well as to those who joined the strike,
requesting them to return to their jobs at staggered dates between November 21• and
28. The Board further found that this was a valid offer of reinstatement which was
accepted by 12 employees.
II. SEQUENCE OF EVENTS
On April 9, 1962 , the Union sent to the Respondent the following letter:
On behalf of District No. 58 , International Association of Machinists , AFL-CIO,
we are herewith requesting unconditionally that any or all of the employees
whose names appear on the enclosed list be returned to work as quickly as
possible.
Attached to that letter was a list of the names of 112 employees , including all -of
the claimants herein . This application was ignored by the' Respondent.
On July 14, 1962, Respondent sent a letter offering employment to all employees
listed in appendix A to the backpay specifications who had not yet returned to work,
1138 NLRB 1393, amended as to Appendixes A and B, by order dated March 18, 1963.
2 The backpay specification was amended at the hearing.
8 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his demeanor
as I observed It at the time the testimony was given. Cf. Retail Clerks International
Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, 1683,
footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I in-
dicate that I do not rely on or reject in part or entirely the testimony of any given wit-
ness, it is my intent thereby to indicate that such part or whole of the testimony as the
case may be, Is discredited by me. Cf. Jackson Maintenance Corporation, 126 NLRB
115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2).
ELMIRA MACHINE AND SPECIALTY WORKS,' INC., ETC. 1701
and in addition to: Employees Baker, Caslin, Little, Murray, Root, Sawyer, Coxhead,
and Seymour. The letter repeated the offer of employment of November 18, 1961,
and reads in part as follows:
A return-to-work schedule will be arranged immediately for all former em-
ployees who give notice to the Company, of their willingness to return to work,
provided that notice is given on or before noon on July 21, 1962. The schedule
will take into account any obligation you may have to give reasonable notice to
your present employer and the length of your prior service with this Company.
The return-to-work schedule will include only those who notify the Company
on or before July 21, 1962 of (1) their willingness to return to work and (2) the
date on which they will be available in the reasonable future.
On the same day, Respondent sent a letter to the claimants listed below, declaring
that they were being refused reinstatement because of misconduct since November 18,
1961: Donald Moore, James R. Kelsey, Donald Schrom, and Carol E. Bailey.
A. Positions of the parties
Attached to the backpay specifications is appendix A, a list of claimants who were
reinstated by the Respondent on various dates between April 30 and July 21, 1962.
Backpay for these claimants is requested -for the period beginning on April 16, 1962
(the first workday after the expiration of 5 days from April 9, 1962, the date of the
Union's application for reinstatement) to the various dates on which they were rein-
stated. At the hearing it was stipulated that the backpay specifications, as amended,
are accurate and correct in all respects as to the computations of gross backpay period
for all claimants seet forth in said specifications, if the backpay period alleged for each
is determined to be correct. Consequently, the only issue as to the cliamants listed in
appendix A is whether the Union's application for reinstatement dated April 9, 1962,
is a valid application of reinstatement . If it is, Respondent is liable to said claimants
from April 16 to the date of their reinstatement , less the net interim earnings set
forth in appendix A. Conversely, if the Union's application of reinstatement dated
April 9, 1962, is not deemed to be a valid application of reinstatement, Respondent
is not liable to the claimants in appendix A.
The rest of the claimants are listed in the body of the specifications and in appendix
C thereto. As to these, the Respondent had filed specific defenses. During the hear-
ing, Respondent withdrew its specific defenses to the following claimants for any
period after July 21, 1962 (the date fixed by the Respondent in its offer of reinstate-
ment for acceptance of its offer): Virginia Hoover, Ida Mays, Edith Edwards, Lois
Meany, Florence Oliver, Evelyn Seymour, Judith Root, Myrtle Caslin, Winifred
Little, and Shirley Johnson. As to these named claimants, the Respondent has stipu-
lated likewise that the backpay specifications as amended are accurate and correct in
all respects as to the computations of gross backpay, if the backpay period alleged for
each is determined to be correct . Accordingly , the issue as to the Respondent's lia-
bility to these claimants for the period April 16 to July 21 is the same as to the
claimants listed in appendix A to the specifications, and turns, on the validity of the
Union's application for reinstatement .4
As to the claimants not covered in the foregoing , Respondent contests its liability
as to all or part of the claims as follows:
Vera Louise Baker.-Respondent contests backpay liability for the period between
April 16, 1962, and the date on which she, in fact, applied for employment after
receiving Respondent's letter of July 14, 1962. Respondent does not contest backpay
liability between the date of her application after July 14, 1962, and the third week of
December 1962 when she was first called back to work. Respondent contests the
backpay liability between the third week of December 1962 and January 2, 1963,
when she did in fact return to work , as claimant was unable to return to work at the
December 1962 recall because of illness.5 Respondent contests backpay liability for
any period after January 2, 1963, and contends that Baker left her employment volun-
tarily after her reinstatement.
* Some of these claimants were found by the Board to have been discriminated against
by the Respondent, and backpay was ordered beginning November 13, 1961. Respondent
does not contest liability for such earlier period. -
B Analysis of the backpay specification for Baker. indicates that account had already
been taken of Baker's inability to work during this period . As previously noted, Respond-
ent has stipulated to the accuracy of the backpay specifications as amended.
760-577-65-vol. 148-109
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barbara Sawyers-Respondent contests backpay liability from April 16, 1962, to
the date on which this claimant made her application for employment after Re-
spondent's letter of July 14, 1962. Respondent does not contest backpay liability
for the period between the date of her application after Respondent's letter of July 14
and December 26, 1962, when she in fact returned to work. Respondent contests
backpay liability after January 3, 1963, when claimant was allegedly discharged for
failure to call in sick.
Edmond Murray -Respondent contests backpay liability because of alleged mis-
conduct in connection with picketing. Alternatively, Respondent contests liability for
the period from April 16 to July 21, 1962, and for any period thereafter, contending
that the claimant failed to respond to Respondent's letter of July 14, 1962, and later
failed to accept an offer of employment to be effective in.September 1962.
Harry F. Coxhead.-Respondent contends that this claimant was reinstated on
December 6, 1961, and thereafter quit his job.
Carol E. Bailey, James R. Kelsey, Donald Schrom, and Donald Moore.-Respond-
ent contests its liability for backpay to these claimants for alleged misconduct. The
misconduct relied upon by the Respondent relates to alleged activities on the picket
line and is alleged to consist of one or more of the following acts: preventing non-
strikers from entering and leaving the plant, rocking cars of nonstrikers as they en-
tered or left the plant, following and threatening nonstrikers, stopping and damaging
trucks of persons doing business with the Respondent, and throwing rotten eggs
against the wall and through open windows of the plant.
At the hearing the Respondent admitted that the backpay periods as set forth for
each claimant in the backpay specifications are accurate and correct in all respects
and may be found so by the Board without taking further evidence, provided: (a)
the Respondent's reasons for refusing to reinstate the claimants listed in paragraphs 9
through 26 of the backpay specifications (i e., those listed in appendix C) are found
in these proceedings to be without merit, and (b) the Respondent's contention as to
the validity of the Union's application of April 9, 1962, is found in these proceedings
to be without merit.
B. The issues
1. Whether the Union's letter of April 9, 1962, constituted a valid and uncondi-
tional application for reinstatement on behalf of the employees listed in the attach-
ment to the letter.
2. Whether Baker was reinstated to a substantially equivalent position.
3. Whether Sawyer was terminated for cause.
4. Whether Coxhead was validly reinstated and thereafter voluntarily quit his
employment.
5. Whether Murray failed to accept an offer of reinstatement.
6. Whether each of the following employees: Moore, Kelsey, Schrom, Bailey, and
Murray, was guilty of misconduct.
C. The Union's application for reinstatement
A determination of the amount of backpay due to the claimants requires a con-
sideration of the validity of the Union's application for reinstatement made by its
letter of April 9, 1962. The application was unconditional in terms and was made on
behalf of the strikers by the Union which, as the Board found in its Decision, repre-
sented a majority of the Respondent's employees and which had organized and
sponsored the strike. The Respondent ignored the request and did not respond to it.
At the hearing, the Respondent took the position that the Union's letter was vague in
that it requested the reinstatement of "any or all" of the employees in the list attached
to the letter, and that Respondent was not informed as to which of the listed em-
ployees were seeking reinstatement.? While the wording of the letter could have been
improved upon, I am of the opinion that the phrase "any or all" was not ambiguous
and did not mislead the Respondent as to the desires of the named employees to re-
turn to work. Indeed, if the Respondent entertained any doubt in the matter, it could
have inquired of the Union as to which employees were desirous of reinstatement.
Instead, it chose to ignore the Union's request 8 The doubt which it now inferentially
professes appears to be an afterthought. I. Posner, Inc., et al., 133 NLRB 1567,
1569, enfd. in part 304 F. 2d 773 (C.A. 2).
O Barbara Sawyer has since married and testified under the name Barbara Shock. She
is referred to herein under her maiden name.
7 Respondent's position is referred to in its brief, but is not argued.
8 As noted in the Board's earlier Decision herein, "Respondent had categorically deter-
mined not to deal with the Union" (138 NLRB at 1402).
ELMIRA MACHINE AND SPECIAL'1Y WORKS, INC, EIC 1703
It is well settled that a union representing strikers may make a valid application for
reinstatement for the strikers Pecheur Lozenge Co, Inc , 98 NLRB 496, enfd 209
F 2d 393 (C A 2), cert denied 347 US 953, Brown and Root, Inc, 99 NLRB
1031, 1042 Accordingly, I find and conclude that the Union's letter of April 9, 1962,
was an unconditional request for reinstatement by the strikers whose names were on
the attached list It follows that Respondent's liability for backpay to the claimants
listed in appendix A to the specifications and those placed in appendix A by stipula-
tion accrued on April 16, 1962 fl I therefore find and conclude that the claimants
listed in appendix A attached to the backpay specifications and claimants Virginia
Hoover, Ida Mays, Edith Edwards, Lois Meany, Florence Oliver, Evelyn Seymour,
Judith Root, Myrtle Cashn, Winifred Little, and Shirley Johnson are each entitled to
backpay from the Respondent as set forth in the backpay specifications as amended
I Vera Louise Baker
The issue with regard to Vera Louise Baker is whether she was reinstated to her
former or substantially equivalent position as required by the Board's Order Prior
to the strike of November 13, 1961, Baker had been employed about 11/2 weeks She
worked on the assembly line where she assembled handles to the body of coffee-
makers This involved the use of an electric screwdriver When she was reinstated
on January 2, 1963, she was put to work on a punch press In this position, she sat
at an 18-ton press,10 fed a piece of metal into it, pressed a pedal, and then flicked out
the punched metal piece Baker told Foreman Robert Thayer and General Manager
William Jones that she "was scared to death of a punch press ," and asked to be put
back on the assembly line She was told that there were no openings on the assembly
line A few days later she ran out of work and was put on an even larger punch
press (24 tons) Despairing of relief, she conferred with Justin Donahue, business
representative of the Union, and at his suggestion called Eugene Fehr, personnel
manager in charge of labor relations of the Respondent, who promised to look into
the matter
On January 7 she went to the office and spoke to General Manager Jones She told
him that she had not been properly reinstated and could not understand why she had
not been put back on the assembly line Jones told her that if she would come in the
next day, he would find another place for her and if that did not satisfy her, she could
leave The next day she was put to work on the same punch press
She again went to the office and told General Manager Jones, "I can't understand
why you are treating me like you do You know I'm not a punch press operator, why
am I being treated like this9" He replied, "Because you went over my head
You went to Mr Fehr " He told her that she could either contniue to work at the
punch press or leave the plant Baker told him she was leaving, that she was not
quitting her job, but was merely afraid of a punch press
Respondent contends that Baker was properly reinstated and that it was under no
obligation to assign her to the assembly line In support of this contention, General
Manager Jones testified that it was Respondent's policy to shift employees between
the assembly line and the punch presses as the flow of work requires 11
He testified further that, of approximately 100 emplyoyees (when Baker was rein-
stated), only 1 or 2 had never worked on a punch press He explained, however,
that when press work is scheduled for a Saturday (not a regular workday), women
working on the assembly line are given the option of earning another day's pay by
working on the presses He also admitted that , unless the load of the plant changed,
a person would continue on the job he had been assigned to previously
That there is a substantial difference between working on the assembly line and
operating a punch press is not open to dispute Baker, a frail person, had indicated
on her application when she was originally hired that she had previous experience on
an assembly line, and prior to the strike had not operated a punch press Even prior
o As indicated above, certain of these claimants are also entitled to backpay for an earlier
period commencing \o'ember 13, 1961, when they were discriminated against Respond
eat does not contest its liability for that period
10 The reference to tons is the dovvnw and thrust of the press
11 Baker admitted that prior to the strike, she saw one girl shifted from one place to an
other, and that after her return, she observed girls shifted from assembly line to the
presses and vice iersa Also, before the strike, Foreman Thayer had told Baker several
times that lie was going to put her on a punch press Baker had protested that she was
afraid of working on a punch press She asked him why he did not put his daughter
(also employed by Respondent) on a punch press, and he replied, "I'd never put my own
daughter on a punch press "
1704 DECISIONS Or NALIONAL LABOR RELATIONS BOARD
to the strike she had made it abundantly clear to Respondent's supervisor that she was
afraid of a punch press Regardless of what Respondent's practice may have been in
shifting around other employees, the fact remains that it had never been applied to
Baker before the layoff Under all the circumstances, it cannot be said that when
Respondent put her to work on a press, it was reinstating her to a substantially equiva-
lent position Indeed, there appears to be no valid reason for Respondent's action in
this regard, as it is clear from the record that at the time there were several employees
on the handle line who had been hired since the strike 12 I therefore find and con-
clude that Baker was not reinstated to a substantially equivalent position and con-
tinued to be entitled to backpay
As previously indicated, Respondent has stipulated the accuracy of the backpay
specifications as amended, subject to the affirmative defenses which it has urged As
to Baker, the affirmative defenses involve the validity of the Union's application for
reinstatement and specifically that she was reinstated on January 2, 1963, thus termi-
nating Respondent's backpay liability I have found that these defenses are without
merit Accordingly, I find that Baker is entitled to receive backpa^ in the sum of
$1,536 86, the amount claimed in the backpay specifications
2 Barbara Sawyer
Barbara Sawyer was put back to work on December 26, 1962 She was discharged
on January 3, 1963, for failure to call in sick Respondent contends that Sawyer had
been validly reinstated, and therefore it is not liable for backpay to her after January
3, 1962 13 The General Counsel contends, in view of her ensuing discharge, that
Respondent did not properly reinstate her
Sawyer reported back to work on December 26 She called in sick the next morn-
ing and worked a half day on December 28, leaving because of illness She called
in sick on Monday, December 31, and remained away from work on January 2 and 3,
allegedly because of illness However, she did not call in on eithei of those days to
indicate that she would be absent from work Nevertheless, on January 3, at approxi-
mately 3 30 p m , she came to the plant to pick up her paycheck As she was leaving,
Foreman Thayer told her not to bother coming back any more Two or three days
later she telephoned Respondent's office and was told that she had been discharged
because she had not reported sick
Sawyer testified that her illness was monthly cramps, that in the past she had never
been off more than 1 day at a time and on each occasion had called in sick She
admitted that it is customary to call in every day, but that she did not do so on this
occasion because she had to go outside her home to use a pay telephone William
Morris, superintendent of the stamping division, testified that Respondent's rule re-
quired employees to call in at least a half hour before the shift started, if they were ill,
in order that the employee's job could be assigned to somebody else The purpose of
the rule was to avoid a loss of time in the Respondent's operations The rule was not
applicable if an employee notified the Company that he would be confined foi an
extended period, in which case he was required to inform the Company when he
would be ready to return to work 14
"The uncontradicted testimony of Hill and Sawyer
13 Based upon its contention as to the validity of the Union's application for reinstate-
ment, Respondent also contests liability for the period beginning April 16, 1962 I have
previously found that this contention Is without merit
14 In its brief, General Counsel sought to cast doubt on the credibility of Morris' testi
mony by pointing out that at the hearing, General Counsel had requested Respondent to
produce the written rule and the company records which would show that other employees
had been dischirgcd for failure to call In sick, and that Respondent had replied that It
would General Counsel points out that the Respondent did not produce either the rule
or such records and argues that the failure of Respondent to produce such documents
creates an inference that, if pioduced, they would have failed to support the Respondent's
contentions I do not agree While Morris testified that lie had seen the rule posted
from time to time, he stated that he did not Know whether the rule was still posted With
ri,, :ii(I to iihether the Respondent kept records as to the reasons for discharging employees,
Moiris testified that they do no-a, but he doubted nhether the records could disclose if
employees were discharged for failing to call in Respondent's undertaking to produce the
written rule N% as conditioned on whether the rule was still in existence Later in the hear
iug, counsel for Respondent stated on the record that an inquiry of the present manage
neat of the Respondent's plant revealed that it had retained none of the bulletin board
postings carried by the prior (Serlo) management which terminated in March 1963 In
this situation, no inference can be drawn from the Respondent's failure to produce the rule
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC . 1705
In an effort to overcome Respondent's contentions, the General Counsel called
'claimant Harry Coxhead, who testified that in 1960 he had been absent from work
for 3 days in succession , that he had his wife go outside to a telephone booth to
call the Respondent, and that she did so only on the first day of his illness. He
testified further that he was not penalized for failing to have his wife call in the
second and third days. However, Coxhead admitted that he had no knowledge of
what his wife had told the Respondent about his illness. In these circumstances,
Coxhead's testimony in this regard is entitled to little weight, if any. Mrs. Coxhead
did not testify. For aught that appears in the record, she may have told the Re-
spondent that her husband had the flu and that he would be out several days. If this
is what had occurred, Coxhead did not violate the rule and would not have been
penalized in any way upon his return to work.
In sum , Sawyer had been reinstated to her former position. She admittedly vio-
lated an established company practice requiring employees to call in sick each day,
unless they notified the Company that they would be confined for a longer period.
She did not so notify the Respondent. Moreover, she aggravated her violation of
the rule by appearing at the plant to pick up her check on the very day when she
claimed she was ill. 1 find that she had been validly reinstated and was then dis-
charged for cause, and that such discharge was not discriminately motivated. Ac-
cordingly, Respondent is not liable for any backpay to Sawyer for the period begin-
ning January 3, 1963. She is, however, entitled to backpay for the period beginning
April 16, 1962, and continuing until December 26, 1962, the date of her reinstate-
ment. Based upon the stipulation as to the correctness of the backpay specifications,
I find that she is entitled to backpay for that period in the sum of $1,437.50.
3. Harry F. Coxhead
Harry F. Coxhead either received , or heard about , Respondent 's letter of No-
vember 18, 1961 , inviting the employees back to work . In addition , around the
first part of December 1962, Superintendent Morris called at Coxhead 's home on
behalf of the Respondent to ask him if he wanted to have his job back. On or about
December 6, 1962, Coxhead returned to work in the afternoon . He worked about 3
hours and left at the end of that shift. At the time he said nothing to anybody about
quitting his job , and testified that when he left he did not know he was going to quit
his job. That evening, he received a telephone call-requesting him to attend a union
meeting. Coxhead attended the meeting , during the course of which he received
some aid to straighten out certain financial difficulties that he was having. The next
day, he rejoined the picket line and remained on the picket line until the last day of
December 1962, when he went to work in Virginia.
Respondent contends that Coxhead was reinstated and thereafter quit voluntarily,
thus terminating Respondent 's liability for backpay to him after that date. I do not
agree. It is clear from the record that Coxhead abandoned the strike because of
personal financial difficulties , and when he received financial aid from the Union, re-
joined the strike. That his action was a rejoining of the strike , rather than quitting
his employment , is evidenced by his open and notorious presence on the picket line
immediately thereafter-a fact which was well known to the Respondent . Pecheur
Lozenge Co., Inc., 98 NLRB 496 , 499, footnote 7, enfd . 209 F . 2d 393 (C.A. 2),
cert . denied 347 U.S. 953; Giustina Bros. Lumber Co., 116 NLRB 700, 735; Kit
Manufacturing Company, Inc., 142 NLRB 957. Indeed, the Board 's dictum in the
Kit case is strikingly applicable to the case at bar, if the names are changed:
For, by joining the picket line , . . . [Coxhead] clearly evidenced his continuing
interest in his employment and working conditions and his intent to resume his
status as an unfair labor practice striker. Furthermore , the Respondent knew
. [Coxhead] was still on strike . [Respondent], having seen . [Cox-
head] on the picket line, should have known he had not quit and continued to
have an interest in his employment , particularly since . [Respondent] was un-
aware of any other reason why . . . [Coxhead] might have left the plant 15
Moreover , the fact that Respondent sent Coxhead an offer of reinstatement on
July 14, 1962, demonstrates beyond doubt that it considered Coxhead to be a striker
and an employee. This action is clearly inconsistent with the defense now advanced
that he had terminated his employment in December 1961 . Accordingly, I find and
15 142 NLRB 957. As noted in the Kit case, the earlier decision in W T. Rawleigh
Company. 90 NLRB 1924, is inapplicable to a situation as is presented here As the
Board pointed out in the Rawleigh case, the employee "gave up his employment for reasons
of his own" (id at p 1927).
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that Coxhead did not quit his employment after his reinstatement, but re-
joined the strike. I therefore find that the Respondent is liable for backpay to Cox-
head in the sum of $340, the amount stated in the backpay specifications.
4. Edmond Murray
Respondent's answer raised two defenses as to claimant Edmond Murray: (1) he
quit to obtain another job and (2) misconduct. The ensuing discussion deals only
with the first defense. The question whether he was guilty of misconduct is discussed
under the heading "Misconduct" infra.
Murray obtained interim employment during the strike with Morse Chain Com-
pany, from January 18 through June 9, 1962, when he entered the hospital because
of an automobile accident. He returned to Morse Chain Company on July 1, 1962,
and was employed there until September 24, 1962, when he was laid off. It was stipu-
lated that Murray received Respondent's offer of reinsttaement of July 14, 1962.
When called as a witness for the Respondent, he testified that the first contact he had
with the Respondent was after September 20, 1962, when Miss Campbell, Re-
spondent's receptionist, called him at his mother's home and asked him if he would
come back to work the following Monday. Murray also testified that he did not recall
replying to Respondent's letter of July 14, because he was in the hospital then and did
not receive any mail there. Murray was obviously mistaken, as it was later stipulated
that he left the hospital on June 20, 1962.
Later in the proceeding, when called as a witness by the General Counsel, he testi-
fied that: after the receipt of Respondent's letter of July 14, he called at the plant; he
thought it was about 3 days after he got the letter; he went into the office, rapped on
the window, and spoke to a person in the office, told her that he wanted to go back to
work and was told, "We are not hiring now." He testified further that he left his
name.
As previously noted, on September 20, 1962, he received a call from Miss Camp-
bell, Respondent's receptionist, who told him to report for work on Monday, Septem-
ber 24. He told her that he was being laid off from employment at Morse Chain, but
could not report to work until Tuesday, September 25, at the last day of his employ-
ment at Morse Chain pursuant to the layoff notice would be Monday, September 24.
Campbell indicated that September 25 would be acceptable.16 On Tuesday, Septem-
ber 25, Murray came to the plant prepared to go to work, looked for his timecard,
and not finding the card, left the plant. Later that morning he called at the Re-
spondent's office and inquired why there was no timecard for him.17 Campbell told
him that there was no timecard because he was supposed to come to work the day
before.18
Respondent argues that Murray did not accept its offer of reinstatement of July 14,
and therefore, it matters not what occurred in September 1962. In any event, Re-
spondent argues, Murray again declined employment in September. Thus, the
1s Campbell denied telling him that Tuesday, September 25, would be acceptable and
testified that Murray did not tell her that he would be laid off on a specific date. I do
not credit Campbell's testimony in this regard
17 The office was not open when Murray first came to the plant that morning
is Respondent also relies upon the testimony of employee Ruth McClennan who testified
that she entered the plant on September 25, when Murray did; that she saw Murray talk-
ing to a group of employees about 10 feet away from her and heard him say , " I will not
work for those wages." Murray then walked out of the plant Murray testified that he
did not remember making any such statement. I do not credit McClennan's testimony
It is reasonable to believe that if Murray were concerned about the wage rate, he would
have inquired concerning the rate when Campbell called him and directed him to report to
work In support of McClennan's testimony, the Respondent argues that Murray was
earning more money than the Respondent paid its employees when he was working at
Morse Chain Company. This is true. However, Respondent overlooks the fact that when
Murray came to the plant on September 25, he was no longer employed by Morse Chain.
Indeed, he was unemployed As Murray pointed out in his testimony: "At that time I
wouldn't have cared [about the wage rate] anyway because I was out of work I would
make more working." Moreover, if McClennan s testimony were to be accepted, there
would be no reason for Murray to go to the office later that morning to find out why there
was no timecard for him. Yet, Campbell admitted that Murray did come to the office that
morning, inquired why there was no timecard for him, and was told by her that the reason
for the absence of the timecard was Murray's failure to report to work on September 24
In view of all the foregoing, I credit Murray's version and do not credit the testimony of
McClennan.
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1707
threshold question is whether he responded to the July 14 offer. If he did not, his
failure would terminate his right to reinstatement and the Respondent's liability for
backpay thereafter.'°
Under other circumstances, I would not credit his testimony that he called at the
plant 2 or 3 days after getting Respondent's offer of July 14, as it is completely incon-
sistent with his earlier testimony. However, Murray gave the appearance of a con-
fused person somewhat lacking in perception. Nevertheless, were his testimony the
only evidence on this issue, I would have difficulty in finding that he accepted Re-
spondent's offer of reinstatement. But his later testimony finds substantial support
in the testimony of Campbell who testified that on September 20, when she telephoned
Murray, she called many of the strikers who had accepted the offer of reinstatement,
telling them to "report back to work." As to her telephone conversation with Murray,
she said, "I told him he was to report back to work on a Monday, on the 24th . . . .
The choice of words "he was to report back to work" is Campbells and is identical to
the words she used when she telephoned the other reinstatees.20 It implies that
Murray was considered to be in the same class as the other strikers who had accepted
Respondent's offer of reinstatement.
Nor can her action be dismissed as an invitation to come to work as a new em-
ployee. If this were so, presumably Campbell, who was Respondent's witness, would
have differentiated in her testimony between the telephone calls she made that day to
the reinstatees and the one she made to Murray. But she did not testify that she
asked Murray if he were interested in obtaining employment with the Respondent,
as one would normally do when offering new employment. On the contrary, she
assumed Murray's interest in returning to work, and such interest must have been
based upon an earlier indication, viz, his acceptance of Respondent's offer of re-
instatement . Thus, she directed him to "report back to work," as she did the other
reinstatees I am therefore compelled to find that Murray did accept Respondent's
offer of reinstatement.
Turning now to the occurrences in September, I have credited Murray's version of
what he told Campbell as to when he would report to work. Murray already had
his 3-day layoff notice from Morse Chain and knew when it was effective. Under the
circumstances, it is not reasonable to believe that he would tell Campbell that he did
not know when he could report to work.
In view of all the foregoing, I find and conclude that Murray is entitled to backpay
in the sum of $680.80, as set forth in the backpay specification as amended, if the
Respondent 's defense of misconduct fails.
D. Misconduct
Respondent resists reinstatement of, and payment of backpay to, the following
claimants because of misconduct: Carol Bailey, James Kelsey, Donald Schrom,
Donald Moore, and Edmond Murray.
Preliminarily, it should be noted that much of the evidence on this phase of the
case is in hopeless conflict. Few witnesses were impartial. The memory of many of
the witnesses was doubtless dimmed by the passage of time, and/or enhanced and
exaggerated by their hostility to the Union or diminshed by their interest as claimants.
Based upon by observation of the demeanor of the witnesses as they testified and a
careful analysis of all the testimony, I find that the following events occurred:
1. Alleged blocking of ingress and egress
When the strike was called on November 13, 1961, following the discriminatory
layoff of employees, the picket line was formed at the driveway leading to the parking
area behind Respondent's plant. Picketing was conducted primarily before 7 o'clock
in the morning, when Respondent's day shift began, and at 3.30 in the afternoon,
when the day shift left. It should be noted at this juncture that the picketing was
always under the surveillance of the police and deputy sheriffs who were stationed
across the street. The strength of the picket line varied from time to time. Normally,
there were more women strikers than men on the line. At times, the picketers were
joined by husbands of striking women. Also, union members employed at Remington'
Rand joined the picket line at various times. The picketing was conducted 5 days a
week for 3 months, was reduced to twice a week and then to one time a week.
Picketing finally stopped in April 1962. Claimants Moore, Kelsey, and Schrom were
picket captains, and not all of them were there at the same time.
19 See, e.g, Eastern Die Company, 142 NLRB 601.
=° That she did not use the words inadvertently in talking to Murray is evidenced by her-
11repetition on cross-examination : "I called him to report to work . . . .
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The picketing consisted of walking in a circle across the driveway to the parking
area.21 The size of the circle varied from time to time, depending upon the number
of pickets present. When a nonstriker's automobile approached to enter the driveway
from the street, or to leave from the parking area, the pickets continued to circle in
front of it in order to compel the automobile to come to a halt. After some delay, the
picket line opened and the cars went through. The stated purpose of this tactic was
to give the strikers the opportunity of pleading their cause with the nonstrikers.22
And some of the strikers did use this halting procedure for that purpose. This tactic,
however, was also used to harass the nonstrikers, especially after it became evident
to the strikers that the others would not join their cause.
As to the length of time that the nonstrikers were held up, the estimates of Re-
spondent's witnesses vary from "momentarily" to half an hour. I do not regard as
accurate the testimony of witnesses who stated that they were held up for a substantial
period.23 Without using a watch it is natural that a person anxious to get in or out of
a plant would believe that the time he had been waiting is longer than the actual time
involved.
The blocking of nonstrikers' cars was not carried on consistently.. According to
Police Officer Loomis, "some of the cars were obstructed on various occasions" by
pickets walking in front of them. Respondent's witness O. J. Benson testified that he
was delayed once or twice. Respondent's witness Miller testified that she was held
up only twice.
On occasions, trucks seeking to enter the plant were also held up. A truck driven
by Supervisor Thayer was held up by the pickets, but when they inspected the contents
of the truck and determined that it contained items for the A. W. Serio Tool Com-
pany, the picket line opened and he was permitted to drive the truck into the parking
area. On occasions, trucks containing items for the Respondent were stopped by the
pickets. The drivers were asked to refrain from crossing the picket line. Usually,
they thereupon telephoned their company, came back, and told the pickets that they
were instructed to cross the picket line and deliver the items. The picket line there-
upon opened and the trucks were permitted to enter.
All of the claimants against whom the defense of misconduct is raised participated
in the blocking of cars as aforesaid, as did numerous other pickets.
2. Alleged pushing of nonstrikers
Respondent presented only one incident of alleged pushing of a nonstriker by
pickets. Respondent's witness Colling testified that on the first day of the strike, ac-
companied by Betty Owen and Elma Brown, she attempted to cross the picket line,
that three or four men including Clifton Rought and claimants Moore and Coxhead
physically pushed her back. Later, however, she admitted that none of the pickets
had actually touched her, that they were walking back and forth in front of her,- and
when she saw a break in the line she ran through. She admitted, further, that Owen
and Brown also went through. I therefore find that neither she nor the two non-
strikers who accompanied her were pushed or physically prevented from crossing the
picket line.24
n The driveway is 90 feet wide A W. Serio Tool Company, not connected with the
Respondent, occupied- the east half of the building which housed Respondent's plant.
There was a driveway at the east end of the building leading to a common parking area.
This driveway was sometimes used by nonstrikers , and when the pickets observed this,
they ran over to picket this driveway as well. However, it is undisputed that none of
the employees of A W. Serio Tool Company were blocked in any way by the pickets.
22 The term "nonstrikers" Is used herein to denote not only those employees who did not
join the strike, but also those who were employed by the Respondent after the strike began.
23 What some persons consider as a long or a short period in terms of minutes is illus-
trated by the testimony of Supervisor Robert Thayer who first testified, "Well, we stopped
momentarily on several occasions, but went through " Later, however, he testified, "Some-
times it would run 4 or 5 minutes before they'd let you through " Obviously, there is a
substantial difference between being delayed "momentarily" and "4 or 5 minutes." Simi-
larly, Maryann Miller, an otherwise credible witness, testified that, on leaving the plant
one day, she was held up "a slight period . . a few minutes," and when she turned around
and sought to leave through the other driveway was held up "three or four minutes It
wasn't very long "
24 Another of Respondent's witnesses, Frances Krumloff, testified that she never experi-
enced any difficulty walking through the picket line and that she had never been pushed.
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1709
3. Rocking nonstrikers' automobiles
During the first 2 weeks of the strike, the automobiles of three nonstrikers were
admittedly rocked by persons on the picket line, including the claimants here in-
volved.25 Respondent's witness Benson testified that his car was rocked three or four
times back and forth for a period of 2 or 3 seconds; that the picketers did not attempt
to lift his car, and that the rocking ceased when the police approached. On the other
occasions, the rocking lasted for approximately a minute to a minute and a half.
According to Police Officer Loomis, the picketers never came close to tipping any of
the automobiles.
4. Following automobiles of nonstrikers
On several occasions during the early part of the strike, strikers followed cars of
nonstrikers as they left the plant. Claimant Kelsey admitted that he had followed
Smith's car and testified that his purpose was to talk to him "to see if I could convince
him to come to our side." This was confirmed by Respondent's witness Gerald Smith
who also testified that on another occasion claimants Moore and Schrom tried to talk
with him when he got out of his car at his destination, but that he did not pay any
attention to them. On none of these occasions was Smith threatened. Respondent's.
witness Leona Landon also testified that she was followed from the plant on more
than one occasion. On one such occasion she saw a sheriff's car nearby and com-
plained that she was being followed. She was told to proceed and that she would be
followed by the sheriff's car. She first dropped off Arlie Siler, one of her passengers.-
Then she dropped off her sister-in-law, Vera Landon. According to the latter and-
Lenora Rittenhouse, another passenger, the pickets' automobile appeared at that
point and claimants Moore and Schrom got out and said to Vera Landon, "If we don't
get you we will get your mother." Leona Landon testified that she did not hear any-
thing. I do not credit the testimony of Vera Landon and Rittenhouse. Aside from
the fact that both were admittedly hostile to the Union, having paricipated in a drive
to decertify the Union, I do not consider it likely that any of the pickets would have-
uttered threats when a sheriffs car was nearby.
On another occasion nonstriker Colon testified on behalf of the Respondent that
she was followed home by claimant Kelsey, who did not stop or attempt to talk with
her, but drove right by after she had pulled into her driveway. Claimant Kelsey, who
impressed me as being a credible witness, denied that he had followed Colon. I find
that this was merely a coincidence.
I find that Kelsey, Moore, and Schrom followed one or more of the nonstrikers.
5. The National Cash Register truck incident
On or about November 27, 1961, a, truck of The National Cash Register Company'
stopped at the picket line. After some delay, the picket line opened and the truck-
entered the premises of the Respondnt . As it did so, claimant Carol Bailey pulled
some wiring out from under the rear of the truck. Claimant Bailey apparently could
not be found and, hence, did not attend or testify at the hearing. Claimants Moore,
Schrom, and Kelsey who were present on the picket line when this occurred testified
in rebuttal, but none of them denied this incident. I therefore find that claimant
Bailey did some slight damage to the truck of The National Cash Register Company
by pulling out wires from under it. -
6. Alleged threat to truckdriver Theodore Bailey
Theodore Bailey, a truckdriver employed by the Respondent about a month after
the start of the strike, testified that while getting gas for'the Respondent's truck at the
Mobil station at the corner of Madison and Church Streets, he was approached by
claimants Kelsey and Moore who said to him, "If you go through the picket line once
more, we are going to beat the tar right out, of you." According to Bailey he replied,
"Do it now and you won't have to jerk me out 'of the truck," and that Kelsey and
Moore thereupon turned around and walked away. Both Moore and Kelsey, who
impressed me as credible witnesses , admitted that they had confronted Bailey on this-
occasion, but denied making any threats to him. According to Kelsey, the reason he
spoke to Bailey was the fact that he used to come through the picket line too fast.
Kelsey's testimony in this regard is confirmed by Bailey's admission on cross-exami-
nation , which he neglected to testify to on direction examination ) that Moore and?
u The automobiles belonged to Benson , Landon, and Colon ( twice).
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kelsey "left me a second warning that I'd just better slow down ." I therefore find
that claimants Moore and Kelsey did not threaten Bailey as contended by the Re-
spondent.26
7. The egg-throwing incident
On December 1, 1961, about noon when the nonstrikers were at lunch in the plant,
a number of rotten eggs were thrown against the Respondent 's plant walls and through
open windows . Two such eggs struck nonstriking employees in the plant. Super-
visors then ordered the windows closed . That the incident occurred is not in dispute.
However, there is a sharp conflict in the testimony as to which of the claimants was
involved in this incident.
It is clear that the incident was provoked to some extent by the earlier actions of
,one or more of the nonstrikers the previous day in throwing snowballs at the picket
line which consisted most of women.
The picket line was approximately 75 feet from the Respondent 's plant. At the
time, there were about 25 picketers on the line, of whom approximately half were
men. Respondent 's witness Rebecca Churchill testified that among the men throwing
eggs were claimants Kelsey, Schrom , and Bailey . When claimant Coxhead was
pointed out to her, she testified that he was not one of those who threw eggs. On
the other hand , Respondent 's witness Louise Passeri positively identified claimant
Coxhead as one who threw eggs , and in addition named claimants Kelsey, Schrom,
and Moore . Her son, Roger, testified that four or five of the men threw eggs, but was
able to identify only claimants Kelsey and Moore. Respondent 's witness Colon iden-
tified as an egg thrower claimant Murray (not identified as such by the other wit-
nesses ), as well as Moore, Kelsey, and Schrom Respodnent 's witness Melissa Coi-
ling, one of those who got hit by an egg coming through the window , testified that she
recognized among the throwers claimants Kelsey, Bailey, Moore , and Schrom.
Since the claims of these claimants for backpay may depend upon their identifica-
tion as egg throwers by these witnesses , it is appropriate to scrutinize the testimony a
little more closely . Louise Passeri testified that one girl got hit with a rotten egg
almost as soon as Mrs. Passeri got to the window, that the second girl got hit very
shortly thereafter , and that Mrs. Passeri then left the window . In fact, she left before
the window was closed . Roger Passeri apparently saw very little. He admittedly
did not see any girls on the picket line , although the others did. Thus, he testified
that the only pickets he saw were the four or five men who were throwing eggs.
Colling testified that she was struck by an egg as soon as she put her face to the
window. Yet she was able to identify the thrower as claimant Kelsey who was 75 feet
away from her . Considering the time that it takes an egg to travel 75 feet when
thrown by a man , I find it difficult to believe that Colling could with any certainty
identify the thrower of an egg which hit her as soon as she stepped up to the window.
Moreover , Colling admitted that she could not see "too awful far away from me" and
was unable to identify Business Agent Donahue in the courtroom ( in another context)
because the closest she had ever been to Donahue was "out from the driveway into
the building" approximately the same distance over which the eggs were thrown.
Although Colon testified that Schrom threw eggs, she was unable to identify him in
the courtroom where he was seated some 50 feet ,fiom her-less than the distance
between the plant and the picket line . Nor did Churchill identify Coxhead as one
who threw eggs , although he later admitted that he had done so . Considering the
-excitement and confusion naturally attending such an incident , and the extremely
:e Respondent argues that Kelsey 's version should not be believed because Bailey was not
employed by the Respondent until 6 weeks after the strike began and Justin Donahue,
business representative of the Union , admitted that all speeding incidents ended 3 weeks
after the strike began when the police posted their notice directing cars to slow down at
the picket line. This argument is undermined by the very fact that Bailey admitted that
Moore and Kelsey warned him that he had better slow down . The mere fact that the
police had posted notices directing drivers to slow down as they approached the picket line
and the further fact that drivers in general obeyed such directions do not negate the fact
that Moore and Kelsey may have thought that Bailey was driving through the picket line
.at too great a speed and therefore took this opportunity to speak to him about it.
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1711
brief time that Respondent 's witnesses stood at the window, the identification of
Kelsey, Moore, and Schrom as egg throwers may well be the result of honest error.
As picket captains , Kelsey, Moore, and Schrom were most consistently on the picket
line, and Kelsey admittedly was on the line when the incident occurred. It is there-
fore easy to understand why the Respondent's witnesses might mistakenly believe that
these men were involved in the egg-throwing incident.
While there are patent flaws in the testimony of Respondent 's witnesses , the testi-
mony on behlaf of the claimants leaves something to be desired According to
claimant Kelsey's credited testimony , although he was present when the egg-throwing
incident occurred, he did not participate in it; on the contrary he told the throwers to
stop . However, his inability to identify any of the egg throwers was less than frank,
and it must be presumed that he was protecting one or more of the claimants.
Claimant Schrom, when called as an adverse witness by the Respondent, testified
that he had no recollection of the egg -throwing incident . Later, he took the stand on
behalf of the General Counsel and testified that his recollection had been refreshed
by the intervening testimony of claimant Coxhead (to which I shall advert below),
that he was absent from the picket line when the event occurred, having gone to lunch.
Like claimant Kelsey, however, he was less than frank when he testified that upon
his return from lunch after observing the scene , he did not inquire, nor was he told,
who had participated in the egg throwing. Again, it must be presumed that he was
-seeking to avoid implicating any of the other claimants.
The testimony of claimant Murray is of little help. He remembered the egg-throw-
ing incident, but did not know who threw the eggs. According to him, the eggs were
thrown by "most everybody that was there," and that the women threw more eggs
than did the men-a statement contradicted by every other witness to the incident.
He denied that he threw any eggs. Finally, he conceded that he was not very clear on
what did occur that day, that "all I know is that eggs were flying and all I know is that
I didn't throw none." While Murray's testimony is vague in other respects, I credit
his denial , particularly in view of the fact that , of the five witnesses presented by Re-
spondent on this issue , only one identified Murray as having thrown any eggs.
The most striking event of the hearing occurred when claimant Harry Coxhead
took the stand as a witness for the General Counsel and' admitted that he and Tex
Briggs, another striker,27 brought the rotten eggs to the picket line and that the eggs
were thrown by himself, Briggs, Carol Bailey, and a couple of other men whose names
he did not know. He testified that his reason for bringing the eggs to the picket line
was that on the previous day he had been hit in the back with a snowball with arock
in it . He did not know who threw the snowball , but testified that it came from the
direction of the plant. Coxhead testified further that claimant Kelsey did not throw
any eggs but was walking up and down with the picket line; that neither Schiom nor
Moore was present , both having left the picket line to have their dinner . According
to Coxhead , he had not informed Kelsey of his intention to throw the eggs, and Kelsey
:lad made him stop.
Respondent argues that Coxhead 's testimony should be discredited , pointing out
-that Coxhead was a claimant against whom the Respondent had not charged miscon-
duct and that in any event he had ,the least amount of,backpay to lose.28 Therefore,
Respondent argues, Coxhead was offering himself as a scapegoat along with Carol
z7 Tex Briggs is not otherwise identified in the record Kelsey earlier had identified one
Alton Briggs as being on the picket line when tile incident occurred . According to the
backpay specification ( appendix A), Alton Briggs was reinstated by the Respondent in
July 1962, and Respondent has not raised the defense of misconduct against him.
is On the last afternoon of the instant 6-day hearing , Respondent moved to amend its
answer to charge Coxhead with misconduct . Counsel for the General Counsel opposed the
motion as coming too late , pointing out that respondent had been aware of Coxhead's
involvement in the egg - throwing incident , at least after Mrs Passeri had identified him
,on the second day of the hearing. Respondent did not argue the motion , nor does it do
so on brief . I denied the motion. Aside from the above reason, it would be manifestly
unfair to Coxhead , who voluntarily took the stand at a time when be was not charged
with misconduct and contributed substantial evidence in the matter , to allow the Respond-
ent 'thereafter to raise this affirmative defense against him. Had the Respondent raised
the issue earlier, Coxhead might not have taken the stand to testify regarding this incident.
1
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bailey who had failed to appear at the hearing , thereby absolving the other claimants
of fault . In these strange circumstances , Coxhead's testimony must be viewed with
suspicion . However, I observed with great care his demeanor while testifying and
I am satisfied , despite the circumstances to which the Respondent alluded, that he
testified truthfully . It is also perhaps significant that Respondent 's witness, Louise
Passeri , confirmed the fact that Coxhead was the instigator of the egg -throwing inci-
dent, testifying , "Harry Coxhead is the one that passed the eggs and-" and , later,
when asked how long she had known Coxhead replied , "How long. I have seen that
boy grow up and I wouldn't lie against him for no money .. .." 29
Respondent also seeks to cast doubt upon the credibility of Coxhead 's testimony by
pointing out that, when called as an adverse witness by the Respondent earlier in the
hearing, he did not testify regarding the egg-throwing incident , The argument is
without merit. The simple fact is that Respondent did not interrogate him regarding
the egg-throwing incident.
Based on all of the foregoing , I find and conclude that neither Schrom nor Moore
was present when the egg-throwing incident occurred . As has been noted, the event
occurred during the noon hour . Schrom , Moore, and Kelsey were picket captains
and divided their time on the picket line among themselves . It is therefore reasonable
to believe the testimony that Schrom and Moore had left the picket line to go to lunch.
Kelsey admittedly was present . I credit the testimony that he did not participate in
the egg-throwing . Kelsey impressed me as a serious minded person who had been
instructed by Business Representative Donahue to avoid any misconduct on the picket
line. In general , he testified in a straightforward manner.30
While Murray was present during the egg-throwing incident , I credit his denial
and find that he did not participate therein.
Claimant Carol Bailey was identified by Coxhead as one of those who participated
in the egg-throwing incident. I have credited Coxhead's testimony , and as there is no,
contrary evidence , I find that Carol Bailey did throw eggs while on the picket line.
8. Provocation
It should be noted that the foregoing conduct of the strikers was not without provo-
cation . Vile epithets were hurled between nonstrikers and strikers with whom they
were involved in an economic struggle . The throwing of snowballs by nonstrikers at
the picket line on the day before the egg-throwing incident has been alluded to above.
Three strikers, Sawyer , Little, and Deats, were hit by automobiles driven by non-
strikers through the picket line.
Acts of provocation were also committed by representatives of the Respondent.
On one occasion , according to the credited testimony of Business Representative
Donahue, a truck seeking to make a delivery to the Respondent was halted by the
21 While, for reasons previously noted, I do not credit Louise Passeri ' s testimony that
Kelsey, Schrom , and Moore threw eggs , nevertheless , I do credit her testimony in this re-
gard in view of her long acquaintanceship with Coxhead . Cf. Lozano Enterpriae8 v.
NLRB. , 327 F. 2d 814 ( C A. 9), footnote 2.
3s I do not credit Kelsey ' , testimony that he did not recall who was on the picket line at
the time, except for himself and Alton Briggs. I believe that his lack of recollection in
this instance stems from a disinclination to implicate any other , claimant po ssibly claim-
ant Coxhead who later in the proceeding took the stand and admitted instigating and
participating in the egg throwing
Respondent argues that Kelsey and Schrom should not be credited becauee , when they
first testified as adverse witnesses called by the Respondent , they denied that they had
rocked any automobiles . Later , they took the stand as witnesses for the General Counsel
and stated that their memory had been refreshed by the intervening testimony and ad-
mitted rocking automobiles . It would seem strange that they would not have recalled such
incidents when they first testified . However, it should be noted that the instant hearing
occurred more than 11/2 years after the occurrence of the incidents testified to The strike
had lasted from Nevember 13 to sometime in April of the following year , and presumably
a number of various incidents must have occurred during that time. It is perhaps sig-
nificant that both voluntarily took the stand the second time and testified on direct ex-
amination to the refreshing of their recollection to their obi ious detriment This is
hardly the action of witnesses who are trying to conceal evidence.
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1713
picket line and the driver was asked whether he would respect the picket line. While
this was happening , Plant Manager Serio and Supervisor McElroy came running out
to the street. Plant Manager Serio said to the truckdriver, "Run over these goddamn
bastards and fools." He pushed some of the pickets and said , "I can lick any three of
you guys with my bare hands." The arrival of the police prevented the incident from
developing further. According to the credited testimony of Police Officer Loomis,
"One of the officials came out and pushed a couple of people pretty rough. If they
would have pushed me that way, there would have been a fight." On another occa-
sion,31 the pickets arrived at the plant early in the morning and found a lot of nails
scattered across the driveway where it enters the street. The pickets proceeded to pick
up the nails. Superintendent McElroy who was supervising some of the employees
who were also picking up the nails came over to claimant Moore and told him that
he was on company property. Moore denied that he was on company property and
stated that he was helping to pick up the nails. Thereupon, Superintendent McElroy
struck Moore in the groin with his knee and Moore fell to the ground. None of the
foregoing incidents was denied by any of Respondent's witnesses.
9. Conclusions as to misconduct
It is well recognized that not every incident of animal exuberance constitutes such
conduct as would bar reinstatement and backpay. Thus, the seriousness of such con-
duct as well as the context in which it occurred must be considered in determining
whether this sanction should be applied. In addition, as the Board pointed out in
Blades Manufacturing Corporation, 144 NLRB 561, quoting from the Thayer
case: 32
where collective action is precipitated by an unfair labor practice, a finding
that action is not protected under Sec. 7 does not, ipso facto, preclude an order
reinstating employees who have been discharged because of their participation in
the unprotected activity.
So, also, as the Court of Appeals for the District of Columbia pointed out in the
Kohler case: 33
but where there has been an antecedent employer unfair labor practice, a
finding that employees have engaged in unprotected activity is only the first step
in determining whether reinstatement is appropriate.
In its Decision and Order 34 the Board found that the strike was initiated by the
unfair labor practices of the Respondent, consisting of threats to close the plant, the
discriminatory layoff of 59 employees, the layoff of the night shift, and the re-
fusal to recognize and bargain with the Union. Respondent's categorical determi-
nation not to deal with the Union persisted throughout the strike and prolonged it.35
These unfair labor practices were aggravated by the conduct of Respondent's hier-
archy during the strike, noted above.36
Considering the length of the strike, from November 13, 1961, to April 1962, it is
apparent that except for the relatively few incidents complained about by the Re-
spondent, the picketing was peaceful.37 During the entire period of the strike, no
person seeking to enter or leave Respondent's plant was ever actually prevented from
.doing so. At most, they were delayed. And in view of the relatively few instances
31.The record is not clear as-to the date of,this occurrence. Claimant Moore, who was
involved in the incident, placed it as occurring in the first few weeks of the strike.
According to Business Representative Donahue it happened in the latter part of December
or the early part of January 1962. Police Officer Loomis who witnessed the incident
stated that it occurred during the middle of the strike.
33 N.L.R B v Thayer Company, 213 F. 2d 748, 753 (CA. 1), cert denied 348 U.S. 883.
33 Local 898, UAW v. N.L R B., 300 F. 2d 699, 704, cert. denied 370 U.S. 911, also relied
;upon in the Blades case.
34 138 NLRB 1393
36138 NLRB at 1402
S6 See also finding in 138 NLRB at 1399.
_37 According to Police Officer Loomis' testimony, the picketing never got out of hand.
1714 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified to by Respondent's witnesses, it must be assumed that vast numbers of cars
passed through the picket line without incident. Police and deputy sheriffs were
present at the entrance of the plant whenever the nonstrikers arrived at or left the
Respondent's plant.
Nor do I regard the incidents of car rocking as serious. The police were present,
and this should have assured the occupants of the cars as to their safety. None of the
automobiles was tipped over or damaged. There were very few such incidents and
they occurred at the beginning of the strike. Moreover, there is some provocation
on the part of some nonstrikers who drove through the picket line at fairly fast rates
of speed, striking three of the picketers. In short, these incidents constituted nothing
more than horseplay; as claimant Kelsey put it: "to relieve some tension." It is
also significant that, until the backpay proceeding was brought, Respondent did not
consider either the blocking of ingress and egress and the rocking of cars as warrant-
ing denial of reinstatement. Thus, Superintendent Morris conceded that he observed
between 12 and 20 strikers involved in the rocking of cars and blocking their entrance
and exit and that some of them were back working at the Respondent's paint.
The following of Smith's automobile was clearly for the purpose of discussing the
strike with him and enlisting his support, as is evident from Smith's own testimony.
However, in the case of Leona Landon, it does not appear from the record that the
strikers actually spoke to her after following her car, although they made an un-
successful attempt to talk to Arlie Siler, one of her passengers, when she got out of
the car. It is recognized that being followed by another car may be an unsettling
experience. Nevertheless, these were isolated instances, and I do not consider them
of sufficient seriousness in view of all the circumstances to warrant denial of rein-
statement and backpay to the strikers involved.38
Weighing all of the foregoing considerations, as I am admonished to do by the
decisions cited above, I conclude that none of the employees involved in the alleged
acts of misconduct (except egg throwing) should be denied reinstatement or back-
pay by reason thereof. Reinstatement and backpay are the only sanctions which
prevent an employer from benefiting from his unfair labor practices which may
weaken or destroy a union and the ability of the employees to engage in concerted
activity. These considerations are entitled to great weight in the instant proceeding,
as among the employees charged with alleged misconduct are those who organized
the Respondent's plant 39 or served as picket line captains.40 In these circumstances,
denial of reinstatement and backpay to these employees would strike a severe and
unnecessary blow at the desire and ability of all the employees to organize. And
such action is unnecessary, since, as the court pointed out in the Kohler case, the
employer had available to it such other sanctions as criminal prosecutions, civil
suits, union unfair labor practice proceedings, etc., to prevent or remedy employee
misconduct.41 Accordingly, I conclude that Kelsey, Moore, Schrom, and Murray
are entitled to backpay in the instant proceeding, as follows: Kelsey, $2,795;
Moore, $896; Scbrom, $348, and Murray $680.80, as set forth in the backpay spec-
ifications as amended 42
Despite the provocation, the act of throwing rotten eggs at the plant and through
the windows does not stand upon the same footing as the other conduct complained
about. This was not mere exuberance. It was violence. Two nonstrikers were
struck by the rotten eggs, and the plant wall was plastered with them. The acts
were committed by Coxhead, Bailey, and Tex Briggs who is not identified in the
record. Respondent has not raised the defense of misconduct against Coxhead;
consequently backpay cannot be denied him on that account. Respondent did raise
this defense against Bailey and proved it with the aid of Coxhead's testimony. Ac-
cordingly, backpay must be denied to Bailey.43
sa Cf. Schott Metal Products Company, 128 NLRB 415, 416.
80 Kelsey and Schrom. See 138 NLRB at 1397.
40 Kelsey, Schrom, and Moore.
S1 300 F. 2d 699, at 703.
42 As previously noted, the Respondent does not challenge the accuracy of the amounts
set forth in the backpay specifications, as amended , if its defenses are found to be without
merit.
43 It may seem incongruous to penalize Bailey and not Coxhead for conduct in which they
both participated ; but the parties, and not the Trial Examiner nor the Board, framed the
issues in the proceeding. And if a party fails to assert timely a defense it may have, it
must suffer the consequences thereof. Cf Valley Transit Company, Inc., 142 NLRB 658.
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1715
CONCLUSIONS AND RECOMMENDATIONS
Upon the entire record , and in accordance with the foregoing findings, I conclude
that:
1. The claimants listed below are entitled to payment by the Respondent of the
sums listed opposite their names:
Dorothy Amey________ $644.00 Shirley Miller_________ $644.00
Harold Amey_________ 644.00 Marjorie Monteleone___ 506.00
Esther Andrus_________ 456.00 Dorothy Norton_______ 644.00
James E. Bailey_______ 620.87 Robert Norton_________ 506.00
Velma Bailey__________ 644.00 Mary Martin__________ 644.00
Carrie Baker__________ 644.00 Kay Orcutt____________ 644.00
Mary Bartlett--------- 377.00 Sharon Bourdette_______ 644.00
Joan Beebe____________ 644.00 Rose Patterson-------- 629.00
Stanley D. Bennett----- 448.00 Sharon Phelps_________ 592.00
Mahlon Baldwin_______ 389.00 Kenneth Ripley________ 444.00
Della Brewer__________ 644.00 Mary, Ross___________ 644.00
Alton Briggs__________ 542.00 Clifton Rought________ 89.00
Sylvia Brimmer_______ 672.00 Carl E. Slingerland____ 244.00
Marion Buchanan------ 644.00 Sylvia Slingerland______ 506.00
Agnes Bullock_________ 644.00 John A. Smith________ 644.00
Sally Burnside--------- 644.00 Dora Smith___________ 644.00
Hazel Bush____________ 644.00 Nellie L. Smith________ 644.00
John Caccia___________ 644.00 Onalee Stahle_________ 522.00
Adelaide Carlson______ 644.00 Vance Tiffany_________ 644.00
Mabel Carroll_________ 168.00 Margaret Tyson________ 644.00
Wallace Connis________ 644.00 David C. Terwilliger___ 598.00
Mary Carl____________ 644.00 Julia Tice------------ 672.00
Ella Deery____________ 644.00 Jean Urbaniak_________ 620.00
Robert Deats__________ 138.00 Ada Weston__________ 672.00
Lorraine Edwards______ 644.00 Donna Wheeler________ 644.00
Eleanor Erwin_________ 644.00 Flora Wheeler________ 644.00
Elaine Ferris__________ 644.00 Carl Whipple_________ 140.00
Kenneth Forsyth_______ 644.00 Margaret Whittemore___ 672.00
Marguerite Forsyth_____ 644.00 Chester Wilk_________ 506.00
Ida Frisbie____________ 644.00 Rose Williamson------ 402.00
Betty Garland_________ 644.00 Faith Young__________ 644 00
Mildred Green_________ 552.00 Vera Louise Baker____ 1,536.86
Charles Griffiths _______ 644.00 Myrtle Caslin_________ 1,079.74
Gladys Gulich_________ 672.00 Harry F. Coxhead_____ 340.00
Gertrude Hilfiger______ 92.00 Edith Edwards (Baldwin) 653.20
Dulcie Hill___________ 539.00 Virginia Hoover ------- 3,026.80
Bertha Hollenbeck_____ 644.00 Shirley Johnson________ 2,503.55
Sevellin Hoyles, Jr----- 138.00 James R. Kelsey_______ 2,795.00
Arlene Jennings------- 356.00 Winifred Little________ 715.00
Helen G. Kline________ 672.00 Ida Mays_____________ 3,026.80
Cora Kudzinski________ 644.00 Lois Meany___________ 920.00
Shirley Landon________ 644.00 Donald Moore_________ 896.00
Angeline Lewis-------- 672.00 Edmond Murray------- 680.80
Elva Little____________ 449.00 Florence Oliver-------- 2,088.40
Emma Kelly__________ 164.00 Judith Root___________ 1,058.00
Elizabeth Lyon________ 644.00 Barbara Sawyer (Shock) 1,437.50
Gladys MacComber_____ 53.00 Donald Schrom________ 348.00
Bessie Miller__________ 644.00 Evelyn Seymour_______ 935.60
Nellie Miller__________ 644.00
2. The Respondent has not complied with the terms of the Board's Order in re-
spect to offering immediate reinstatement to the following named persons who are
entitled to immediate reinstatement within the terms of said Order:
Vera Louise Baker Donald Moore
Myrtle Caslin Edmond Murray
Shirley Johnson Judith Root
James R. Kelsey Donald Schrom
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that the Board adopt the foregoing findings and con-
clusions and that the Board order the Respondent to pay each claimant the amount
set opposite his name in paragraph 1, above, with interest at the rate of 6 percent
per annum on each of the quarterly sums found due herein from the end of each
calendar quarter as set forth in the backpay specifications as amended 44 Isis
Plumbing & Heating Co, 138 NLRB 716 It is further recommended that the
Board's Order include a reservation of the further backpay rights of the persons
named in paragraph 2, above
44 Except that, In accordance with my finding , supra claimant Sawyer's right to back-
pay terminated at the end of the fourth quarter of 1962
O