Glade Springs, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 944 (N.L.R.B. 1984)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glade Springs, Inc. and Carol McLaughlin and
Mary Mayes and Shirley Walton and Lucy-
Ramieh and Ethel Edwards and Lilli Toney and
Rebecca Gilkerson and Deborah , Ledger and
Emma Jane Genoble and Margaret 'Flynn.
Cases 9-CA-18481; 9-CA-18761-1, 9-CA-
18761-2, 9-CA-18761-3, 9-CA-18761-4, 9-
CA-18975-1, 9-CA-18975-2, 9-CA-18975-3,
9-CA-18975-4, and 9-CA-18975-5
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 2 August 1983 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent and Charging Party Carol McLaughlin
each filed exceptions and a supporting brief. The
General Counsel filed a brief in answer to the Re-
spondent's exceptions and in support of the judge's
decision.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings,' findings,2
and conclusions, as modified below, and to adopt
the recommended Order as modified.
1. As a partial ground for finding that the Re-
spondent unlawfully refused to recall employee
Lucy Ramieh, the judge surmised that the Re-
spondent recalled her during the recess in the hear-
ing merely to reduce its backpay liability. The
Board has previously ruled that a respondent's in-
terim remedial actions are not conclusive proof of
an unlawful motivation. 3 Accordingly, we rely
only on those sections of the judge's analysis which
do not rest on his inference regarding the timing of
the Respondent's recall of Ramieh.
1 The Respondent and Charging Party Carol McLaughlin have except-
ed to some of the judge's credibility findings The Board's established
policy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB
544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully exam-
ined the record and find no basis for reversing the findings
2 In finding violations concerning the reinstatement of employees Ethel
Edwards and Shirley Walton, the judge relied on Lanilaw Corp, a case
for which he gave no citation The citation for that case is 171 NLRB
1366 (1968), enfd 414 F 2d 99 (7th Cir 1969), cert denied 397 U S 920
(1970)
The judge made the overly broad statement that economic strikers are
entitled to recall on demand As the judge correctly acknowledged else-
where in his decision, this right is subject to the limitations of an uncon-
ditional offer to return to work by the striking employee and the absence
of replacements or other legitimate and substantial business consider-
ations E g, Laidlaw Corp, above
3 See, e g , Allied Maintenance Carp, 261 NLRB 1145, 1147 fn 2
(1982)
2. The judge properly found that the Respondent
unlawfully failed , to recall nine employees on their
unconditional offers to return. However, he found
that the violation commenced 5 days after the date
of the Respondent's receip- t of each offer. We' dis-
agree with this finding and , amend the remedy to'
mark the commencement of backpay as the date of
the Respondent's receipt of each offer. 4 Because
the record does not disclose the dates the Respond-.
ent received the offer letters, we leave that deter-
mination to the compliance proceedings. This in-
cludes the dates of the Respondent's receipt of Ed-
wards' and Walton's offers, which the judge, with-
out record support, described as the date the letters
were sent.
3. In determining whether employee Lilli Toney
had engaged in picket line misconduct sufficiently
egregious to deprive her of her right to recall as an
economic striker who had made an unconditional
offer to return, the judge considered the testimony
of three witnesses. One employee witness testified
that Toney along with several other employees
yelled abusive and obscene language. Another wit-
ness testified that during the picketing Toney came
up to him and threatened to kick his wife, an em-
ployee, if she continued to come to work and
threw coke on him twice. Toney denied all the al-
leged misconduct, explaining that she had acciden-
tally spilled coke on the second witness. The judge
declined to make a credibility resolution and con-
sidered that the picket line misconduct was "half-
way" between the two versions. He then found all
that emerges is "the usual picture of disagreement
that by the nature of things characterizes all enthu-
siastic picket lines." He concluded that the Re-
spondent's attempt to single out one picket from an
animated group did not justify the refusal to rein-
state the picket. On this basis, he found that the
Respondent's refusal to recall Toney violated Sec-
tion 8(a)(3) and (1) of the Act.
The judge's failure to resolve the conflicting tes-
timony concerning Toney's misconduct precludes
us from determining whether any misconduct
Toney engaged in was sufficiently egregious to de-
prive her of the protection of the Act. In addition,
Clear Pine Mouldings, 5 in which the Board recently
revised its standard for determining where strike
misconduct justifies denying an employee's rein-
statement, issued subsequent to the judge's' deci-
sion.° We therefore sever this portion of the pro-
4 See, e g, Cutting, Inc , 255 NLRB 534, 544 (1981), enf denied on
other grounds 701 F 2d 659 (7th Cir 1983), Routh Packing Ca, 247
NLRB 274, 281-282 (1980) See also Adams Book Ca, 203 NLRB 761,
769 fn 39 (1973) (date of offer by letter is date it is received)
5 268 NLRB 1044 (1984)
6 That standard is to be applied retroactively Id at fn 14
273 NLRB No. 122
•
GLADE SPRINGS, INC 945
ceeding and remand it to the judge to make defi-
nite credibility findings on the alleged strike mis-
conduct 7 and to apply the revised standard of
Clear Pine Moldings.
4. The judge similarly found the alleged picket
line misconduct of employee Mary Mayes was not
sufficiently egregious to deprive her of her right to
recall as an economic striker who had made an un-
conditional offer to return. In making this finding
the judge referred to the testimony of employee
Rebecca Ramsey that on 1 June many pickets, in-
cluding Mayes, yelled at her on her way to work
and threatened her with the loss of her job, and to
the admissions by strikers that they had engaged in
rough talk on the picket line. Relying on this evi-
dence and his findings that Mayes was only one of
many participants and that a strike is not "a tea'
party," the judge concluded that Mayes' conduct
did not justify the Respondent's refusal to recall
her. He therefore found that the Respondent's re:
fusal to recall Mayes violated Section 8(a)(3) and
(1) of the Act.
However, the judge neither credited nor discred-
ited the further testimony of Ramsey that on an-
other date, in the midst of similar shouting, four
employees blocked her egress to work at the direc-
tion of Mayes, which resulted in Ramsey calling
into the plant for assistance in making her way into
the facility.
The judge's failure to make specific findings on
this testimony deprives, us of the necessary factual
basis on which to ,decide whether any misconduct
Mayes engaged in was sufficiently egregious to de-
prive her of the protection of the Act. We there-
fore also sever this portion of the proceeding and
remand it to the judge to make definite credibility
findings on all the alleged strike misconduct by
Mayes and to apply the revised standard of Clear
Pine Mouldings. 8
5. The judge recommended that a broad cease-.
and-desist order issue against the Respondent.
However, we have considered this case in light of
the standard set forth in Hickmott Foods, 242
NLRB 1357 (1979), and have concluded that a
narrow cease-and-desist order is appropriate. We
shall modify the judge's recommended Order ac-
cordingly. 9
7 See, e g, Deauville Hotel, 256 NLRB 561 (1981)
8 Member Zimmerman disagrees with his colleagues that It is necessary
to remand the issue of the alleged strike misconduct of employee Mary
Mayes Even crediting the testimony described above which the judge
did not mention, he does not consider that Mayes' conduct on the picket
line was sufficiently egregious to deprive her of her right to reinstate-
ment In reaching this conclusion, he has applied the standard for strike
misconduct expressed in his concurrence in Clear Pine Mouldings, above
9 Member Zimmerman agrees with the judge's recommendation that a
broad cease-and-desist order should issue
A corrected Order and notice have been includ-
ed to conform with the judge's. recommended
remedy, as amended.
AMENDED CONCLUSIONS OF LAW
The Conclusions of LAW shall be amended as fol-
lows:
Substitute the following for Conclusion of Law
"1. By refusing to reinstate economic strikers
Ethel Edwards, Shirley Walton, and Lucy Ramieli,
on receipt of each employee's unconditional offer
to return to work, by reducing the hourly pay Of
Ramieh, and by changing the' conditi6ns - of em-
ployment for Emma. Genoble, Rebecca 'Gilkerson,
Debbie Ledger, and Margaret Flynn, including by
reducing their hourly pay; because they had -en-
gaged in protected concerted activity, the Re-
spondent has violated and is violating Section
8(a)(3) and (1) of the Act."
• ORDER
The National Labor Relations Board orders that
the Respondent, Glade Springs, Inc., Daniels, West
Virginia, its officers, agents, successors, ,and as-
signs, shall
1. Cease and desist from
(a) Refusing to reinstate economic strikers on un-
conditional offers to return to work.
(b) Refusing to credit recalled economic strikers
with seniority for prior service.
(c) ,Reducing the pay scale of recalled economic
strikers because they have engaged in protected
concerted activities. .
(d) Threatening to close its business in retaliation
for the union activities of its employees.
(e) In any like or related manner interfering
with, restraining, or , coercing employees in the ex-
ercise of the rights guaranteed them by SeCtion 7
of the Act.
- 2. , Take the following affirmative action neces-
sary to effectuate the 'policies of the Act.
(a) Make whole Ethel Edwards, Shirley Walton,
and Lucy Ramieh for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion against them, with interest thereon to be com-
puted in the manner prescribed in F. W. Woolworth
Co., 90 NLRB -289 (1950); and Florida Steel Corp.,
231 NLRB 651 (1977).i.0
(b) Credit economic strikers with seniority for
prior service after they have been recalled to work.
(c) Pay Emma Genoble, Rebecca Gilkerson,
Debbie Ledger, and Margaret Flynn for any vaca-
tion benefits and medical 'insurance benefits, includ-
is See generally Isis Plumbing Go, 138 NLRB 716 (1962)
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the cost of any premium payments made in
order to retain equivalent insurance coverage, to
which they would have been entitled but for the
Respondent's discrimination against them, plus in-
terest.
(d) Restore the pay scale of all reinstated strikers
whose pay has been ieduced because of their strike
activities to the scale which they were being paid
before the strike, and make each of them whole for
any loss of pay resulting from the interim reduc-
tions in their wage scale, plus interest.
(e) Post at its facility in Daniels, West Virginia,
copies of the attached notice marked "Appen-
djx. " U 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 immediate-
ly upon , receipt 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, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that Case 9-CA--18975-
1 which contains the allegations that the Respond-
ent unlawfully failed to recall employees Lilli
Toney and Mary Mayes be severed from the in-
stant proceeding and that proceeding be remanded
to Judge Thomas A. Ricci for the purpose of
making credibility resolutions on all testimony con-
cerning the alleged picket line misconduct by these
employees and recommendations as to whether the
conduct they each engaged in was such as to re-
quire the forfeiture of either's rights as an econom-
ic striker , . who had made an unconditional offer to
return to work. In making this recommendation,
the judge is further ordered to apply the standard
for strike misconduct recently enunciated in Clear
Pine Mouldings, 268 NLRB ' 1044 (1984).
IT IS FURTHER ORDERED that the judge shall pre-
pare and serve on the parties a supplemental deci-
sion setting forth the resolutiOn of such credibility
issues and findings and conclusions with respect
thereto. Copies of such supplemental deeision shall
be served on all the parties, after which the provi-
sions of Section 102.46 of the Board's Rules shall
be applicable.
-
1. If this Order is enforced by a Judgment of a United States Court of
Apivals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to reinstate economic strik-
ers on unconditional offers to return to work.
WE WILL NOT refuse to credit recalled eConomic
strikers with the seniority previously enjoyed.
WE WILL NOT reduce the pay scale of recalled
economic strikers because they have engaged in
protected concerted activities.
WE WILL NOT threaten to close the business
down in retaliation for the union activities of other
employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL credit returned economic strikers with
seniority acquired before the strike.
WE WILL make whole Ethel Edwards, Shirley
Walton, and Lucy Ramieh for any loss of earnings
and other benefits suffered as a result of the dis-
crimination against them, plus interest.
WE WILL pay Emma Genoble, Rebecca Gilker-
son, - Debbie Ledger, and Margaret Flynn for any
vaeation benefits and medical insurance benefits, in-
cluding the cost of any premium payments made in
order to retain equivalent insurance coverage, to
which' they would have been entitled except for
our discrimination against them, plus interest.
WE WILL restore the pay scale of all reinstated
strikers whose pay has been reduced because of
their union activity to the scale . to which they were
being paid before the strike, and WE WILL make
them whole for any loss of pay resulting from the
interim reduction of their pay scale, plus interest.
GLADE SPRINGS, INC.
, DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held at Beckley, West Virgin-
ia, on February 28 and 29, March 1, and May 24 and 25,
1983, on complaint of the General Counsel against Glade
Springs, Inc (the Respondent or the Company) The
complaint issued on January 12, 1983, based on separate
charges filed on various dates between June 29, 1982.
and December 17, 1982, by 10 individuals as Charging
GLADE SPRINGS, INC 947
Parties. A number Of issues are presented: (1) Was a
prounion activist discharged in violation of Section
8(a)(3) of the Act, or was she in fact a supervisor who
could be dismissed with impunity? (2) Was the strike
which took place at the time of the events an unfair
labor practice strike, or was it an economic one? (3) Was
the Respondent justified in denying reinstatement to two
strikers who offered to return to work on the ground
that they had engaged in improper picket line activity?
(4) And, were seven other strikers who offered to return
to work illegally denied "full" reinstatement, in violation
of Section 8(a)(3) of the Act? Briefs were filed by the
General Counsel and the Respondent
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
This Company, a Delaware corporation, is engaged ,in
the operation of a resort in Daniels, West Virginia, pro-
viding food, beverages, lodgings, and recreational activi-
ties for guests. During the 12-month period preceding is-
suance of the complaint, in the course of its business it
derived gross revenues in excess of $500,000. During the
same period it purchased and received products and ma-
terials valued in excess of $50,000 directly from out-of-
state sources. I find that the Respondent is an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
'
I find that Hotel and Restaurant Employees' Local
Union No 863, affiliated with Hotel and Restaurant Em-
ployees' and Bartenders International Union, AFL-CIO
(the Union), is a labor organization within the meaning
of ,Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES
A. The Case in Brief
At its resort location in West Virginia the Respondent
employs people in many categories The only ones in-
volved in this case worked in the food and beverage de-
partment, where they were cooks, food and cocktail
waitresses, and cleanup people, a total of about 30 em-
ployees. During May 1982 a move towards joining the
Union developed among them; Carol McLaughlin, the
head cook, was among the principal activists toward that
end She called the Union's business agent, brought cards
to the work location, and assisted in obtaining a number
of signatures to authorization cards. She was discharged
on May 25 The complaint alleges McLaughlin was dis-
charged because of her union activities, and that thereby
the Respondent violated Section 8(a)(3) of the Act.
On May 29 the employees of the food and beverage
department struck, and many of them quit work and
went on the picket line A number of the strikers testified
that their reason for striking was twofold: to protest
many undesirable conditions of employment and to pro-
test McLaughlin's discharge. If in fact the discharge of
the head cook was an unfair labor practice, it follows the
work stoppage was an unfair labor practice strike. If her
dismissal was lawful, the strike wag 'a püely economic
one Roma Baking CO., 263 NLRB 24 (1982)
The Company hired a number of replacements and
work went on as usual. Three Months later the picketing
ceased and nine of the strikers offered to return to work.
Two were refused employment on the grounds that they
had misbehaved toward employees who came to work
during the strike. Some were reinstated, but paid a lesser
hourly rate than they had been earning before the strike,
and some were taken back as new employees and denied
their previously acquired seniority *
B. The Discharge of McLaughlin
I find that McLaughlin was a supervisor within the
meaning of the Act when she was discharged, and that
therefore by releasing her the Respondent did not
commit an unfair labor practice Were I to find she was
not a supervisor, as contended by the General Counsel, I
would dismiss the complaint as to her in any event be-
cause the record as a whole fails to prove a prima facie
case against the Company. When discharged she was
told it was because of listed failings on her part at work.
It is true she had never been warned about delinquencies,
either orally or in writing, so that the sudden dismissal
would appear suspect. But it is also a fact, as McLaugh-
lin admitted, no one in management had ever told her
she might be fired because of her union activities, or
threatened her in any manner I am not sure why she
was fired, although a possible . explanation does appear. A
man named DuPriest had been hired shortly before, and
put in charge of the department, over her: The Company
probably did not need her any more. Moreover, when, in
August, McLaughlin' filed a charge against the Company
with the West Virginia Department *of Human Re-
sources, she told the investigator that the reason for her
dismissal was "because of sex . . . I have been replaced
by a male who was hired one week prior to my termina-
tion" But whatever this aspect of the case, dismissal
here rests solely on the fact she was a supervisor.
(1) McLaughlin was the only salaried employee in the
department, and the only one who did not punch a time-
card. During February 1982, her annual salary was
$16,800. The next highest below ,her was the bartender,
who received a salary of $9600. All the rest were hourly
paid, the highest getting $4 50 per hour In March the
Respondent gavealmost all employees in the department
a raise. The resulting- picture shows McLaughlin being
paid $26,000 per year, the bartender $10,000- and, again,
the highest hourly paid employee receiving $6.76 per
hour.
(2) With so many employees hourly paid there were
many times when errors appeared on their timecards.
Joyce Meadows, the personnel director, testified only
McLaughlin was authorized to correct the timecards,
always placing her initials on the cards. McLaughlin, and
a number of employees testifying for the General Coun-
sel, kept saying other ordinary employees were also au-
thorized to initial timecards to correct errors of fellow
employees and in fact did so. The Respondent placed
into evidence 90 separate timecards, covering a period of
3 or 4 months, each showing McLaughlin's initials au-
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorizing corrections. It was then stipulated that, pursu-
ant to subpoena, the Respondent had produced for the
General Counsel's inspection all the timecards for the
period February 1982 tO the day of McLaughlin's dis-
charge. None was offered into ,evidence by the General
Counsel This means that there are no timecards showing
any other person . having corrected errors The General
Counsel's witnesses N;v. e r e not , telling the truth on this
point.
(3) The Respondent makes it a practice to evaluate the
employees periodically—annually, after the probationary
period, etc. The form it uses is a four-page document list-
ing 14 separate aspects of employment, such as quantity
of work, attendance, dependability, creativity, etc. Seven
such evaluations' were placed in evidence, all dated
during March '1 '982. Each of them shows McLaughlin's
signature at the end, with the word "supervisor" written
in her hand as to the "title" she held. Irnmediately below
her signature appeals the typed statement, "A copy of
this' Report has been given t6. me and has been discussed
with me," followed by the employee's signature. On
their face these exhibits constitute evidence that
McLaughlin was authorized and in fact did evaluate all
the employees, proof positive of her supervisory status
'She testified that when Meadow' s gave her those forms
for evaluation of all the employees in her department,
the personnel director told her to have each employee
evaluate herself, or himself, and a number of the employ-
ees who testified as to this very, form received in evi -
dence said they put the check marks on the various ap-
praisals themselves, i.e , , that they evaluated themselves!
Meadows, to the contrary, said it was McLaughlin's
duty to evaluate the employees, and that McLaUghlin
fact did- so/hecause she was the supervisor .,•
As, to who made these evaluations, resolution of credi-
bility is -easy. On every one of the exhibits the 14
checks—one for each of the various aspects of the job—
are • in red ink. McLaughlin's signature and the words
"supervisor, kitchen and dining" are also in red ink. At
the bottom of each ,form the signature of the employee
appears in blue ink Am I t6 believe that , in each instance
the employee borrowed McLaughlin's pen to place the
appropriate checks, and then returned it to her and
signed her own name in blue with her own pen? Or am I
to believe each did whatever she did with a 'single pen?
And why should any employer have the employee evalu-
ate herself? McLaughlin even said she signed these forms
only because Meadows asked her to do so. She even re-
ferred to other forms received in evidence, 'disciplinary
and layoff forms—which she signed, as supervisor—by
saying she only signed them because Meadows told her
to. Asked why did Meadows tell her to do that, she an-
swered: "Because I was the longest there and knew the
people." 1 But this is exactly- why supervisors evaluate
their subordinates.
•
", All the forms in which McLaughlin evaluated employees received in
evidence are dated March 1982 The first contact with the Union was
made . us May, as McLaughlin herself testified With this, the General
Counsel's assertion, in her bnef, that all the evaluation forms were filled
in by the supervisor "to be used at the trial herein" ments no comment
(4) Repeatedly the witnesses on both sides spoke in
conclusionary terms, that McLaughlin was or was not a
supervisor These statements are not evidence to me. But
time and again, over the years, the General Counsel has
relied on formal documents to prove supervisory status.
There was another document placed in 'evidence that
puts to rest this question here with finality. As set out
above, McLaughlin, 3 months after her discharge, and
after she had filed her charge with the Board, signed an
affidavit for the Department of Human Resources in
West Virginia The body of the affidavit, its very es-
sence, reads as follows:
1. On May 25, 1982, I was terminated from my
employment as Supervisor of Food Services
2 Bob McLean, president, and Ron DuPriest,
Food and Beverages Manager, alleged that I han-
dled my supervisory responsibilities poorly and that
I was unable to control money.
3. I believe that I have been discriminated against
because of sex, female, in that:
(a) I have been replaced by a male who was
hired one week prior to my termination.
Called as a witness in rebuttal at the close of the hear-
ing, McLaughlin said, under oath, that when she swore
to the truth of the affidavit the Human Resources, inves-
tigator prepared during her interview, all that was set
out on the affidavit now was not written on it at all, that
the document consisted of no more than the formal,
printed parts. Did the investigator have McLaughlin sign
a blank affidavit so she could run to the Respondent and
obtain a statement that would hurt McLaughlin in a pro-
ceeding that had nothing to do with the Investigation she
was interested in at all ? Without further comment, in my
judgment McLaughlin stands as a completely discredited
witness in this case wherever she is contradicted by any
other witness.
Because McLaughlin was a supervisor I shall recom-
mend dismissal of the complaint as to her.
C. The Returning Strikers
It was an economic strike. In August nine of the strik-
ers made unequivocal offers to return to work. Seven of
them ,were accepted as new employees and under condi-
tions of employment different from the past and to the
'material disadvantage of all seven. Two who offered to
return were refused outright
1. Mayes
Mary Mayes, a striker, wrote to Baker, the general
manager, on August 5, offering to return to work uncon-
ditionally. She never received an answer from anyone in
the Company. The only witness who spoke about the
Respondent's failure to reinstate Mayes at 'the hearing
was Meadows, who worked in the office. She admitted
she was not the one who made the decision not to rehire
Mayes, but merely said what she thought was the reason
for Baker's refusal to rehire that girl. On this record,
therefore, it can well be said the Respondent has not
GLADE SPRINGS INC.
come forth with any explanation ..for rits, failure to rein-
state the tl'ilcer,''to ay s nothing s-Or not having given her
ran _articulated reason at the time. of the act.,With the-law
being, clearly, that ayreturning. economic ,strikeros enti-
tled ,to reinstatement on demand, this . means the :prima
facie_ case in support of the ,unfair, labor practice alleged
in,the complaint as to this woman-has not really been re-
butted.
The Respondent called .Brenda Black, an employee
who had signed a union card but did, not join in the
.strike. She testified-that sometime in 'June or July she
met MaYes in the parking lot of a fast food place -some
distance from the plant, where Mayes asked_ her why she
was crossing the picket line. When,-,Black -answered it
was .because she needed the t money, still according to her
testimony, Mayes patted , her purse on- the seat next to
her and said she had .a gun and was not afraid to use it.
It was this threat of, physical violence that, the Respond-
ent now contends, justified its refusal to rehire , Mayes.‘.
Mayes' version of that talk between- the ;two_ at the
parking lot is that Black asked her why she was being
harassed when crossing the picket ,line, and that Mayes'
answer was they were not picking on Black but simply
wanted to knoW- why she had "reneged" after 'signing a
card for the Union: 'Mayes said she never ,owned a gun
and denied ever ha .. ing threatened the' 'other woman at
all. I credit her against Black. There were' young women
Mayes' car, her daughter and
'
ariotlier girl. Black said
she thought she had told DuPnest, the kitchen 'manager,
abOut the incident, blit DUPriesi was not called as a wit-
ness. Black also said she'herself used to carry a gun, and
'"ii didn't upset me that much." She closed by saying she
really did not recall whoshe told about the incident
within the Company.'
Another witness, Rebecca Ramsey, testified' that she
worked at the start -of the strike. She said that on June 1
a "bunch" of 'pickets were "screaming and hollering at
me and threatening me," "calling me names and stuff,"
and saying that when they returned she would nof have
a job As she' continued the witness listed no less than
four different strikers by name as having participated in
whate'ver happened to her that day. An example of her
generalized testimony: "I think it happened the very next
day, like some—like they'd go Weeks without saying
nothing to_ yoti'and , then there all of a sudden they would
jiist start 'saying stuff for a couple of days and then they
•oi.ild stop again."
The strikers who testified admitted 'there was rough
talk on the picket line, but then, as the Board has often
said, industrial strife ;of this kind is not to_be likened to a
tea 'party Machinists District 34 (Wolf Machine -Co.), 254
NLRB 282, 286 (1981).
I find the Respondent has not collie foi-th with suffi:-'--__-
cient - 'evidence of wrongdoing on the part_ of--Mary
Mayes to justify its refusal to reinstate 'her when she
asked to abandon the 'strike, and that therefore by deny-
ing' her reinstatement 'it violated Section- 8(a)(3) of the
Act. _
2. Lilli Toney
_,•like Mayes, Toney wrote a letter to the Company on
September 21, 1982, offering to return 'unconditionally..;
-
A. I was in the .. . Bud Baker's offiLerthe gen-
eral manager, when the decision was Made.
What this means is that it is questionable, at the Outset,
whether the Respondent really gave any tholight to
Toney's or Mayes' behavior on the picket line as a
reason for not returning them to work. Baker' was ra wit-
ness for the Respondent in this case, but never once re-
. ferred_to the issue as to the refusal to rehire either-Mayes
or Toney , . :-
In 'any event, there is more_testimony•by the Witness
Ramsey, who chose to work during the strike. She said
that on June 1, at the start of the strike, when: she= di--
rived at theplant Toney "was yelling at me 'Fuck you,
bitch.' And just calling me names. and 'stuff like! that."
Ramsey -several times described the incident,' and some
others like it, 'each time repeating herself generally and
-painting a picture of bad words exchanged back :and
forth, with people "yelling and screaming' on' the picket
line. She said there were many , other pickets involved,
doing , the same thing'. It was , the ,' same' old; story of
people not liking one another when one -group chooses
to improve conditions of employment by 's'triking and the
.other chooses not to do, so. It is in the riature i of human
beings to become very vociferous, even dirty, mouthed,
at such times. But such course of conduct, to be .expect-
ed, is hardly reason for denying reinstatement to a. re-
turning striker. '
Another witness for the Respondent, .Dennis Black-
well, used to drive his wife and _another Woman to wOrk
across, the picket line. He spoke of an incident when lie
was bothered by the pickets: `
Q. Did anything Unusual happen when yOu were
transporting them to work? •
A. Yes, sir, a bit of an altercation when we 'came
. . . In a nutshell, as we came off 3 strikers
strung themselves aCross the mouth of Glade out by
the highway and in -order to get by them, the strik-
ers, with the car,! had to nudge them aside with
' the Toyota. Somebody kicked the back'of the Car as
we- Were driving through. I didn't 'see who it was. I
just heard the thumps.
Blacl,well continued that when he wad', leaving the prem- -
ises: • ,
• I Went through the' guard house. I came out tozihe
. highway: And Lilli Toney, a big, heavy blond- girl,
f
ran over and I was waiting for traffic. I Couldn't get
She never received an answer. It was only at the hearing
that the Respondent first advanced, as a reg:sori 'fbr not
.reinstating, her, that she had miseonduCted 'herself'during
the strike: Again, 'insofar as this record shows, it was
Baker- wrio made that decision. At one point-in 'lief testi-
mony Meadows, :for the Respondent, said,' -'"I . guess it
was a mutual decision" not to rehire Mayes . and 'Toney.
But there is also the following: . '
Q. Did you decide not to hire her?'•'-
- A. Well, no. Not -actually, no. -
Q. Well, how do you know why—Wlib 'decided
'not to take her? .
:-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Out. So' stopped ,there. And she — "we'rezo -3 _ said .
doing to kickyour wife's ass when We catch heru iknd I looked away for a second. I lOoked back and
she threwsome fluid in my face out of a can pop
or beer . . And I said "Listeri, Lilli.".„And she
'threw something in in); face ag'ain.'"I turned off the
car and got out of the car I started to walk ov' to
her and tell her not to threaten my wife, arid the
next thing I knew I was surrounded by the strikers
The strikers were screaming and yelling •and for just
a few minutes I tried to talk to them-: -. and all of
a sudden somebody pushed me from behind. Put
their hands in the small of my back and pushed me.
I turned around to see who it. was , and it was just
more faces. I said, . . . I better gef back in my car.
I -walked back to my car. Nobody- touched me.
They were all just screaming and yelling f I
waited for traffic to clear and all of -a sudden I
• heard a loud thump on the back 'of my car. I leaned
. out of my window and looked back. I would see
over • my left shoulder and a .couple of people had
sticks, clubs if you want to call them that, with
knobs on one end and sharp stakes on the other.
The witness' testimony continuect in this ‘general fashion,
and -then he started to speak of anotifer person, one
Robert Flynn,,,who he said struck his car, put a crease in
it, etc. His testimony ended at that point. Before closing,
he explained that he was held up "probably" 'about a
minute "so just very slowly' in first gear pushed -them
aside with my car" , -
Q., And this time' you stopped the car because the
traffic was built up"
A. Correct. _
• .
'Blackwell closed his testimony by first saying he told
Baker about what happened, and then saying "I don't
know" whether he told him or not.
Toney, ' called to rebut all this, later recalled seeing
, Blackwell drive his car , into work once or twice, but
denied ever touching his car, or telling him she would
kick his wife. She did say she once approached his car to
tell Jim not to bring his wife- in to work across the
picket line; she even added that when she did that he
pointed his finger at her face and called her a "bitch,"
and -that when he opened his car door to get out,, a pop
.rbottle in her hand spilled and some of it fell on Black-
'. well. . -
- These differing versions of picket line stress, typical of
the start of_any strike, told long after the events, are to
be expected. There is an understandable tendency on
„ each side ,to exaggerate in both flireptions. If I decide the
. issue halfway between the two, all that emerges is the
usual .picture of disagreement that by the nature of things
characterizes all enthusiastic picket lines. Clearly there
was a crowd there, and the attempt-to single qit one
picket as a special culprit will not do to justify ire out-
right refusal to reinstate a particular ,striker mucklater.
On this whole record I find that the refusal to rehstate
Toney- was an unfair labor practice , iii violation 0; Sec-t
tion 8(a)(3) of the Act.
• D:Refusals'to Oiler Proper Reinstatement
C Seven, other-strikers -made unqualified offers to return
to work- In; writing' five% on , August 5, 1982, one on
August 6, and one on August 12 During the early part
of the hearing, in-March' 1982,all seven of these employ-
ees testified for- the General Counsel, where four said
they had been reinstated late in August or early in Sep-
tember.. The :"other 'three—Ethel Edwards, Shirley
Walton," and Lucy Ramieh—were still waiting for their
-Jobs. Meadows, the office comptroller,' testifying later for
the Respondent in' May when the hearing was resumed,
said, as to Ramieh, that she _-"is employed with Glade
now," as to Walton, that slie was "recently .. called
back," and as to Edwirds, that "she was hired back as a
cook- recently." Of the three, 'only'Ramieh was called in
rebuttal after Meadows' testimony. , 'arid 'she said she Was
- recalled to work in April 1983, I have no reason not to
accept Meadows' statement that 'Walton and Edwards
-have alsObeen given jobs.
1: The four-waitresses
Emma 'Genoble, Deborah Ledger, Rebecca Gilkerson,
,and Margaret Flynn were waitresses; they were, paid in
part an hourly rale by the Respondent and,in part by tips
from the , customers., For some - .time before the strike
Genoble had been paid $4.50 per hour, Ledger $3.2 .5 per
hour, Gilkerson, $3 per hour, -and Flynn $2,60 per hour.
When offered reinstatement,- which they._ accepted, they
were told they were being, relegated to the status of
.-`.!new" employees, on 90-day probation,.and ,that for:each
pf them the hourly rate would be , reduced to $2.10 per
hour. In consequence each lady lost her accumulated se-
niority, varying , from 3 to 7 years, and the accumulated
vacation benefits flowing from seniority, each, lady also
lost the previously, enjoyed medical insurance for a
period of 1 months, the newly established probationary
period., •
The. law is clear, to condition the reinstatement of
economic strikers as new hires,with :deprivation of pre-
viously enjoyed economic benefits, is a straight discrimi-
nation in retaliation -for protected _concerted , activities,
and a violation of -Section 8(a)(3) of the Act. NLRB v.
Fleetwood Trailer Co., 389 U.S. 375 (1967);, NLRB v.
Great Dane Trailers, 388 U.S. 26 (1967). The Respondent
here did not even suggest any justification -for striping
these particular employees of their accumulated ,vacation
benefits and company, seniority. Lfind that with respect
to Genoble, Gilkerson, Ledger, and Flynn she Respond-
: ent violated Section 8(a)(3) when it .accepted their un-
conditional offer to abandon the strike by taking them on
as new employees. .
As to the reduction in pay, which the Respondent also
imposed on -them as a condition of reinstatement,- the
Company contends that it had decided, for economic
- reasons, to lower the hourly rate of all its waitresses
before the strike started, and that therefore it had a right
to reduce their pay also. The contention is belied by the
facts, as the record clearly shows. Whatever the Compa-
ny may have ,decided about the hourly rate for newly
hired, or, inexperienced waitresses; the fact is it did not
reduce the hourly fate of these fink before the strike. It
GLADE SPRINGS, INC 951
does appear that one or two waitresses were hired before
the strike and paid at $2 10 an hour. Whatever the
reason—probably because of their seniority and therefore
greater skill on the job, these four continued to receive
their established pay scale. In the circumstances, the only
explanation for the reduced pay given them on return
was the fact the Company considered them new hires,
which it may not do to returning economic strikers
They were more deserving than new hires before the
strike, and they remained more deserving at the higher
rate of pay when they returned.
The collateral defense to this reduction in pay in the
reinstatement of these strikers—that business consider-
ations required the reduction—is equally unconvincing.
The business continued as ustial during the strike, and
there was need for waitresses, as proven by the fact the
women were in fact put to - work Conclusionary state-
ments by a defense witness will not do to offset a clear
and direct discriminatory treatment of economic strikers
on their abandonment of the .strike. Meadows testified
the decision to reduce the hourly rate was made previ-
ously by General Manager Baker. But Baker, .as a wit:
ness, never talked about it at the hearing. At the hearing
Meadows said the new policy was to pay food waitresses
only $2.10 and to continue to pay cocktail waitresses
$2.60 Flynn, one of the returning strikers, was a cocktail
waitress, but she too was reduced to $2.10. Moreover,
Meadows' pretrial affidavit says the new policy was to
pay all waitresses only $2.10, including cocktail waitress-
es. She was not a very convincing witness.
I find that the reduction in pay imposed on these four
returning strikers was but another aspect of the imper-
missible conduct of treating them as new hires, instead of
returning them to their established, prestrike status.
2. Ethel Edwards and Shirley Walton
Edwards, also a striker, was a cook. On August 5,
1982, she wrote a letter to Baker, saying she wanted to
return to work. She never reCeived any 'response. She
was recalled, according to Meadows, as of May 24, 1983,
"recently." The only explanation for this lady 'waiting 11
months for any answer to her offer is a statement by
Meadows at the hearing. Asked "Were there any cooks
hired prior to her coming back ?" she answered: "We
promoted within If we had a dishwasher or a utility
person and, you know, we train them to be cooks and
then at that time they would perform cooking duties"
Shirley Walton, another striker, was a janitor-house-
keeper She wrote a letter to Baker on August 5, saying
she "will be happy to return to my job" Not hearing
from anyone she called in, still during August, and was
told to talk to one Lisa Williams All she was told is
"they wasn't hiring any housekeepers" On September 20
she went to the company office and filed a regular em-
ployment application. No one from the Company ever
contacted her thereafter At the resumed hearing in May
1983 Meadows said only—with respect to this employ-
ee—"We had no position in that field until recently
when a position did come open, and she was the one that
was called back to that."
I do not consider these passing phrases by one compa-
ny witness sufficient basis to explain the failure to rein-
state these two women for over 10 months. The Re-
spondent's brief does not add anything to Meadows' brief
comment. The Respondent offered nothing tangible, no
records of any kind, that might conceivably support a
contention that these two women had been replaced by
permanent employees when they applied for jobs, or that
during that long interval there were no openings to
which they could have been reinstated Rather, else-
where in her testimony, Meadows gave herself away.
Q. [By Respondent's counsel] Were there any
employees who offered to come to -work after the
strike was over and who had been on strike who
were not returned to their jobs they were capable
and able to do before someone outside the facility
was hired to take their places?
A. To the best of my knowledge there were two
employees
Q. And those were who?. .
A. Shirley Walton and Ethel Edwards
The duty is on the employer to come forth with some
persuasive evidence that its refusal to take back an eco-
nomic striker was because she had in fact been replaced.
The Respondent has not done that. In NLRB v.
Fleetwood Trailer, supra, a lead case, the Court said:
"[U]nless the employer who refuses to reinstate strikers
can show 'that his action was due to legitimate and sub-
stantial business justification, he is guilty of an .unfair
labor practice." -Certainly the same logic applies where
the employer refuses to reinstate a striker on the ground
he has been permanently replaced; he has 'to show that
the assertion has a reasonable basis. Furthermore, see
Laidlaw, supra, where the Board said "that the right to
the job does not depend on its availability at the precise
moment of application . . . and that strikers retain their
status as employees who are entitled to reinstatement
absent substantial business justification, and regardless of
union animus" "[T]he burden of proving such justifica-
tion was on the employer." The Board's final holding in
Laidlaw, I think, determines the question here.
I find that on August 12, 1982 (I will set the date one
week after receipt of the' two strikers' letters offering to
return to work) the Respondent refused to reinstate Ed-
wards and Walton because they had engaged in an eco-
nomic strike and thereby violated Section 8(a)(3) of the
Act.
3 Lucy Ramieh
Ramieh was a cook, and her letter, offering to return
to work forthwith, is also dated August 5. She heard
from no one until Meadows telephoned her on Septem-
ber 14 and told her to come to talk to a Mr. Finch
"about my return to the job" She did. Finch asked her
how much she was paid when she went on strike, and
she told him, correctly, it was $6 per hour He came
back with "I can get young boys for $3.25." When 'to
this Ramieh said that might be true but they would not
be experienced, Finch offered to pay her $5 an hour in-
stead Of the $6 she had been receiving Ramieh agreed to
return at that rate, and Finch closed the conversation
with sayitig he would let her know. Between that date
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and ukpril 1983, when she was recalled and paid only
$4.25 per hour, she heard nothing from the Company.
I, believe every word Ramieh gave as a witness in this
case. Finch was not called to testify. And again, Mead-
ows was 'offered instead as an offset to the case in sup-
poll of. the 8(a)(3) allegation as to this returning striker.
She spoke of what Finch told her was the reason why he
did not'rehire Ramieh that day. If ever there was a situa-
tion Where the hearsay rule of evidence absolutely ap-
plies, this is it. In place of Finch, Meadows contradicted
Ramieh, and said the reason Finch did not rehire Ramieh
that day was because she insisted on being paid $5 an
hour, ,while the Company was paying other cooks $3.75
and $4 an hour. I do not accept her story as true about
what happened between Finch and Ramieh.
.There were jobs available when Ramieh offered to
return to work. That is why Finch called her in to talk
to her. He quarreled with her as to price; why would he
do that if he did not have a job for her to do then and
there? Although I do not know it for a fact, the chances
are he counted on her refusing to work for less than her
established rate of pay, and when she surprised him by
saying she was willing to work for less, he avoided
hiring her at the lesser rate by stalling, just saying he
would get in touch with her later. This just proves the
Respondent did not want to reinstate her. And I can sup-
pose the Respondent took her back, during .the recess in
the;hearing,in this proceeding, simply in order to reduce
its backpay liability in the event it lost the case.
I find that by refusing to reinstate Ramieh, again, on
August 12, 1982, 1 week after she wrote her _August 5
letter to return, the Respondent violated Section 8(a)(3)
of the Act. And when she was recalled to work in April
of 1983,- she was paid only $4.25 per hour instead of the
$6-per-hour rate she received before the strike. I there-
fore,. also - find that by reducing her pay because of her
having joined the strike, the Respondent violated Section
8(a)(3) of the Act.
On June ;1, 1982, the Respondent sought a court in-
junction limiting the number of pickets in front of its
property. After. a . conference in the judge's chamber,
when the number of pickets was limited by court order,
the parties emerged into the corridor of the building
where many strikers were gathered. Three of them who
were then- present, and who testified at the hearing, said
they heard Robert McLean, the president of the Re-
spondent, exclaim he would close the plant before
having a union represent his employees By McLaughlin:
"He said, 'they're will not be no—Mother fucking Union
in here. He would close it down first." By Mayes: "I'll
close the mother fucking place down before I let a union
come 'inside." By' Ledger: "He said he would close the
nf-7Ter down before if went union" Genevive Sphinx,
the anion organizer, was also .present. From her testimo-
iiy made the statement , . . . he would close
the mother fucking place before he'd see a union come
in."
There was no denial of this damaging antiunion "threat
'by McLean; he did not appear as a witness. Dennis
Adkins, a maintenance supervisor, and Plant Manager
-Baker were also present in the -corridor that day. They
testified they did not hear the president say anything to
the witnegses about closing the Plant , or disliking the
Union at all Maybe they did not hear it, but, in the cir-
cumstances, I do credit the employees and the union or-
ganizer, and I find that by the Respondent's statement in
the presence of the employees that it would close the
business if the organizational campaign succeeded, the
Respondent violated Section 8(a)(1) of the Act.
THE REMEDY
The Respondent must be ordered to cease and desist
from again committing the unfair labor practices found
herein. Mary Mayes and Lilli Toney must be reinstated
to their former positions, under the same conditions of
employment they enjoyed at the start of the strike, and
they must be made whole for any loss of earnings they
suffered in consequence of the illegal discrimination
against them. Shirley Walton, Ethel Edwards, and Lucy
Ramieh must be made whole for any loss of earnings
they suffered in consequence of the Respondent's refusal
to reinstate them from August 12, 1982 (1 week after
their letters offering to return to work), to the day they
were in fact fully reinstated to their proper positions. In
the event Walton and Edwards have not been reinstated,
they must be restored to the same positions they held
before the strike and given backpay to the day of ade-
quate reinstatement.
As to the four waitresses—Genoble, Gilkerson,
Ledger, and Flynn—they must be restored to the seniori-
ty status they held at the start of the strike, they must be
compensated for any loss of vacation benefits and medi-
cal insurance they suffered in consequence of the illegal
reinstatement, and their hourly rate of pay must be re-
turned to the level they enjoyed at the start of the strike
These four employees must also be paid the difference
between their current hourly rate and their old rate, for
the entire period from the date of their return to work to
the. day the Respondent correctly adjusts their hourly
rate in accordance with this Order. Like the waitresses,
Ramieh, the cook, who is being paid much less than she
earned before the strike, must also be raised to the $6 per
hour which was her pay before striking, and be made
whole for the difference in her pay from the time of her
recall until the Respondent conforms with this Order.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of, the Respondent described in section I, have a close,
intimate, and substantial relationship to trade; traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. By refusing to reinstate economic strikers Mary
Mayes and Lilli Toney, on August 12, 1982, and on Sep-
tember 28, 1982, respectively, by refusing to reinstate
economic strikers Walton, Edwards, and Ramieh when
they made unconditional offers to return to work, by
changing the conditions of employment of Ethel Ed-
GLADE SPRINGS, INC 953
wards, -Rebecca Gilkerson, Debbie Ledger, and Emma
Genoble upon their return to work as economic strikers,
and by reducing their hourly pay because they had en-
gaged in concerted protected activity, the Respondent
has violated and is violating Section 8(a)(3) of the Act
2 By the foregoing conduct, and by threatening to dis-
continue its business in retaliation for the employees'
union activities, the Respondent has violated and is vio-
lating Section 8(a)(1) of the Act.
3. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication ]