Gibson Greetings

National Labor Relations Board - Board Decisions

May 7, 1993

310 N.L.R.B. 1286 (N.L.R.B. 1993)

1286
310 NLRB No. 221
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent also filed a motion for oral argument. This re-
quest is denied as the record, the exceptions, and the briefs ade-
quately present the issues and the positions of the parties.
The Charging Party Union has moved us to receive into the record
the unpublished opinion of the United States Court of Appeals for
the Sixth Circuit in Gibson Greetings v. Firemen & Oilers Local 77,
947 F.2d 944 (1991), in which the court affirmed a district court
order dismissing Gibson’s suit for the Union’s alleged breach of the
no-strike clause in the 1986–1989 collective-bargaining agreement.
We grant the motion, but note that we do not give that decision res
judicata effect as to any issue in this proceeding.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 All dates are in 1989 unless otherwise indicated.
4 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969).
5 The judge declined to find that this letter contributed to the pro-
longation of the strike, thereby converting it to an unfair labor prac-
tice strike. We agree. Although several strikers testified that they
were distressed by the Respondent’s letter, none suggested that it
was because of that letter that the strike continued, nor that strikers
discussed it collectively as a basis for continuing the strike. Most
tellingly, in the numerous articles appearing in local newspapers
about the strike, the letter was never mentioned by any employee or
union spokesperson as contributing to the length of the strike. See
C-Line Express, 292 NLRB 638 (1989) (evidence of employees’
subjective motivation for continuing a strike considered relevant).
Gibson Greetings, Inc. and International Brother-
hood of Firemen and Oilers, AFL–CIO and
Betty Smith. Cases 9–CA–26706, 9–CA–27660,
and 9–CA–26875
May 7, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 18, 1991, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a brief in support, and
the General Counsel and the Charging Party filed
cross-exceptions and briefs in support. All three parties
filed answering briefs to each other’s exceptions, and
the Respondent also filed reply briefs to the General
Counsel’s and the Charging Party’s answering briefs.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified and to adopt the recommended
Order as modified.
This case involves an economic strike which began
on May 1, 1989,3 after negotiations had broken down
between the parties. The strike ended on August 8,
when the strikers made an unconditional offer to return
to work. The General Counsel alleged that actions by
the Respondent on May 1 and 15 were unlawful and
that each act was sufficient to convert the strike to an
unfair labor practice strike. The judge found that a let-
ter sent by the Respondent to striking employees on
May 1 violated Section 8(a)(1) of the Act, in that it
threatened to deprive them of their Laidlaw4 rights, but
that this violation did not convert the strike. He further
found that the Respondent violated Section 8(a)(5) of
the Act on May 15 and again on May 21, when it in-
sisted that the Respondent comply with its demands on
a nonmandatory subject of bargaining as a condition of
any further bargaining. He concluded that this 8(a)(5)
violation sufficed to convert the strike to an unfair
labor practice strike as of May 15. We agree with the
judge’s findings as to these matters, for the reasons set
out below.
The judge also found that the employees hired dur-
ing the strike were hired as permanent replacements
for striking employees. Thus, he concluded that the
Respondent was not required to displace those employ-
ees who were hired between May 1 and 14, because
the strike was an economic one during that period. We
disagree with the judge on this issue and find that the
Respondent did not meet its burden of proving that the
replacements shared with it an understanding that their
employment was permanent. We find instead that the
newly hired employees were in fact temporary replace-
ments, and accordingly, we will order reinstatement of
all strikers who made an unconditional offer to return
to work.
1. The 8(a)(1) threat in the May 1 letter
The complaint alleges that by its letter dated May 1
to its striking employees, the Respondent violated Sec-
tion 8(a)(1) of the Act by threatening to disregard the
employees’ Laidlaw right to reinstatement if job va-
cancies occurred after replacement employees departed.
The letter discussed the Respondent’s position on the
two bargaining issues which separated the parties, and
then concluded:
We will begin to hire and train new employees
immediately so you should understand that you
have a right to work here which is protected by
federal and state law if you return to work before
you are replaced. It really is up to you. [Emphasis
in original.]
The judge found that this language violated Section
8(a)(1) in that it threatened to ignore the employees’
rights guaranteed by Laidlaw. He noted that the Re-
spondent underlined the threat to prevent any employ-
ees from missing the point, and that it concurrently
published a notice in the newspapers indicating that
the rights of replacement workers would be respected.5
1287GIBSON GREETINGS
6 Emerson Electric Co., 287 NLRB 1065, 1066 (1988).
We agree with the judge that the language of the
May 1 letter violated the Act. Under Laidlaw, a viola-
tion is made out when an employer indicates to em-
ployees that by striking, they will be deprived of their
right to get their jobs back. The status of strikers as
employees continues until they have obtained other
regular and equivalent employment or until they leave
the employer’s employ. Even if replaced by permanent
replacement employees, economic strikers who have
made unconditional offers to return to work are guar-
anteed the right to full reinstatement when positions
are available and to placement on a preferential hiring
list if positions are not available.6
In Eagle Comtronics, 263 NLRB 515 (1982), the
Board reviewed the rights of strikers with regard to re-
instatement, and reiterated the principle that an em-
ployer does not violate the Act by truthfully informing
employees that they are subject to permanent replace-
ment in the event of an economic strike. The Board
held that an employer may address the subject of strik-
er replacement without fully detailing the protections
enumerated in Laidlaw, ‘‘so long as it does not threat-
en that, as a result of a strike, employees will be de-
prived of their rights in a manner inconsistent with
those detailed in Laidlaw.’’ Id. at 516.
In Emerson Electric Co., 287 NLRB 1065, l066
(1988), the Board held that the employer unlawfully
threatened its employees with job loss by telling them
that it did not have to take back strikers after the strike
was settled. The Board found that the employer went
beyond what was allowable under Eagle Comtronics,
and threatened that as a result of the strike, employees
would be deprived of their Laidlaw rights. We find the
same to be true in the instant case. Here the Respond-
ent went beyond informing the employees of the risk
of being permanently replaced and implied that they
would lose their rights to reinstatement if it replaced
them before they abandoned the strike. We find this to
be a violation of Section 8(a)(1) akin to that found in
Emerson Electric, because it constitutes a threat that
employees who remain on strike until hiring of re-
placements will be deprived of their Laidlaw rights.
2. The Respondent’s insistence on a position
related to its frivolous claim of a no-strike clause
breach violated Section 8(a)(5) and converted the
strike to an unfair labor practice strike on May 15
On May 15, 2 weeks into the strike, the parties met
in the presence of a mediator. The Respondent,
through its chief negotiator, William K. Engeman, stat-
ed for the first time its position that the May 1 strike
violated the parties’ 1986–1989 collective-bargaining
agreement, which contained a no-strike clause. The
contract, which carried an expiration date of April 30,
1989, reads in pertinent part:
6. WORK INTERRUPTIONS
6.1 The Union agrees that during the term of
this Agreement neither it nor its officers, agents
or any of the employees will authorize, cause, in-
stigate, condone, or engage in any work stoppage,
sitdown, strike, sympathy strike, unfair labor prac-
tice strike, slowdown, picketing, boycott or any
other action which may interrupt or interfere with
the operations of the Company including any re-
fusal to cross picket lines at the Company’s prem-
ises. The Company will not engage in a lockout
during the term of this Agreement.
6.2 In the event of any violation of 6.1 above,
the Union agrees that upon telegraphic notifica-
tion by the Company to it of the existence of such
violation, it will take immediate and affirmative
steps with the employees involved (such as letters,
bulletins, telegrams, employee meetings and direc-
tions of the authorized Union representatives to
resume work under pain of internal Union dis-
cipline) to bring about an immediate resumption
of work.
6.3 Any violation of 6.1 by any employee or
employees shall constitute cause of [sic] imme-
diate discipline and/or discharge, at the Com-
pany’s discretion, provided that the question of
whether or not any employee participated in such
violation shall be subject to the grievance and ar-
bitration procedures.
6.4 Should there be a violation of 6.1, there
shall be no discussion or negotiations regarding
any difference or disputes between the parties
hereto during the existence of such violation be-
fore a resumption of work.
. . . .
13. DURATION
This agreement shall become effective on the
1st day of May, 1986, and shall remain in full
force and effect until midnight on the 30th day of
April, 1989, and shall automatically renew itself
from year to year thereafter unless written notice
to terminate the Agreement is given by a party
not less than sixty (60) days prior to the expira-
tion date or annual renewal thereof.
If notice to terminate is given, if practical, such
notice shall set forth all proposed provisions of
any proposed successor agreement and the parties
shall promptly meet to negotiate with respect to
the proposed successor agreement. In the event
that negotiations for the successor agreement shall
continue beyond the expiration of the term of the
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See Plattdeutsche Park Restaurant, 296 NLRB l33, l37 (1989).
8 Gaywood Mfg. Co., 299 NLRB 697, 700 (1990), citing C-Line
Express, 292 NLRB 638 (1989).
9 See Hydrologics, Inc., 293 NLRB 1060, l063 (1989), in which
the employer unlawfully rescinded the parties’ collective-bargaining
agreement based on what it considered to be an unlawful strike. The
Agreement, this Agreement shall continue in full
force and effect, provided, however, that either
party may then terminate this Agreement upon ten
(10) days written notice to the other party.
The Respondent’s position was that the contract was
still in effect at the time the strike began, because ne-
gotiations for a successor agreement were ‘‘con-
tinuing’’ beyond the expiration of the agreement with-
in the meaning of the Duration clause. This being the
case, according to the Respondent, the Union was re-
quired to give 10 days’ notice to terminate the agree-
ment before engaging in a strike.
The Union’s chief negotiator, Edward Hartman, dis-
puted the Respondent’s position that the strike con-
travened the parties’ agreement. He asserted that, be-
cause there were no further negotiations scheduled on
April 30, the contract was no longer in effect when the
strike began and therefore, the 10-day-notice provision
did not apply. The May 15 meeting broke up without
any bargaining over the substantive terms of any future
contract.
The parties got together again on May 21; however,
there was no face-to-face contact. All communication
took place through the mediator. Hartman was given a
letter from Engeman dated May 18 which stated, inter
alia:
As you know, we take the position that the strike
is in violation of Section 6.1. We are willing to
negotiate immediately upon your discontinuing it.
Further, if we have written confirmation that any
negotiations would not be considered a waiver of
the Company’s contractual position, we would be
willing to negotiate on that basis.
At the end of the meeting, Hartman drafted what he
considered to be the requested waiver, and it was
given to Engeman. The parties’ negotiations at that
session centered on the Union’s proposed strike settle-
ment agreement. Again, the parties left the session
without discussing any substantive contract terms. It
was not until their next meeting, on May 30, that the
parties took up discussion over the bargaining issues
which separated them.
a. The judge’s conclusion that the Respondent vio-
lated Section 8(a)(5) through a demand that was made
on May 15 and persisted in until the Union capitulated
to it is based on the following reasoning. The judge
found that at the May 15 meeting Respondent made it
clear that it would not bargain over the terms of the
collective-bargaining agreement until the Union ac-
ceded to either one of two alternative demands. The
Respondent demanded that either what the Respondent
for the first time contended was an illegal strike be
called off or the Union sign what amounted to a writ-
ten waiver of any right to characterize the Respond-
ent’s continued participation in negotiations as an
abandonment of its illegal strike contention. Bargaining
did not resume until the Union submitted the written
waiver. The judge further concluded that the Respond-
ent’s contention that the no-strike clause of the con-
tract was somehow given extended effect by ‘‘con-
tinuing negotiations’’ when none were scheduled when
the strike began was patently false. In summing up the
judge stated,
the position that the May 1 strike somehow vio-
lated the expired contract was no more that an
afterthought, and not one taken in good faith. It
follows that the Respondent’s demands that were
premised on this disingenuous position were made
in bad faith, and Respondent’s continued insist-
ence on the bad-faith demands interrupted bar-
gaining from May 15 through May 30.
The judge further found that this violation converted
the strike from an economic to an unfair labor practice
strike on May 15. Noting that the Respondent with-
drew its unlawful demand only when it got one of its
proposed alternatives, the judge found that the inter-
ruption in bargaining which resulted necessarily pro-
longed the strike, because the Respondent refused to
discuss anything else until its demand was satisfied.
The judge concluded that these actions converted the
economic strike to an unfair labor practice strike, re-
gardless of the attitude of the employees toward this
conduct.
We agree with the judge on both points. As a pre-
liminary matter, the Respondent’s insistence on a
nonmandatory subject—calling off the strike or
waiving—as a condition of further bargaining violated
Section 8(a)(5).7 Whether this violation converted the
strike is a question of fact which requires an examina-
tion of whether it can be proven that the unlawful con-
duct was a factor (not necessarily the sole or predomi-
nant one) in prolonging the work stoppage.8 While we
have no evidence that the individual strikers were di-
rectly motivated to prolong the strike by the employ-
er’s unlawful demands (indeed they may have been un-
aware of this conduct), we do have objective evidence
which shows that the employer’s conduct interrupted
the course of bargaining and, as a fact, thereby pro-
longed the strike. It is undisputed that from the time
the Respondent made its demand until after the Union
complied with it, no bargaining over the contractual
employment issues which separated the parties took
place. This delay, completely attributable to the Re-
spondent’s actions, also tainted the bargaining climate
and impeded opportunities for settlement of the strike.9
1289GIBSON GREETINGS
Board found that the employer’s action converted the economic
strike to an unfair labor practice strike by unlawfully broadening the
areas of dispute and impeding any possibility of an early settlement.
The same principles apply to the instant case. See also Teamsters
Local 515 v. NLRB (Reichhold Chemical), 906 F.2d 719 (D.C. Cir.
1990) (union’s reasons for recommending strike can be imputed to
employees).
10 Chicago Beef Co., 298 NLRB 1039, 1040 (1990), enfd. 944
F.2d 905 (6th Cir. 1991).
11 Trident Seafood, 244 NLRB 566, 569–570 (1979), enfd. 642
F.2d 1148 (9th Cir. 1981).
12 See Gloversville Embossing Corp., 297 NLRB l82 (1989).
13 Contrary to our dissenting colleague, we agree with the judge
that the Respondent’s contention is ‘‘patently false.’’ We also agree
with the judge that the contention was made in bad faith, a matter
our colleague fails to discuss.
Finally, we disagree with our colleague’s suggestion that efforts to
preserve bona fide legal positions can never violate Sec. 8(a)(5) of
the Act. The question is whether such efforts impeded bargaining
and did so unnecessarily. The effort here clearly impeded bargaining.
As explained above, the Respondent held up bargaining for 2 weeks
because of its insistence on securing the Union’s ‘‘waiver’’ of the
right to make an argument concerning the significance to be attached
to the Respondent’s returning to the bargaining table. Even more sig-
nificantly, the maneuver was clearly unnecessary as a means of pre-
serving the Respondent’s position. The Respondent was free to make
its argument to the court regardless of what the Union argued; and
the Respondent could have avoided having its return to the bargain-
ing table treated as a concession of its position on the legality of
the strike simply by advising the Union in writing that notwithstand-
ing its return to the bargaining table, it was adhering to its view that
the strike was illegal and it would maintain that position in court.
14 The judge at fn. 21 found this testimony ‘‘so vague as to be
meaningless.’’ We disagree and find that Chenault clearly stated her
understanding that her employment was only temporary—until the
strike ‘‘was all over.’’
15 See judge’s decision at fn. 23. To the extent that the Respond-
ent’s motion to strike remains viable, we deny it. The basis for the
motion (other than that the issue was unalleged and unlitigated) is
Continued
We thus find, in agreement with the judge, that the Re-
spondent’s unlawful conduct necessarily caused the
strike to be prolonged.
b. The Respondent contends that even if the strike
converted to an unfair labor practice strike, that it con-
verted back to an economic strike once the parties re-
sumed bargaining over substantive contract issues. For
an unfair labor practice strike to revert to an economic
strike, the employer’s efforts at repudiation must either
cure the unfair labor practice or otherwise succeed in
removing the unfair labor practice as a factor in pro-
longing the strike.10 While an actual ‘‘cure’’ is not al-
ways required,11 some action to repudiate the unfair
labor practice must be taken, after which the Board
will examine whether the force of the unfair labor
practice as a factor in prolonging the strike remains.
Here, the Respondent took no action to cure or even
repudiate its unlawful conduct.12 It was the action
taken by the Union that allowed the negotiations to re-
sume, i.e., the Union’s execution of what amounted to
a waiver of its right to argue that the Respondent by
bargaining was abandoning its position that the strike
violated the contract. The Respondent may not benefit
now from its success in forcing the Union to capitulate
to its unlawful demands. We hold that the Respond-
ent’s failure to repudiate its unlawful conduct affords
a sufficient basis for finding that negotiations contin-
ued to be burdened and find that they were. The Re-
spondent may not rely on the actions by the Union
here as converting the unfair labor practice strike back
to an economic strike.13
3. The issue concerning status of the strike
replacements
The judge found that the individuals hired during the
strike were hired as permanent rather than temporary
replacements, and that, therefore, the Respondent was
not obligated to lay them off when the strikers made
their unconditional offer to return to work on August
8. He found that the prepared statement that was read
to the replacements when they were hired indicated
that the Respondent considered them to be permanent
employees. The text of this statement is as follows:
You are being hired as full time associates, but
understand this—Due to the seasonal nature of
our business, it must be understood that as a new
Associate your employment may be subject to
lay-offs. Each time that you are recalled for work
we will only estimate the duration of time work
is expected to last as we can never be certain.
Each Associate currently on strike has the oppor-
tunity to return to work to an available job. Once
they do this, their length of service and qualifica-
tions will be recognized for new openings and
during reductions in the work force. Another pos-
sibility could be that if the Co. and the Union
should renegotiate an agreement that allowed
Union associates to return to work, the possibility
exists that new associates may be layed [sic] off
depending on the Company’s manning require-
ments.
The only striker replacement to testify on the issue
of what the Respondent told employees at the time of
hiring was Wilma Chenault. When asked what she had
been told by Tudor about how long she would be em-
ployed, Chenault testified, ‘‘We was told, you know—
we didn’t know how long we was going to be there
when we was a replacement. You know, just—till this
was all over.’’14
The Respondent moved to strike the contentions of
the General Counsel and the Charging Party that the
replacement employees were only temporary, arguing
that the issue was neither pled nor litigated; alter-
natively, it asserted that it has proven that all replace-
ments were hired as permanent employees. The judge
found the motion to strike to be mooted by his conclu-
sion that the replacements were hired as permanent
employees.15 The judge relied on Belknap v. Hale, 463
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent’s assertion that the Regional Director dismissed an
allegation that the strikers were not permanently replaced prior to
trial that purportedly had been made by the Charging Party during
the investigation of the charge in Case 9–CA–26706, albeit the Re-
spondent concedes that the charge itself contains no such allegation.
We find no merit to the Respondent’s argument. The complaint al-
leges that an unconditional offer to return to work was made by
striking employees and that the Respondent failed and refused to re-
instate them. (These allegations are not limited to unfair labor prac-
tice strikers.) Having included these allegations in the complaint, the
General Counsel need not go on to allege and prove nonpermanent
replacement of strikers as part of his case. On the contrary, it is the
Respondent’s burden to prove the affirmative defense of permanent
replacement, as detailed below. Having failed to carry its burden, the
Respondent may not now contend surprise or prejudice. Due process
required no more notice to the Respondent than that given in the
complaint.
16 Associated Grocers, 253 NLRB 31 (1980), enfd. mem. sub nom.
Teamsters Local 104 v. NLRB, 672 F.2d 897 (D.C. Cir. 1981).
17 Associated Grocers, 253 NLRB at 32.
18 Cf. Concrete Pipe Corp., 305 NLRB 152 fn. 9 (1991) (burden
of proof on permanence issue met where record showed that replace-
ments were assured that they were hired as permanent employees
and were told that the only way this would change was if strikers
were offered reinstatement as a settlement of the labor dispute).
19 The Respondent points to a letter it sent on June 29 to all plant
employees addressing issues relating to the strike, which reminded
the replacements that, ‘‘Every additional replacement hired means
one less job for the strikers at the conclusion of the strike.’’ The
letter also states, ‘‘we want to assure you that the Company has no
intention to modify its position on . . . not discharging . . . those
who have been through so much to do the work.’’ We find this evi-
dence insufficient to meet the Respondent’s burden of proof. While
the statements may imply that the Respondent considered the re-
placements to be permanent, it does not clearly state this. Moreover,
the letter came nearly two months into the strike and does not reflect
what the understanding of the Respondent and the workers was at
the time of their hire some weeks before.
20 We note that ‘‘full time’’ is the opposite of ‘‘part time,’’ and
is not synonymous with ‘‘permanent.’’
U.S. 491 (1983), for the proposition that an employ-
ment contract promising permanent employment which
is subject only to settlement with the union or to a
Board unfair labor practice order directing reinstate-
ment of strikers, would not in itself render the replace-
ment a temporary employee subject to displacement by
a striker over the employer’s objections during or at
the end of what is proved to be a purely economic
strike.
The Charging Party excepted to the judge’s conclu-
sion, and asserted that the Respondent failed to meet
its burden of raising and proving the affirmative de-
fense of permanent replacement. We agree with the
Charging Party. While permanent replacement of strik-
ers in order to continue business operations is a legiti-
mate business justification for refusing to reinstate eco-
nomic strikers upon appropriate application, it is still
an affirmative defense on which the respondent has the
burden of proof.16 That burden includes proof that the
replacement employees and the respondent had a mu-
tual understanding and commitment on the permanent
nature of their employment.17
In Hansen Bros. Enterprises, 279 NLRB 741 (1986),
enfd. mem. 812 F.2d 1443 (D.C. Cir. 1987), the re-
spondent contended that the striker replacements it
hired were permanent employees, based on three
things: (1) a letter its president sent to strikers stating
that they ‘‘may’’ lose their right to reemployment if a
replacement was hired for their position; (2) statements
by the president to the replacements that he ‘‘wanted’’
to consider them as permanent and he ‘‘wanted’’ them
to consider themselves as permanent; and (3) the re-
spondent’s repeated refusals during negotiations to dis-
place the replacements. The Board, reversing the
judge, found that the respondent’s letter to strikers and
statements to replacements were noncommittal, and
that its statements during negotiations showed only its
own intent to permanently employ the replacements.
None of its evidence demonstrated the requisite mutual
understanding between the respondent and the replace-
ments that they were permanent. Thus, the Board
found that the respondent had failed to satisfy its bur-
den of showing that the replacements understood that
they were permanent.18
The instant case presents a similar situation.
Chenault’s testimony indicates her understanding that
her employment would continue only ‘‘till this all was
over.’’ Tudor testified that when asked by interviewees
what would happen to them once the strike was over,
‘‘my response was that there was a possibility that the
company and the union could renegotiate an agreement
and that new hires could be placed on lay-off subject
to their manning requirements at the time.’’ This is far
from an unequivocal assurance to the replacements that
their employment was permanent. Thus, neither of the
witnesses testifying on this issue indicated that the Re-
spondent and the replacements shared an understanding
that the replacements were being hired as permanent
employees.
The only other evidence on the permanence issue19
was the statement that the Respondent read to the re-
placements indicating that they were being hired as
‘‘full time’’ associates.20 While one possible reading
of this letter may be that the replacements would be
retained regardless of the outcome of the strike, and
that the strikers would be reinstated only to the extent
there were new openings for employees, that is not the
only reasonable interpretation. It could also be read to
mean that the replacements should understand at the
outset of their employment that the Respondent in-
tended to return the strikers to their jobs once the
strike ended under any one of several scenarios, and
that accordingly, they should consider themselves to be
temporary employees. We do not pass on what the Re-
spondent’s intentions were in drafting this letter, but
we do find that it is susceptible to different interpreta-
tions. As such, it does not establish a mutual under-
1291GIBSON GREETINGS
21 We note that the employer in Belknap clearly indicated its intent
to hire permanently in both its advertisement in the local newspaper
(seeking applicants to ‘‘permanently replace striking . . . employ-
ees’’), and in the statement it requested new hires to sign (where
they acknowledged their understanding that they were being em-
ployed ‘‘as a regular full time permanent replacement to perma-
nently replace lll in the job classification of lll.’’) Fur-
ther, it later addressed a letter ‘‘to all permanent replacement em-
ployees’’ assuring them of the permanence of their employment.
22 279 NLRB 741 fn. 6.
23 If anything, an employer has a greater obligation to make clear
its intent with regard to permanence when it is hiring employees
during a strike than at any other time.
Here, Respondent admits that it did not use the word ‘‘perma-
nent’’ in hiring the replacements, because of the erosion of the em-
ployment-at-will doctrine. This admission implies that the Respond-
ent deliberately couched its employment offer to the replacements in
terms that would leave room for it to give the offer any construction
that would later serve the Respondent’s purpose, such as in this case,
an offer that could be construed as offering permanent employee sta-
tus, but in an employment-at-will situation, something less than that.
The Respondent cannot have it both ways.
standing that replacements were hired as permanent
employees.
The Respondent asserts, however, that under
Belknap v. Hale, an employer needs merely to hire re-
placements on an other than temporary basis within the
meaning of the National Labor Relations Act, and that
its failure to use the word ‘‘permanent’’ in its commu-
nications with the replacement workers does not con-
stitute proof that they were hired as temporary employ-
ees.21 It argues that in this day and age of the erosion
of the employment-at-will doctrine, no prudent em-
ployer uses the word ‘‘permanent’’ in describing an
employee’s status. All that matters under Belknap, ac-
cording to the Respondent, is that the replacements un-
derstand that their employment is not temporary, and
in this case the employees clearly understood that.
The applicability of Belknap depends in the first in-
stance on whether there has been an offer of perma-
nent employment to replacement workers. As we noted
in Hansen Bros.,22 Belknap does not hold that an em-
ployer need no longer promise replacements permanent
employment to render them permanent; it holds that to
avoid civil liability to the replacements should they be
replaced pursuant to a Board order or a settlement
agreement providing for reinstatement of the strikers,
the employer may promise the replacements permanent
employment subject to such conditions subsequent.
Belknap does not convert vague statements such as
those of the employer in Hansen Bros., and those of
the Respondent here, into an offer of permanent em-
ployment for purposes of determining reinstatement
rights.23 We reject the judge’s reasoning, and the Re-
spondent’s exceptions based on Belknap. We find that
the Respondent violated Section 8(a)(3) and (1) of the
Act by failing and refusing to reinstate strikers on their
unconditional offer to return to work on August 8.
4. Discriminatory treatment of strikers as
compared with nonstrikers
We adopt the judge’s findings and conclusions with
regard to reinstatement of 10 strikers who were dis-
charged by the Respondent for strike misconduct. We
also grant General Counsel’s cross-exception 2 and
find that certain nonstriker misconduct, in addition to
that discussed in the judge’s decision, constituted evi-
dence that the Respondent’s discharge of strikers for
alleged misconduct was discriminatory. In this regard,
we note that the Respondent, while asserting that its
policy was to treat striker and nonstriker misconduct
equally in terms of investigation and punishment,
failed to put such a policy into effect. The judge, while
concluding that the Respondent failed to treat strikers
the same as nonstrikers when they were equally at
fault, failed to discuss the following relevant incidents.
First, the record reveals that the Respondent did not
discipline nonstriker Warren Adams for driving too
fast through the picket line, even though it was aware
from reports in the guard’s log that he had done this
on several occasions. It appears that Adams was
warned about this conduct more than once, but never
disciplined, even though the Respondent’s manager,
Lloyd Anglin, admitted that he considered it to be dan-
gerous.
Second, it also appears from the guard logs and a
guard report that Adams spit in the face of striker Eva
Blair as he crossed the picket line on July 17, 1989.
Although those in charge of investigating such inci-
dents were immediately informed, they just laughed
about it, and no action against Adams was taken. We
agree with the General Counsel that these incidents, in
addition to the ones discussed by the judge, reveal the
Respondent’s disparate treatment of strikers vis-a-vis
nonstrikers.
In all other respects, the decision of the administra-
tive law judge is affirmed.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 7.
‘‘7. Notwithstanding unconditional requests for rein-
statement made by Betty Smith on her own behalf on
July 25, 1989, and by the Union on behalf of all strik-
ing employees on August 8, 1989, the Respondent has
discriminatorily refused to reinstate strikers to their
former or substantially equivalent positions, thereby
engaging in unfair labor practices in violation of Sec-
tion 8(a)(3) and (1) of the Act.’’
AMENDED REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of the
Act, we shall order it to cease and desist and to take
certain affirmative action designed to effectuate the
policies of the Act. We have found that the Respond-
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent violated Section 8(a)(3) and (1) of the Act by fail-
ing and refusing to reinstate those employees who
made unconditional offers to return to work on July 25
and August 8, 1989. Accordingly, we shall require the
Respondent to reinstate them immediately to their
former positions or, if those positions no longer exist,
to substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, dis-
charging if necessary all employees hired to replace
them. If, after such dismissals, there are insufficient
positions available for the remaining former strikers,
those positions which are available shall be distributed
among them without discrimination because of their
union membership or activities or participation in the
strike, in accordance with seniority or other non-
discriminatory practice utilized by the Respondent. The
remaining former strikers for whom no employment is
immediately available, shall be placed on a preferential
hiring list in accordance with their seniority or other
nondiscriminatory practice utilized by the Respondent,
and they shall be reinstated before any other persons
are hired.
We shall further order the Respondent to make
whole those former strikers for any loss of earnings
they may have suffered by reason of the Respondent’s
refusal to reinstate them in accordance with their un-
conditional requests to be reinstated. Backpay shall be
computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950). Interest shall be
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). We have
considered this case in light of the standards set forth
in Hickmott Foods, 242 NLRB 1357 (1979), and have
concluded that the narrow cease-and-desist language,
‘‘in any like or related manner’’ is appropriate. Ac-
cordingly, we deny the Charging Party’s request for a
broad cease-and-desist order.
ORDER
The National Labor Relations Board adopts the
Order of the administrative law judge as modified
below, and orders that the Respondent, Gibson Greet-
ings, Inc., Berea, Kentucky, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Immediately and fully reinstate Darcus Ann
Baker, Eva Blair, Mary Helton, Diane King, Terry
Lear, Carl Long, Carolyn Moberly, Melvin Pennington,
Edna Sparks, Gary Spires, Betty Smith, and all other
of its employees who applied unconditionally for rein-
statement, to their former or substantially equivalent
positions of employment, if available, without preju-
dice to their seniority or other rights and privileges,
dismissing, if necessary, replacement employees in
order to make positions available for them. Make
whole these employees for any loss of earnings that
they may have suffered as a result of the discrimina-
tion against them in the manner set forth in the remedy
section above. Place the remaining former strikers on
a preferential hiring list in accordance with their se-
niority or other nondiscriminatory practice utilized by
the Respondent and offer them employment before any
other persons are hired.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER RAUDABAUGH, concurring in part and dis-
senting in part.
I agree with my colleagues except with respect to
their conclusion that Respondent’s demands of May 15
and 21 were unlawful. In addition, although I agree
with my colleagues that the replacements were tem-
porary, I wish to set forth my separate views on this
issue.
I turn first to my partial dissent. I do not agree that
the Respondent’s demands violated Section 8(a)(5). In
this regard, I believe that Respondent’s contention (that
the strike was in breach of contract) was not a frivo-
lous one. The contention centered on whether negotia-
tions were ‘‘continuing’’ as of April 30. If negotiations
were ‘‘continuing,’’ the no-strike clause would con-
tinue to apply. Concededly, as of April 30, no date had
been set for another session. However, no party had
broken off negotiations as of that date. In these cir-
cumstances, although a court ultimately agreed with
the Union, the Respondent’s position was not frivo-
lous.
Because Respondent’s position was not frivolous,
Respondent could lawfully seek to preserve it. Re-
spondent therefore told the Union that it would con-
tinue bargaining if the Union would agree not to con-
tend, in a future proceeding, that such bargaining was
a waiver of Respondent’s legal position. The Union so
agreed. In my view, an effort to preserve a bona fide
legal position is not an 8(a)(5) violation. It follows that
the conduct was not sufficient to convert the strike into
an unfair labor practice strike.
In my view, an effort to preserve a bona fide legal
position is not, per se and standing alone, a violation
of Section 8(a)(5). Further, the fact that the legal posi-
tion here was not taken until after the strike began
does not, by itself, take away the bona fides of the Re-
spondent’s legal position.
My colleagues suggest that Respondent should have
been content to simply state, and retain the right to
argue, that a return to the bargaining table would not
be a waiver of its legal position. However, Respond-
ent’s counsel made the professional and good-faith
judgment that he wanted an assurance that a return to
bargaining would not be a waiver of his legal position.
In essence, my colleagues have ‘‘second-guessed’’ that
judgment. In the circumstances of this case, I would
1293GIBSON GREETINGS
1 See Hansen Bros., 279 NLRB 741 fn. 6 (1986), discussing
Belknap v. Hale, 463 U.S. 491 (1983).
2 I therefore disagree with the majority that an employer ‘‘cannot
have it both ways.’’
3 I do not rely on employee Chenault’s testimony, even though it
is consistent with temporary status. The judge found that testimony
to be so vague as to be meaningless. I do not resolve this issue.
Even if the judge is correct, that would simply mean that the testi-
mony does not establish temporary status. However, the burden was
on Respondent to establish permanent status.
not base an unfair labor practice finding on the second-
guessing of counsel’s professional and good-faith judg-
ment.
Because the Respondent’s conduct was not an unfair
labor practice, it follows that such conduct was not
sufficient to convert the strike into an unfair labor
practice.
I now turn to the issue of permanent vs. temporary
replacement status. I concur in the conclusion that the
Respondent did not meet its burden of establishing that
the replacements were permanent. However, because of
the importance of the issue, and because I do not agree
with all the reasoning of the majority opinion on this
issue, I wish to set forth my separate views.
In the first place, it is vital to understand the special
meaning of the term ‘‘permanent’’ replacement in the
lexicon of labor law. In that lexicon, ‘‘permanent’’
does not mean ‘‘forever.’’ It means only that the inten-
tion is to retain the replacement even after the strike
is over. By contrast, a ‘‘temporary’’ replacement is one
who is hired only for the duration of the strike. That
is, once the strike is over, the intention is to take the
striker back and lay off the temporary replacement.
Further, the term ‘‘permanent replacement’’ does not
mean that there is an unconditional promise to retain
the replacement. Rather, there is only the present inten-
tion to retain the replacement after the strike is over.
Indeed, the employer can affirmatively disclaim any
unconditional promises.1 In that way, the employer can
lawfully have permanent replacements and can none-
theless avoid breach-of-promise claims if it thereafter
reinstates the strikers and lays off the replacements,
e.g., pursuant to an agreement with the union, a settle-
ment of an NLRB case, or a Board order or court de-
cree.2
The employer has the burden of proving that re-
placements are permanent (as defined above). The em-
ployer must establish not only that it communicated
that intention to the replacement but also that the re-
placement understood it. However, as to the latter
point, I believe that the test is an objective one. If the
employer clearly communicates words which show that
permanent replacement is intended, the mere fact that
the replacement subjectively understands that tem-
porary replacement is involved would not preclude a
finding of permanent status. For example, as noted
above, an employer may clearly communicate words of
permanent status, but then go on to say that no uncon-
ditional promises are being made. As discussed above,
this statement is consistent with permanent status. But
the employee may subjectively understand the dis-
claimer of promises to mean that permanence is not in-
tended. In my view, this subjective understanding does
not preclude permanent replacement status.
I now turn to the facts of this case. I note initially
that the Respondent never used the words ‘‘permanent
replacement.’’ Although this failure is not dispositive,
and no magic words are needed, such failure made it
more difficult for Respondent to meet its burden of
showing that permanent status was intended. Respond-
ent argues that, in light of Belknap, it would be foolish
to use the term ‘‘permanent.’’ However, as discussed
above, an employer can use the term ‘‘permanent’’ and
yet disclaim making Belknap promises.
Respondent’s use of the term ‘‘full-time’’ does not
show an intention to accord permanent status. The fact
that an employee is hired full time (rather than part
time) says nothing about permanent vs. temporary sta-
tus as these terms are used in labor law.
Concededly, Respondent’s letter of June 29 (see fn.
18 of majority opinion) is consistent with permanent
status. However, I note that the statement was made
after the replacements were hired.
In all the foregoing circumstances, I conclude that
Respondent did not meet its burden of showing that an
intention of permanent replacement was communicated
to the employees.3
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten you when you are engaged
in protected, concerted, and union strike activity that
you have the right to work for our company only if
you abandon the strike and return to work prior to
being replaced.
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989 unless otherwise indicated.
2 A copy of this charge, service of which is admitted, is attached
to the answer, G.C. Exh. 1(w), but not otherwise contained in the
formal exhibits.
3 The parties have filed a joint motion to correct the record. Cer-
tain errors in the transcript were noted and corrected.
WE WILL NOT threaten you, when you are engaged
in protected, concerted, and union strike activity that
you cannot be reinstated to your job until you resign
your membership in International Brotherhood of Fire-
men and Oilers, AFL–CIO.
WE WILL NOT solicit you to withdraw from the
Union or assist you in submitting union withdrawal
letters.
WE WILL NOT threaten you that we do not have a
union and cannot have members of the Union in our
plant.
WE WILL NOT discriminatorily discharge you be-
cause of your protected, concerted, or union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL immediately and fully reinstate Darcus
Ann Baker, Eva Blair, Mary Helton, Diane King, Terry
Lear, Carl Long, Carolyn Moberly, Melvin Pennington,
Edna Sparks, and Gary Spires, all of whom we have
found to have been unlawfully discharged, and we will
immediately and fully reinstate Betty Smith, and all
other of our employees who applied unconditionally
for reinstatement to their former or substantially equiv-
alent positions of employment, if available, without
prejudice to their seniority or other rights or privileges,
dismissing, if necessary, persons hired on or after May
1, 1989, in order to make positions available for them.
WE WILL make whole, with interest, these employ-
ees for any loss of earnings that they may have suf-
fered as a result of our discrimination against them.
WE WILL place the remaining former strikers, if any,
on a preferential hiring list in accordance with their se-
niority or other nondiscriminatory practices utilized by
us and offer them employment, and we will do this be-
fore any other persons are hired.
WE WILL, on request, bargain in good faith with
International Brotherhood of Firemen and Oilers,
AFL–CIO as the exclusive bargaining representative of
the employees in the following unit and, if an under-
standing is reached, embody such understanding in a
written, signed contract:
All production and maintenance employees em-
ployed by us at our distribution facilities located
on Walnut Meadow Road, Berea, Kentucky, in-
cluding lead persons but excluding all clerical em-
ployees, professional employees and guards, and
supervisors as defined in the National Labor Rela-
tions Act.
GIBSON GREETINGS, INC.
James R. Schwartz, Esq., for the General Counsel.
Frank H. Stewart and Brian P. Gillan, Esqs. (Taft, Stettinus
& Hollister), of Cincinnati, Ohio, for the Respondent.
Paul L. Styles, Esq., of Atlanta, Georgia, for the Charging
Party Union.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This matter
under the National Labor Relations Act (the Act), was tried
before me on 7 different dates between February 27 and
March 14, 1991, at Berea, Kentucky. The original charge in
Case 9–CA–26706 was filed against Gibson Greetings, Inc.
(the Respondent), by the International Brotherhood of Fire-
men and Oilers, AFL–CIO (the Union), on August 7, 1989.1
That charge included allegations that certain unfair labor
practices occurred in May. Betty Smith, an individual, filed
the charge in Case 9–CA–26875 against Respondent on Oc-
tober 6. A complaint based on Smith’s charge was issued by
General Counsel on November 21. On January 19, 1990, the
Union filed an amended charge in Case 9–CA–26706. That
amendment deletes the original allegations of unfair labor
practices that occurred in May, but it adds allegations that
certain other unfair labor practices occurred in May. A com-
plaint based on the Union’s charge in Case 9–CA–26706, as
amended, issued on February 14, 1990. The charge in Case
9–CA–27660 was filed by the Union on July 3, 1990.2 On
September 4, 1990, General Counsel issued an order consoli-
dating all three cases and issued a consolidated complaint
and notice of hearing (the complaint).
Respondent filed answers admitting jurisdiction and the
status of certain supervisors under Section 2(11) of the Act
but denying the commission of any unfair labor practices,
and affirmatively denying that the complaint’s allegations of
unfair labor practices occurring in May are supported by
charges that were filed within the 6-months limitations pe-
riod of Section 10(b) of the Act. General Counsel and the
Union argue that the requirements of Section 10(b) are satis-
fied because the May allegations of the January 19, 1990,
amendments to the charge in Case 9–CA–26706, and the
complaint, are closely related to the allegations of miscon-
duct in May that are contained in the August 7 original
charge.
On the basis of the entire record, as corrected,3 and my
observation of the demeanor of the witnesses, and after due
consideration of the briefs and motions filed by the parties,
I make the following
I. JURISDICTION
At all times material herein, Respondent, a corporation
with an office and place of business in Berea, Kentucky (Re-
spondent’s plant or facility), has been, and is, engaged in the
operation of a factory and distribution center. During the
year preceding issuance of the complaint, Respondent, in the
course and conduct of its business operations, sold and
shipped from its facility products, goods and materials valued
in excess of $50,000 directly to purchasers located at points
1295GIBSON GREETINGS
outside Kentucky. Therefore, Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within Section 2(2), (6), and (7) of the Act, and
the Union is a labor organization within Section 2(5) of the
Act.
II. FACTS OF THE CASE
A. Background
Respondent’s Berea distribution center services Respond-
ent’s greeting card manufacturing facilities at Berea, Cin-
cinnati, Memphis, and Covington, Kentucky. At the time of
the events in question, the plant had about 200 production
and maintenance employees.
Respondent’s operation is contained in a 600,000-square-
foot building which has an 800-foot frontage on Walnut
Meadow Road in Berea. All traffic must enter or leave the
plant through a single gate on Walnut Meadow Road. A 600-
foot, two-lane, driveway leads from the gate to the parking
lot and the building.
The parties stipulated that, at all times relevant to this
case, the following individuals were supervisors of Respond-
ent within Section 2(11) of the Act: Lloyd Anglin, manager;
Gerald Tudor, human resources manager until September
1989; Donald Dombrowskes, human resources manager be-
ginning in September 1989; Harold Pruitt, ‘‘supervisor’’ until
at least August 8, 1989; and Tom Bacon, engineer. The par-
ties further stipulated that Steve Sweeney is Respondent’s
corporate vice president for human resources and is an agent
of Respondent within Section 2(13) of the Act.
The Berea plant has been in operation since 1968, and the
Union has represented the production and maintenance em-
ployees since 1977. There has been a succession of collec-
tive-bargaining agreements, the last of which was a 3-year
contract executed in 1986 (the 1986 contract). The following
sections were contained in the 1986 contract:
6. WORK INTERRUPTIONS
6.1 The Union agrees that during the term of this
Agreement neither it nor its officers, agents or any of
the employees will authorize, cause, instigate, condone,
or engage in any work stoppage, sitdown, strike, sym-
pathy strike, unfair labor practice strike, slowdown,
picketing, boycott or any other action which may inter-
rupt or interfere with the operations of the Company in-
cluding any refusal to cross picket lines at the Com-
pany’s premises. The Company will not engage in a
lockout during the term of this Agreement.
6.2 In the event of any violation of 6.1 above, the
Union agrees that upon telegraphic notification by the
Company to it of the existence of such violation, it will
take immediate and affirmative steps with the employ-
ees involved (such as letters, bulletins, [and other listed
actions]) to bring about an immediate resumption of
work.
6.3 Any violation of 6.1 by any employee or em-
ployees shall constitute cause of (sic) immediate dis-
cipline and/or discharge, at the Company’s discretion,
provided [that the parties may arbitrate participation
issues].
6.4 Should there be a violation of 6.1, there shall be
no discussion or negotiations regarding any difference
or disputes between the parties hereto during the exist-
ence of such violation before a resumption of work.
. . . .
13. DURATION
This Agreement shall become effective on the 1st
day of May, 1986, and shall remain in full force and
effect until midnight on the 30th day of April, 1989,
and shall automatically renew itself from year to year
thereafter unless written notice to terminate the Agree-
ment is given by a party not less than sixty (60) days
prior to the expiration date or annual renewal thereof.
If notice to terminate is given, if practical, such no-
tice shall set forth all proposed provisions of any pro-
posed successor agreement and the parties shall prompt-
ly meet to negotiate with respect to the proposed suc-
cessor agreement. In the event that negotiations for the
successor agreement shall continue beyond the expira-
tion of the term of the Agreement, this Agreement shall
continue in full force and effect, provided, however,
that either party may then terminate this Agreement
upon ten (10) days written notice to the other party.
An issue in this case revolves around Respondent’s invoca-
tion of the above clauses, which are predicated on the exist-
ence of continuing negotiations at the time of contract expi-
ration.
Before the expiration of the 1986 contract the parties met
several times for bargaining, but no contract was reached.
The Union’s principal spokesman was representative Edward
Hartman, and Respondent’s principal spokesman was attor-
ney William K. Engeman. Hartman was assisted by various
employees and other union representatives; Engeman was as-
sisted by Sweeney, Anglin, and others.
On May 1, the Union began a strike which terminated on
August 8 with an unconditional offer to return to work. The
complaint alleges that the strike was ‘‘caused and/or pro-
longed’’ by unfair labor practices of Respondent that began
in May, and continued thereafter; however, on brief (p. 44),
General Counsel withdraws any contention that the strike
was caused by unfair labor practices.
The complaint alleges that the May 1 strike was converted
to an unfair labor practice strike by two acts of Respondent,
a May 1 letter to all employees from Anglin and a bar-
gaining position taken by Respondent on May 15 and re-
asserted on May 21.
B. Prestrike Bargaining
On February 17, Hartman sent Anglin a ‘‘notice to termi-
nate our agreement.’’ The parties met 10 times for negotia-
tions before commencement of the May 1 strike. On Friday,
April 28, at the close of the 10th session, the parties were
apart on job bidding and health insurance. According to
Hartman:
Well, they said, ‘‘We have a final proposal for you.’’
I asked Mr. Engeman, ‘‘Is this your best, last, and final
proposal?’’ His response to me was that, ‘‘it is, unless
you strike.’’
Hartman testified that he told Engeman that the Union was
going to conduct a membership meeting the next day; that
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Apparently, Hartman here meant, and Engeman understood, that
the strike would begin at some point during the night that began on
Sunday; there is no contention that the Union threatened to strike,
or did strike, before 12:01 a.m., Monday, May 1.
5 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969).
he was going to present Respondent’s final offer without rec-
ommendation; that if the final offer was rejected, a strike
vote would then be taken; and that if the employees voted
to strike, the strike would begin ‘‘Sunday night.’’4 According
to Hartman, Engeman’s only response was that, in the event
of a strike ‘‘the plant intended to operate. And they would
do so, if necessary, with replacement employees.’’
Respondent caused an advertisement for prospective pro-
duction and maintenance employees to be placed in the local
newspaper on April 29. The advertisement stated that Re-
spondent was ‘‘Accepting 400 applications because of pos-
sible labor dispute. . . . Your right to work is protected by
Federal and State Law.’’
Hartman testified that at the April 29 union meeting the
employees voted to reject Respondent’s final offer and fur-
ther voted to begin a strike.
About 2 p.m. on April 29, Hartman called Tudor and in-
formed him of the two votes. Hartman testified that he asked
Tudor if Respondent wanted to meet for bargaining before
the strike began the next day. Tudor replied that he did not
know, and he asked Hartman to give his home telephone
number.
Hartman testified that Engeman called him early on the
afternoon of Sunday, April 30. Hartman testified that
Engeman told him that he had heard that Respondent’s last
proposal had not been ratified and that a strike had been ap-
proved. Hartman confirmed Engeman’s information.
Engeman told Hartman that Respondent was preparing letters
to the employees to instruct them on how their group health
insurance could be continued, that Respondent was with-
drawing certain proposals, and that he expected the Union to
keep the strike activity peaceful.
Hartman testified that Engeman said nothing in their April
30 conversation about the strike possibly being in violation
of the the 1986 contract, or about any future negotiation
dates, or that the 1986 contract, somehow, remained in effect
after April 30.
Hartman testified on April 30, after he talked to Engeman,
he called Sweeney and asked if Respondent would agree to
an extension of 30 days, or for any other period. Sweeney
told Hartman to call Engeman. (In testimony which I credit,
Sweeney testified that Hartman only suggested a 30-day ex-
tension.) Hartman did not call Engeman that day. Hartman
testified that he called a mediator and asked that his contract-
extension idea(s) be conveyed.
Engeman was called as a witness first by General Counsel,
then by Respondent. In none of his testimony did Engeman
dispute any of the foregoing testimony by Hartman about
their exchanges on April 28 and 30.
C. Beginning of the May 1 Strike
The strike began at 12:01 a.m., Monday, May 1. Initially,
there was a large percentage of employee participation; how-
ever, Respondent immediately began hiring replacements
(whether permanent or temporary is an issue herein), and
some employees who had originally joined the strike re-
turned to work before the Union’s August 8 unconditional
offer to return.
Across Walnut Meadow Road from Respondent’s facility,
there is a field that is owned by Berea College. The strikers
used this area to park their cars and assemble for picketing
duties. Also, the employees stationed a camper-type trailer
(with canvas ‘‘pop-up’’ super-structure) on the same side of
Walnut Meadow Road that Respondent’s plant is located,
within a few feet of the point where the driveway meets the
public road. (The camper could have been on public right-
of-way; at any rate, Respondent made no attempt to have it
moved from Respondent’s side of Walnut Meadow Road.)
The strikers used the camper as a resting and observation
point.
Picketing was conducted throughout the days and most of
the evenings. Those picketing walked back and forth across
the driveway, as much as 25 feet off Walnut Meadow Road.
The groupings in the field on the opposite side of Walnut
Meadow Road grew larger when it was time for a shift
change of strike replacements. (Three shifts operated during
the strike, the third being only a minimal staffing.)
The Respondent obtained a state court injunction against
mass picketing and alleged violence during the first week of
the strike. The Union continued its strike and picketing of
the plant until the offer to return on August 8. The picketing
included about 24 different sign legends, and it was con-
ducted at points away from the plant, as well as at the plant.
Handbilling was also conducted away from the plant.
D. Respondent’s May 1 Letter to Employees
On May 2, Anglin sent to all employees a letter that was
dated May 1 (the May 1 letter). In three numbered para-
graphs, Anglin explained the Respondent’s position on the
the two issues that then separated the parties (Respondent’s
proposal for a new job bidding system and insurance). The
letter concludes:
That’s what this is all about. I believe in it and I will
be at work every day trying to make this plant work.
I know a lot of you will be joining me.
The Union has threatened to fine members who re-
turn to work. To avoid that, you should resign first be-
fore you come back to work.
We will begin to hire and train new employees im-
mediately so you should understand that you have a
right to work here which is protected by federal and
state law if you return to work before you are replaced.
It really is up to you.
The emphasis is Anglin’s.
The complaint alleges that by this letter Respondent inde-
pendently violated Section 8(a)(1) because the letter con-
stitutes a threat to disregard the employees’ statutory rights
to reinstatement if job vacancies occur after replacements de-
part, or Laidlaw5 rights, and that it contributed to the prolon-
gation of the May 1 strike.
Some employees testified that they were distressed by the
letter, and feared that they may lose their jobs, but none tes-
1297GIBSON GREETINGS
tified that the letter, in any way, contributed to any decision
that would have prolonged the strike.
E. Respondent’s May 15 and 18 Demands
The complaint, paragraph 13, alleges
On or about May 15 and May 18, 1989, and at all
times thereafter, Respondent has conditioned continued
collective-bargaining negotiations upon the Union’s
agreement to discontinue the [May 1 to August 8
strike] and [the Union’s] further agreement in writing
that continued negotiations by Respondent did not con-
stitute a waiver of Respondent’s position that the said
strike violated provision of the parties’ recently-expired
collective-bargaining agreement.
Although this paragraph of the complaint is couched in the
conjunctive, the evidence shows, and General Counsel con-
tends, that Respondent was making alternative demands: stop
the strike or execute the waiver.
Hartman testified that at the May 15 bargaining session,
Engeman stated, for the first time, that the April 30 strike
was ‘‘illegal’’ from its inception because the Union had not
given 10 days’ notice before striking, citing articles 6 and 13
of the parties agreement, as quoted above.
Hartman testified that he told Engeman that the strike was
not illegal. Engeman asked Hartman if Hartman was taking
his position because Respondent had not provided the tele-
graphic notice of a violative strike that is required by section
6.2 of the 1986 contract. Hartman replied that, while it was
true that Respondent had not given a notice such as that re-
quired by Section 6.2, ‘‘we also were taking the position that
there were no further negotiations scheduled and that section
of the contract requiring ten day advance notice did not
apply in this case.’’
Hartman testified that at one point in the May 15 session:
[I asked:] ‘‘Are you here to negotiate for a new
agreement to try to resolve the current dispute, or are
you simply here to tell us that we are in violation of
the no-strike clause of the contract?’’
[Engeman replied:] ‘‘number one . . . we’re main-
taining that the—that the strike is illegal and we need
to know from you if you agree with that position. Num-
ber two, if you don’t agree with that position, is it be-
cause we haven’t notified you as required by tele-
graph?’’
Hartman repeated his answer that the Union had not received
such notice, but the contract was not in effect at the time of
the strike because negotiations had not been continuing.
After that, the meeting broke up without any discussion of
the terms of any future contract.
Engeman did not deny any of this testimony by Hartman.
Hartman testified that after the meeting, he went to the
field across from the plant where about 200 people, mostly
strikers, had gathered. He reported what had happened at the
meeting, including Respondent’s assertions that the strike
was ‘‘illegal.’’ He was asked by employees in the group
what it would mean if the strike were, in fact, ‘‘illegal.’’
Hartman told them that, in that case, Respondent could dis-
charge them. Some of the gathered employees expressed dis-
tress over Hartman’s report to them.
When called by General Counsel, Engeman acknowledged
that, as of the April 30 expiration of the 1986 contract, there
were no negotiations scheduled. Engeman testified that he
believed that negotiations were continuing beyond the expira-
tion date, within the meaning of section 13 of the 1986 con-
tract, because, on April 30, both he and Hartman had taken
the position that future negotiations should be held.
Another bargaining session was scheduled for May 21.
The parties did not meet face-to-face; they exchanged com-
munications through the Federal mediator. Hartman was
given a letter from Engeman dated May 18. In the letter
Engeman states, inter alia:
As you know, we take the position that the strike is
in violation of Section 6.1. We are willing to negotiate
immediately upon your discontinuing it. Further, if we
have written confirmation that any negotiations would
not be considered a waiver of the Company’s contrac-
tual position, we would be willing to negotiate on that
basis.
Hartman drafted what he considered to be the requested
waiver, and he gave it to the mediator. The parties left the
meeting without discussing any terms of any future contract.
After the meeting, Hartman spoke to Engeman by tele-
phone and asked if the waiver was adequate. Engeman re-
plied that it was, and asked Hartman to restate the waiver
in a letter. By letter dated May 23, Hartman replied to
Engeman that he did not agree with all of the factual asser-
tions in Engeman’s May 18 letter but:
In response to your request in paragraph three, please
be advised that it is agreed and confirmed that any ne-
gotiations held will not be considered a waiver of the
Company’s interpretation, or the Union’s interpretation,
of [articles 6 and 13].
The parties met again on May 30, June 1 and 11, and July
5 and 28. Hartman credibly testified that Engeman consist-
ently stated that the strike had been illegal from its inception.
Hartman did not testify that, at any point after May 30,
Engeman refused to discuss any contract item when re-
quested to do so. No agreements were reached in the bar-
gaining that began on May 30, and the bargaining, and the
strike, ended on August 8 with the parties still divided on
the issues of health insurance and job bidding. The issues
have never been resolved, and there was no contract between
the parties at time of trial.
The Union issued veritable reams of press releases and
other publications during the strike, seeking to persuade any
reader of the justness of the strike. On cross-examination,
Hartman acknowledged that none of the Union’s publicity al-
leged that Respondent had been bargaining in bad faith. The
parties further stipulated that none of dozens of different
picket sign legends used during the strike, at or away from
the plant, alleged that one of the reasons for the strike was
alleged unfair labor practices on the part of Respondent.
On direct examination, Engeman detailed the post-April 28
bargaining sessions. He denied that the Union ever men-
tioned any of the alleged unfair labor practices herein as a
basis for the strike. He testified, credibly, that the Union per-
sistently insisted on amnesty for strikers who had been ac-
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cused of violence (discussed below) and return of all strikers
as part of any strike settlement agreement.
Engeman also testified that he did not raise the contention
that the scheduled strike would be in violation of the 1986
contract on April 28 or 30 because he really felt that a strike
would not occur. Engeman testified that he did not raise the
issue until May 15, because he wanted to present it to Hart-
man ‘‘face-to-face.’’
On cross-examination, Engeman was asked and testified:
Q. And was it your plan to drop the idea of the ille-
gal strike, if in fact, the union got back together with
the negotiator?
A. My plan was to do exactly what I did, which was
to raise it. If it caused a settlement, then fine. If it
didn’t cause a settlement, I was going to get it off the
table and I got it off the table.
Engeman testified that he considered the waiver to be only
the subject of a ‘‘request,’’ not a demand, and (although he
appeared only as a witness) he argued that Hartman’s letter
of May 23 demonstrated that Hartman did also.
Further on cross-examination, Engeman testified that it
was within the week following the commencement of the
strike that Respondent’s principals, on his advice, made the
decision that the strike, at its inception, had been in violation
of the contract. Sweeney also acknowledged on cross-exam-
ination that the possibility that the strike was in violation of
the 1986 contract was first discussed ‘‘within a day or two
after the strike actually commenced.’’
F. Individual Offers to Return to Work
1. Applications of Piersall, Carpenter, and Mink
The complaint alleges that Respondent engaged in certain
violations of Section 8(a)(1) while entertaining some indi-
vidual employees’ applications for reinstatement that were
made before the strike ended. More particularly, the com-
plaint alleges that on or about May 24, Respondent ‘‘solic-
ited employees to withdraw from the Union and assisted
them in submitting Union withdrawal letters.’’ The complaint
further alleges that, on or about July 31, Respondent, by
Tudor, ‘‘threatened employees that they could not be rein-
stated to their jobs until they resigned their membership in
the Union,’’ and, further that Tudor ‘‘threatened an employee
by stating that Respondent did not have a Union and could
not have Union members in the plant’’ on or about July 31.
(The complaint does not allege that any of this conduct tend-
ed to prolong the May 1 strike.)
Della May Piersall testified that she participated in the
strike until the week before it ended. During that week she
called Tudor and asked if she could come to work. Tudor
told Piersall that she would have to come to the plant, cross-
ing the picket line, and apply. Piersall testified:
When I went in, Mr. Tudor said that I was being in-
vestigated for picket line misconduct. He gave me a
paper stating that. And I asked him what it meant, what
it entailed, and he said there would be an investigation
later into it and I would hear more from that. They
would tell him when the investigation date would be.
. . . I asked him, I said, you can’t help me about get-
ting my job back. And he said, no, not till after the in-
vestigation had taken place. And he said to—I got up
to leave then, and he told me that did I know I had to
resign from the Union before I could go back to work
in there? And I told him, no. I asked him why. And
he said there was not a Union in there anymore and
you couldn’t be a Union member to be considered for
reemployment. I asked how to go about doing that and
he said I would have to write a letter and send it to
the Union that I was going to resign from the Union.
On cross-examination Piersall acknowledged that she did,
in fact, resign from the Union, using her own stationery and
postage. She further testified that she asked Tudor if Re-
spondent had a form that she could just fill out and send, and
Tudor replied that Respondent did not.
Piersall testified that she had been employed elsewhere ‘‘a
year’’ and General Counsel apparently concedes that she had
accepted permanent employment elsewhere before the Au-
gust 8 offer to return to work. (Piersall is not named on G.C.
Exh. 18, which is a list of unreinstated strikers for whom the
complaint seeks remedy.)
General Counsel also called Jasper Carpenter who had
worked for Respondent for 18 years before the strike. Car-
penter testified that during the week before the strike ended,
he also went to the plant to talk to Tudor about returning to
work. On direct examination Carpenter was asked and testi-
fied:
Q. And what did [Tudor] say?
A. And he wanted me to write something out on a
paper resigning and I—I told him I couldn’t because I
drove through the picket line. I was nervous. And he
filled it out and I signed it.
Q. What did he fill out?
A. I don’t know. I didn’t even read it. It was a piece
of paper or something.
Q. Did you have any discussion as to what the pur-
pose of that piece of paper was?
A. Yes. I asked him about—before I signed it, if this
would interfere with me going back to work, you know,
when it was settled and it was over, with the Union.
And he said that . . . you’ll be the first one back if
something comes open. Which I wasn’t, but that’s what
he told me.
And I asked him if it would interfere later on and
he said that they wasn’t planning on being bothered
with the Union later on.
On cross-examination, Carpenter added, flatly, ‘‘He said I
would have to resign from the Union to go back to work.’’
Carpenter was told by Tudor that there were no jobs avail-
able at that time. Carpenter was not reinstated at the end of
the strike, and General Counsel seeks remedy on his behalf.
Nine-year employee Nina Mink testified that, during the
last week before the end of the strike, she also went to the
plant to seek reinstatement. Mink testified:
I told him that I wanted to come back to work and
he said that they didn’t have any openings at the time,
that they had twelve posted, but they had cut back
twelve.
And he said that if I came in and went to work, I
could be fined; that if I resigned from the Union, and
1299GIBSON GREETINGS
then went to work, that I couldn’t be fined. And he
asked me if I wanted to resign from the Union to be
put on the recall list. And I said yes. . . . And then he
told me it would be $2.00 to mail the letter, and he had
me to write out a note to [Union Representative] Daryl
Johnson that I was resigning.
Mink was further asked and testified:
Q. And who wrote—who made up the language of
the resignation?
A. Well, he told me what to write down.
Q. And did you write that down, then?
A. Yes.
Q. And what did you do with what you had written
down?
A. We took it back to [Anglin’s secretary], and I
gave her the $2.00 and she gave me an envelope and
the certified stamps.
Mink has not been reinstated, and General Counsel seeks re-
instatement remedies for Mink in this case.
Tudor was called by Respondent and testified that during
the first week of the strike, Respondent received over 1000
applications from would-be strike replacements. Tudor de-
nied telling Piersall that she could not be reinstated to her
job unless she resigned from the Union, or that Respondent
did not have a union and could not have union members in
the plant.
Tudor testified that when Carpenter appeared for reinstate-
ment, he told Carpenter, as he told all other applicants who
were Union members, that the union had threatened to fine
members who crossed the picket line, which it had, ‘‘and to
avoid that he had the opportunity, if he wanted to, to resign
from the Union, but that was, again, up to him.’’ Tudor was
further asked and testified:
Q. Very well. And what did Mr. [Carpenter] say in
response, if any-thing?
A. He—he said he would resign and Jasper asked me
to assist him. He was very uncomfortable, I remember.
Q. How do you—what do you mean by the word un-
comfortable?
A. Well, he seemed—he seemed nervous at the point
because he asked if I would assist him by writing his
letter. And I did that. I printed his letter for him.
Q. Very well. And then what happened?
A. Jasper signed the letter.
Q. And who mailed it?
A. We mailed it at the facility. I also—I also told
him that certain people had, had their letters returned
to them—the resignation—and I asked him if he
thought it advisable that he could have his letter cer-
tified—at least he’d have proof of delivery. And he said
he did, and he paid [$2] for the certification.
. . . .
Q. Now, Mr. Tudor, did other employees request any
kind of secretarial or other help as it relates to resigna-
tion?
A. Some did.
Q. What type of help was requested?
A. Well, some, of course to start with—some had al-
ready made their resignations and mailed them or hand
delivered them themselves. And others did ask for cler-
ical help in either typing their letter or for a piece of
paper to write it on.
Q. Did your office staff put these letters through the
regular U.S. mail?
A. In some cases, yes.
Q. Did you ever examine your practice—or re-exam-
ine your practice of mailing these letters?
A. Yes.
Q. When?
A. That again was sometime in early August when
we were—I was advised by Mr. Anglin that should a
person ask assistance in having their letters mailed, that
they should—they should pay the fee or have them do
so.
Q. And did you do so thereafter?
A. Yes.
Tudor denied telling Carpenter that he could not be rein-
stated unless he resigned his membership in the Union or
telling Carpenter that Respondent would no longer have a
union in the plant.
Tudor further testified that he told Mink no more than he
told Carpenter, and he specifically denied telling Mink that
she had to resign from the Union before she would be rein-
stated. Tudor testified that he could not remember if he gave
Mink any clerical assistance in resigning from the Union.
Piersall and Mink were perfectly credible in their de-
meanor; moreover, it is noted that Piersall has absolutely
nothing to gain by her testimony; she is not listed by General
Counsel’s Exhibit 17 as one who would be entitled to rem-
edy. Mink and Carpenter are listed on the exhibit; however,
Mink and Carpenter would be no more entitled to remedy if
their testimonies were credited; General Counsel does not
claim that Tudor’s actions toward them prolonged the strike.
I was suspicious that Carpenter’s testimony was colored by
some anger that he appeared to hold toward Respondent, and
it cannot be said that he had a completely positive demeanor.
However, Tudor impressed me more unfavorably than Car-
penter, and certainly more unfavorably than Piersall and
Mink. Therefore, except for Tudor’s admissions of assisting
employees in resigning from the Union, including ‘‘in some
cases’’ putting the letter in the mail for the employees, I do
not credit any of his testimony on this point. That is, I sim-
ply did not believe Tudor’s denials of the testimony of Car-
penter, Mink, or Piersall, and I credit the employees where
they and Tudor are in conflict.
2. Application of Betty Smith
The complaint alleges that Respondent violated Section
8(a)(3) by its rejection of an individual application to return
to work that was submitted by Charging Party Betty Smith
before the Union’s offer of August 8. Smith was a 10-year
employee who initially joined the strike, but who, on July
25, applied for reinstatement as an order-filler. The parties
stipulated that Respondent reinstated one employee who had
more seniority, and many employees who had less seniority,
than Smith although those employees applied for reinstate-
ment after Smith (and before the Union’s August 8 offer to
return to work that was made on behalf of all other striking
employees).
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Charging Party Union (which also represents the more than
175 striking employees who would have been prejudiced had Re-
spondent not rejected Charging Party Smith’s application) takes no
position on this issue.
When Smith applied on July 25, she was told that she was
under investigation for alleged strike violence and that she
could not be reinstated until the charges against her were
cleared up. Smith was never told that she was fired, but she
also was never reinstated.
General Counsel contends that Smith should have been re-
instated before the other employees named in the stipulation
because she applied for reinstatement before they did. Re-
spondent contends that it was under no duty to reinstate em-
ployees according to the sequence of their individual applica-
tion, and Respondent further contends that it was under no
obligation to reinstate Smith at the time she applied because,
at that time, Respondent was acting under a good-faith belief
that Smith had engaged in disqualifying strike misconduct.6
G. The Union’s Offer to Return to Work
Respondent admits that on August 8 an unconditional offer
to return to work was made by the Union on behalf of all
striking employees; however, Respondent denied reinstate-
ment to 177 of the strikers, and it discharged 10 others. The
complaint alleges that by the discharges and refusals to rein-
state strikers, Respondent violated Section 8(a)(3) of the Act.
1. Strikers allegedly replaced
As noted, Respondent began to hire replacements as soon
as the strike began. On brief, General Counsel and the Union
argue that, assuming that it has not been proved that the
strike was prolonged by unfair labor practices of Respondent,
Respondent has not proved that the replacements were hired
as permanent, and all strikers should have been reinstated at
the termination of the strike, displacing immediately any em-
ployee who had been hired as a (temporary) replacement.
Respondent has moved to strike the briefs’ contentions in
this regard, arguing that the issue was neither plead nor liti-
gated; alternatively, Respondent contends that it has shown
that all replacements were hired on a permanent basis.
The parties stipulated that the following statement was
read the all replacements during the strike:
You are being hired as full time associates, but un-
derstand this—Due to the seasonal nature of our busi-
ness, it must be understood that as a new Associate
your employment may be subject to lay-offs. Each time
that you are recalled for work we will only estimate the
duration of time work is expected to last as we can
never be certain.
Each Associate currently on strike has the oppor-
tunity to return to work to an available job. Once they
do this, their length of service and qualifications will be
recognized for new openings and during reductions in
the work force. Another possibility could be that if the
Co. and the Union should renegotiate an agreement that
allowed Union associates to return to work, the possi-
bility exists that new associates may be [laid] off de-
pending on the Company’s manning requirements.
The statement was printed on forms which bore spaces for
signatures of the replacements and representative of Re-
spondent (presumably the one who read the statement to the
replacement).
Only one striker replacement testified that she was told
that her hiring was anything but permanent. On the 6-day of
trial, after General Counsel and the Union had rested, Wilma
Chenault was called by Respondent to testify that, after she
was hired on May 3, she was subjected to striker violence,
as discussed infra. On cross-examination by General Coun-
sel, Chenault was asked nothing about the process of her
being hired. After her examination by General Counsel, the
Union’s counsel asked for production of Chenault’s pretrial
affidavit. After introducing himself, counsel asked Chenault,
and she testified:
Q. First thing, I understand when you first went to
work at—you were told by Mr. Tudor that he didn’t
know how long you would be employed and didn’t say
anything about if you would be a temporary or perma-
nent replacement. Is that right?
MR. GILLAN [for Respondent]: Objection.
JUDGE EVANS: Overruled. That means you can an-
swer.
A. We was told, you know—we didn’t know how
long we was going to be there when we was a replace-
ment. You know, just—till this was all over.
The matter was not thereafter pursued by any party.
2. Strikers discharged for alleged threats or violence
Anglin appointed industrial relations engineer Thomas
Bacon to be in charge of plant security during the strike. Ba-
con’s duties were to oversee the operations of a contract se-
curity service that Respondent retained to guard the plant and
maintain an incident log of violence reports, and maintain
videotape surveillance of the plant entrance as replacements
and others came and left. Bacon was also to conduct
followups of all reported strike violence, get written and oral
witness statements, and report his findings to Anglin and
local police authorities.
After the Union’s August 8 offer to return to work, a num-
ber of employees (not determined in the record) were noti-
fied that they would not be reinstated, even if jobs came
open, until allegations of misconduct against them were re-
solved. On January 11, 1990, upon completion of all inves-
tigations by Respondent, the following 10 employees were
discharged: Darcus Ann Baker, Eva Blair, Mary Helton,
Diane King, Terry Lear, Carl Long, Carolyn Moberly, Mel-
vin Pennington, Edna Sparks, and Gary Spires. The com-
plaint alleges that, by these discharges, Respondent violated
Section 8(a)(3) and (1) of the Act.
a. Darcus Ann Baker—the flashlight incident
Anglin testified that he discharged Darcus Ann Baker on
the basis of a written report by Charles Eugene Bunch that
Baker had thrown a flashlight at his truck and damaged it
as Bunch drove the truck through the picket line.
Bunch testified:
I work third shift and I start at 11:00. It was late
July—toward the end of July when I was going to
1301GIBSON GREETINGS
work. And as I started to turn in, they had wood
shavings piled up across the entrance.
So, in order to avoid a pile of wood shavings, I may
not have exactly come in correct, or as straight as I was
supposed to, or whatever. And Ann Baker walked
across in front of me and as I went by, she stepped
aside and threw a flashlight and hit the side of my vehi-
cle.
Bunch was was asked on direct examination and testified:
Q. Okay. If your vehicle had continued through the
entrance—well, strike that. When you saw Ann Baker
walking in front of you, what did you do?
A. I just proceeded on in.
Q. Okay. And what was Ann Baker’s reaction?
A. She stepped aside and threw her flashlight at me.
Bunch testified that ‘‘I may not have exactly come in cor-
rect, or as straight as I was supposed to’’ because, ‘‘I’d been
told by several people that sometimes they [those on the
picket line] use the wood shavings for camouflage to hide
nails and stuff.’’ Bunch was asked what damage had been
done and he replied, ‘‘It left a dent and a black mark right
above where the mirror on the right-hand side of the vehicle
was.’’
On cross-examination by the Union, Bunch was asked and
testified:
Q. How close did you come to her?
A. I really don’t know.
Q. Close?
A. I wouldn’t say that close.
Q. Close enough that she needed to jump in order
to avoid being hit?
A. Not really.
Q. All right. And you were traveling directly at her
at the point at which she jumped out of the way.
A. She was moving across.
Q. Okay. And you were moving at her. Is that right?
A. I guess.
. . . .
Q. And you—and you swerved away from that kind
of clerk—course—when you—when you turned in and
your headlights saw—you saw the—the pile of
shavings. Right.
A. I turned in at sort of an angle like that (indi-
cating). I wouldn’t say swerved.
Q. Okay. But you ordinarily did go in at a 90 degree
angle. You didn’t angle off in the direction of any par-
ticular person.
A. Yes.
. . . .
Q. Okay. And on this particular occasion, you didn’t
proceed in your ordinary way. That’s all I’m asking.
Isn’t that right?
A. Yes.
When asked if Baker appeared startled, Bunch replied by
asking what was meant by ‘‘startled.’’
On redirect examination, Bunch was asked and testified:
Q. If Mrs. Baker had not jumped back, would your
truck have hit her continuing on the course it was on
that evening?
A. Not if she kept moving like she was supposed to.
The injunction had required employees picketing the gate to
keep walking.
When called by General Counsel, Baker testified:
Well, he turned to me and he had plenty of room to
come through and I saw him give a signal to turn in.
I stopped so he could come on it and he just changed
directions and came at me and I don’t know if I run,
jumped or what, but I had a hard time getting out of
the way and I just threw the flashlight.
JUDGE EVANS: What do you mean by changed direc-
tions?
THE WITNESS: He changed the way he was coming
in. He changed, you know, when he turned in, instead
of him keeping, you know, coming that way, he turned
in and drove directly at me.
And I just threw the flashlight. I don’t know at what
point, I just knew I tried to get out of his way. I threw
the flashlight.
Baker was further asked and testified:
Q. When you say you threw the flashlight, did you
throw it at the car?
A. I just threw it, you know. I was just scared and
I had the flashlight and all I remember is just being
scared and trying to get out of the way and throwing
the flashlight.
Q. Did you intend to hit his car with the flashlight?
A. No.
Baker testified that she had stopped to allow Bunch to pro-
ceed through the gate. Bunch first testified that Baker stood
in front of his truck (and tried to make him drive over the
shavings); then Bunch testified that Baker would not have
been hit by his truck if she had been walking ‘‘like she was
supposed to.’’
I find that, as Baker testified, Baker was standing in the
driveway in order to let Bunch pass. I further find that if
Bunch had proceeded at his usual 90-degree turn he would
not have driven toward Baker; that he did turn at more than
a 90-degree angle and drove toward the point at which Baker
was standing; that Bunch’s truck would have hit Baker if
Baker had not ‘‘jumped out of the way’’ (as Bunch’s written
statement to Bacon, numbered paragraph 6, describes the rel-
ative positions of Baker’s body and Bunch’s truck); and that
Baker threw her flashlight at Bunch’s truck as he passed. I
further find that, as Bunch testified: there was a pile of
shavings in the driveway; had Bunch proceeded at the usual
90-degree turn into the plant driveway, he would have run
over the pile of shavings; and that the flashlight put a black
mark on the truck and inflicted dent above the truck’s right-
side rearview mirror.
As Bunch described the accident, when he turned into the
driveway from Walnut Meadow Road, he saw shavings
which may have concealed nails. He had the choices of (1)
making his usual 90-degree turn into the driveway and driv-
ing over the shavings, (2) stopping until Baker passed by and
then detouring around the shavings, or (3) proceeding at an
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
angle without stopping. Bunch took the last option, nec-
essarily angling his truck toward Baker.
Bunch argued that he was ‘‘not really’’ close to Baker,
and he argued that Baker would not have been required to
jump out of the way had she kept walking ‘‘like she was
supposed to.’’ However, as Bunch’s statement to Respondent
admits, Baker was required to jump out of the way to avoid
being struck by Bunch’s truck. Bunch was evasive when
asked if Baker appeared ‘‘startled’’ to him, but I find that
Baker was startled, reasonably.
Respondent contends that the throwing of the flashlight
was deliberate. I do not believe that Baker’s action was the
product of previous planning. In strike situations, rocks and
other articles of no value are sometimes thrown with delib-
eration, but not things of value, like Baker’s flashlight. In
strike situations, rocks and other valuless articles may be
thrown, but usually not by someone standing in plain view.
That is, had Baker preplanned the exercise, she most cer-
tainly would have thrown something of less value, and
thrown it from a discrete position.
The flashlight hit the truck above a rearview mirror, a
point near the front of the vehicle; it did not hit near the rear
of the vehicle as it had gone by; therefore Baker cannot be
said to acted out of provocation. The flashlight hit Bunch’s
truck as the truck was coming at Baker; this is necessarily
true because Bunch does not contend that the flashlight hit
his truck after he swerved away from his line of progress to-
ward Baker.
Finally, the existence of nails among the shavings was not
proved, and it cannot be said that Bunch was actually re-
quired to chose between his truck’s flat tire and Baker’s bro-
ken bone, torn flesh, or death.
In summary, I find that General Counsel has proved that
Baker did not engage in any actions that can be categorized
as ‘‘misconduct.’’
b. Eva Blair—Paint remover incident
Anglin testified that Eva Blair was discharged on the basis
of reports of two separate acts of violence on her part. The
report considered in this subsection is an oral report by re-
placement employee Mary Richardson that Blair threw a
caustic substance on Richardson’s van as Richardson left the
plant.
In perfectly credible testimony Richardson recounted an
event which happened as she drove her van out of the plant
gate; with her was fellow strike replacement Becky DeBoard
who did not testify. Richardson testified:
Now, as—as we come out, okay, we’re looking over at
the right and there’s Eva like this [indicating] and
Becky said, ‘‘Oh, no.’’ And I looked and I said,
‘‘Who’s that?’’ And she said, ‘‘Eva.’’ And I said,
‘‘You know her?’’ And she said, ‘‘Yes.’’ And that’s
how I got her name. I didn’t know her personally, but
yet—that’s how I got her name. But just then, she took
the thing and threw it like that (indicating) and it hit
the side of the van. Well, both of us was scared. And
I said, ‘‘Well.’’ We went on up the road, turned around
and came back in and we went on the end—there was
a security guard standing there and we asked him what
to do—that Eva had just thrown—it was like a bulb—
like a Christmas bulb ornament is what it looked like—
with glassy stuff. And he told us to go on back in and
see our supervisor. And, which we did.
Richardson was further asked and testified:
Q. Now, when Becky DeBoard identified the person
she—involved in this incident, did she state her full
name, or only ‘‘Eva?’’
A. Well, she said, ‘‘That’s Eva.’’ And I said, ‘‘Eva
who?’’ And she gave me her last name, Blair, after
that.
Q. Okay.
A. And I did ask her. I said, ‘‘Are you sure?’’ And
she said, ‘‘Yes.’’ So, that’s how I got her name.
Richardson testified that, after taking pictures of the spot
where the the substance had hit her van, she washed it off
and ‘‘[i]t just started peeling.’’
Blair denied any such conduct.
In summary, Richardson has testified only that someone
who was identified to her as Blair threw the substance, and
no one has testified that they saw Blair throw the substance.
I decline to credit DeBoard’s hearsay identification of Blair
over Blair’s denial. Having credited Blair’s denial, I find that
General Counsel has proved that Blair was not the person
who threw the substance on Richardson’s van.
c. Eva Blair and Carolyn Moberly—rock throwing
and threat
Anglin testified that the second part of the reason for dis-
charging Blair was a report by strike replacements Wilma
Chenault and Angela Brannon that Blair threw a rock at
Chenault’s automobile during the strike. Anglin further testi-
fied that Carolyn Moberly was discharged because of reports
of four separate acts of misconduct, one of which was a
threat Moberly made to Chenault immediately after Blair
threw the rock at Chenault’s automobile. (That is, this sub-
section concerns the second of two acts of alleged miscon-
duct by Eva Blair and the first of four acts of alleged mis-
conduct by Carolyn Moberly.)
As mentioned, during much of the strike, the Union main-
tained a canvas-top camper-trailer in the area of the gate on
Walnut Meadow Road in Berea. According to Chenault:
One day we was—Angie Brannon and I were going out
to lunch and as we got to the end of the street, there
was a Union trailer on the right-hand side. There was
a stop sign. We was making a right and the—there was
a rock thrown at the hood of my car.
The rock came by the window—hit the [windshield]
and reflected onto the hood of the car.
Chenault testified that she saw the arm of the person who
had thrown the rock from the doorway of the trailer; it was
the arm of a person wearing a red shirt. Then, as she stopped
her car and began to back up (to tell the plant security guard
about the incident), she saw Blair and Moberly in the door-
way of the trailer; Blair was wearing a red union T-shirt.
Chenault and Brannon told the security guard about the inci-
dent; the guard told them to go on to lunch and report the
matter to Bacon when they returned.
Further according to Chenault:
1303GIBSON GREETINGS
So, we went on to lunch and then on the way back
from lunch, we had to stop to let a car go by, and as
we started to make the left-hand turn to go back into
Gibson, she was—Carolyn Moberly was on the picnic
table, sitting on the right-hand side and the union trailer
was on this side [indicating] and we seen her and we
had our windows down and she yelled and said,
‘‘Libby, if I don’t get you, I’m gonna get your mommy
and daddy.’’
Which, it just tore me all to pieces for her to say that
because my father had recently got out of the hospital
from having open heart surgery, triple by-pass and he’s
had three strokes. So, he’s, you know, an invalid—he
has to stay home by hisself. That was a really big threat
to me.
Chenault testified that after this statement by Moberly, she
noticed Blair; Blair had changed from a red union T-shirt to
a black shirt.
The identification of Blair is, again, an issue. Chenault
was asked and testified:
Q. Okay. When the rock hit your car, did Angela say
anything to you?
A. She said, ‘‘Libby, stop.’’ They said—well, first I
said to her, ‘‘What was that?’’ And she said it was a
rock. And then, at that time, I seen the rock go from
the window to the hood of my car and I said—and she
said Eva Blair threw it. She seen Eva.
Chenault was further asked and testified:
Q. Okay. How did you know it was . . . Eva Blair’s
arm?
A. Because she came on out and I seen her shirt, you
know. And I knew Carolyn – Eva Blair through news-
papers clippings and she had called my husband [racial
epithets], and other verbal language that was just awful.
And we had found out who she was. Then we went
to – to Gibson and asked a couple people who was this
lady. And they told us it was Eva Blair and then her
picture had came out in the paper, you know, of her
striking and carrying the signs. And so we knew who
she was.
Chenault testified that she had known Moberly for many
years, and the ability of Chenault to identify Moberly is not
in question.
Brannon corroborated Chenault on all meaningful points.
On cross-examination, Brannon was asked and testified:
Q. And—now, how did you know Eva Blair before
that time? Before that particular time?
A. Because she was the loudest one on the line. She
made more noise than anybody.
Q. And has anybody—I mean—did she—did she
holler, ‘‘I’m Eva Blair?’’ Or—
A. No. After we had started working and there was
a older employees that had been there and you know—
I said something like, ‘‘Does this white woman. . . .’’
And I was telling how much noise she made and de-
scribe them and they all automatically, ‘‘That’s Eva
Blair.’’ . . . I knew her when I seen her because I
came to work every morning and there she was. Every
afternoon, there she was.
Q. Okay. But I mean—you described a—a white
woman that was loud?
A. Short, curly hair, salt and pepper with a lot of
wrinkles in her face.
Q. I see. Okay. And was she the only person there
that was—that had curly hair and—and salt and pepper
white woman?
A. She probably wasn’t, but I’d know her anywhere.
Blair is about 5-feet, 1-inch tall, has grey hair, and
Brannon’s description of the rock-thrower fits Blair. How-
ever, it was not established that Blair was the only striker
who fit that description; indeed Brannon admitted that ‘‘she
probably wasn’t.’’
It is obvious that Brannon was relying on the conclusion
that had been expressed by unknown, unsworn, individuals
at the plant that a person fitting Blair’s description could
only have been Eva Blair. And Chenault was relying on the
identification by Brannon. Chenault also testified that she
later had seen a newspaper article with Blair’s picture, but
this is an identification corroborated by only another piece of
hearsay, the newspaper ascription of Blair’s name to some
picture (that was not placed in evidence).
Again, Blair denied any such conduct, and I decline to
credit Brannon’s and Chenault’s hearsay identifications of
Blair over Blair’s denial. Having credited Blair’s denial, I
find that General Counsel had proved that Blair was not the
person who threw the rock at Chenault’s automobile.
Moberly denied threatening Chenault; however, Chenault
could identify Moberly, and Chenault and Brannon were
credible in their descriptions of the threat by Moberly. That
is, I find that Moberly made the threat to Chenault as quoted
above, although I cannot credit the testimony of Chenault
and Brannon that Blair was with Moberly when Moberly
made the threat, or that Blair was present when the rock was
thrown shortly before the threat.
d. Carolyn Moberly—car chase
Anglin testified that Carolyn Moberly was discharged, in
part, because of a report by strike replacement Sandra Curren
that Moberly was in an automobile that had attempted to run
Curren’s car off a road during the strike.
Curren testified that one day in May, as she turned out of
the company gate on Walnut Meadow Road:
I looked in my rear view mirror and there was a little
tan Chevette right up on my bumper, and it had two
women in it that wore red T-shirts.
And right at first I didn’t think that much about it,
and they just kept getting closer and closer and when
I got up to the yield sign, they tried to come around
me.
Well, there was another truck coming, and they al-
most hit that truck. So, while they were in their confu-
sion, I took off on down Glades Road. And I got to
the—they got behind me again. And I got to the stop
sign, and they followed me through the stop sign and
went down to the convenience store there—or the
Minute Mart store.
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Moberly identified herself as ‘‘Carolyn Joyce Moberly’’ when
she testified. Broaddus, in testifying about the Maverick Club inci-
dent, as discussed below, while also referring to Company identifica-
tion pictures, also referred to her attacker as ‘‘Carolyn Gay
Moberly.’’ However, there is no explanation for the reference to
‘‘Gay’’ in the record. Barrett knew Carolyn Moberly and identified
the person whom Curren called ‘‘Carolyn Gay’’ as Carolyn Moberly.
There is no other ‘‘Carolyn Gay’’ involved, or even another woman
named ‘‘Gay.’’ Therefore, I find that both Curren and Broaddus
were identifying Carolyn Moberly when they referred to ‘‘Carolyn
Gay’’ or ‘‘Carolyn Gay Moberly.’’
And it’s a little ramp you have to go up before you
get out on [highway number] 1016, and they come
around me on that ramp and try to run me off the road
and was—and Carolyn [Moberly] was hollering
‘‘bitch’’ to me. . . .
And the other girl [the driver of the Chevette]—I—
I really couldn’t see her or anything that well. So, I got
out on 1016 and they followed me almost all the way
home and I finally just ran off to the left and I pulled
in the driveway [of my house].
Curren did not know Carolyn Moberly at the time. Curren
testified that shortly after she arrived at her home, non-strik-
ing unit employee Autumn Barrett arrived. Curren asked Bar-
rett if Barrett would go with her to the area near the plant
where the strikers usually gathered to see if Barrett could
identify ‘‘these people.’’
Curren and Barrett got to the area and, further according
to Curren:
and I said, ‘‘There’s the car, sitting right there.’’ And
it was sitting over in the field. And I said, ‘‘You look
and see who it is.’’ And she told me it was Carolyn
Gay on the passenger side and Linda Shouse on the
other side.
And they started hollering names and giving me fin-
ger and stuff like that. And I went to work the next day
and reported it to Tom Bacon.
Curren testified that when she reported the matter to Bacon
he showed her pictures of 50 individuals. She could not iden-
tify the driver from any of the pictures, but the one that most
looked like the rider in the Chevette was ‘‘Carolyn Gay7
Moberly.’’
Barrett testified consistently with Curren about her post-
event identification of Moberly at the picket-line area. There
is no question that Barrett, who had been employed by Re-
spondent for 5 years before the strike, knew Moberly and
was able to identify her. Barrett was firm in her identifica-
tion of Moberly as one of the two whom Curren picked out
from among the strikers gathered near the plant as having
been in the Chevette that had been involved in the incident;
however, Barrett testified that the person with Moberly at the
point where she and Curren found the strikers gathered was
an employee other than Shouse, and that she had never told
Curren that the other person was Shouse.
Moberly denied ever being in an automobile that had
chased Curren’s automobile.
I found Curren credible in her account of what happened
as she left the plant. Therefore, the issue becomes: was
Moberly properly identified as one of those who participated
in the incident? I find that she was.
General Counsel and the Union have, successfully, ques-
tioned the ability of some of Respondent’s witnesses to iden-
tify those allegedly involved in violence. No such question
has been raised about the ability of Barrett to identify
Moberly when she was pointed out by Curren. Curren was
credible in her testimony that, within an hour of the incident,
she pointed out the rider in the Chevette to Barrett, and Bar-
rett credibly testified that the person whom Curren then
pointed out was Moberly. This is an adequate iden-tification
of Moberly as the rider in the Chevette during the event in
question. Further, I find no reason to doubt Curren’s identi-
fication of Moberly from the pictures in Respondent’s em-
ployee files, and I find Curren’s confused naming of Shouse
not to be significant.
In summary, I find that the event occurred as described by
Curren, and I further find that Moberly was the passenger in
the subject Chevette.
e. Carolyn Moberly, Mary Helton, and Edna Sparks—
The Maverick Club incident
Anglin testified that strike replacements Theresa Broaddus
and Brenda Johnson reported to Respondent that they had
been physically attacked by Mary Helton, Edna Sparks and
Carolyn Moberly at a night club in the nearby town of Rich-
mond. Anglin cited no other reports as the reasons for dis-
charging Helton; Anglin cited the reports of the Maverick
Club incident (as it is herein called) as the third of four re-
ports that constituted the basis for the discharge of Moberly,
and one of two reasons for the discharge of Sparks.
Broaddus, Johnson, Helton, Sparks, and Moberly testified
about this incident.
Helton and Sparks are strikingly identical twins. Before
this incident Johnson knew neither Helton, nor Sparks, nor
Moberly. Broaddus and Helton had known each other for
more than a year at the time of the Maverick Club incident,
having lived in the same trailer park and having been in each
other’s homes (albeit only for the brief missions of retrieving
children who had strayed).
Johnson testified that on a night during the strike she had
accompanied Broaddus to the Maverick Club. The two
women were not there for the usual night-club purposes, but
to attempt to find Broaddus’s ex-husband who was behind on
his support payments. They failed to find Mr. Broaddus, and
they went to the restroom before leaving.
Broaddus testified:
So, we [Johnson and she] went to the rest room.
There’s a rest room in the back. We went in the rest
room and came back out. And we’re walking past the
pool tables and going to go back on out and Mary
Helton—she hollered my name at me. And then her and
her friends that were sitting there with her, all came to-
wards me and were, you know, calling me various
names.
And I tried to leave, and they just pushed me back,
pushing me down into a chair and we stayed there and
then I tried to get up and they pushed me back down.
I had somebody pulling my hair and smacking me and
Brenda—she had walked on ahead of me because it’s
1305GIBSON GREETINGS
like a small aisle—you have to go single file. So, she
didn’t know where I was.
And I guess the bouncer, whatever, noticed the com-
motion going on and he was coming to the back there.
Brenda turned around and seen me back there and she
started coming towards me and then they seen her and
stopped her. And I think some of them went toward her
and had a few things to say to her.
Then the bouncer put Brenda Johnson and I out the
back door. There was a back door right there. And he
pushed us out the back door. And we was running to
the car. They all run out the front door while we were
trying to get to the car. And then we left. That was it.
Broaddus testified that three of the individuals who ‘‘were
all pushing at me and pulling my hair’’ were Helton (whom
she knew from the trailer park), Sparks and Moberly.
Broaddus testified that she had never seen Sparks before, but
she remembered Sparks’ appearance and could later pick her
out from among Respondent’s photographic identification
cards of employees. In regard to her identification of
Moberly from the company identification photographs,
Broaddus was asked and testified:
Q. Okay. Did you identify anyone else involved in
the incident?
A. Yes. Gosh, I can’t think of the name. Was it
Carolyn Moberly? Is that the name?
Q. Do you know—you have to testify to the best of
your recollection. Is that the best of your recollection?
A. Yes.
Q. Do you know Carolyn Moberly by another name?
A. Carolyn Gay. Carolyn Gay.
Broaddus testified that ‘‘They were all telling me not to
go back to work at Gibson and if I did, I’d be sorry. And
calling me scab—.’’ Then she testified that she could not tell
who among the group had said what, except that Helton said,
‘‘Theresa, you’re taking the food out of my kids’ mouth,’’
and ‘‘Don’t go back to work there.’’
Broaddus testified on cross-examination that during the in-
cident, someone hit her in the eye, and left a mark, but she
could not remember who it was. On redirect examination,
after being shown the pretrial statement she had given Re-
spondent, Broaddus testified that the person who hit her in
the eye was Moberly.
Johnson testified:
[Broaddus and I] had started to leave and we were
walking out and I thought she was behind me because
it was crowded and it was kind of single file where we
were. I thought she was right behind me.
I got about to the sound booth, and turned to say
something to her, and didn’t see her. That’s when I first
realized she wasn’t with me. . . . Well, I was trying to
find her—I mean—by looking. It’s real dark in there.
And I finally spotted her and she was backed up against
the wall. There were four women on her. They were—
she was sitting down. She tried to get up. They pushed
her back down. There was a punch thrown. I don’t
know who threw what.
Johnson testified that two of the women who were ‘‘on’’
Broaddus ‘‘looked a lot alike.’’
Further according to Johnson:
And I started back toward [Broaddus,] and there was
one woman had got to me and was screaming at me.
And it was hard to make out what she was saying. I
didn’t know what she was saying. I think she was say-
ing, ‘‘You’re a scab.’’
And she pushed me. I pushed her back. And then we
[Johnson and her assailant] had made a few steps back
toward the back of the building, back toward
[Broaddus]. And the crowd that [had been] around her
[Broaddus] was [then] around me.
Johnson testified that she could not identify the woman who
had pushed her. However, Johnson testified that she later
identified, from company identification photographs, Moberly
and Helton as being two of the four women that had been
‘‘on’’ Broaddus and thereafter approached her. Johnson testi-
fied that when the group approached her, Moberly and
Helton pulled her hair, and someone in the group yelled that
they would burn her house down and that she should not go
back to work.
Johnson agreed that a bouncer ejected her and Broaddus.
Helton testified that she went to the Maverick Club on the
night in question with her boyfriend. During the evening she
walked toward the bathroom and met Broaddus and Johnson
(whom she did not know) as they were leaving the bathroom.
Helton engaged in a conversation with Broaddus; Johnson
stood with them, but said nothing.
On direct examination, Helton was asked and testified:
Q. Could you tell us from the beginning of the con-
versation to the end what you said and what Theresa
said?
A. Well, when I came upon her, passing through the
hallway going to the bathroom, she said, ‘‘Mary,’’
cause she knew me. And I stopped and I said, yeah,
and she started apologizing for working at Gibson.
She said, I’m sorry I went into Gibson. And she
started making all kinds of excuses, the reasons that she
went into Gibson.
Q. What were the excuses?
A. Like, I need to work, you know. And I told her,
I need to work, too. And that, because our kids were
friends, she said she didn’t want the kids, you know,
to fall apart over it.
And I said, well, that’s left up to the kids. That I
didn’t want no apology.
. . . .
Q. What did you do at the end of this conversation?
A. Well, everybody started, we was walking away to
get back—I noticed everybody was standing around
watching, so I just went on to the bathroom and she
went on wherever she was going.
Q. You say everybody else. How many other people
were around?
A. There were probably ten or fifteen people around
standing.
Q. Okay. Was there anybody you knew standing
around at that time?
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 General Counsel argues that it is not clear that Helton knew
which was the evening in question at the time she gave the deposi-
tion. Criminal charges had been filed against Helton by the time she
gave the deposition, and Helton knew very well what evening she
was being asked about, whether she had engaged in misconduct or
not.
9 Of course, the nonpaying participants, Broaddus and Johnson,
were the ones who were ejected by the bouncer, no matter what had
happened before.
10 Sisters Helton and Sparks necessarily fabricated the story that
they had not even seen each other at the Maverick Club at some
point after Helton gave her deposition.
A. No.
Q. What, were your voices raised or anything in this
conversation?
A. Well, the band was playing, people’s voices were
loud. We was probably talking loud so we could hear
each other.
Q. After you went to the rest room, what did you
do?
A. Well, after I went to the rest room, I came back
to my table.
Helton testified that after she spoke to Broaddus, she went
into the restroom and saw Moberly. She told Moberly of the
exchange with Broaddus. About 30 minutes after she left the
restroom, further according to Helton, she saw the club
bouncer ejecting two women out the back door, one of
whom was Broaddus.
Helton denied any type of altercation or argument with
Broaddus and Johnson, denied touching either one of them,
and denied seeing any type of fight that night at the Mav-
erick. Helton denied seeing Moberly that evening, except in
the restroom. Helton denied seeing Sparks, her twin sister, at
all that evening.
On cross-examination, Helton admitted that in a deposition
given in August 1989, within weeks after the Maverick inci-
dent, she testified that on the evening in question,8 she saw
Moberly and Sparks sitting together at the same table, and
she ‘‘probably’’ talked to both of them, although she states
in the deposition that she did not recall. When taken on redi-
rect examination, Helton testified that she did not know
whether she had seen her sister that evening.
Finally, Helton was asked why 10 or 15 people had stood
around while she and Broaddus had a conversation. Helton
replied: ‘‘Because we was standing there talking and the
walkway is narrow and they couldn’t get by us and they was
coming and standing.’’
Moberly testified that she had gone to the Maverick with
Sparks on the night in question. She had been there about
an hour when she went to the restroom, and she saw Helton
as she got close to the door. Moberly testified that Helton
‘‘said that there was scabs in there,’’ and that ‘‘she had a
few words with them.’’ Helton did not tell Moberly what the
‘‘words’’ were or anything else about what had happened.
Moberly testified that Helton said nothing about there having
been any kind of fight that evening, and that she witnessed
no type of fight herself. Moberly denied knowing Broaddus;
she knew Johnson but she denied seeing Johnson at the Mav-
erick that night, and she specifically denied hitting Johnson.
Sparks testified that she went to the Maverick with
Moberly three times during the strike, and that one of the
times was in June when the fight is alleged to have taken
place. On that evening Moberly said nothing about being in-
volved in a confrontation with any strike replacements, that
she did not know Johnson or Broaddus, and was not in-
volved in any type of fight or confrontation with anyone that
night (or at any other time at the Maverick).
Sparks denied seeing Helton that evening. She testified
that Moberly told her (Sparks) that Moberly had seen Helton
in the restroom that evening and that Moberly further told
her that Helton had said to Moberly that Helton had seen two
replacements ejected from the club earlier in the evening.
Helton agrees with Broaddus that Broaddus and someone
else was ejected from the Maverick Club. Broaddus and
Johnson agreed that it was Johnson that was ejected with
Broaddus, and there is no reason to doubt this testimony.
Broaddus and Johnson were ejected for some reason.
Helton testified that she had no more than a civil, albeit
less-than-cordial, exchange with Broaddus. Helton further
testified that she and Broaddus talked no louder than required
to be heard over the night club’s music. But Helton also tes-
tified that ‘‘everybody was standing around watching.’’
Helton estimated that ‘‘everybody’’ was 10 or 15 people.
Helton attempted to explain the existence of an audience by
the fact that the passageway was narrow and people wanted
into, or out of, the restroom.
When people want to pass by, they say ‘‘excuse me,’’ and
that usually gets them by. But in this case, the people didn’t
say ‘‘excuse me’’ because they did not want to get by; they
wanted to stop and listen to the exchange that was being
conducted at a volume that was extraordinary, even for a
night club. That is, people were standing around, watching
and listening, because there was something unusual to watch
and to listen to. What there was to watch and to listen to
was not Broaddus apologizing to Helton. It was the begin-
ning of a verbal, then physical, assault.9
While it is impossible to precisely choreograph such a
confrontation in retrospect, I believe, and find, the following:
As Broaddus and Johnson came out of the restroom, they be-
came separated by the crowd. Helton saw Broaddus and con-
fronted her. Johnson kept walking. As the confrontation at
the restroom entrance grew louder, Moberly and Sparks, and
another woman (whom neither Broaddus nor Johnson could
identify), came to help Helton by pushing Broaddus down in
a chair, ‘‘smacking’’ her, and pulling her hair.10 When John-
son realized what was going on, she turned to assist
Broaddus. When Johnson did so, the group jumped on her,
pulling her hair and yelling at her, as described by Johnson.
I find that Sparks, Helton, and Moberly were credibly
identified as three of the four individuals who accosted
Broaddus and Johnson. Broaddus knew Helton. Johnson
could testify, as she did, without knowing either Sparks or
Helton, that ‘‘there was two women that were on [Broaddus]
that looked a lot alike.’’ I further found credible the testi-
mony of Broaddus that three women, two of whom were
Sparks and Helton, pulled her hair in the confrontation.
Broaddus had difficulty remembering which of the four
women punched her in the eye, but it does not matter;
Moberly was identified by Broaddus and Johnson from com-
pany identification photographs as being in the group that as-
saulted Broaddus and Johnson at the Maverick Club. More-
over, I agree with Respondent that Broaddus’ identifying
Moberly as the one who hit her in the eye, only after being
1307GIBSON GREETINGS
11 The record does not disclose whether Rick Moberly is related
to Carolyn Moberly.
shown the statement that she had given Respondent shortly
after the incident, demonstrates that Broaddus was testifying
from candor, not an intent to ‘‘get’’ Moberly, or for any
other invidious or irrelevant consideration. I believe, and
find, that it was Moberly who hit Broaddus in the eye during
the Maverick Club incident.
f. Carolyn Moberly—picket line threats
In addition to her description of the Maverick Club inci-
dent, Johnson’s written statement to Respondent included the
following paragraph upon which Anglin testified that he re-
lied in discharging Moberly:
8. Subsequently [to the Maverick Club incident],
when I would be driving through the picket line going
to and coming from work at Gibson, Carolyn Moberly
would regularly yell ‘‘We’re going to get you.’’
During her testimony about the Maverick Club incident,
Johnson was asked if she saw any of her assailants after the
incident. She identified Moberly as one who would ‘‘just yell
things, you know, ‘we’re going to get you.’’’
Moberly generally denied threatening anyone when called
on rebuttal; however, I found Johnson credible on the point.
g. Edna Sparks—invitations to fight
In addition to reference to the Maverick Club incident,
Anglin testified that, in discharging Sparks for strike mis-
conduct, he relied on reports by plant industrial engineer
John Hunter that ‘‘Edna continuously invited re-placement
workers out of their cars to fight.’’
Hunter testified about alleged misconduct of Dianne King,
as discussed below, but he did not testify about any alleged
misconduct on the part of Sparks.
However, although Sparks was called by General Counsel
to testify about the Maverick Club incident, she was not
asked about inviting replacement workers out of their cars to
fight. Therefore, General Counsel has not proved that Sparks
did not engage in this misconduct which Anglin cited as part
of the basis for Sparks’ discharge.
h. Diane King—car-scratching incident
Anglin testified he discharged Diane King because of two
reports of misconduct by King.
The first incident involved an alleged scratching of the
automobile of striker replacement William Collins. Collins
was called by Respondent and testified:
One day I was coming to work—it was close to 7:30
and I was about three cars back from where you turn
into Gibson. And there were three ladies coming up to
the car and starting hollering, you know, certain things
at me.
And when it come my turn to pull up to turn in, then
they started, you know, kind of moving away and one
of them turned and walked back toward the rear of my
car and I heard something rake across the back of my
car.
And I knew then that something had happened. So,
I turned on in and, [after viewing a new scratch on his
automobile], went into the building and reported it to
[plant industrial engineer] John Hunter. Where he took
me back out to the gate, and I made an incident report
to Office Bernie Harris of the Berea Police Department.
Collins testified that he, Harris and Hunter went to the
area across Walnut Meadow Road where the strikers had
gathered. He pointed out the woman who had walked toward
the rear of his car and produced the scratching noise, and
scratch. Hunter stated to Collins that the woman whom Col-
lins had pointed out was Dianne King.
Hunter testified that he had known King for several years,
and he credibly testified that the person whom Collins point-
ed out was, indeed, King.
King denied scratching any automobile, Collins’ or anyone
else’s.
General Counsel and the Union argue that Collins could
not have identified Collins accurately because, inter alia,
Collins did not see the face of the individual doing the act
as it was done, and Collins could not see the hand of the
individual who walked toward the rear of the car as the
sound was being produced.
Collins got a good look at the women who had accosted
him as his automobile was stopped to make a turn into the
plant. He was able to see which one of the women turned
and he was able to testify that the scratching sound began
as she did so. It was on the same day that he identified that
person to someone who knew her, Hunter.
I find this identification sufficient to conclude that King
caused the scratch, which was about 18 inches long, on Col-
lins’ automobile.
i. Diane King—invitations to fight
Anglin testified that King was discharged, in part, because
of oral reports by Supervisor Cindy Lewis that King had
cursed her and ‘‘she was constantly inviting her out of her
car to fight.’’ A specific threat about which Lewis informed
Anglin, according to Anglin’s testimony, was ‘‘if you get
out, I’ll need five minutes with you.’’
Lewis did not testify. However, King was not asked about
any threats to Lewis when she testified. Therefore, I find that
General Counsel has not proved that this alleged misconduct
by King did not occur.
j. Terry Lear—car scratching
Anglin testified that Lear was discharged upon reports by
Rick Moberly11 and Robin Broughton that Lear had
scratched an automobile driven by Moberly (but owned by
Moberly’s brother).
Moberly testified that one night during the strike his broth-
er’s automobile was scratched as he drove it though the pick-
et line at the plant. According to Moberly:
I was working second shift. And we got off of work
at 12:30. And went outside the plant and got in my car.
It was my brother’s car. It’s an IROC, 1988. It’s about
three months old, four months old, I think. And got in
the car, started up, and Robert Foster was with me. He
was on the passenger’s seat, in the front seat.
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
And Robin Broughton was in the back, passenger
seat on the right. And so we was—started to leave the
plant. As we headed down to the main road, I had to
stop, let the people who was on strike go in front of
the car. Then, you know, I was leaving. They was com-
ing back across. And so I took a right on that road
there and left the plant.
I think about half way down, or near the four-way
stop, Robin mentioned that she thought somebody had
scratched my car—or my brother’s car, really. And so,
got to the four-way stop, stopped there, proceeded
straight across, and I think there’s a Berea Maintenance
Department on the left as we went straight across there.
I got outside, and checked the car out and I think
there was a scratch—I know there was a scratch on the
right side of the car. And so, we got back in the car.
Moberly testified that he, Broughton, and Foster returned to
the picket line to get a second look at those who were in
the area. Broughton saw the person whom she thought had
done something to the car and assured Moberly that she
could identify that person later. Moberly knew where he
could then find supervisor Harold Pruitt, and the three em-
ployees, in Moberly’s brother’s car proceed to go to that
point. When they found Pruitt, Broughton, further according
to Moberly, described to Pruitt the individual whom she
thought had done the damage: a man at the picket line who
had a beard, who wore glasses, and who wore a flannel shirt.
Moberly testified that Pruitt told Broughton and him that the
description that Broughton gave fit Lear.
On cross-examination Moberly admitted that the scratch
on his brother’s car, which was 2 feet long and down to the
metal, could have been made as much as a week before the
incident in question. Moberly also admitted that the radio of
the automobile was playing only moderately, but he heard
nothing before Broughton spoke.
Lear denied ever having scratched the Moberly car.
Neither Broughton, nor Foster, nor Pruitt testified, and the
proposition that Moberly’s automobile was scratched when it
proceeded through the picket line rests on the hearsay state-
ment, indeed speculative hearsay, by Broughton; Moberly
testified that Broughton said that she thought that someone
had done something to the car at that time. The hearsay is
even more suspect in this case because Moberly admitted on
cross-examination that the damage could have been done as
much as a week before the individual, speculated to be Lear
by Broughton, was near the area of the automobile.
To the extent that Moberly’s testimony was offered to es-
tablish that the automobile was scratched as he drove it
across the picket line, I discredit it. An ‘‘IROC’’ is a very
small car, but even in an average-size car any contact that
would produce a two-foot scratch, down to the metal, would
have been heard in the passenger compartment. (As Collins
testified, when his car got scratched, ‘‘I knew then that
something had happened.’’)
Assuming that the damage was done to the automobile
when Moberly drove it across the picket line, the identifica-
tion of Lear further rests on Broughton’s speculation that a
person with a beard and glasses could have done it. Assum-
ing further that a person with beard and glasses scratched the
car, the identification of Lear rests on the further hearsay
identification, indeed speculative hearsay identification, by
Pruitt. Pruitt’s hearsay statement to Broughton and Moberly
that the general description that Broughton gave him fit Lear
is only that, and nothing more: the description fit Lear. The
statement could not establish that Lear did anything. Pruitt
did not go to the picket line to have the ‘‘perpetrator’’ point-
ed out to him, on that night or any time later. Even if Pruitt
had been brought to the picket line, the only person who
could have been pointed out to him would have been the one
whom Broughton had speculated, out of court, to have done
some damage.
This speculative hearsay upon speculative hearsay cannot
be credited against the clear denial by Lear.
Accordingly, I credit Lear, and I find that General Counsel
has proved that Lear did not commit the strike violence at-
tributed to him by Respondent and allegedly used as the
basis for his discharge.
k. Carl Long—Threat to Hensley
Anglin testified that he discharged Long on the basis of
reports by employees Mitchell Hensley and Timothy Mat-
thews that Long had threatened them with violence because
of their working as strike replacements.
Alleged threat to Hensley
Hensley was called by Respondent and testified:
Well, there was an incident that I had with Carl Long
in Richmond, Kentucky. [My wife and I] were sitting
at a stop light next to Ernie & Joe’s Liquor, and Carl
Long was coming out of the liquor store and it looked
like he was kind of like staggering. And he got into his
car and we was still waiting at the light for it to
change.
And he pulled up beside us, passenger side. And he
started hollering, ‘‘Hey, scab. Where’s your momma?’’
And ‘‘Why don’t you get out of the truck?’’ Stuff like
that. And at that point in time, my wife was pregnant
and I just had a fear that, you know, something was
going to happen.
So, she locked her truck door and I locked I door
and we [waited] for the light to turn green and as we
were going out, when the light turned green, he said he
was going to get me.
Hensley’s wife was not called by Respondent. Long denied
having asked Hensley to get out of the truck, and he denied
threatening to ‘‘get’’ Hensley.
Long acknowledged confronting Hensley and his wife, but
he denied telling Hensley that he would ‘‘get’’ him. Re-
spondent argues that Long should be discredited because, in
a pretrial deposition he also denied asking Hensley where
Hensley’s ‘‘momma’’ was during the confrontation, al-
though, at trial, Long admitted having asked Hensley that
question.
Long was given an opportunity to explain his denial of the
reference to Hensley’s mother in the deposition, but he was
unable to do so, other than to offer the implausible expla-
nation that he did not understand the question that had been
put to him in the deposition.
The reference to Hensley’s mother was not insignificant.
Long was obviously trying to humiliate Hensley by referring
to Hensley’s mother as one to whom Hensley should report;
1309GIBSON GREETINGS
and he did it in the presence of Hensley’s wife, aggravating
the insult. Although Long is about 20 years older than
Hensley, he is obviously the physically superior. I find that
the taunting by the physically superior man did not stop with
the reference to Hensley’s mother. It continued with the fur-
ther attempt at humiliation, the statement that he would
‘‘get’’ Hensley and asking Hensley why he did not get out
of the truck, as Hensley credibly testified.
l. Carl Long—threat to Matthews
Anglin testified that he received a written report from
strike replacement Timothy Matthews that Long had threat-
ened him during the strike. Long denied the threat, and Mat-
thews was not presented as a witness by Respondent.
There being nothing upon which to discredit Long’s de-
nial, I find that General Counsel has proved that the alleged
threat did not occur.
m. Melvin Pennington and Gary Spires—convenience
store incident
Anglin testified that strikers Pennington and Spires were
discharged upon a report by Tim Matthews that Pennington
and Spires had threatened Matthews at a convenience store.
Pennington and Spires denied the threats and other conduct
attributed to them in the report, and, as noted, Respondent
did not present Matthews as a witness.
There being nothing upon which to discredit the denials by
Pennington and Spires, I find that General Counsel has
proved that the alleged threats to Matthews by Pennington
and Spires did not occur.
3. Alleged threats or violence by nonstrikers
General Counsel adduced evidence of violence, or threats
of violence, by nonstrikers. In so doing General Counsel was
attempting to show that strikers who were discharged for vio-
lence or threats were treated discriminatorily.
Nonstriking employee Maudie Alexander drove through
the picket line, at least once, with a gun displayed on the
dashboard of her car. Anglin and Bacon were informed of
the event shortly after it happened. No discipline was taken
against Alexander. The only action that was taken by Re-
spondent in regard to the matter was, as described by Bacon:
We passed on what the Berea police told us—they
couldn’t be, as far as the legal aspects, like keep it
under the seat, but have a portion of it visible.
Blair testified that ‘‘day after day’’ Alexander drove through
the picket line with a gun on her seat. Presumably, this was
after Bacon instructed line-crossing employees to ‘‘like keep
it under the seat.’’
Blair and striker Cecil Thacker credibly testified that on
one occasion when supervisor Pruitt was driving through the
picket line, he slowed or stopped to show them a gun which
he had in his vehicle.
On August 19 Curren, who, as mentioned, had worked
during the May 1 to August 8 strike as a replacement, con-
fronted Loretta Centers and Carolyn Moberly when the
former strikers were sitting in Center’s automobile at a con-
venience store. Curren cursed and threatened both Moberly
and Centers, and tried to get Centers to step out of her car
to engage in a fight. By kicking or some other means, Curren
damaged Center’s automobile. Curren was convicted of ter-
roristic threats and ordered to pay restitution for the damages
to Center’s automobile.
Respondent knew of the Curren-Centers incident as early
as August 25 when counsel took a deposition of Moberly.
Moberly named Sandra Curren as ‘‘Sandra Conner,’’ but she
also named four other employee-witnesses who could have
given the correct name, assuming that there had been some
confusion about the matter. At some point during the fall of
1989, Curren also told Bacon and Human Resources Director
Dombrowskes about the incident and her conviction, al-
though she denied being guilty of any criminal offense.
Respondent did not investigate the matter, and Curren was
not disciplined. (Curren was fired by Respondent, but a year
later, and for absenteeism only.)
III. ANALYSIS AND CONCLUSIONS
A. The 10(b) Limitations Issue
Section 10(b) of the Act provides that ‘‘no complaint shall
issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the
Board . . . .’’ Respondent argues that all allegations that un-
fair labor practices occurred in May are barred by this provi-
sion of the Act. This issue must be decided to determine if
any of the alleged May conduct by Respondent can be made
the basis of a finding of a violation, and, if so, whether cer-
tain of those May unfair labor practices, the May 1 letter and
Respondent’s bargaining tactics, prolonged the strike, as al-
leged.
The May allegations of the complaint are supported by a
charge that is timely filed within Section 10(b) if they are
closely related to and grow out of the timely filed allegations
in the original charge. The Board states in Roslyn Gardens
Tenants Corp., 294 NLRB 506, 506–507 (1989);
In determining whether otherwise untimely filed allega-
tions are barred under Section 10(b) of the Act, we ex-
amine the newly alleged violations to determine wheth-
er they are ‘‘closely related’’ to and grow out of the
violations timely alleged in the charge. In applying the
‘‘closely related’’ test to those violations alleged here,
we examine the following factors: (1) ‘‘whether the
otherwise untimely allegations are of the same class as
the violations alleged in the pending timely charge’’
(i.e., whether they involve the same legal theory and
usually the same section of the Act); and (2) ‘‘whether
the otherwise untimely allegations arise from the same
factual situation or sequence of events as the allegations
in the pending timely charge; (i.e., whether they involve
similar conduct, usually during the same time period,
with a similar object).5
5 Redd-I, 290 NLRB 1115, 1118 (1988). See also NLRB v. Dinion
Coil Co., 201 F.2d 275 (D.C. Cir. 1952), and NLRB v. Fant Milling
Co., 360 U.S. 301, 309 (1959). The Board may also look at whether
a respondent would raise the same or similar defenses to the new alle-
gations.
Respondent contends that the complaint’s allegations of
May misconduct are not ‘‘closely related’’ to the allegations
of the original charge; indeed, Respondent contends that the
allegations are, in fact, inconsistent.
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956).
13 Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1267
(1984).
Addressing Respondent’s broader argument first, it is to be
noted that Respondent does not state in what regards there
lie inconsistencies between the original charge and the com-
plaint. Respondent cites a case in which a charge of an in-
sistence on representation was juxtaposed with a complaint
that alleged a refusal to represent; Respondent cites a case
in which there was a narrow charge at one location but a
complaint containing broad allegations of misconduct at sev-
eral locations (and even a different employer); and Respond-
ent cites a case in which a complaint had issued on an un-
lawful layoff and failure to recall when there was a timely
charge only in regard to the failure to recall. Respondent
points to no such radical inconsistences here, but only offers
conclusionary statements on brief that similar radical incon-
sistencies between the charge and the complaint exist.
I find that the allegations are not inconsistent; indeed, I
find that they are ‘‘closely related’’ within the meaning of
the cases cited above.
Paragraph 6(a) of the complaint alleges that, by Anglin’s
May 1 letter, Respondent ‘‘threatened employees that they
would have the right to work for Respondent only if they
abandoned the [May 1–August 8] strike and returned to work
prior to their being replaced.’’ The original charge alleges
that ‘‘The employer also made unlawful statements to strik-
ing employees regarding their replacement and/or reinstate-
ment.’’ Both statements are allegations of 8(a)(1) violations,
and both do, or would, include an unlawful threat to dis-
regard reinstatement rights under Laidlaw or Mastro Plas-
tics,12 depending on proof that may be adduced. Certainly,
the same fact situation is involved; there was no other strike,
or statement, that the charge and complaint could have been
referring to. There is no difference in any factual defense
that would be asserted; in fact, there are no factual issues be-
cause Respondent admitted that Anglin sent the letter.
Paragraph 6(c) of the complaint alleges that Respondent
‘‘solicited employees to withdraw from the Union and as-
sisted them in submitting union withdrawal letters.’’ The
original charge alleges individual bargaining and solicitations
to abandon the strike. Both allegations concern Respondent’s
contact with strikers and and alleged attempts to thwart the
strike through individually directed unlawful efforts by Re-
spondent. Respondent was advised, by service of the original
charge, that these contacts were being brought into question,
and Respondent was never given reason to believe (by the
amended charge or otherwise) that those contacts were being
dropped from scrutiny. The factual defense would be the
same; Respondent, by either allegation, would have been re-
quired to come forward with evidence of what the nature of
the contacts had been. Finally, the charge, albeit in
‘‘boilerplate,’’ concludes:
By the above and other acts, the above-named em-
ployer has interfered with, restrained and coerced em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act[.]
If ever this standard language is to be held to mean anything,
it means that a theory of attempts to secure abandonment of
union membership falls within an allegation of an attempt to
secure abandonment of a union strike. Employees who aban-
don a strike and continue to work, and do not abandon their
memberships, may be lawfully fined by their union,13 a fact
that Respondent repeatedly emphasized to returning strikers.
The final May allegation of the complaint is paragraph 13
which alleges that Respondent conditioned continued bar-
gaining on the abandonment of the strike or execution of the
waiver. The original charge alleges that Respondent ‘‘on or
about April 29, 1989, punitively . . . refused to bargain with
the Union because the employees announced their intention
to strike.’’ The form of the retaliation in the original charge
(retaliatory withdrawal of proposals) is different from the
form of the retaliation specified in the complaint (retaliatory
refusals to meet), but the fact sequence, and the ultimate the-
ory, that Respondent was attempting to thwart effective bar-
gaining by its tactics, is the same. And, again, if the ‘‘By
the above and other acts’’ boilerplate means anything, it
means that a course of retaliatory bargaining would be inves-
tigated by General Counsel. Finally, Respondent’s proof is
not different; under either allegation, it would be required to
defend its tactics in bargaining.
Accordingly, I find and conclude that the May allegations
of the complaint are based on a charge that was timely filed
within Section 10(b) of the Act.
B. The Unfair Labor Practice Strike Issue
1. Unfair labor practices alleged as prolonging strike
The complaint alleges that the May 1 letter and Respond-
ent’s bargaining demand which was first asserted on May 15
converted the strike from economic to unfair labor practice.
a. Respondent’s May 1 letter
Two days before the strike began Respondent placed a ad-
vertisement in the local papers that assured potential replace-
ments:
Accepting 400 applications because of possible labor
dispute. . . . Your right to work is protected by Federal
and State Law.
Conversely, Anglin, by the letter of May 1, warned actual,
or potential, strikers:
We will begin to hire and train new employees im-
mediately so you should understand that you have a
right to work here which is protected by federal and
state law if you return to work before you are replaced.
It really is up to you. [Emphasis is in original.]
In Hicks-Ponder Co., 186 NLRB 712, 725 enfd. 458 F.2d
19 (5th Cir. 1972), the Board found that the employer vio-
lated Section 8(a)(1) by telling employees in a speech that
it had the right to fill the jobs of the economic strikers, and
when the strike was over those whose jobs were filled while
they were striking automatically lost their rights to work or
get their jobs back. In this case the coercive nature of Re-
spondent’s May 1 letter is even stronger: Anglin put the
threat to ignore the employees’ Laidlaw rights, in writing; he
underlined the threat to prevent any employees’ missing the
1311GIBSON GREETINGS
14 Respondent argues that holding a position in good faith cannot
be bad faith; however, Respondent suggests no way that Engeman
could have asserted, in good faith, that the negotiations were con-
tinuing when the contract expired on April 30. Negotiations simply
were not continuing at that point, and Respondent does not suggest
that they were.
point; and he concurrently published a notice in the news-
papers that the rights of replacements would be respected.
In sum, by Anglin’s letter, Respondent threatened to ig-
nore the reinstatement rights of strikers under the Act, and
by doing so Respondent violated Section 8(a)(1) of the Act,
as I find and conclude.
b. Respondent’s May 15 and 21 demands
As quoted above, the complaint alleges that on May 15
and 21, as a condition for continued bargaining, Respondent
demanded that the Union stop the strike or execute a waiver
of any contention that the strike was protected only because
Respondent had not given telegraphic notice that the strike
was unprotected.
The first issue is whether there was such a demand, or was
there only a request, as Engeman argued as he testified.
When the parties met on May 15 and 21, no contractual
terms were discussed. The only discussion revolved around
Engeman’s demands that the strike stop, or that the waiver
be executed. When Hartman asked on May 15 if Respondent
were there only to make such legal arguments, Engeman re-
plied only with further legal arguments. When the parties
met on May 21, Engeman informed Hartman, by letter dated
May 18, that Respondent was willing to negotiate ‘‘imme-
diately upon your discontinuing [the strike]’’ or executing
the waiver. Again, no negotiations concerning the terms and
conditions of employment of the employees took place.
After the meeting Hartman wrote Engeman and restated a
waiver that he had delivered to the mediator at the May 21
meeting. In the letter, Hartman uses the word ‘‘request.’’
From this, Respondent argues that it had made only a ‘‘re-
quest’’ for a waiver, not a demand.
Respondent’s position in this regard turns upon Hartman’s
polite, or facesaving, employment of the word ‘‘request.’’
However, it is clear that no negotiations were going to occur,
and no negotiations did occur, until Engeman got the waiver.
In this context, there was a demand, and nothing short of it.
The legal issue is whether Engeman’s demands violated
Section 8(a)(5). I find that it did.
Engeman premised his May 15 and 21 demands upon the
no-strike clause and his interpreted extension of that clause
by Section 13 of the expired contract. However, Section 13
is premised on the continuation of negotiations. Here, there
were no negotiations scheduled at the time the strike began,
as Respondent admits. Therefore, Respondent’s contention
that the no-strike clause was somehow extended by con-
tinuing negotiations is patently false.
A refusal to bargain premised on a false assertion is nec-
essarily a refusal to bargain in good faith. The bad-faith na-
ture of the demand is especially clear in this case. Respond-
ent knew that the Union was intending to strike on May 1;
Engeman told Hartman on April 28 that the Union had Re-
spondent’s best offer ‘‘unless you strike’’; on April 29 and
30, Hartman told Engeman and Tudor that the strike would
begin on May 1; neither Engeman nor Tudor said anything
about a possible contract violation. Engeman testified that he
really had not believed that a strike would occur. The false
nature of this testimony is demonstrated by Respondent’s
prestrike placing of advertisements for strike replacements
and the hiring of a security service because of feared vio-
lence. In the 11th-hour conversation between Hartman and
Engeman, Engeman did not question Hartman’s statement
that the strike was about to start; and Engeman did not sug-
gest further negotiations. Instead, Engeman only mentioned
strikers’ rights to continue their insurance coverage. Re-
spondent did not mention the possible contract violation until
May 15. Engeman testified that he withheld the statement of
his position because he wanted to do it face-to-face.
Engeman had ample opportunity to present his contention
face-to-face at the May 28 session. He did not do so. I find
that Engeman did not present the contract violation theory on
April 28, or at any time thereafter until May 15, because he
had not thought of it until after the strike began. As noted,
Sweeney admitted that the issue was not discussed by Re-
spondent’s principals until ‘‘within a day or two after the
strike actually commenced.’’
In summary, the position that the May 1 strike somehow
violated the expired contract was no more than an after-
thought, and not one taken in good faith. It follows that the
Respondent’s demands that were premised on this disingen-
uous position were made in bad faith, and Respondent’s con-
tinued insistence on the bad faith demands interrupted bar-
gaining from May 15 through 30.14
Accordingly, I find and conclude that Respondent violated
Section 8(a)(5) by unlawfully delaying bargaining from May
15 until 30.
2. Strike conversion issue
Economic strikes are not automatically converted to unfair
labor practice strikes upon the commission of unfair labor
practices during the strike. Whether a strike will be held to
have been converted depends on the nature of the unfair
labor practices committed during the strike and whether it
has been shown, or can be inferred, that the unfair labor
practices caused prolongation of the strike. See C-Line Ex-
press, 292 NLRB 638 (1989), and cases cited therein.
In this case there is testimony by a few strikers that they
were distressed by the Respondent’s May 1 letter that em-
phasized that they would lose their rights to reinstatement if
Respondent replaced them before they abandoned the strike.
However, none of the employees suggested that they collec-
tively, or individually, determined that they would need to
stay out on strike, even if the economic issues were resolved,
because of the letter. Additionally, on May 15 and 21 Hart-
man told the employees that Respondent was declaring the
strike ‘‘illegal,’’ and this distressed some employees, but,
again, no striker (or Hartman) testified that the refusal to bar-
gain was even discussed as a basis for continuing the strike.
Finally, the Union used about 24 different picket sign leg-
ends, none of which indicated that the strike was, in any re-
spect, being continued because of the unfair labor practices;
and the Union argued its case in the newspapers, none of
which carried any statement that unfair labor practices were
part of the reason for the strike.
Such a failure of evidence was determinative in Chris-
topher Construction Co., 288 NLRB 1275 (1988), where the
employer not only threatened to discharge strikers, it did it.
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 288 NLRB at 1276, footnote omitted.
16 Interstate Paper Supply Co., 251 NLRB 1423 fn. 10 (1980).
17 As any fair reading of Bunch’s written statement to Respondent
would make it clear that Bunch was solely responsible for precipi-
tating the incident between Baker and himself, I would also find that
Respondent did not have a good-faith belief that Baker had engaged
in any misconduct.
18 Long did invite Hensley to step out of the vehicle; however,
Hensley did not mention this invitation in his written statement to
Anglin, and it could not have been part of the basis for Long’s dis-
charge.
The allegation that the strike had been converted to an unfair
labor practice strike was dismissed upon the judge’s consid-
eration of the fact that: ‘‘The record contains no evidence
that the strikers ever discussed the discharges or that they
ever concertedly considered the discharges a reason to pro-
long the work stoppage.’’15 In this case, there is no allega-
tion that the May 1 letter constituted as a discharge, thus ren-
dering General Counsel’s contention even weaker than the
one made in Christopher Construction. Accordingly, I reach
the same result, and find that the strike was not converted
to an unfair labor practice strike because of Respondent’s
May 1 letter.
The unfair labor practice of May 15, however, stands on
a different footing. The comprehension or resolve of the em-
ployees is irrelevant. The demand interrupted bargaining
from May 15 through 30 as no other topic could be ad-
dressed until Respondent’s demand was satisfied.
Respondent withdrew its demand that the strike cease, or
the waiver be executed, only when it got one of its proposed
alternatives, the waiver. From May 15 through 30, negotia-
tions were stalled over Respondent’s bad-faith insistence on
one of those alternatives, because, at the May 15 and 21 ses-
sions, Respondent refused to discuss anything else. That is,
Engeman testified
My plan was to do exactly what I did, which was
to raise it. If it caused a settlement, then fine. If it
didn’t cause a settlement, I was going to get it off the
table and I got it off the table.
However, Engemen did not get his contention ‘‘off the
table’’ when its spurious nature was pointed out by Hartman
on May 15. Engman left it ‘‘on the table’’ for two weeks,
while negotiations were being tactically stalled and strikers
were being replaced.
Therefore, whether the striking employees even knew of
the fact (which they did), the negotiations were stalled be-
cause of Respondent’s unfair labor practice of May 15, just
as much as if Respondent had conducted an outright refusal
to meet during that period.16 Respondent resumed bargaining
on May 30 (because it had gotten what it wanted), but the
cessation of the unfair labor practice does not divest the
strikers of their status as unfair labor practice strikers; the
unfair labor practice of May 15 tainted the bargaining cli-
mate and impeded and delayed the opportunity for settlement
of the strike, whether or not a contract would have been
reached without the unfair labor practice. Yearbook House,
223 NLRB 1456 (1976).
Accordingly, I find and conclude that the May 1 strike
was converted to an unfair labor practice strike on May 15.
C. Refusals to Reinstate Strikers
1. Effect of the 10 discharges
I have found that General Counsel has proved that Darcus
Ann Baker, Eva Blair, Terry Lear, Melvin Pennington, and
Gary Spires did not engage in the misconduct attributed to
them. Because the conduct that was attributed to them was
taken in the course of protected activity, the strike, their dis-
charges violated Section 8(a)(1) and (3) of the Act, as I con-
clude, even if Respondent had held a good-faith belief that
the misconduct occurred. Rubin Bros. Footwear, 99 NLRB
610 (1952), enf. denied 203 F.2d 486 (5th Cir. 1952); Furr’s
Cafeterias, 251 NLRB 879 (1980), enfd. mem. 656 F.2d 698
(5th Cir. 1981).17
Conversely, I have found that Carolyn Moberly, Mary
Helton, Edna Sparks, and Diane King engaged in all of the
conduct ascribed by Respondent as the bases for their dis-
charges, or that General Counsel has failed to prove that
these individuals did not engage in the conduct which was
the subject of Respondent’s good-faith belief.
That conduct which ‘‘under the circumstances existing
. . . may reasonably tend to coerce or intimidate employees
in the exercise of rights protected under the Act’’ will be
deemed serious enough to permit an employer to refuse to
reinstate, or to terminate, a striker. Clear Pine Mouldings,
268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1984),
cert. denied 474 U.S. 1105 (1986).
The assault upon Broaddus and Johnson by Moberly,
Helton, and Sparks, the threat by Moberly to Chenault,
Moberly’s participation in the automobile chase of Curren,
and Spark’s repeated invitations to fight, and King’s car-
scratching and invitations to fight all clearly fall within the
Clear Pine Mouldings standard. The conduct of these indi-
viduals clearly constitute lawful grounds for discharge, unless
it can be shown that Respondent condoned equal, or worse,
conduct by those who did not engage in such conduct. Aztec
Bus Lines, 289 NLRB 1021 (1989).
General Counsel proved that Curren attacked on a striker’s
automobile, damaging it, and invited strikers Centers and
Moberly to fight. Although Respondent knew of the incident
shortly after the event, no discipline was taken against
Curren. Therefore, it must be concluded that Respondent did
not consider such assaults against property, and invitations to
fight, and to be grounds for discipline in a given case where
a striker is the victim. This is discrimination that is prohib-
ited by the Act.
Accordingly, although I have found that King has engaged
in conduct that would otherwise have privileged discharge
(assault on a vehicle and invitations to fight), I conclude be-
cause of the discriminatory treatment afforded King by Re-
spondent, Respondent violated Section 8(a)(1) and (3) by dis-
charging King.
At the close of the hearing, I invited counsel to cite to me
any case in which a threat to ‘‘get’’ someone, without more,
came within the Clear Pine Moulding standard. Respondent
cites none, and I have found none. The closest case offered
by Respondent was one in which a high-speed chase had im-
mediately preceded the threat to ‘‘get’’ a replacement.
Long’s threat to ‘‘get’’ Hensley was immediately preceded
by Long’s staggering out of a liquor store, according to
Hensley. Hensley was safely18 in his vehicle, and Long made
no attempt to follow him. Under the circumstances, if find
1313GIBSON GREETINGS
19 Although a great deal of time at the hearing was spent on Gen-
eral Counsel’s arguments and evidence of discriminatory treatment
of those accused of strike-related violence, Respondent does not ad-
dress the issue in its 103-page brief.
20 Compare Keco Industries, 276 NLRB 1469 (1985), where a dis-
charge of a striker for possessing a gun in the area of a picket line
was sustained, even though no nonstriking employees saw the gun.
21 The testimony of Chenault that somehow she got the impression
that her employment was temporary is so vague as to be meaning-
less; certainly, Chenault did not testify that she was not read the pre-
pared statement or that she was told by any member of the personnel
department that it meant anything different from what it said. She
deliberately avoided answering the suggestion that Tudor had told
her that her employment was temporary.
22 Respondent had cited Belknap in certain pretrial communica-
tions with the Region, and General Counsel had actual, as well as
constructive, knowledge of Belknap and Respondent’s reliance on
the case. However, General Counsel does not attempt to distinguish
Belknap on brief; indeed, Belknap is not mentioned in General
Counsel’s brief of the issue or in reply to Respondent’s motion to
strike that portion of General Counsel’s brief which argues that Re-
spondent had failed to prove that the replacements were permanent.
that no reasonable person would have been coerced by
Long’s attempt to do no more than humiliate Hensley by in-
sulting Hensley in the presence of Hensley’s wife.
Because Long’s misconduct was not of sufficient gravity
to have deprived him of the protections of the Act, and cer-
tainly it did not compare with the ‘‘terroristic threats’’ for
which Curren was convicted, I find and conclude that Re-
spondent violated Section 8(a)(3) and (1) of the Act by dis-
charging Long.
There are no incidents that precisely compare with the at-
tack on Broaddus and Johnson by Moberly, Sparks, and
Helton. However, General Counsel argues that the possession
of a gun while crossing the picket line by a supervisor and
another employee who were not striking is worse conduct
that than assault at the Maverick Club.19 I agree. Carrying
a deadly weapon around a picket line is such a serious matter
that it would be worse than anything short of pointing such
a weapon, a felony in any jurisdiction. Certainly the pushing
and hair-pulling, or even a punch in the eye, at the Maverick
Club does not rise to the level of the implicit threat of the
use of deadly force employed by the nonstrikers who dis-
played their guns for all striking employees to see. Even
after Respondent told nonstrikers to keep their guns out of
sight, the point remained; nonstrikers were permitted to have
deadly weapons in the area of the picket line.20
Accordingly, I find that the discharge Helton, solely for
her involvement in the Maverick Club incident, violated Sec-
tion 8(a)(3).
The discharge of Sparks was premised on two actions: the
Maverick Club incident and her invitations to nonstrikers to
fight. Again, participating in a fight is no worse than car-
rying guns in the area of the picket line, and Curren’s invita-
tion to Centers to fight (categorized by the local courts as
‘‘terroristic threats’’) went unpunished. Therefore, the dis-
charge of Sparks constituted discrimination based on her
strike activities, and by that discharge Respondent violated
Section 8(a)(3) and (1) of the Act, as I conclude.
Although it was not proved who threw it, Chenault was
threatened by Moberly immediately after somebody threw a
rock at Chenault’s car. This was more than a threat to ‘‘get’’
a nonstriker; it was a threat immediately preceded by an act
of physical violence. Moberly knew Chenault, and presum-
ably knew that Chenault’s parents were not physically well.
Therefore, when Moberly, threatened to ‘‘get’’ Chenault or
her parents immediately after the rock assault, it was in a
context most likely to coerce nonstriking employee Chenault
in the exercise of her Section 7 rights. Nevertheless, the
overall context of the situation was one in which Respondent
was permitting nonstrikers to carry guns across the picket
line (although it did later caution nonstrikers to keep the
guns off their dashboards). This conduct by at least two non-
strikers was still worse than any and all of the misconduct
proven against Moberly, and I find and conclude that
Moberly was discriminatorily discharged and that by
Moberly’s discharge Respondent violated Section 8(a)(3) of
the Act.
Because all 10 discharges violated the Act, each dis-
chargee shall be treated as if he or she had not been dis-
charged in determining the striking employees’ rights to rein-
statement.
2. Union’s application of August 8
General Counsel’s Exhibit 17 lists all employees employed
by Respondent as of February 1, 1991, with each employee’s
seniority date. There are 264 employees listed on the exhibit,
80 of whom were hired before the May 1 strike, 76 of whom
were hired between May 1 and 14; and 108 who were hired
between May 15 and July 25. According to the exhibit, no
employees were hired between July 26, 1989, and February
1, 1991.
Each of the 184 employees who were hired during the
strike were read a statement that they were hired on a perma-
nent basis, but that there was the possibility that the Union
and Respondent could negotiate an agreement requiring ter-
mination of the replacements’ employment. General Counsel
argues on brief, page 66, that the second paragraph of the
above quote is ‘‘inconsistent’’ with any contention that the
replacements were hired as permanent employees. However,
General Counsel advances no reason for concluding that
there is an inconsistency, and I find none.21 Moreover, the
Supreme Court in Belknap v. Hale, 463 U.S. 491 (1983), ob-
served:
An employment contract with a replacement prom-
ising permanent employment, subject only to settlement
with its employees’ union and [sic: or?] to a Board un-
fair labor practice order directing reinstatement of strik-
ers, would not in itself render the replacement a tem-
porary employee subject to displacement by a striker
over the employer’s objection during or at the end of
what is proved to be a purely economic strike.
On brief, General Counsel suggests no reason why this rea-
soning would not apply in this case, and I conclude that it
clearly does.22
I conclude, on the basis of the above-quoted statement that
was read to all replacement employees, Respondent has
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 This conclusion renders moot Respondent’s motion to strike
portions of the briefs filed by General Counsel and the Union. How-
ever, see SKS Die Castings & Machinery, 294 NLRB 372 (1989). 24 This unit description is as admitted in Respondent’s answer.
proved that all replacement employees were hired as perma-
nent employees.23
Because the strike was an economic strike from its incep-
tion through May 14, Respondent was not required to dis-
place those employees who were hired during that period.
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333
(1938). However, the strike became an unfair labor practice
strike on May 15, so that, upon receipt of unconditional of-
fers to return to work, Respondent was required to reinstate
all strikers, even if this required Respondent to displace all
replacements who had been hired on or after May 15. Mastro
Plastics Corp. v. NLRB, 350 U.S. 270 (1956).
General Counsel’s Exhibit 18 lists 177 of the strikers who
had not been reinstated as of February 1, 1991, including
Charging Party Smith. In addition are the 10 strikers who
were discharged, as I have found, in violation of Section
8(a)(3). There is no question that all 187 of these employees
were covered by the Union’s unconditional offer to return to
work. By its refusal to reinstate any and all of the 187
former strikers who had not been replaced before May 15
upon the Union’s August 8 unconditional offer to return to
work, Respondent violated Section 8(a)(3) of the Act, as I
find and conclude.
3. Individual application of Smith
On July 25, when Betty Smith individually made an un-
conditional offer to return to work, there were substantially
equivalent job openings in existence; however, Respondent
refused to reinstate Smith because, Respondent asserts, it was
then investigating allegations of strike misconduct by Smith.
There is no evidence of strike misconduct by Smith, or
even evidence that Respondent held a good-faith belief of
any act of misconduct on Smith’s part. Anglin did not testify
that he believed Smith had done anything constituting mis-
conduct during the strike.
By July 25, when Smith applied for reinstatement, the
strike had been converted to an unfair labor practice strike,
and all strikers, such a Smith had become unfair labor prac-
tice strikers. Therefore, even if Respondent had been required
to displace a ‘‘permanent’’ strike replacement, Smith had an
immediate right to reinstatement. Mastro Plastics Corp. v.
NLRB, supra. However, there were 3 openings at the time
Smith applied for reinstatement. Therefore, even if there had
been no conversion of the strike to the status of an unfair
labor practice strike, Respondent was required immediately
to reinstate Smith, and it was, as I conclude, a violation of
Section 8(a)(3) for Respondent not to have done so. NLRB
v. Mackay Radio & Telegraph Co., supra.
D. Other Alleged Unfair Labor Practices
The complaint alleges that Respondent violated Section
8(a)(1) by Tudor’s assisting returning strikers to withdraw
from the Union, soliciting employees to withdraw from the
Union, threatening to deny reinstatement to employees until
they resigned their union memberships, and telling employ-
ees that Respondent did not have a union and that it could
not have union members in its plant. The credited testimony
of Piersall, Mink, and Carpenter proves that Tudor did pre-
cisely those things.
On brief, Respondent argues that the law concerning em-
ployer involvement in union membership resignations is stat-
ed in University of Richmond, 274 NLRB 1204 (1985). It is,
as stated in that case:
The Board has held that an employer may lawfully
assist employees in the revocation of their authorization
cards [memberships] when employees initiate the idea
of withdrawal and have the opportunity to continue or
stop the revocation process without the interference or
knowledge of the employer. [Footnote citing Jimmy-
Richard Co., 210 NLRB 802, 803 (1974).]
The Board found that no violation had been committed be-
cause the employees had initiated the idea, each had a free
opportunity to discard proffered envelopes that could have
been used for the purpose, and there was ‘‘no evidence that
the Respondent coerced employees into requesting their cards
back.’’
In this case, Tudor did not give the employees a chance
to initiate the idea of revoking their memberships; he sug-
gested it to them and dispensed composition and clerical as-
sistance. In ‘‘some cases,’’ by Tudor’s admission, the res-
ignations were then handed over to one of Respondent’s
clericals for mailing, giving the returning strikers no oppor-
tunity to ‘‘stop the revocation process without the inter-
ference or knowledge of the employer.’’ And the employees
were coerced into filing the resignations by Tudor’s threats
that they could not be reinstated without resigning from the
Union.
I find and conclude that, as alleged, by Tudor’s conduct
Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By the following acts and conduct, Respondent has vio-
lated Section 8(a)(1) of the Act.
(a) Threatening employees who were engaged in the pro-
tected concerted, and union activity of an economic strike
that they would have the right to work for Respondent only
if they abandoned the strike and returned to work prior to
their being replaced.
(b) Threatening employees that they could not be rein-
stated to their jobs until they resigned their membership in
the Union.
(c) Soliciting employees to withdraw from the Union and
assisting them in submitting union withdrawal letters.
(d) Threatening employees that Respondent did not have
a union and could not have members of the Union in the
plant.
2. By discriminatorily discharging Darcus Ann Baker, Eva
Blair, Mary Helton, Diane King, Terry Lear, Carl Long,
Carolyn Moberly, Melvin Pennington, Edna Sparks, and
Gary Spires, Respondent has violated Section 8(a)(3) and (1)
of the Act.
3. The following employees of Respondent constitute a
unit appropriate for bargaining within the meaning of Section
9(a) of the Act:24
1315GIBSON GREETINGS
25 As noted, except for the 10 dischargees, all of the strikers who
had not been reinstated as of February 1, 1991, are listed on G.C.
Exh. 18.
26 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
All production and maintenance employees employed
by Respondent at its distribution facilities located on
Walnut Meadow Road, Berea, Kentucky, including lead
persons but excluding all clerical employees, profes-
sional employees and guards, and supervisors as de-
fined in the National Labor Relations Act, as amended.
4. At all times material herein and continuing to date the
Union has been the exclusive representative of all employees
within said appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union in good faith,
from on or about May 15, 1989, until on or about May 30,
1989, Respondent has violated Section 8(a)(5) and (1) of the
Act.
6. Respondent’s violation of Section 8(a)(5) and (1) of the
Act converted the economic strike that began May 1, 1989,
into an unfair labor strike on May 15, 1989.
7. Notwithstanding unconditional requests for reinstate-
ment made by Betty Smith on her own behalf on July 25,
1989, and by the Union on behalf of all striking employees
on August 8, 1989, the Respondent has discriminatorily re-
fused to reinstate strikers who had not been replaced before
May 15, 1989, to their former or substantially equivalent po-
sitions, thereby engaging in unfair labor practices in violation
of Section 8(a)(3) and (1) of the Act.
8. By the above acts and conduct, Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
All employees who participated in the economic strike that
began on May 1, 1989, and that was converted to an unfair
labor practice strike by the Respondent’s violation of Section
8(a)(5) on May 15, 1989, having requested unconditional re-
instatement on July 25 and August 8, 1989,25 the Respondent
shall immediately reinstate them to their former or substan-
tially equivalent positions without impairment of their senior-
ity and other rights and privileges. In order to make positions
available for them, the Respondent shall dismiss, if nec-
essary, all persons hired on or after May 15, 1989. If, after
such dismissals, there are insufficient positions available for
the remaining former strikers, those positions which are
available shall be distributed among them without discrimi-
nation because of their union memberships or activities or
participation in the strike, in accordance with seniority or
other nondiscriminatory practices utilized by the Respondent.
Those former strikers who were permanently replaced prior
to conversion and for whom no employment is immediately
available shall be placed on a preferential hiring list in ac-
cordance with their seniority or other nondiscriminatory prac-
tices utilized by the Respondent, and they shall be reinstated
before any other persons are hired or on the departure of
their preconversion replacements. Charles D. Bonnano Linen
Service, 268 NLRB 552 (1984), enfd. 782 F.2d 7 (1st Cir.
1986); Hydrologics, Inc., 293 NLRB 1060 (1989).
The employees entitled to immediate reinstatement shall
be made whole for any loss of earnings that they may have
suffered by reason of the Respondent’s refusals to reinstate
them pursuant to their unconditional requests. F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962).
Because of lack of work, Respondent may be absolved
from liability for refusing to reinstate, and pay backpay to
some of the strikers who offered to return to work on August
8, 1989. That issue (including the subordinate issue of
whether work had been shunted to other of Respondent’s
plants to cause the lack of work, if any) may be decided at
the compliance stage of this proceeding. Also, the list of em-
ployees employed by Respondent as of February 1, 1991 (on
G.C. Exh. 17) may include among those with seniority dates
that precede the strike former strikers who were reinstated
between August 8, 1989, and February 1, 1991; if so, the re-
instatements of those strikers may have been delayed by Re-
spondent’s refusal to terminate replacements hired on and
after May 15, 1989. This is another matter properly left to
the compliance stage.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended26
ORDER
The Respondent, Gibson Greetings, Inc., of Berea, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees who are engaged in the pro-
tected concerted, and union activity of an economic strike
that they would have the right to work for Respondent only
if they abandoned the strike and returned to work prior to
their being replaced.
(b) Threatening employees that they could not be rein-
stated to their jobs until they resigned their membership in
the Union.
(c) Soliciting employees to withdraw from the Union and
assisting them in submitting union withdrawal letters.
(d) Threatening employees that Respondent does not have
a union and cannot have members of the Union in the plant.
(e) Discriminatorily discharging employees because of
their protected concerted, or union, activities.
(f) Refusing to bargain in good faith with the Union as the
exclusive collective-bargaining representative of the employ-
ees in the bargaining unit found appropriate herein.
(g) Discriminatorily refusing to reinstate strikers to their
former or substantially equivalent positions of employment.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Upon request, bargain in good faith with International
Brotherhood of Firemen and Oilers, AFL–CIO, as the exclu-
sive bargaining representative of the employees in the fol-
lowing unit and, if an understanding is reached, embody such
understanding in a written, signed contract:
All production and maintenance employees employed
by Respondent at its distribution facilities located on
Walnut Meadow Road, Berea, Kentucky, including lead
persons but excluding all clerical employees, profes-
sional employees and guards, and supervisors as de-
fined in the National Labor Relations Act, as amended.
(b) Immediately and fully reinstate Darcus Ann Baker, Eva
Blair, Mary Helton, Diane King, Terry Lear, Carl Long,
Carolyn Moberly, Melvin Pennington, Edna Sparks, Gary
Spires, Betty Smith, and all other of its employees who ap-
plied unconditionally for reinstatement after May 15, 1989,
to their former or substantially equivalent positions of em-
ployment, if available, without prejudice to their seniority or
other rights and privileges, dismissing, if necessary, persons
hired on or after May 15, 1989, in order to make positions
available for them. Make whole these employees for any loss
of earnings that they may have suffered as a result of the dis-
crimination against them in the manner set forth in the rem-
edy section above. Place the remaining former strikers on a
preferential hiring list in accordance with their seniority or
other nondiscriminatory practice utilized by the Respondent
and offer them employment before any other persons are
hired or on the departure of any replacement hired before
May 15, 1989.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Berea, Kentucky facility copies of the at-
tached notice marked ‘‘Appendix.’’27 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.