Golay & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1966

156 N.L.R.B. 1252 (N.L.R.B. 1966)

1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lee Cylinder Division of Golay & Co ., Inc.; Special Products Divi-
sion of Golay & Co ., Inc.; and Chore Boy Division of Golay &
Co., Inc., and International Union , United Automobile, Aero-
space, and Agricultural Implement Workers of America, UAW-
AFL-CIO. Cases Nos. P-5-CA-1669-1,25-CA-1669-20, and 25-CA-
1669-3. February 4,1966
DECISION AND ORDER
On August 5, 1963, Trial Examiner James V. Constantine issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Intermediate Report. He also found that Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent, the Charging Party, and the General Counsel
filed exceptions to the Trial Examiner's Intermediate Report with
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Intermediate report, the exceptions and briefs, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only to the extent they are
consistent with our Decision and Order
1. We find, in agreement with the Trial Examiner, that Respondent,
through its supervisors and foremen, in the course of the Union's
organizational campaign violated 8(a) (1) by engaging in surveillance
of union activities, inducing employees to engage in surveillance or to
report on concerted activities, unlawfully interrogating and threaten-
ing employees, and by other conduct as described in the Trial Exam-
iner's Intermediate Report. The record clearly substantiates the Trial
Examiner's findings in this regard.
Plainly, from the very number and variety of the violations found
to have occurred, it cannot be said they were merely a series of isolated
incidents or that they did not constitute interference, restraint, or
coercion within the meaning of Section 8(a) (1) of the Act. More-
156 NLRB No. 123.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1253
over, to the extent that Respondent contends that its conduct failed to
have such requisite effect on its employees, the Board, with court
approval, has consistently rejected such arguments in similar cases.'
2. For the reasons expressed in the Intermediate Report, we agree
with the Trial Examiner's findings that Respondent violated Section
8(a) (1) and (3) of the Act by laying off or terminating the employ-
ment of Jesse James on September 28, 1963, and thereafter not recall-
ing him to work, and by discharging employee Paul Paris on Novem-
ber 19, 1963. We further agree, also for the reasons set forth in the
Intermediate Report, that Respondent did not discriminatorily lay
off Clermont Lee Covalt on October 16, 1963, in violation of 8(a) (1)
and (3) as'alleged in the complaint.
3. The Trial Examiner found that the record evidence did not
establish that the discharges of employees Walter Heaston and Melvin
Moistner were unlawful and violative of Section 8(a) (1) and (3)
of the Act as alleged in the complaint. The General Counsel and the
Charging Party except to these findings. We find merit in such
exceptions.
Walter Heaston: As more fully set forth in the Intermediate
Report, the record shows that Heaston was employed on April 4,1961,
and worked in a variety of jobs at the Chore Boy plant, including that
of brake helper, grinder, and general helper. He was also assigned
to work on mobile lactoriums in the Special Productions Division.
Early in October he became active in the union organizational cam-
paign, handed out union authorization cards to the employees, and
served on the union organizing committee at special products.
At quitting time on October 16, 1962, Heaston's foreman, Olliger,
told him that he was laid off for lack of work. When Heaston inquired
as to the reason for his selection, Olliger replied that he did not know
anything other than that Heaston and McIntire were laid off. Several
other employees, hired after Heaston, including his replacement on
the grinder, were not laid off.
About 2 weeks after his layoff, Heaston applied for work to Chore
Boy Plant Manager Hoover. Hoover assured Heaston that his work
had been satisfactory but that Respondent was cutting expenses on
the mobile lactorium, which was being produced at a loss. Two or
three days later Heaston, accompanied by two other individuals,
went to the Chore Boy plant and met Personnel Director Lunsford.
'See, e g., Tidewater Concrete Block and Pipe Company, 124 NLRB 1238; N.L.R.B. v.
Illinois Tool Work8, 153 F. 2d 811 (CA. 7), and cases cited therein. We find it unnec-
essary to consider or pass upon the Trial Examiner's findings that Respondent did not
violate Section 8(a) (1) by attempting to fabricate pretexts for the discharges of em-
ployees, unlawfully interrogating employee Eldridge, and interfering with the display of
union literature and insignia in the plant as alleged by the General Counsel. Such addi-
tional 8(a) (1) violations, if found on the record facts here, would be cumulative, and in
any event, if committed in the future, will fall within the scope of the broad remedial
Order which will be entered herein.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During their conversation, Lunsford asked Heaston, "You mean to
tell me you have enough nerve to come back here and ask me for your
job back after filing charges at the Labor Board?" He also told Heas-
ton, "I doubt very seriously whether you will ever get back unless the
Labor Board puts you back." In addition, Lunsford commented that
lie had seen Heaston and employee Moistner passing out UAW hand-
bills at Respondent's Converto Division along with a union representa-
tive. Heaston denied that he had passed out handbills.
The record further shows that Heaston was rehired at the Lee
Cylinder plant on December 3 and on December 24 received a 10-cent-
an-hour wage increase.
The Trial Examiner found that the General Counsel failed to estab-
lish by substantial evidence that Heaston's termination was prompted
by discriminatory motives. Instead, he concluded that Heaston was
laid off for economic reasons, relying on a subsidiary finding that the
mobile lactorium on which Heaston worked was being produced at a
loss and that, to cut expenses, a reduction in force became mandatory,
on the fact that Heaston was hired on December 3 without loss of
seniority or cut in wages, and on the further fact that Heaston received
a 10-cent-an-hour wage increase on December 24. In addition, the
Trial Examiner further concluded that Heaston was not denied reem-
ployment unlawfully under Section 8 (a) (4).
The General Counsel and the Charging Party contend, in effect, that
the record does not establish that a need existed for reducing the work
force on the mobile lactorium, but even assuming the necessity for
such reduction to save expense, such finding alone does not explain
Respondent's selection of Heaston out of seniority and without giving
him an opportunity to transfer to another job. General Counsel
supports his contentions by the facts that approximately 21 new
employees were hired prior to Heaston's recall, and that he was not
rehired until 2 weeks after the strike, by which time Respondent had
rid itself of the Union and its adherents and had placed itself in dire
need of personnel to maintain production. In addition, the General
Counsel argues that the 10-cent wage increase to Heaston loses its
probative value in determining Respondent's motives for the earlier
discharge, coming as it did after the commission of numerous unfair
labor practices and while unfair labor practice charges on behalf of
Heaston were pending before the Board. We find these contentions
persuasive.
The record, in our view, does not support the Trial Examiner's
finding that the mobile lactoriums, on which Heaston had been
assigned, were being produced at a loss, and that a reduction in the
work force was mandatory in order to cut expenses. The record con-
tains only the. board assertion, attributed by Heaston to Chore Boy
i
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1255
Plant Manager Kenneth Hoover, that Heaston's layoff was necessary
because mobile lactoriums were being produced at a loss and expenses
had to be cut. Neither Hoover, nor any other witnesses for Respond-
ent, testified to this effect, and no cost fib Tres or other evidence was
offered to substantiate such a claim. Indeed, Don Golay, Respondent's
secretary-treasurer who was in charge of the lactorilmn project, though
testifying that the particular mobile lactorium in production was at a
stage requiring fewer employees, later qualified this by admitting that
various prototype lactoriums were in various stages of completion
when Heaston was laid off and that he did not know what stage of
production each of the prototypes had reached. Golay thus did not
specify that mobile lactoriums were being produced at a loss, or in
what particulars or for what reasons fewer employees were required
on the lactorium project, or least of all why Heaston had to be laid
off. Moreover, the record shows that on the day of his layoff, Heaston
was not working on the mobile lactoriluns in the Special Products
plant but was working on a lift truck in the Chore Boy plant. These
facts render untenable a. finding that Heaston's layoff was dictated by
the need for cutting expenses on the lactorium project because such
lactoriums were being produced at a loss.
Moreover, assuming arguendo that we agreed with the Trial Exam-
iner's findings that a reduction in the work force assigned to the mobile
lactorium was economically required and we were to ignore the fact
that at the time of his layoff Heaston was not working on mobile
lactoriums, nevertheless the record evidence would lead us to conclude
that Heaston's selection for layoff was discriminatory. In this regard,
Respondent's president, C. R. Golay, testified that Respondent nor-
mally operates under a companywide seniority system and has a policy
of interplant transfers. He described the latter policy as follows:
We have an over-all company policy and have had it, if we have
work available in other plants, and if we have a person who is
surplus, and one, if he can qualify on a job in some other plant,
of making interplant transfers. This has been our policy.
Despite its policy of following seniority in layoffs and its policy of
interplant transfers, Respondent selected, for layoff, Heaston, an
experienced employee with more seniority than numerous other
employees, with no opportunity afforded him for an interplant trans-
fer. Indeed, Heaston's foreman could offer no reason to Heaston as
to why he (Heaston) had been selected for layoff. Moreover, the
record shows that Heaston's replacement on the grinder was not laid
off,2 and that just 6 days before Heaston's layoff Respondent hired a
2 Plant Manager Hoover, in effect, assured Heaston that his selection for layoff was
not grounded on an unsatisfactory work performance when he told Heaston that his work
was satisfactory.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laborer (a job classification long filled by Heaston) who apparently
continued in his employment after Heaston's layoff. In the face of
these facts, Respondent offered no explanation of its failure to follow
its normal seniority and interplant transfer policies which would have
prevented Heaston's layoff.
From the record before us, we can conclude only that the real reason
for Heaston's layoff was his activity in behalf of the Union, toward
which Respondent entertained bitter antipathy as illustrated by its
numerous other acts in disregard of the statutory rights afforded its
employees by Section 8 (a) (1) and (3) of the Act. That the Respond-
ent was aware of and resented Heaston's union activity is clearly
shown by Lunsford's comment to Heaston about Heaston's passing
out union handbills at the Converto plant. Moreover, Heaston's lay-
off occurred only 4 days after the Union filed a representation petition
in the Special Products plant. Under all the attendant circumstances
set forth above, we consider the conclusion unavoidable that the layoff
of Heaston, an active promoter of union organization during a period
of gathering momentum of an organizing drive, to which Respondent
was violently opposed, was impelled by unlawfully discriminatory
considerations and was violative of Section 8(a) (1) and (3) of the
ACt.3
We further disagree with the Trial Examiner's finding that
Respondent did not unlawfully deny reemployment to Heaston because
an unfair labor practice charge had been filed in his behalf. In this
regard, the record establishes that after his layoff, Heaston applied
for rehire to Personnel Director Lunsford, and Lunsford expressed
amazement, stating, "You mean to tell me you have enough nerve to
come back here and ask for your job back after filing charges at the
Labor Board?" Thereafter, Lansford bluntly told Heaston, "I doubt
very seriously whether you will ever get back unless the Labor Board
puts you back."
In our view, Lunsford's remarks express more than the mere "irrita-
tion at the charges" as found by the Trial Examiner; rather, his com-
ment explains the reason why Heaston was not recalled while some
21 new employees were being hired. Viewed in the context of Respond-
ent's vigorous and unlawful antiunion campaign and its discriminatory
discharge of Heaston and other union adherents, Lunsford's remarks
8 Unlike the Trial Examiner, we do not view as significant either the fact that Heaston
was reemployed in the Lee Cylinder plant in December or the fact that Heaston thereafter
received a wage increase. An absence of discriminatory motive at the time of discharge
is not demonstrated by a subsequent change of heart, especially when the change of heart
follows closely after the filing of unfair labor practice charges in connection with the dis-
charge. The hire of some 21 new employees between Heaston's discharge and the time
of his recall and the. failure to recall him until some 2 weeks after the strike when Re-
spondent had (1) discriminatorily discharged the strikers, (2) rid itself of most union
adherents, and (3) needed personnel to maintain production, deprives Heaston's reem-
ployment of all the significance which might otherwise be read into it.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1257
reveal, plainly, a continuing hostile and discriminatory attitude
toward union adherents. Accordingly, we find that Respondent
unlawfully denied Heaston employment prior to December 3, 1962,
in violation of 8(a) (4) because an unfair labor practice charge had
been filed in his behalf .4
Melvin Moistner: Moistner was employed as a buffer in the Chore
Boy plant in April 1959, and continued working in that capacity until
October 15, 1962. He was then laid off, with no advance notice, by
his foreman, Virgil Jordan, allegedly because his production was low
and because business was slow in the buffing department. A solderer
was laid off at the same time, but two buffers with less seniority than
Moistner were retained. On December 3 he was rehired. The Trial
Examiner deemed the evidence too tenuous to show a discriminatory
motive in Moistner's layoff and accordingly recommended that the
allegations of the complaint relating to Moistner's layoff be dismissed.
We cannot agree with the Trial Examiner's finding that Moistner's
layoff and Respondent's failure to recall him until December 3 did not
violate Section 8(a) (1) and (3) of the Act. As noted with respect
to Heaston, above, the record discloses that Respondent's policy was
one of retaining employees having greater seniority and reassigning
employees to other jobs rather than terminating them. As in the case
of Heaston, neither of these policies was observed with respect to
Moistner. Jordan told Moistner that the reason for his layoff was
his slow production and that work in the buffing room was getting
low. However, it appears that plant operations had also slowed down
the previous winter but that Moistner had not been affected thereby.
On the other hand, Don Golay testified that Moistner's layoff was
necessitated by the transition from metal to plastic parts in Chore
Boy's manufacturing operations. Additionally, Golay said Moistner
was selected for layoff "for several reasons" despite his higher senior-
ity. Among the reasons assigned were his low production record
and the fact that almost 2 weeks prior to his layoff he was overheard
telling other employees in the buffing room to "slow up" or "take it
easy." It is clear from the record, however, that these remarks by
Moistner were not mentioned in the meeting between Jordan, Plant
Superintendent Hoover, and Hoover's assistant, Drake, at which
Moistner's layoff was agreed upon. Nor was Moistner either repri-
manded or otherwise disciplined for making them. Obviously, there-
fore, it was not for this reason that Moistner was laid off. The same
may be said for the claim that the transition from metal to plastic
parts required Moistner's layoff. Indeed, the record establishes that
'The fact that the General Counsel may not have discovered sufficient evidence to
establish an 8(a ) ( 4) violation with respect to other employees named in the charges, and
therefore did not include such an allegation in the complaint, does not vitiate the evidence
presented in the record with respect to the reemployment of Heaston.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no more plastic parts were processed in October than in the preceding
month, and no Chore Boy employees engaged in machining metal
parts were laid off during this period.
At Jordan's suggestion, Moistner, immediately following his layoff,
applied to Lunsford for transfer to another plant. Lunsford stated
that he was unable to effect a transfer at the time but said he would
let Moistner know if anything could be done. It was not until Decem-
ber 3 that Moistner was finally recalled to work at the Lee Cylinder
plant. However, in the interim, 17 new employees had been added to
the rolls. Clearly, this was a discriminatory refusal to recall Moistner.
Like Heaston, Moistner was an open and avowed union supporter.
He served on the organization committee, wore a union badge while
at work, and was seen by Lunsford passing out union literature. Early
in the organizational campaign he discussed the Union with his fore-
man, Jordan, at the latter's home, and was told by Jordan that "he
didn't think they could support a union." Moistner's testimony in
this regard was uncontradicted. Hence, Respondent knew of Moist-
ner's union activities. In light of Respondent's pronounced union
animus as noted above, the timing of his layoff only 3 days after the
Union's representation petition was filed, and the other circumstances
noted above, the conclusion is inescapable that Moistner was discrim-
inatorily laid off and not recalled in violation of 8(a) (1) and (3),
and we so find.
4. In his Intermediate Report the Trial Examiner recites in detail
the events of the strike occurring at the Lee Cylinder plant following
Paris' precipitous and discriminatory discharge on the morning of
November 19, 1962. We need only summarize them.
Paris returned to the Lee Cylinder plant about 11:20 a.m., and
remained in his car parked across the street where he related the cir-
cumstances of his discharge to employee William Tyree and repeated
his denial of having removed certain posted material. Tyree then
summoned other employees to a lunch-period meeting in the parking
lot adjacent to the Lee plant which was attended by some 28 or more
production employees. Paris' discharge was discussed and a majority
voted to punch in at the conclusion of the lunch period at 11:50 a.m.,
but not to work until Paris was restored to his job. Tyree was des-
ignated as their spokesman to inform management of their decision.
In the course of the meeting the discharges of Jesse James and Vince
Strothman 5 were also mentioned, leading Tyree to tell the group that
in his opinion, "they was picking us out one at a time and taking the
5 Strothman was discharged November 17, 1962. Although 8(a) (3) charges were filed
in his behalf , he was not named in the complaint.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1259
strongest union men and getting rid of them one at a time." Tyree
was asked what could be done about it. He replied, "We could bring
it to the attention of the National Labor Board, or we could protest it."
Continuing, Tyree testified, "I told them to do either one, but we'd have
to have a majority vote." Following the vote, the entire group there-
upon returned to the working area of the plant and punched in at
11:50 a.m., but only 16 of them stood by their machines without work-
ing. The remaining 12 and several others who were in sympathy with
the protest, resumed their regular duties and worked for various
periods until the afternoon break at 2:20 p.m.
Line Foreman Otto Fink, noting the inactivity on his line shortly
after the lunch period ended, asked Tyree what was going on. Tyree
informed him of the protest vote against Paris' discharge. Fink
immediately reported the matter to his superiors. President Golay
thereupon instructed the plant foremen to poll all employees as to
whether or not they intended to work, to fire anyone who persistently
refused to work, and to order them off the premises. Three polls
were taken between 12:30 and 2:30 p.m. Some employees refused to
respond when asked if they intended to work. A few said they would
work if work was available. A few agreed to work and were assigned
other duties. Between 12:30 and approximately 4 p.m., 34 men were
summarily discharged either for refusing to work or standing mute
when polled.6
In the course of the afternoon, some work was going on but the main
production lines, principally the 100-pound line, were not in full
production. The nonworking employees were described as "milling
around," "walking around in groups," "cluttering the aisles," or "loi-
tering." Some moved back and forth to the Coke machine or grouped
in the "break room" off the working floor area. The record is clear that
while there was some confusion, there was no violence or acts of
defiance against the plant owners or super% isory personnel. Of the
34 dischargees, 18 remained on the premises from 11/2 to 3 hours. The
remaining 16 stood around or loitered for 11/4 hours or less. The
average loitering period for the entire group was 11/2 hours. The
entire affair ended about 4 p.m. when Union Representative Strick-
land arrived on the scene and, after learning what had occurred,
informed the men they could not remain in the plant. Despite the
work stoppage, almost half the normal day shift worked the entire
day of November 19. Production in Respondent's other plants was
not affected.
6 Their official notices of termination mailed a few days later gave as the reason for
their discharge, in each case , "participating in sit down strike and refusing to leave
premise [sic ] at Lee Cylinder plant."
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 19, following their discharge and departure from the
plant, most of the discharges gathered across the street and voted to
set up a picket line the following morning. Accordingly, about 6 a.m.,
November 20, picketing began with some 35 to 40 pickets walking
"very close" together. The picketing was confined to the entrance to
the Employer's main parking lot, an unfenced area through which
employees approached the working areas of the plant. The street front-
age of the lot is uncurbed and extends a distance of about 150 or more
feet to the entrance to a smaller parking lot near the plants shipping
dock.?
For about 11/2 hours, from 6 to 7:30 a.m., the formation was variously
described as "a circle," "lazy eight," or "flat circle" with pickets at
various distances from "belly to back," to 3, 4, or 5 feet apart. Accord-
ing to the record, a few early arrivals in cars stopped at the picket
line briefly and then were able to enter the lot without incident. No
car was actually prevented from entering, and employees on foot
passed through the picket line unmolested.
Having found that the discharge of Paul Paris was discriminatory,
the Trial Examiner further found that the subsequent protest strike
was concerted activity protected by Section 8(a) (1) and (3) of the
Act and an unfair labor practice strike. 1\Te agree.
In addition, he further found that those who engaged in the strike
could not "with impunity resort to misconduct," relying on N.L.R.B. v.
T+ansteel Metallurgical Corporation, 306 U.S. 240. Applying H. N.
Thayer Company, 115 NLRB 1591, he reasoned that if the misconduct
were determined to be serious, such misconduct justified a discharge or
refusal to reinstate in the absence of offsetting misconduct by the
employer. Again, relying on Fansteel, he held that employees may
not engage in a strike in the working areas of an employer's plant.
Individual findings of misconduct and eligibility for reinstatement
based thereon were then made in the case of each of the 42 strikers,
including eight who were found to have joined the strike the follow-
ing day.
As to the 34 strikers discharged November 19, the Trial Examiner
found 23 to have remained on or "wandered around" the premises
(loitering) after being discharged and ordered to vacate.8 This was
the most common type of misconduct found to have occurred. Other
7 There was testimony that the distance was approximately 250 feet but this is not borne
out by photographs of the area which are a part of the record
8 In 10 cases , however, loitering after discharge was found sufficient to bar reinstatement
despite no order to vacate . Eight of the strikers loitered for 2 hours or more. All were
found to be trespassers , except one ( Caudill) who left the plant immediately upon discharge
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1261
major types of misconduct, according to the Trial Examiner, con-
sisted of:
1. Punching in after the strike vote with no intention of
working.9
2. Failing to respond to reasonable inquiries by Respondent as
to whether they would or would not work.
3. Illegal or mass picketing.1o
One employee, in add;tion to loitering and refusing to answer ques-
tions as to his working intentions, was also found to have wandered
around the plant carrying a hammer and thus "gave the impression
to employees that he might use the hammer to induce them to strike."
It is abundantly clear from the undisputed facts before us, that
the strike engaged in by the Lee Cylinder plant employees was a spon-
taneous act in protest, specifically against the summary and illegal
discharge of Paul Paris. It is equally clear that the strikers had other
recent discharges, including the illegal discharge of Jesse James, in
mind when they voted to cease working. This is evident from the
statement made by Tyree to the assembled employees in the parking
lot that Respondent "was picking us out one by one," a remark which
he repeated to his foreman, Otto Fink, while the strike was in progress.
Tyree, at the time, knew of James' layoff because he had talked with
James about it only a short time before. In view of his position of
leadership in the union movement, it would be absurd not to assume
he had also learned of the treatment accorded to Moistner and Heaston
only a month earlier. Hence, we have no difficulty in finding, in
agreement with the Trial Examiner, that the action taken by the
employees was protected, concerted activity and constituted a legiti-
mate unfair labor practice strike. We find, however, it was not called
in protest alone against the discharge of Paris but that the discharges
of Heaston and Moistner, and Respondents harassing conduct in the
weeks preceding its occurrance, were strong contributing factors in
bringing it'about. Respondent itself, by its prior violations of the
Act, set the stage for the employees' walkout. The discharge of Paris
merely sparked it.
We find no merit in Respondent's contention that the work stoppage
we are concerned with here was an illegal sitdown strike involving a
0 The Trial Examiner commented that while such an act may not constitute a crime or
even fraudulent misrepresentation , it was, nonetheless, contrary to accepted principles of
morality and on that basis justified the refusal to reinstate the 16 strikers who did so.
10 Of the 30 employees identified as participating in "circle " or illegal picketing on
November 20, only 6 were found by the Trial Examiner to have actually done so between
6 and 7:30 that morning.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant seizure as in Fansteel.11 The fact that the striking employees
loitered or wandered about the plant for 11/2 to 2 hours while awaiting
a decision on rectifying the illegal discharge of Paul Paris, does not,
in our considered judgment, constitute a plant seizure. There is no
evidence of any violence and no resort to, or threat of, physical force
by the strikers to enforce their demands. Respondent was not denied
access to the property; plant operations, although somewhat curtailed
in this particular plant, were not completely shut down as in Fansteel;
and it is clear that the "loitering" did not interfere with production
to any greater extent than did the simple cessation of work by these
employees. Rather, the situation is closely analogous to that arising
in American Manufacturing Company 12 where a number of employees
engaged in a work stoppage in protest against the employer's refusal
to bargain and remained peaceably in the plant approximately 2 hours
after being ordered either to return to work or leave the premises.
Their conduct was held no bar to reinstatement, the court saying :
They certainly were not claiming to hold the premises in defiance
of the right of the owner.... We do not regard the action of
these or other employees in standing around the premises for a
period of not more than two hours while an attempt was being
made to persuade the Company to fix a date for collective-
bargaining with T.W.O.C., as in the nature of a sit-down strike
which would permit the termination of the employee relationship.
We reject, too, Respondent's contention that by remaining on the
Employer's premises after discharge or order to vacate, the in-plant
strikers became trespassers, thereby turning an otherwise lawful
strike into an unlawful sitdown strike. Nor can we accept the Trial
Examiner's view that "engaging in a strike in a work area is compara-
ble to distributing literature or soliciting during working hours, and
that such conduct is unprotected during this period." A similar in-
plant strike occurred in Cudahy Packing Company, 29 NLRB 837,
where, though the work stoppages were somewhat briefer in duration,
employees remained in their working areas, conversing in scattered
groups or stood peaceably at or near their work stations. In that
case the Board specifically noted :
Nor can we agree [with Respondent] that these stoppages were
sit-down strikes or "an outlaw enterprise." The stoppages did
11 N.L.R.B. v. Fan steel Metallurgical Corporation , supra.
'- N.L R.B. v. American Manufacturing Company and Nu-Art Employees, Inc., 106 F
2d 61 ( C A. 2), enfg. as modified 5 NLRB 443 ; followed in Olin Industries , Winchester
Repeating Arms Company Division , 86 NLRB 203, 257; see also : in re The Cudahy Pack-
ing Compan y, 29 NLRB 837; N.L R.B. v. Stackpole Carbon Company , 105 F. 2d 167
(CA. 3).
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1263
not involve seizure or destruction of, or damage to the Respond-
ent's property with resultant financial loss to the Respondent.
Under the circumstances, we find no warrant for holding that
these are not protected by the Act.
Similarly, in Southern Fruit Distributors, Inc., 109 NLRB 376, work
stoppages were not found to be sitdown strikes because there was no
refusal to yield possession of the property, even though striking
employees remained on company property 30 minutes to 11/2 hours.
With respect to other alleged misconduct occurring on the day of
the strike, i.e., punching in without intending to work and standing
mute when polled as to working, these merely constitute the means by
which an employee may strike, and, if the strike is lawful, do not
warrant his discharge or bar his reinstatement. The Trial Examiner
held, however, that punching in with the expectation of being paid
for work not to be done was morally wrong and therefore bars rein-
statement. The record does not establish that the 16 men, who were
found to have joined the strike by so doing, had any expectation of
being paid for not working.
In sum, we find that the strike was not an unlawful and unprotected
sitdown strike, but was a lawful, protected strike in protest against
Respondent's unfair labor practices, and was, therefore, from its out-
set, an unfair labor practice strike. We further find that the alleged
misconduct of the striking employees, briefly described elsewhere
herein, and fully set forth in the Trial Examiner's Intermediate
Report, was not unprotected or of such a nature as to justify their
discharge or the refusal to rehire them. Accordingly, by discharging
or failing to reemploy its employees for engaging in the unfair labor
practice strike, Respondent violated Section 8(a) (1) and (3) of the
Act.13
With respect to the picketing on November 20, similarly we find
that the record evidence does not establish that it was illegal in nature
or that there was any individual picketing misconduct sufficient to
warrant the discharge or refusal to rehire any employees so engaged.
In the mass picketing cases that have come before the Board, the pick-
eting formation effectively blocked plant entrances, making ingress and
egress impossible, and the picketing was accompanied by acts of vio-
is Moreover , were we to consider the strikers ' conduct as otherwise unprotected activity,
we would, pursuant to the Thayer doctrine ( N.L R.B. v. Thayer Company and H. N. Thayer
Company, 213 P. 2d 748 ( C.A. 1)) nevertheless be compelled to measure the strikers' con-
duct against the Respondent 's massive unfair labor practices , and on balance would con-
clude that the strikers ' misconduct was not of such serious nature in the total circum-
stances of this case as to warrant denial of their reinstatement . See Kohler Co., 148
NLRB 1434 , enfd. 300 F. 2d 699 (C.A.D.C.).
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lence.14 But, in the instant case, we have no evidence that such were the
circumstances. Nor is there any evidence that any employee desiring to
gain admittance to the plant was prevented from doing so. In any event,
the picketing involved here continued for not more than 11/2 hours.
We have heretofore held that such picketing for a period of such short
duration would not warrant disciplinary action or bar the reinstate-
ment of an individual picketing employee engaged therein.15 Accord-
ingly, we conclude that the picketing involved herein was lawful, pro-
tected picketing, and that employees engaging in such picketing did
not engage in unlawful and unprotected conduct warranting their dis-
charge or denial of reinstatement.16
5. On March 25, 1963, the 42 striking employees signed a letter to
Respondent's personnel manager making an unconditional offer to
return to work and requesting reinstatement. Five of the signers,
however, had made earlier inquiries concerning their reinstatement
which the Trial Examiner found, and we agree constituted valid uncon-
ditional offers to return to work.''
One signer, O'Dear, testified that he did not read the letter either
before or after signing it and "did not know what the paper was at the
time." The Trial Examiner accordingly found he did not thereby
make an unconditional offer to return to work. We cannot agree.
O'Dear did not testify that, at the time of signing the letter, he did
not know what it was. Rather, he said, that when he was summoned to
the union hall to sign a paper, he did not, at that time, know what the
paper was. In any event, we hold it is sufficient that he affixed his
signature to an unconditional offer to return to work, and that he
thereby associated himself with the group which was seeking rein-
statement to their respective jobs.
Two other signers, Blair and Diliman, testified that they had not
read the letter before or after signing. As a result, the Trial Exam-
14 N.L.R.B. v. Clinchfield Coal Corporation, 145 F. 2d 66 (CA. 4), enfg as modified 51
NLRB 539; Socony Vacuum Oil Company , Inc., 78 NLRB 1185; The Ohio Associated
Telephone Company, 91 NLRB 932.
15 Stewart Hog Ring Company , Inc., 131 NLRB 310, 312; Marydale Products Com-
pany, Inc, 133 NLRB 1232, 1235 ; N.L.R.B. v. Thayer Company and H. N. Thayer Com-
pany, supra.
16 Anchor Rome Mills, Inc., 110 NLRB 956, enfd. 228 F. 2d 775 (C.A. 5) ; Horn Manu-
facturing Company, Inc , 83 NLRB 1177, 1179, 1180; Puerto Rico Rayon Mills , Inc, 117
NLRB 1355, 1357.
17 Eldridge (November 26, 1962 ) ; Beal (December 4, 1962 ) ; Lawrence (December 10,
1962 ) ; James Raby ( November 25, 1962 ) ; and Steele (December 4, 1962 ). Five addi-
tional employees ( Ford , B. Fowler, B. Fowler, Nash , and Wyramon ) may have also made
unconditional offers to return to work prior to March 25 , 1963. However , the record
does not clearly fix the date on which such applications were made . In view of the state
of the record, we shall leave for compliance the determination of the date of their applica-
tion for employment prior to March 25, 1963. In any event , it is clear that they did
apply again on March 25, 1963 .
LEE CYLINDER DIVISION OF GOLAY & CO ., INC. 1265
iner found that they, too, had not made valid unconditional offers to
return to work. As in the case of O'Dear, we find that it is enough
that Blair and Dillman signed the letter. There is no evidence they
were ignorant of its contents or purpose despite the fact that they had
not read it. Obviously, they intended to associate themselves with
the group seeking reinstatement and, considering the nature of the
document , we cannot agree that mere failure to apprise themselves of
its exact language justified their exclusion from its coverage. We
find, therefore, that Blair and Dillman, by signing the letter, each
made a valid, unconditional offer to return to work on March 25, 1963.
THE REMEDY
Having found that Walter Heaston and Melvin Moistner were dis-
criminatorily laid off and not recalled in violation of Section 8 (a) (3)
and/or 8 (a) (4) of the Act, we shall order that they be made whole
for any loss of earnings they may have sustained in the interim between
the respective dates of such action and December 3 , 1962, when they
were rehired.
Having also found, contrary to the Trial Examiner, that additional
employees were unlawfully discharged in violation of Section 8 (a) (1)
and (3 ) of the Act for having participated in an unfair labor practice
strike, we shall order that they, too, be offered reinstatement to their
former or substantially equivalent positions and made whole for any
loss of earnings they may have sustained from the respective dates of
their unconditional applications to return to work to the date of an
offer of reinstatement by the Respondent or actual reinstatement, as
the case may be. All backpay , if any, provided for herein , including
that of Heaston and Moistener , shall be computed in the manner
established by F. T. Wooliworth Company , 90 NLRB 289, with inter-
est thereon at 6 percent interest per annum, in accordance with the
formula set forth in Isis Plumbing & Heating Co ., 138 NLRB 716.
AMENDED CONCLUSIONS OF LAw
The Trial Examiner 's Conclusion of Law No. 3 , is amended to read
as follows :
3. By discriminatorily discharging employees Jesse James and
Paul Paris, and by discriminatorily laying off and refusing to
recall Walter Heaston and Melvin Moistner , Respondent has
engaged in unfair labor practices in violation of Section 8(a) (3)
and (1 ) of the Act , and by failing to recall Walter Heaston for
the additional reason that charges had been filed in his behalf,
Respondent engaged in unfair labor practices in violation of Sec-
tion 8 ( a) (4) of the Act.
1266 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
The Trial Examiner's Conclusion of Law No. 4, is amended to read
as follows :
4. By discharging or failing to reemploy the following-named
employees, Respondent has engaged in unfair labor practices in
violation of Section 8 (a) (1) and (3) of the Act :
Baker, Marion K. Frady, Marvin O'Dear, Billy
Blair, Earl R. Goble, Gerald Pebworth, Lester
Caudill, James Hall, Benny Powell, James
Cecil, Henry Jr., Harrison, Thomas J. Purvis, Donnie Ray
Chaney, Walter H. Herbert, Edward Raby, James
Clemons, William Isaacs, Robert Raby, John
Cornet, Harold E. Jamison, John Sams, Paul
Dillman, George Jones, Walter L. Steele, James
Durham, Howard Keal , Ronald L. Toney, Richard
Eldridge, George Lawrence, Robert Transier, Andrew
Ford, Earl Meyer, Robert Tyree, Billy
Fowler, Bivon Mills, Willie Joe Vickers, Delbert
Fowler, Kenneth Nash, Charles Winchester, James
Fox, John H. Nick, Robert Lee Wyramon, Carl
[The Board adopted the Trial
with the following modifications:
[1.
Examiner's Recommended Order
Substitute the following named Employees in paragraph 2(a) :
Baker, Marion K. Goble, Gerald Paris, Paul
Blair, Earl R. Hall, Benny Pebworth, Lester
Caudill, James Harrison, Thomas J. Powell, James
Cecil, Henry Jr., Herbert, Edward Purvis, Donnie Ray
Chaney, Walter H. Isaacs, Robert Raby, James
Clemons, William James, Jesse Raby, John
Cornet, Harold Jamison, John Sams, Paul
Dillman, George Jones, Walter L. Steele, James
Durham, Howard Keal, Ronald L. Toney, Richard
Eldridge, George Lawrence, Robert Transier, Andrew
Ford, Earl Meyer, Robert Tyree, Billy
Fowler, Bivon Mills, Willie Joe Vickers, Delbert
Fowler, Kenneth Nash, Charles Winchester, James
Fox, John H. Nick, Robert Lee Wyramon, Carl
Frady, Marvin O'Dear, Billy
[2. Add the following as paragraph 2 (b) and reletter consecutively
the present paragraph 2(b) and those subsequent thereto:
[" (b) To the extent they have not already done so, offer to rein-
state Walter Heaston and Melvin Moistner to their former or sub-
stantially equivalent position, without prejudice to their respective
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1267
seniority or other rights and privileges, and make each of them whole
in the manner described in the Remedy section, above, for any loss of
earnings they may have sustained in the interim between the respective
dates of their discharge or layoff and December 3, 1962."
[3 Add the following as paragraph 2(c) and reletter consecutively
the subsequent paragraphs:
[" (c) Notify any of the above-named individuals presently serv-
ing in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."
[4. Substitute the following named employees in the sixth indented
paragraph of Appendix C :
Baker, Marion K. Goble, Gerald Paris, Paul
Blair, Earl R. Hall, Benny Pebworth, Lester
Caudill, James Harrison, Thomas J. Powell, James
Cecil, Henry Jr., Herbert, Edward Purvis, Donne Ray
Chaney, Walter H. Isaacs, Robert Raby, James
Clemons, William James, Jesse Raby, John
Cornet, Harold Jamison, John Sams, Paul
Dillman, George Jones, Walter Steele, James
Durham, Howard Keal, Ronald L. Toney, Richard
Eldridge, George Lawrence, Robert Transier, Andrew
Ford, Earl Meyer, Robert Tyree, Billy
Fowler, Bivon Mills, Willie Joe Vickers, Delbert
Fowler, Kenneth Nash, Charles Winchester, James
Fox, John H. Nick, Robert Lee Wyramon, Carl
Frady, Marvin O'Dear, Billy
[5. Add the following as the seventh indented paragraph of Appen-
dix C :
[WE WILL make whole Walter Heaston and Melvin Moistner for any
loss of earnings they sustained by reason of our discrimination against
them.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Separate charges were filed on November 1, 1962, in Cases Nos. 25-CA-1669-1,
25-CA-1669-2, and 25-CA- 1669-3, and amended charges were filed in Case No.
25-CA-1669-1 on November 26, 1962, and January 9, 1963, by International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America,
UAW-AFL-CIO, against Golay & Co., Inc. Each original charge related to a sep-
arate division of Golay & Co., Inc., but such divisions are not alleged to be distinct
legal entities . Upon these charges and amended charges the General Counsel of the
National Labor Relations Board, by the Regional Director for Region 25 (Indian-
apolis, Indiana ), issued his consolidated complaint dated January 31, 1963, against
217-919-66-vol. 156-81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said Respondent, alleging, as amended at the hearing, in substance that Respondent
has engaged in and is engaging in unfair labor practices as defined in Section 8(a) (1),
(3), and (4), and affecting commerce as defined in Section 2(6) and (7), of the
National Labor Relations Act, as amended. Respondent has answered admitting
part of the complaint but putting in issue the commission of any unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner James C. Con-
stantine from April 8 through 24, 1963, both inclusive, at Richmond, Indiana. All
parties were represented at and participated in the hearing and were given full
opportunity to introduce evidence, examine and cross-examine witnesses, submit
briefs, and offer oral argument. Briefs have been received from Respondent and
the General Counsel.
At the hearing I denied in part and granted in part a motion by Respondent to
quash a subpoena duces tecum. A motion by the General Counsel to amend the
complaint was denied.
Upon the entire record in this case, including the stipulations of the parties, and
from my observation of the witnesses, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Indiana corporation, is engaged at Cambridge City, Indiana, and
vicinity, in the manufacture, sale, and distribution of propane gas cylinders, milking
and material handling equipment, maintenance trailers, and other products. During
the year preceding the issuance of the complaint Respondent shipped finished prod-
ucts valued in excess of $50,000 to points outside the State of Indiana I find that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act, and that it is consonant with the policies of the Act to assert jurisdiction
over this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile , Aerospace , and Agricultural Implement
Workers of America, UAW-AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act . It is referred to herein as the Union or UAW.
III. THE UNFAIR LABOR PRACTICES
Although some facts were essentially uncontroverted , many of the factual issues
were disputed and ably contested . Where dispute exists it has been resolved in
accordance with my appraisal of the credibility of the witnesses and reasonable infer-
ences drawn from the evidence . In evaluating credibility, I have credited some
witnesses in part and rejected in part testimony of the same witnesses , regardless of
whether they were put on the stand by the General Counsel, the Union, or the
Respondent ; but in general I have not narrated evidence in connection with any
credibility findings. Trumbull Asphalt Co. of Delaware v. N.L.R.B., 314 F. 2d 382,
383 (C A. 7). • This has been desirable to keep this report within reasonable length.
All evidence has been considered , and none has been overlooked , in arriving at the
succeeding findings of fact and conclusions of law.
A. Introduction and background
Beginning in late September 1962,' the UAW initiated a drive to organize Respond-
ent's employees . Lewis Strickland , an International representative of UAW, was in
charge of the campaign . In addition to scheduling meetings of employees at the
building known as Local Union 151 , UAW, Hall in Connersville , Indiana, the first
of which was held on or about September 26,2 Strickland also set up plant orga-
nizing committees and appointed employees to serve on them. These organizing
committees , composed of volunteer employees from each of Respondent 's plants or
divisions , received authorization cards, union buttons, pencils , plastic pocket pro-
tectors, combs , pencil clips , pamphlets , and other materials bearing the UAW des-
ignation from a table in the union hall at the direction of Strickland. After an
organizing committeeman succeeded in obtaining properly executed authorization
cards he turned them in to Strickland.
i All dates mentioned hereafter relate to 1962 unless otherwise mentioned
2 Subsequent meetings were convened on September 30, October 7 and 21, and
November 10.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1269
Thereafter, UAW filed three separate petitions under Section 9 of the Act for an
election to be selected as the collective -bargaining agent in each division of Respond-
ent's factories , as follows: for the Lee Cylinder Division on October 8, for the
Special Products Division on October 12, and for the Chore Boy Division on
October 17.
B. Interference , restraint, and coercion
1. Surveillance
About 7:30 p.m. on September 26, the Union conducted its first organizational
meeting at the union hall in Connersville . This building is located on Fourth near
Central.
Shortly before the meeting started , John Bigler (plant manager of Respondent's
Lee Cylinder plant ), who I find is a supervisor under Section 2(11) and an agent
under Section 2(13) of the Act, parked his car across the street from the hall. Sev-
eral employees observed this. While the meeting was in session , Strickland also
observed Bigler sitting in a car across the street and left the hall to talk to Bigler.
As Strickland approached the car Bigler drove away.
While the second organizational meeting was being held at Connersville some
employees observed Bigler drive by the union hall slowly a few times . Other employ-
ees saw him standing across the street from the hall about 7.15 or 7.30 p.m., before
the meeting started, facing and watching the hall. This meeting was opened about
7.30 p in. When the meeting ended about 9 p.m., departing employees noticed
Bigler nearby at Fifth and Central; others saw Bigler slowly driving down Central
Avenue; some saw him driving around the block; and some were followed by him
in his car as they walked away. This latter group hailed Bigler as he slowly drove
by. Employees also observed Bigler before the meeting with pencil in hand writing
something on a pad which he held while looking at the rear of parked cars in the
vicinity.
In late September , Bigler's car was seen for about 10 minutes proceeding in back
of employee Mills' car as Mills was driving to a union meeting. I find that this is
insufficient to constitute surveillance . Forty-five minutes later Mills again saw
Bigler across the street from the union hall.
Except for the so -called following of employee Mills' car by Bigler , which I have
found to be innocuous , I find that Bigler's foregoing actions amount to unwarranted
surveillance of union activities prohibited by Section 8(a)( I) of the Act .3 It is no
defense that employees may not have been intimidated thereby as shown by the fact
that some of them hollered at Bigler as he drove by them on one occasion. The
vice in such conduct is that it tends to interfere with the right of employees of engage
in union activities free of employer scrutiny or secret watching , and thus tends to
exert a coercive effect upon that right.
2. Interrogation
John Bigler is plant manager of the Lee Cylinder plant . I have found that he is a
supervisor and agent as those words are defined in Section 2 of the Act.
Early in September , Bigler told employees Marion Baker that he had heard the
Union "was starting" and asked Baker if he knew anything about it.
About October 1 Bigler asked employee Goble if he had heard "about a union
coming in here." About this time Bigler asked employee Steele what he thought
about the Union, and said he heard that a union meeting would be held that night.
Actually such meeting took place as predicted . Bigler also asked employees Nick
and Pebworth if they heard "anything about a union going around here" in late
September.
Bigler on two different days in late September or early October asked employee
Edward Herbert if he knew anything about the Union. On the second occasion
Bigler said , "Where there is smoke there is fire. We have got to put it out before
it starts."
About the end of September , Bigler told employee Isaacs he heard a rumor "they
were trying to get a union in , and wanted to know if [Isaacs] knowed anything about
it." In early November Superintendent Moore asked Isaacs what he thought of the
Union. As found below , Moore at the time was a supervisor and agent of Respondent.
After the second UAW meeting mentioned above Bigler asked employee Powell if
he knew there was a union in the plant , and, upon receiving an affirmative answer,
asked Powell to use his influence to talk some sense into those on the 100-pound line.
8 West Point Manufacturing Company, Wellington Mill Division , 142 NLRB 1161, is
distinguishable.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At some undisclosed time prior to November 19, Bigler asked employee Frady if
he knew of the organizational efforts of the Union in the plant.
On or about the afternoon of the second UAW organizational meeting, Bigler
asked employee Howard Durham if he had heard anything about the Union, and
requested Durham to tell those interested in a union "it could mean more money"
if Bigler could talk to them.
In October, Bigler asked employee James Raby if he knew anything about the
Union during a "general discussion of how the plant was getting along." This ques-
tion was propounded in Bigler's office. During the conversation Bigler asked him
if he could find out anything "towards the Union" which might benefit Raby "and
some of the other fellows."
In October, Bigler called employee Everett Harris to his office. Personnel Director
Joe Lunsford was also present. Bigler asked for Harris' help in keeping out the
Union. Harris replied (a) asking unsuccessfully for a raise in pay, and (b) that
he did not see how a union could help the employees.
About October 9 Bigler asked employee Thomas Harrison whether he knew or
heard "of any of them trying to get a union in the shop."
At all times material until his death on or about December 24, 1962, Robert Moore
was plant superintendent of the Lee Cylinder Division. I find that Moore was at
that time and all material times a supervisor and agent under Section 2 of the Act.
In October, Moore 4 asked employee Walter Jones how the Union was coming
along and what he thought of it. In this conversation Moore commented that a
union was probably all right in a large shop but not in a little shop.
In October, while riding in a car with employee Dillman, Moore asked Dillman
what he knew about the Union. Dillman replied that he did not know anything.
Moore added that he thought two employees started the movement and that he
could stop it by firing them if he but knew their identity. At another time in the
fall of 1962, while Dillman was near a water fountain in the plant, he was asked
by Moore what he thought of the Union. When Dillman answered that it "would
help some," Moore rejoined that "it is going to knock you out of your overtime."
On November 17, Moore asked employee Herbert if he belonged to the Union,
mentioned that "Eddie, you are one of us, aren't you," and criticized the Union.
About November 17, Moore asked employee Kenneth Fowler what he knew about
the Union, told Fowler that a union had cost him his job at Connersville, and urged
Fowler to vote for the Company when "the election" was held.
Bruce Jones, whom I find to be a supervisor and agent under Section 2 of the Act,
is a foreman at the Lee Cylinder plant. In October, Jones asked employee George
Eldridge what he thought of the Union and whether he had signed a UAW author-
ization card. In his reply, Eldridge asserted that he had signed. In October, Jones
also asked employee O'Dear if he heard about the Union.
In late October, Ralph Webb, the foreman of the shipping department in the Lee
Cylinder plant, whom I find to be a supervisor under Section 2(11) of the Act, asked
Dillman if he had heard "any more about" the Union. On another occasion, Webb
told Dillman that "the old man," i .e., C. R. Golay, Respondent's president, did not
need the employees, that they needed the old man, that Golay will close the place
down, recalling some but not taking back others, and that Dillman had better keep
his nose clean.
On or about November 12, Arthur Gabbard, a foreman in the Lee Cylinder plant
(who I find is a supervisor and agent under Section 2 of the Act), asked employee
Robert Lawrence what he thought of the Union and whether it would do any good
for the employees. About a week before November 19 Gabbard 5 asked employee
John Jamison what he thought about the Union. When Jamison replied, "No com-
ment," Gabbard said, "You're the first one." Jamison reiterated, "Still no comment."
As noted hereafter, Bigler spoke against the Union to assembled employees in a new
building. Afterward Bigler asked Jamison if the speech "got over to the boys."
Late in September, Personnel Director Joe Lunsford asked George Dillman, an
employee in the shipping department of the Lee Cylinder Division, if Dillman knew
anything about the UAW. When Dillman replied in the negative, Lunsford remarked
that the Company could not afford a union, that the Company had rough competi-
d Moore died on December 24, 1962. In making findings respecting all statements made
by him to any employee I have followed the Board's admonition in The rAnde Air Prod-
ucts Company, 86 NLRB 1333, 1336-1337, and Sam Waltick, et at, d/b/a Wallick and
Schwalm Corp., at at., 95 NLRB 1262, 1263.
5About 2 or 3 days before November 19, Gabbard inquired of employee Carl Wyramon
If he was in favor of the Union. On or about October 21 or 22, Gabbard also asked em-
ployee Earl Ford what he thought of the Union and whether he "would work any more
steadily under a union."
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1271
tion , and invited Dillman to report anything he heard about the UAW . Dillman
promised to report. In September , Lunsford asked employee Fox if he knew any-
thing about the Union "trying to get in here."
In middle November , Foreman Fink, whom I find to be a supervisor , told employee
Nick that "we don 't want a union in here" and asked him what a union would do
if it got "in here."
An assessment of the foregoing interrogation , when evaluated upon an examination
of the whole record , discloses-and I find-that such inquiries were not necessary
for the purpose of determining the extent of the Union 's representation for any
legitimate purpose, generally were not accompanied by assurances that there would
be no reprisals against union sympathizers , and often occurred in a setting of threats
to close the plant if the UAW organized it. I further find that such inquiries display
a conscious union animus and a pattern of conduct calculated to interfere with the
unionization of employees . It follows, and I find, that this amounts to interference,
restraint , and coercion within the comprehension of Section 8(a)(1).
3. Inducing employees to engage in surveillance or
to .report on concerted activities
As noted above Bigler in October asked employee James Raby if he possessed
information about union activity . In this same conversation Bigler asked Raby to
find out information about such activity because it would benefit Respondent "and
the other fellows."
On or about October 9 , Bigler asked employee Thomas Harrison to report to
him when "he heard anybody trying to get the Union in there." In the fall Bigler
asked employees Nick and Pebworth to report any union activity to him. Foreman
Jones made a similar request to employee O'Dear, and Personnel Director Lunsford
made a similar request of employees Dillman and Fox in September.
In a conversation with employee Frady, Plant Manager Bigler stated that the
plant would be closed if it became unionized and invited Frady to let him know if
"you see or hear anything that will help your company or yourself."
Extended discussion is not necessary to determine that the foregoing activity
violates Section 8 (a) (1) of the Act. I so find.
4. Threats of discharge or reprisals
In September , Foreman Mark Ramalez told employee Howard Durham to watch
his step because the Company had already got rid of employee Jesse James. In
October, Foreman Ramalez warned employee Bivon Fowler to be careful of what
he said because those for the Union might be fired. In the same month Foreman
Bruce Jones told Fowler that the employees had better vote down the Union or they
would be in for a lot of trouble.
In late September , Plant Manager Bigler warned employee Isaacs that the Union
was no good , that it never did help anyone , and that a lot of people would be hurt
if a union came in. Early in October , Bigler asked employee Edward Herbert if he
knew about the Union and then added that where there is smoke there is fire and
he "has got to put out the fire."
On November 17, Superintendent Moore assured employee Herbert that he
would fire anyone calling another employee a scab. I do not find this statement
objectionable under the Act. On November 19, Moore told employee Kenneth
Fowler he would fire anybody who "started a fuss " and referred to some kidding by
employees of Fowler's wearing a badge. This statement I find does not run counter
to the Act. In early November , Moore told employee Isaacs that , if a union came
in, Respondent no longer would allow employees to stay in the plant if a line broke
down but would send them home instead.
All of the above utterances , except those of Moore on November 17 and 19
(which have been found not to contravene the Act ), contain thinly disguised fore-
casts to discharge or take reprisals against employees if they were for a union or if a
union succeeded in organizing Respondent 's plants. Such threats contravene Section
8 (a) (1) of the Act and I so find. Economy Food Center , Inc., 142 NLRB 901.
Texas Industries , Inc., et al., 139 NLRB 365, footnote 5, is distinguishable.
5. Threats of physical violence
Early in January 1963 , Plant Manager Bigler told employee Harris that if he did
not refrain from talking union to the employees some of them were going to "bust"
Harris in the nose, and that Bigler was telling Harris this because he "did not want
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that kind of thing happening in the shop." This does not amount to a threat by
Bigler that he will harm Harris. Rather it sounds like advice of a noncoercive
character. Accordingly, I find that this statement is not prohibited by the Act.
6. Threats to close, sell, terminate, or move operations
About 3.30 p in. one Friday in early October, all the employees and supervisors
of the Chore Boy and Special Products Divisions were convened by Respondent at
the Chore Boy "center." This meeting lasted about a half hour The principal
speaker was Plant Manager Bill Hoover. Among other things, Hoover told the
employees that if he had to deal with the Union he would close the doors and
shut up the plant. Hoover also complained about low production, poor sales, oper-
ating at a loss, stated that he did not think a union would work in there, and remarked
that he did not believe Golay would "stand still for a union moving in" or for "big
shot" union men coming in and propping their feet on the desk. Continuing, Hoover
expressed concern about his job because he was getting old and did not think he
could find another one if the Company shut down, and added that he thought they
might just sell out or close the doors if they had to deal with the Union. Hoover
also praised the Company's current benefits. Plant Manager Bigler then spoke
briefly at this meeting, discussing problems connected with operations and costs.
About November 29 employee George Eldridge, who had been discharged on
November 19, called on Secretary-Treasurer Don Golay at home to inquire about
being rehired. During the conversation Golay stated in part that Respondent did
not want a union to give it orders or to obtain its permission to operate.
In early September, Plant Manager Bigler told employee Marion Baker that the
Company could not afford a union and would go broke if a union came in.
On November 17, Superintendent Moore told employee Herbert that the plant
will operate only a year if "you ... get your union in," and then "we will go broke
and we will all be out of a job."
On or about October 9, Plant Manager Bigler told employee Thomas Harrison
that although he "wasn't against the Union," the plant just could not afford to pay
union wages and would have to close if the UAW got in. At some undisclosed date
before November 19, Bigler told employee Frady that "Mr. Golay couldn' t stand
a union" in the plant and that "if they got a union in there, we would all be out of
work in no time, and that the place would be closed down; they would move out."
About October 1, Bigler told employee Goble that Golay was losing money on
cylinders, that the plant was moved from Detroit to its present location "on account
of the Union," that Golay "couldn't afford it," and that Bigler was getting too old
to find another job. About this time Bigler told employee Steele that "old Man
Golay" could not afford a union , was not going to have a union, and would close
the doors or sell out "before he would have a union in there." Bigler told employee
Pebworth that he could not afford to have a union and that its advent would force
"them" to "close the doors."
Foreman Jones told employee O'Dear that President Golay would sell his plant
or close it and move out if the Union got in.
These remarks either directly or by innuendo and implication put employees on
notice that Respondent will sell or otherwise close its plants rather than recognize
the Union. Manifestly such remarks amount to more than an opinion or prediction
that the possible increased costs incurred in operating under a union may cause
Respondent to fail to meet competition and thereby go out of business Rather
they imply an assertion that the plants will close or be sold when the Union repre-
sents a majority and that the employees must refrain from abetting the Union in
obtaining a majority. I so find. Consequently, I find that these remarks violate
Section 8(a) (1) of the Act.
7. Promises or grants of benefits
On or about the first week in November Foreman Mark Ramalez told employee
Earl Ford, in comparing the higher wages paid by another employer, that the Com-
pany had to make money, but that Ramalez had heard that if the employees gave up
the idea of having a union President C. R. Golay "was aiming to give everybody
a raise."
On the day of the second UAW organizational meeting described above Plant
Manager Bigler requested employee Howard Durham to tell employees who are
for the Union that they can make more money without it. A few days thereafter
Bigler called employee Robert Meyer to his office and told him that "they did not
believe in a union" and that Meyer would be better off if he forgot about a union.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1273
Bigler added that "It's better not to have a union and have a paycheck coming every
year and have a union and no work about six months out of a year."
On or about November 17 Superintendent Moore told employee Kenneth Fowler
that he opposed unions because a union cost him his job at Connersville; continuing,
Moore warned that he would fire anyone for "fuzzing" and concluded by asking
Fowler to "vote for the Company" in the election "they were going to have," assur-
ing him that by doing so Fowler would remain "when a lot of the rest would be
gone."
On November 16, employee Edward Herbert asked Foreman Fink for overtime,
falsely asserting that he discarded his union button and "I am one of you." Fink
later granted this "only because of what [Herbert] told" him.
On November 17 Superintendent Moore told employee Herbert that he did not
like unions, that the plant will go broke "if we have a union," and that he would
fire any employee who called another employee "a scab." Moore also asked Herbert
if he belonged to the UAW. Moore ended by asking Herbert "to vote for the
Company," in return for which Moore would see that Herbert remained "when the
rest of them are gone."
After a speech in early October, Plant Manager Bigler told employee Delbert
Vickers that, although Vickers may have signed a UAW card, he did not have to
vote for the Union. Bigler asked, "Didn't that meeting mean anything to you?" In
his conversation Bigler also told Vickers, "We are good to all you employees. If
you have problems, you can talk it over with us in the office. We have took it
under consideration and helped you." I am unable to find that anything Bigler said
in this paragraph is unlawful, as nothing therein suggests a promise of benefit to
Vickers.
However, I find that promises of benefits 6 were made on all but one of 7 the other
occasions depicted in this subsection, and that such promises were conditioned
expressly or by implication upon the failure of the Union to gain a foothold as
majority representative. Manifestly an offer to give economic benefits in order to
induce employees to turn down a union contravenes the Act. Accordingly, I so find.
8. Attempts by Respondent to form a labor organization
On the Monday following Plant Manager Bigler's and Plant Manager Hoover's
speeches to the assembled employees, employee Tyree went to President C. R. Golay's
office as a result of an invitation extended to Tyree by Personnel Director Lunsford
Tyree asked employee Chaney to come along with him. There they found President
C. R. Golay and Personnel Director Lunsford awaiting them. Golay then said that
he was not aware so much trouble existed in the shop, he was sorry about it, wanted
to know if he could do anything about it, offered to correct the mistreatment of
employees by the foremen, but insisted that he could not or would not stand for a
union in the shop. Referring to a past unpleasant incident with unions in another
city, Golay said he hated unions ever since, had no use for them, could not see
himself operating with a union in the shop, and stated he would sellout or do any-
thing to get rid of a union before he would operate under one. Then he asked
Tyree and Chaney to "head a committee" for him in the shop and try to induce the
employees to change their minds about the Union.
Golay also solicited Tyree and Chaney to inform employees that he would try
to improve working conditions and sanitary conditions, make machines safer to
run, and fire abusive foremen, but could not grant any raises. Finally, Golay said
that if a union got in he might have to operate 3 or 4 months before he could sell
or close down, that he might be jailed therefor, that he was not going to have some-
one from Detroit or New York telling him how to run his business, and that he
had run it for 50 years. Golay asked them to return to him the next week after
sounding out employees about their reactions to this committee.
On Tuesday of the following week, pursuant to Golay's request, Tyree and Chaney
visited Golay in his office. Lunsford again was present. Tyree and Chaney reported
that the men wanted no part of this committee and desired to "go ahead and have
the union election " Remarking that he was sorry to learn this, Golay stated that
he had not changed his mind and did not want a union
On these facts I find that Golay sought to institute a committee which would
handle employee grievances. Such a committee would qualify as a labor organiza-
tion under Section 2(5) of the Act. Although an employer may suggest to his
6 On November 16 employee Herbert received or was granted a benefit in the form of
overtime for claiming to have rejected or repudiated the Union. This type of grant is
proscribed by the Act.
7 That is, those in the next prior paragraph.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees that they should have an inside union, he may not do so in a context of
hostility to unions , threats of closing down if an outside union were selected, and of
promises of benefits . Savoy Leather Mfg. Corp., 139 NLRB 425. Accordingly, I find
this branch of the case has been established by the General Counsel.
9. Attempts to "fabricate a pretext"
In October , Bigler, in the presence of Lunsford , spoke to employee Harris. Bigler
said he called Harris to his office because Harris "might be able to say something
which would keep the Union out of the shop." Harris replied that he could not
see how a union was going to help any of the employees . Harris, however, asked
for a raise in pay, which was denied Later Bigley again talked to Harris and asked
him to help keep out the Union, and Bigler commented that the Company "was
getting along pretty good in the matter ." While I find this amounts to illegal inter-
rogation ,' I find it is not a pretext for anything . On another occasion in October,
Bigler asked Harris to remove his UAW badge stating that he preferred that Harris
did not wear it. Harris did not remove it and continued to wear it to date. This
statement in my opinion is not coercive and I so find.
About December 1, employee Harris, as he punched in at noon , had asked
employee Isaacs to sign a union card. Bigler at this time called Harris away from
Isaacs and said he would fire Harris if he caught him soliciting for the Union on
'company time . This does no more than restate a correct rule of law and does not
contain a threat of illegal reprisal . Perkins Machine Company, 141 NLRB 697.
Hence, I find it does not rise to the dignity of an unfair labor practice.
10. Interference with carrying or displaying union literature and insignia
On or about the last week in October, Mark Ramalez, a foreman in the Lee
Cylinder plant (who I find is a supervisor and agent under Section 2 of the Act),
reached over and removed a UAW badge which employee Earl Ford was wearing,
and asked Ford why he was "wearing that thing." I find that this interferes with,
restrains , and coerces within the meaning of Section 8 (a) (1) of the Act . N.L.R B.
v. Power Equipment Company, 313 F. 2d 438 (C.A. 6), and cases there cited.
In October , Foreman Bruce Jones asked employee George Eldridge whether he
had to wear a UAW badge . When Eldridge remarked that the others were wearing
similar badges , Jones asked if Eldridge had to do what everybody else does. This
does not contain a threat of reprisal and is not otherwise coercive . I find that it is
not prohibited by the Act . Cf. Gold Merit Packing Company, Inc., 142 NLRB 205.
N.L.R.B. v. Floridan Hotel of Tampa , Inc., 318 F. 2d 545 (C.A . 5), is distinguishable.
On or about October 24 Foreman Fink ripped off two UAW handbills, each
approximately 81/2 by 14 inches, attached to the coat of employee Edward Herbert
as it was hanging on a coatrack by Herbert 's machine . Fink warned Herbert that
"this kind of stuff isn 't supposed to be around here," explaining that employees were
not allowed to place union literature as markings on machinery . Herbert replied
that this literature was on his jacket and not on the machinery. While employees
may lawfully wear insignia at work ( see N.L.R.B. v . Power Equipment Company,
supra ), they may not engage in union solicitation or picketing on the premises during
working hours . In my opinion the handbill attached to Herbert 's coat is not embraced
within the category of insignia , and more nearly resembles organizational picketing
or soliciting . I so find. Accordingly , I find that , so far as our Act is involved , Fink's
action is unobjectionable . See Midwestern Instruments , Inc, 131 NLRB 1026. The
fact that Fink's action coincided with the Union 's drive does not alter this result.
See Star-Brite Industries , Inc., 127 NLRB 1008.
C. The layoff of Jesse James
James first worked for Respondent in 1956 for a year. He was again employed
from 1958 to September 28, 1962. About September 23 James contacted Lester
Wilson, the president of the CIO Union at Connersville , to see about getting a union
representative to organize Respondent 's employees . As a result , a meeting of employ-
ees was held a couple of days later in Connersville . James notified them of this
meeting. James also attended it and all subsequent meetings , but only one before
his layoff.
With others , James started the union movement and served on the UAW orga-
nizing committee for the Lee Cylinder plant . He also signed a UAW card after his
layoff. He received and distributed UAW cards after his layoff: 10 to Bob Isaacs
and 50 to Lester Pebworth, both employees at Lee Cylinder.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1275
At 3 p.m. on September 28, when other employees were paid by the foreman,
James was passed. Upon inquiry from James of the foreman, Kenny Anderson,
he was told to see Plant Manager Bigler in his office. At that time James was
welding foot rings on the 100-pound line at Lee Cylinder Division. (According to
James about 5 or 10 men had less seniority than he on September 28 on the 100-
pound line and "a lot" on the 20-pound line; but no others from these lines were
laid off on that date.) James then went to Bigler's office with Foreman Anderson.
Bigler informed James that it was necessary to lay him off because changes in the
20-pound line would cause some of its men to be brought to the 100-pound line,
and that James' back was unequal to the strain on that line.8 Previous to this
nothing had been said about his absenteeism or his bad back. Bigler then "wrote a
slip" and told James to go see Personnel Director Lunsford for a reassignment on
Monday morning, October 1. This was on the preceding Friday.
The following Monday morning James went to Lunsford's office, but Lunsford
was out and his secretary was unable to state when he would return. James told
her that he was supposed to see Lunsford that morning and that he would see
Lunsford "one day this week." James again drove in to see Lunsford about 9:30 a.m.
on the succeeding Wednesday, but, not observing Lunsford's car at the plant, he
drove by without stopping. Then he went once again the following Friday morning,
October 5, but Lunsford was out and his secretary could not tell when he would come
in. James then asked for and received his check, told Lunsford's secretary he
would come again Monday, and requested that she tell Lunsford to call James in the
meantime if he had a job for James. The next morning James received a letter by
mail that he had failed to show up for reassignment. Nevertheless James was never
informed that he was discharged for such failure.
The next Monday James again called on Lunsford and found him in. After some
discussion Lunsford insisted that James could not be put back to work "the way
everything is." Nothing was said about his absenteeism or his bad back.
James did have many absences for illness in 1962, as shown by his leave slips
introduced by Respondent in the record. About July 30, 1962, Foreman Anderson
told James that any more absences would lead to his dismissal. During the first 9
months of 1962 James was absent 19 times, 8 weeks in 1960, and 5 weeks in 1961.
The 1960 and 1961 absences resulted from his bad back. Those of 1962 often were
caused by his wife's illness which required him to be away from work.
In the summer of 1962, James was assigned to help a contractor constructing a new
office building for Respondent. Here his back bothered him because he lifted heavy
rocks, among other things, and he remained out of work 3 or 4 weeks. On his return
his doctor told him and also wrote to Respondent that James should not lift over
15 pounds. As a result, Bigler became peeved. Although the units on the 20-pound
line weigh about 30 pounds and those on the 100-pound line about 70 pounds, the
foot ring job involves no lifting.
In my opinion James was laid off or terminated, and has not since been recalled,
by Respondent because he joined and assisted the UAW. I so find. In this connec-
tion I rely upon the entire record and the following factors which I find as facts:
1. Respondent's top officers and some supervisors displayed a pronounced antago-
nism toward unions and stoutly opposed unionization of its employees.
2. The foregoing persons engaged in a discernible pattern of unfair labor prac-
tices consciously adopted to defeat the union movement at its plants, including (a)
threats to close down or sell the plants if the UAW became a majority representative,
as well as (b) threats of reprisals to UAW adherents, such as the statement of Fore-
man Ramalez to employee Bivon Fowler that prounion employees might be fired.
3. James was one of the prime movers in inviting the UAW to become interested
in organizing Respondent's employees and was instrumental, prior to his layoff,9 in
arranging for the first UAW meeting for employees in Connersville. Respondent
was aware of these activities by James as shown by the statement of Foreman
Ramalez to employee Durham warning Durham to watch his step or he might suffer
the same fate as James whom Respondent "had already got rid of."
4. Although I find economic justification existed for a reduction in force when
James was removed from the 100-pound line, I find that seniority was ignored in
not retaining him. Thus employee Sams, who had less seniority than James, was
assigned to replace James for 3 days after James was laid off and Sams worked on
8 Although James had "a problem with" his back beginning in 1960, he had no problem
with his back in relation to the job he was performing for the 6 months preceding his
layoff.
'All union activity by James subsequent to his layoff, although recited above as part
of his personal history, has been disregarded in arriving at these findings.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other jobs thereafter . Respondent has a policy of generally following plantwide
seniority , although other factors, such as preferring a family man over a single man,
also entered into selecting employees for layoffs . No reason is given as to why Sams
outranked James on the occasion of this layoff.
5. When James was laid off he was told to see Personnel Director Lunsford about
a transfer to another job. Although James came to Lunsford's office and found him
out, Lunsford's secretary reported to Lunsford that James had come in for a reassign-
ment. Instead of writing to James or otherwise attempting 10 to inform him that
an opening existed,11 as had been the practice in the past with respect to other laid-
off employees when their recall was needed , Lunsford did nothing . This failure
of Lunsford to act, knowing that James had reported to his office for a reassignment,
is significant ; for when the following Monday arrived Lunsford did not hesitate then
to write informing James that he had failed to report for a reassignment . It would
have been just as easy to have written James to show up for a reassignment.
6. Although James suffered from a bad back , which prevented him from perform-
ing heavy tasks, I find that it did not interfere with his duties as a welder and that
it was not the true reason either for his layoff or the refusal to call him. Not only
did Lunsford fail to mention this orally when he spoke to James , but Lunsford did
not refer to it when he wrote to James on or about October 6. While it is true that
on July 30 Foreman Anderson told James that any more absences would lead to his
dismissal , it is equally true that on September 28 Plant Superintendent Bigler not
only omitted mention of this absenteeism when he laid off James , but Bigler also
expressly directed him to see Lunsford regarding any other openings for which he
could qualify.
7. Finally, I find that work was available for James at least after November 19,
when the strike occurred . This is so because beginning on November 20 the strike
so depleted Respondent 's working force at Lee Cylinder that ( 1) President Golay
early in the evening of November 19 directed his second -shift employees to go home
several hours before quitting time and to report at 6 and 7 a.m. for the first shift the
next morning , and (2 ) Lunsford testified that the plant 's normal complement was
not thereafter achieved until December 3, 1962.
D. The discharge of Walter Heaston
Heaston was originally hired about April 4, 1961, by the Chore Boy plant. On
October 6, 1962, he was laid off until December 3, 1962, when he was recalled.
He first started as a brake helper on the night shift. About 3 months later he
became a grinder, working thereat for a little over a year. Then he was assigned
as a general helper to Roy McClure. He also worked on mobile lactoriums at the
Special Products Division. On October 6 he was sent from Special Products, where
he was working on a mobile lactorium, to Chore Boy. At the latter place he operated
a lift truck.
In October Jesse James talked to him in the presence of employees Parker and
Tillet. James handed them some UAW cards with instructions to distribute them to
fellow employees. Heaston did pass out a few UAW authorization cards, and he
also signed one himself on October 4, and served on a UAW organizing committee
at Special Products. About a week before his layoff Heaston attended an organiza-
tional meeting of the UAW in Connersville.
Heaston also was present at an assembly of the employees of Chore Boy and
Special Products. At this event Chore Boy Plant Superintendent Bill Hoover, his
assistant, Bud Drake, and Personnel Director Lunsford spoke. Hoover, who did
most of the talking, said that if he had to deal with the Union he would close the
doors or maybe sell out, and that he was not having some big shot from the Union
coming in, propping his feet on their desk, and telling him what to do.
At quitting time on October 6, Joe Olliger, Heaston's foreman, told him that he
was laid off for lack of work. When Heaston inquired for the reason why he was
selected, Olliger replied that he did not know anything other than that Heaston and
McIntire were laid off. Pat Monihan, a man junior to Heaston, who was hired to
work on the carbon saw, and several others who were hired later than Heaston, were
not laid off. One of these is a grinder who replaced Heaston.
10 There is evidence In the record , which I credit , that In the past Respondent took the
initiative in contacting laid -off employees when conditions permitted their return to work,
and did not penalize such employees for failing to keep In touch with the personnel office.
Moreover, Lunsford's secretary could have told James 'that a job was available.
11 Lunsford claimed that he would have given James a job if James had reported to
him. But this message was not conveyed to James by Lunsford 's secretary at any time.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1277
A week or two after his layoff Heaston called on Bill Hoover for work. Hoover
said that Respondent was cutting expenses on the mobile lactorium, which was being
produced at a loss; but, upon inquiry from Heaston, Hoover assured him that his
work was satisfactory. Two or three days later Heaston, accompanied by Jack
Brooks and Bob Oilman, went to the Chore Boy plant. At some point near the
plant Heaston talked to Joe Lunsford, Respondent' s personnel director. During the
conversation Lunsford said, "You mean to tell me you have enough nerve to come
back here and ask me for your job back after filing charges at the Labor Board?"
After some more discussion, Lunsford said, "I doubt very seriously whether you will
ever get back unless the Labor Board puts you back." Lunsford also said that he
saw Heaston and employee Moistner passing out UAW handbills at Respondent's
nearby Converto Division along with Union Representative Strickland 12 Heaston
denied passing out handbills and added that he went to Respondent's Converto plant
to borrow a car from a friend at that time.
During his employment by Respondent Heaston lost about 2 months from work
because he suffered from a collapsed lung.
Heaston was rehired on December 3. On December 24 Heaston received a
10-cent-an-hour wage increase.
In my opinion Heaston was laid off for lack of work, and I so find. But in any
event I find that the General Counsel has failed to establish by substantial evidence
that Heaston's termination was prompted by discriminatory motives. It is not suffi-
cient for the General Counsel to sustain his burden of proof to show that Respondent
was hostile to unions and that Heaston was active in UAW affairs. An employer's
conduct is not unlawful merely because it results in the termination of a union
adherent. Pioneer Photo Engraving, Inc., 142 NLRB 1099. There must also be a
showing which, directly or by rational inferences, connects the union animus with
the layoff. This the General Counsel has failed to do and I so find. I have not
overlooked the fact that Lunsford about 2 weeks after Heaston's layoff told Heaston
he saw him passing out UAW handbills at one of Respondent' s plants. This evidence
in my opinion falls short of proving that Heaston was terminated for this reason.
That Heaston was laid off for economic reasons is deduced (1) from the fact,
which I find, that the mobile lactorium on which he worked was being produced at
a loss and that, to cut expenses , a reduction in force became mandatory; (2) from
the fact, which I find, that Heaston was rehired on December 3 without loss of
seniority or cut in wages; and (3) from the fact, which I find, that on December 24
he received a 10-cent-an-hour pay increase.
Moreover, I find that the record is barren of evidence to show, as contended by
the General Counsel, that since December 3 Heaston has not been restored to his
former or substantially equivalent position. Hence I find that no backpay is due to
Heaston since his layoff, and that since December 3 he has been employed at his
prior position or one virtually equivalent thereto.
Nor do I find that Heaston was denied reemployment unlawfully under Section
8(a)(4) because, as alleged in paragraph 14 of the complaint, "a charge has been
filed in his behalf in Case numbered 25-CA-1669-2." The only evidence on this
consists of a statement by Lunsford to Heaston that Heaston had a "nerve" to ask
for his job after filing charges and that he would be rehired only by command of the
Board. In the first place, I find that these words do not more than express irritation
at the charges, for at that time Heaston had been laid off. These words do not
explain the reason for his layoff
In the second place, the charge in that case was filed by the UAW on behalf of
Heaston and Donald McIntire and Monty Lee Covalt. If Respondent had intended
to discriminate against those for whom charges were filed, it is reasonable to deduce
that all three beneficiaries of the charge would be discriminated against. Yet it is
not contended in the complaint that McIntire or Covalt are discriminatees under
Section 8(a) (4). Moreover, none of the charges allege violations of Section 8(a) (4).
Finally, the recall of Heaston on December 3 convinces me, and I find, that Luns-
ford did not foreclose Heaston's rehire because of the charges.
E. The discharge of Cleremont Lee Covalt
Covalt was last hired on May 20, 1962 , to work in the Special Products Division
on fiberglass because, as he was informed , "it was pretty hard to keep guys in the
fiber glass ." On October 4 he signed a UAW authorization card. Prior to October 16
he attended one or two UAW meetings and distributed about 50 authorization cards
12 These two sentences were adduced only after leading questions on direct examination
following the statement of Heaston on direct that "there was nothing further said on this
particular occasion."
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees of Golay. He also served on the UAW organizing committee for his
plant and was present at an informal meeting of all parties held by the National
Labor Relations Board at Indianapolis in connection with a RC petition of UAW.
On October 16, while cleaning his paint booth at 3. 30 p.m., Foreman Rudisell
told Covalt that he was being laid off, giving as a reason that Covalt was on a list of
employees prepared by Plant Manager Hoover to be laid off. Covalt's pay period,
however, did not end until October 21 . Rudisell suggested that Covalt talk to
Personnel Director Lunsford about the possibility of an opening in another of
Respondent 's plants. When Covalt spoke to Lunsford about a half hour later con-
cerning a transfer to another shop, Lunsford said none was available but promised to
call him when any vacancy occurred . Covalt has not since been recalled. Two weeks
before the time of his discharge the fiberglass tube, or housing , and the augers which
Respondent itself manufactured and which Covalt processed were discontinued and
were replaced with a steel tube and rubber auger which were bought from another
manufacturer.
Two or three weeks before he was laid off, Covalt admittedly used some company
blue paint to paint the top of his automobile . He obtained this, amounting to about
a half pint in volume, from an open 5-gallon bucket. It took no more than 5 or 10
minutes to perform the painting , which was done openly during lunch while his car
was parked at the plant parking lot and in view of some employees pitching horse-
shoes. McCarroll , Respondent 's project engineer, also saw it . Shortly thereafter
Covalt explained to Foreman Rudisell that McCarroll had objected to the use of
the paint and that Covalt offered to pay McCarroll for the paint . Rudisell then
chastised Covalt for taking the paint without Rudisell's permission , but mentioned
that if Covalt had asked it would have been granted . Nevertheless no disciplinary
action was taken against Covalt nor was the incident ever mentioned again by
Respondent to Covalt. Once before, when Covalt used company paint for his car,
he obtained permission therefor in advance.
Covalt's layoff in my opinion was not discriminatory under Section 8 ( a)(3) and
I so find. Covalt on his own testimony related that he was taken on to process
fiberglass , especially because it was difficult to keep employees at such work. It
would be reasonable to expect that, when fiberglass was no longer utilized, the
employees working on it would be out of a job. That is what happened to Covalt
Whereas fiberglass had been manufactured by Respondent when Covalt used it, the
substitutes for fiberglass ( a steel tube and rubber auger ) were purchased from another
producer because Respondent lacked facilities to fabricate them. Accordingly, it
will be recommended that this part of the complaint be dismissed.
On this issue I have not disregarded the General Counsel's evidence , which has
not been narrated in detail , but I am of the opinion , and find, that it does not require
a different conclusion . Thus I am not persuaded that the following factors should
affect the foregoing result: (1) Covalt was laid off in the middle of a pay period;
(2) Covalt was active in union affairs and attended a companion RC hearing involv-
ing the UAW and this employer ; and, (3 ) although Lunsford promised to notify
Covalt of any vacancy, he has not yet done so.
If material , however, I find that Covalt's unauthorized use of a small quantity of
paint for personal reasons did not lead to his layoff or the failure to recall him.
Covalt reasonably believed that he was empowered to do this because once before
his foreman had permitted him to do so . Moreover , when Covalt reported this to
Rudisell, his foreman, Rudisell chastised him only for failing to obtain advance per-
mission but did not otherwise take disciplinary action ; in fact Rudisell specifically
mentioned that he would have granted permission if Covalt had requested it. Hence,
it becomes unnecessary to review other evidence of the General Counsel tending to
show company tolerance of similar conduct by employees Mills and Tyree as estab-
lishing a policy allowing employees to take small quantities of paint for personal use.
F. The discharge of Melvin Moistner
Moistner started working for Respondent in April 1959 as a buffer in its Chore
Boy Division at a rate of $ 1.30 an hour. On October 4, 1962, he signed a UAW
authorization card. He also attended UAW organizational meetings , served on its
Organizers ' Committee 13 organizing the Chore Boy plant, wore UAW buttons at
the shop on 1 day , and distributed UAW authorization cards to fellow employees in
his department for about 2 weeks-all prior to October 15.
13 This committee was composed of about everybody who attended "the UAW meeting"
in Connersville.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1279
At the commencement of the UAW campaign Moistner asked Foreman Virgil
Jordan, whom I find to be a supervisor under the Act, "about this union stuff," and
Jordan said he did not think "they" could support a union.
On October 15, 1962, Foreman Jordan informed Moistner that he was being laid
off but to report to the administration building where he "might get a transfer to one
of the other shops." When Moistner asked why he was terminated, Jordan replied
that his production was low and that, since business was slow in the buffing room,
Jordan decided to lay off Moistner. This was the first time Moistner's production
record had been criticized. Moistner's production, however, had not changed.
Willie Moore, a solderer in the buffing room, was also laid off at the same time, but
four others performing Moistner's type of work were retained. Moistner had seniority
over two of these four. His rate of pay at that time was $1.75 an hour.
That evening Moistner spoke to Personnel Director Lunsford pursuant to Fore-
man Jordan's suggestion and requested a job in another of Respondent's plants. After
noting Moistner's name and address, Lunsford told him he would notify him of any
openings. Not having heard from Lunsford, Moistner again called on Lunsford on
December 3, 1962. Moistner's work performance was not mentioned by Lunsford on
this occasion, but Moistner was rehired without loss of seniority on the same day.
About a week after being laid off, Moistner told Secretary-Treasurer Don Golay
that he considered himself the victim of a raw deal in being dismissed After some
discussion, Golay promised to look into the matter and let Moistner know. But
Moistner never did hear from Golay. Nevertheless, Moistner was rehired and reem-
ployed on December 3, 1962, at $1.75 an hour, and was informed that no break in
his seniority had occurred.
Moistner testified that at one time he told an employee in his department to slow
down, but I find this fact was not mentioned by Respondent as a ground for releasing
him at any time.
In my opinion the General Counsel's evidence falls short of showing that Moistner
was laid off and subsequently not reemployed until December 3 because of union
activities or sympathies. Accordingly, I find on the record before me that such layoff
and failure to rehire do not offend against the Act. It is not sufficient to show that
Moistner was a UAW adherent and was active on its behalf, or that the Respondent's
reasons for the layoff and failure to recall have been rejected. There must be an
affirmative showing by direct evidence or fair inference from the evidence that the
principal motivating cause for the layoff and failure to reemploy is discriminatory.
Such showing is absent here and I so find.
In this connection I am persuaded that the evidence is too tenuous to show a dis-
criminatory motive.14 The fact that two others over whom Moistner had seniority
were not laid off, while suspicious, does not overcome the fact that Moistner was
rehired on December 3 without break in his seniority and without reduction in wages.
Finally, I find that the evidence is insufficient to show that since December 3
Moistner has not been restored to his former or practically equivalent position. Not
only was Moistner rehired at his old rate of pay without loss of seniority, but I am
unable to find such a divergence between his old and new job as to point to the con-
clusion that his present job unfavorably compares with his old one.
Accordingly, I recommend that the allegations of the complaint touching upon
Moistner's layoff and recall be dismissed.
G. The discharge of Paul Paris
Paris was hired on August 19, 1959, to hang cylinders on the paint line at the Lee
Cylinder Division While so employed, he received two raises over a period of about
26 months. On October 2, 1962, Paris signed a UAW card. He attended four UAW
meetings held for Golay employees between September 26 and late October. From
about October 1 to November 19 he wore two UAW buttons and for a week after
September 26 distributed UAW authorization cards. In the middle of October and
early November he passed out UAW handbills in front of the plant at Chore Boy and
Converto. Mr. Strickland appointed him on September 30 to the Lee Cylinder
organizing committee of UAW.
On November 11 Foreman Fink ordered Paris to remove a hat he was wearing, but
Paris refused because it served to keep off dust from his head. This hat bore two
legends: "Vote UAW" and "Join the UAW." Fink then ordered Paris to remove a
14 One of Respondent ' s defenses is that Molstner once told a fellow employee to slow
down in his production. Although I find that Moistner uttered this statement, I further
find that it was never called to Molstner ' s attention and that it was not the reason he
was laid off or not recalled.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pencilholder and badges of UAW and put them out of sight. Superintendent Moore
on November 13 also told Paris to stop wearing this hat, but he refused for the same
reason.
On November 17 Moore told Paris he desired to "argue union status with him,"
but Paris declined on the ground he was not an arguing man. But Moore persisted.
For a while Moore upbraided unions because of what they had done to him. Moore
then said that Golay will close the door and all will be out of a job if a union came in;
that Moore did not want to see anyout out of a job; and that Golay did not like it
that Paris and others were on the organizing committee.
As Paris entered at 6 a.m. on November 19 he notice some "antiunion" literature
and photographs on the bulletin board next to the timeclock. About 50 minutes after
he returned to work following the morning break (which regularly takes place from
9:30 to 9:40 a.m.), Superintendent Moore called Paris to his office. When Paris
arrived there, Personnel Director Lunsford and Foreman Jones had joined Moore.
Lunsford then asked Paris if he removed certain pictures from the bulletin board.
Paris denied this. Lunford then replied that he had two witnesses that Paris did take
down pictures and promptly discharged Paris on the spot. Although Paris denied
that he removed the pictures, I find that be did.
About 9 a.m. C. R. Golay called his attorney in Indianapolis about Paris and the
removal of the pictures after learning thereof. As a result of that call, Golay discussed
it with Lunsford, "verified the fact that witnesses saw Paul take the item down and
dispose of it," and decided to have Paris discharged. Lunsford testified credibly that
he ascertained from Foreman Gobbard and employee Klein that Paris took these
items from the bulletin board, and called in Paris and discharged him for this pursuant
to Golay's direction, no matter what Paris said in denial.
Immediately following this discharge Lunsford and Foreman Jones escorted Paris
to his locker where Paris picked up his personal belongings. Superintendent Moore
then went to Paris' work area and returned with Paris' dinner bucket and jacket,
handed them to Paris, and, with Lunsford and Jones, forthwith escorted Paris out of
the plant. At this point Lunsford personally conducted Paris to another building to
get his paycheck and then accompanied Paris to the parking lot, remaining there until
Paris drove away.
Paris then parked across the street and, about 11.20 a.m., saw and spoke to
employee Tyree. After relating to Tyree that he was discharged for destruction of
company property, Tyree relayed this information to the employees in the vicinity
who were out for lunch. What happened thereafter is narrated under the section of
this report entitled "The strike of November 19."
A few days later Paris received form 501 from Respondent in which the reason given
for his unemployment was "Discharged for malicious destruction of company prop-
erty." He has not been reemployed or offered employment by Respondent since
November 19. Paris signed General Counsel Exhibit No. 6 after Strickland told
him "the Regional Director of the UAW requested such a document asking for our
jobs back." If material, I find this is an unconditional offer to return to work.
In my opinion Paris was discharged because he was a UAW adherent and actively
assisted in the UAW organizing drive. I so find. However, I find that Paris, contrary
to the General Counsel's contention, without permission, did remove from the bulletin
board material posted thereon by Respondent, and that such conduct was ascribed by
Respondent and communicated to Paris as the ground for his discharge. But I find
that this is a pretext to disguise the real reason for the discharge, and that the real
reason is the pro UAW attitude of Paris and his activities aiding the UAW. While
these conclusions are based on the entire record, the following factors have been
instrumental in persuading me to make the foregoing findings-
1. As shown elsewhere in this Intermediate Report, Respondent entertained and
displayed pronounced hostility to the Union.
2. Paris actively and openly espoused the UAW and solicited membership for the
UAW, including the passing out of handbills in front of the Chore Boy and Converto
plants.
3. Paris was reprimanded or scolded by supervisors for wearing a UAW hat and
other UAW insignia.
4. Paris was told by a supervisor that President Golay was displeased that Paris
was serving on the UAW organizing committee. The fact that nearly all employees
signed up by UAW served on this committee does not detract from this finding men-
tioned in this paragraph; Golay's displeasure, and not the composition of the com-
mittee, is significant.
5. The timing and manner of the discharge are relevant "in assessing the legality
of Respondent's conduct." Arkansas-Louisiana Gas Company, 142 NLRB 1083. As
to timing, the firing occurred contemporaneously with the peak of the organizational
movement, or at least after such movement had progressed beyond the incipient stage
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1281
and had gained momentum. As to manner, it is not disputed that (a) Respondent
decided to fire Paris immediately upon ascertaining, in an investigation lasting a
matter of minutes, that he removed material from the bulletin board without even
discussing it with his foreman, which was the usual procedure, (b) Respondent had
no intention of letting Paris remain as an employee, even though it called him in and
purportedly gave him a hearing, (c) the hearing was summary, as it gave Paris no
opportunity to prepare for it or to obtain counsel or other representation, (d) Paris
was abruptly discharged in the middle of the morning, and (e) Paris not only was
escorted in all his movements from the time of his discharge until he drove his car
from the Respondent's parking lot, but he was not even allowed to return to his work
area to get his dinner bucket and jacket.
Accordingly, I find that the statement on the form 501 mailed to Paris by Respond-
ent does not give the true reason for his discharge. That statement reads "Discharged
for malicious destruction of company property."
H. The strike of November 19
As found herein Paul Paris was precipitately discharged by Respondent in the
morning of November 19. Subsidiary facts and concluding findings surrounding the
discharge are set forth elsewhere in this Intermediate Report. Upon learning of this
discharge employee Tyree asked other employees to meet in the parking lot during
their lunch hour which began at 11:20 and ended at 11:50 a.m. on the same day.
Many did go to this meeting.
After Tyree told the employees at the parking lot meeting what had happened to
Paris a discussion occurred, during which the layoffs of Jesse James and Vince Stroth-
man were mentioned, and Tyree expressed the thought that the Company was picking
off prounion employees one at a time. Tyree then asked if the men would participate
in a "sitdown strike" to protest the discharge of Paris, and suggested they vote to
return to their posts but refuse to work until Paris was put back on his job. A vote
was then taken and a majority voted to adopt the suggestion of Tyree. It was also
decided by the group that Tyree was to convey to Respondent the contents of the
vote and the refusal of the men to work until Paris was reinstated. Finally it was also
agreed that if any of the group was asked by a representative of management whether
he would work to remain silent and say nothing. Tyree and the employees returned
to the plant at the termination of the lunch period.
About 3 minutes after Tyree returned to his work station Foreman Fink noticed
inactivity and asked him, "What are you boys doing?" (At no time prior to this had
Tyree talked to any supervisor or superior about the events and the votes taken at the
parking lot.) Tyree then replied that the men had taken a vote and refused to work
until Paris, who they thought was unjustly fired, had been put back to work, and that
this could be done at once because Paris was in his car parked across the street. Fink
reported this to Foreman Jones and the two in turn reported it to the front office.
Twenty minutes later Tyree learned from Fink that Paris would not be recalled.
While President C. R. Golay was having lunch about 12:15 p.m., he was called to
the Lee Cylinder plant by Personnel Director Joe Lunsford. When Golay arrived
there about 25 minutes later and learned what was transpiring he telephoned counsel
in Indianapolis. As a result of this telephone call, Golay called in each of his foremen
and Superintendent Moore, gave each a sheet of lined paper, and directed each to ask
every employee under him whether he were willing to work or not, to make a list of
the same, and to instruct those who refused to work to please leave the plant. This
was pursuant to counsel's advice to ascertain who would and who would not work.
After this the supervisors went out; then they returned to Golay and reported to him
the results of their questioning employees.
About a half hour later Golay again assembled his foremen. At this meeting Golay
asked the supervisors again to ask the same question, to request those unwilling
to work to vacate the plant, and make a written report of their inquiries. A third
meeting was called by Golay about a half hour following the second meeting. The
foremen were again asked to find out who would and would not work and were
instructed to discharge those who would not work and ask them to leave the plant
because they were "sitdown strikers."
As directed, these foremen visited employees working under them. The conversa-
tions had with each employee and the actions taken by such foremen are narrated at
greater length in the findings relating to each individual employee.
I find that the employees at the parking lot meeting decided to engage in a strike
or concerted refusal to perform services solely to protest the discharge of Paris and for
no other reason. Although the names of James and Strothman were mentioned
during discussions and some employees referred to the fact that union sympathizers
-sere being picked off one at a time, I find that none of these ingredients caused or
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contributed to the decision to strike . As found elsewhere in the Intermediate Report,
the discharge of Paris was motivated by antiunion considerations and was therefore
discriminatory under the Act . Hence I find that the strike to protest such discharge
is a concerted activity protected by Section 8 (a) (1) and ( 3) of the Act and that it
was an unfair labor practice strike. Of course conduct occurring after the strike began
may amount to misconduct warranting discharge or a refusal to reinstate . The con-
duct of each employee joining in the strike and its effect , if any, upon such employee's
right to reinstatement , is set forth below in the discussion of each individual discharge
of November 19.
Although the right to strike against an unfair labor practice is protected by the
Act, those engaging in it may not with impunity resort to misconduct . Such miscon-
duct, when serious, will justify a discharge or a refusal to reinstate . Whether such
misconduct will justify a discharge or refusal to reinstate depends upon an appraisal
involving principles enunciated in H. N. Thayer Company, 115 NLRB 1591, 1604-
1606, which I have followed in evaluating the rights of each employee individually.
In assessing the conduct involved on November 19, I find that the refusal to work
without leaving Respondent 's premises , especially after being asked to leave, con-
stitutes misconduct which, upon a balancing of the equities, warrants or justifies
Respondent in discharging or denying reinstatement to those resorting to such
activity. Whether such misconduct is described as a "sitdown strike" or not is imma-
terial; the fact is that I find that working time is for work (Republic Aviation Corpora-
tion v. N L.R B., 324 U .S. 793, 803, footnote 10), and that employees may not engage
in a strike in the working areas of an employer's plant N.L.R.B . v. Fansteel Metal-
lurgical Corporation , 306 U.S . 240. Additionally , I find engaging in a strike in a
work area is comparable to distributing literature or soliciting during working hours,
and that such conduct is unprotected during this period.
I proceed to discuss the discharges of November 19 individually.
1. The discharges
1. The discharge of George Dillman
Dillman first started working for Respondent in 1959. After quitting in late 1959,
he was rehired on January 12, 1960, and assigned to the shipping department at the
Lee Cylinder Division.
On or about October 3 , 1962, Dillman signed a UAW card and passed out a few
himself. Thereafter he wore a UAW badge while working at the plant until his
discharge on November 19 He attended the union meeting of October 21 in Con-
nersville, and also distributed handbills for the UAW at Respondent 's Converto plant.
On November 19 about 11:20 a.m., the commencement of the lunch period, Dill-
man went out of the plant . He briefly visited the group of employees at the parking
lot where he heard someone say, "They will pick us off one at a time ." He then
returned to work, punched in, and about 11:50 a.m., when the buzzer sounded,
resumed work . About a half hour later Foreman Webb asked those in the shipping
department , including Dillman , if they would continue to work. Dillman replied
that he would . Webb then wrote down their names . About 1 p.m. Dillman's line
stopped operating . When Dillman reported that his line was shut off to Foreman
Webb, the latter asked him what he needed. On receiving no answer from Dillman,
Webb asked him if "you guys [are] a damn bunch of liars?" Dillman then said he
was going to quit and did so shortly thereafter . Thereupon Dillman "just walked
off"
About 15 or 20 minutes later, while Dillman was "standing with a group of non-
working employees that protested not to work ," Superintendent Moore accosted him
and asked him if he was going to work . Dillman merely stated that "I was for the
Union " Claiming that Dillman's answer was not responsive , Moore insisted that
he wanted to know if Dillman was "going to work ." Dillman said nothing, and
Moore left . Moore returned 10 or 15 minutes later and informed Dillman that he
was discharged . Dillman was paid for 6 .7 hours, some of them representing work
prior to lunch ; i.e., from 7 to 11:20 a.m. His normal day starts at 7 a.m. and ends
at 3:30 p.m. with an uncompensated half hour for lunch beginning at 11:20 a.m.
Although Dillman was discharged about 1:55 p.m., he did not immediately leave
the premises . He left about 4 p.m. with other employees after UAW Representative
Lewis Strickland arrived at the plant.
On or about November 20 Respondent mailed to him and he received in due
course a copy of a form 501 ( hereinafter called form 501 ), known as an eligibility
information report of the Indiana Employment Security Division . In the block
headed "Reason for unemployment" appears the notation "Discharged for partici-
pating in sitdown strike and refusing to leave premises at Lee Cylinder plant."
LEE CYLINDER DIVISION OF GOLAY Sr CO., INC. 1283
A copy of this form is attached as Appendix A.15 On or about March 25, 1963,
Dillman signed an attachment to a letter addressed to Respondent requesting rein-
statement . A copy of this letter (herein referred to as General Counsel Exhibit
No. 6) is attached as Appendix B. Dillman did not see the letter at the time he
subscribed to the attachment . Accordingly , I find that Dillman at that time did not
make an unconditional offer to return to work. Dillman has not been offered rein-
statement since his discharge.
On November 20 Dillman arrived at the plant about 8 a.m. but he did not enter
it. He went away about 3 p in. At 8 a.m . he observed 40 or 45 pickets standing
around 3 barrels "with fire. " He picketed some time after 8 a.m. to protest his own
discharge and the discharge of Paris. But I find that the evidence is insufficient to
associate Dillman with any misconduct on the picket line.
Concluding Findings as to Dillman
Initially, I find that Dillman was not discharged for UAW sympathy or activity,16
and I further find that he was discharged on November 19 for engaging in a strike
protesting the discharge of Paul Paris . Since this strike is a protected activity, the
discharge of Dillman is unlawful unless such discharge can be justified by Dillman's
engaging in misconduct prior thereto . But I find no misconduct justifying a dis-
charge, so that I find the unlawfulness of the discharge on November 19 has not
been overcome.
Unlike other strikers, Dillman returned to work after his lunch break on Novem-
ber 19 and continued to work until , through no fault of his own, his line stopped
operating about 1 p.m. Although I find that about 1.30 p.m. Dillman joined the
strike, I also find that he was entitled to a reasonable time to leave the plant, during
which he could wash,.clean, change clothes, etc. Yet he was abruptly discharged
about 1.55 p.m.17 without even being requested to leave. I am unable to find that
between 1 : 30 and 1.55 p.m. Dillman engaged in conduct so reprehensible as to
justify a dismissal without even a request that he leave the plant.
But Dillman did not leave until about 4 p.m., and then only because UAW Repre-
sentative Strickland requested the strikers to vacate the premises. In my opinion
Dillman 's persistence in remaining in the plant from 1:55 to 4 p.m. was unauthor-
ized and was not necessary either to prepare for washing, changing clothes, etc., or
to effectuate the strike protesting the discharge of Paris. Hence I find that the fail-
ure to reinstate Dillman is not unlawful. Since but 1.3 hours elapsed between Dill-
man's unlawful discharge and the lawful failure to reinstate him, I find this is
de mininiis and that no backpay for this brief period should be ordered.
Accordingly, I recommend that the complaint be dismissed insofar as it seeks
relief for Dillman.
2. The discharge of James Raby
Raby was employed on the stationary line of Respondent's Lee Cylinder plant.
On or about October 2, 1962, he signed a UAW authorization card and he also
passed out two such cards to fellow employees.
During his lunch period on November 19 Raby attended the employee meeting
in the plant parking lot. About 20 employees were there at that time. Those pres-
ent "were objecting" to the discharge of Paris, although the names of employees
Strothman and Covalt were also "mentioned." They also objected to the dismissal
of Strothman for absenteeism. After eating his lunch he punched in and returned
to work about 11:50 a.m. He worked until about 2:30 p.m. About 1:30 p.m. on
November 19, Plant Superintendent Moore and Foreman Gabbard asked him and
"the fellows" if they would work. Raby replied that he "would go back to work if
they got the other fellows to go back to work," although he was working at the time.
Moore and Gabbard came around a second time, 15 or 20 minutes later, and again
asked Raby if he would work the rest of the day. Raby replied that he would "if
15 Although this copy is addressed to Earl Blair , it is identical , except for name , address,
and social security number, to the one received by Dillman
19 This finding applies to all employees discharged on November 19 other than Paris and
need not be reiterated as to such employees individually.
17 Dillman was paid for 6 7 hours, this being Respondent ' s estimate of the time worked
by him prior to his discharge . Since at 3: 30 p.m. he Would have worked 8 hours (allow-
ing for a 10 -minute break from 2.20 to 2:30 p m. ) it would seem that Respondent's
estimate closely coincides with Dillman's
217-919-66-vol. 15 6-8 2
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other fellows would go back to work," but if they would not go back to work
he would not either . At this time , and at all times from 11:50 a.m. to 2:20 p.m.,
when the afternoon break occurred, Raby was working.
Shortly after 2.30 p.m., when the break ended, Moore and Gabbard returned for
a third time and told Raby that if he would not work his name would be taken down
and he would be discharged. Raby told them he would not go back to work unless
the other fellows did. Thereupon he was discharged for participating in a sitdown
strike. Until 3.30 p.m. Raby did not leave his work station. Then at 3:30 p.m. he
visited the Coca-Cola and other vending machines in the 20-pound area. Many
were congregated there with him. Nevertheless, he did not leave the premises until
about 4.15 p in. He was paid for 71/2 hours. In due course he received from
Respondent a form 501 stating that he was discharged for participating in a sitdown
strike and refusing to leave the plant premises? s
On the Sunday following November 19 Raby went to Plant Manager Bigler's home
to inquire about getting back his job. If material , I find that such inquiry amounts
to an unconditional offer to return to work. Bigler told him that he would not be
reinstated because he "was one of the 33 that was discharged."
Raby read and signed General Counsel's Exhibit No. 6 which is attached as
Appendix B. I find this constitutes an unconditional offer to return to work. He
has not been put back to work since November 19.
Raby arrived at the picket line about 8 a in. on November 20. But he did not
picket at that time, although he did at some undisclosed time later in the day. I find
that Raby did not engage in misconduct while serving as a picket.
Concluding Findings as to Raby
Since Raby continued to work until 2:30 p.m., I find that his discharge shortly
thereafter,19 when he decided to join the strike to protest the discharge of Paris, was
unlawful. This is so because I find no misconduct attributable to him in the few
minutes intervening between his striking and his discharge. On the other hand, Raby
did not leave after his discharge but remained in the plant until about 4:15 p.m.
While this may have afforded Respondent grounds for refusing to reinstate Raby,
I find that Respondent did not rely on it or even mention it to him when he asked
for reinstatement on the Sunday following November 19; indeed, the only reason
given for denying Raby reinstatement at that time was that he "was one of the 33
that was discharged ." Hence I find condonation under the circumstances.
Accordingly, I find that Raby was unlawfully discharged on November 19 and
that he is entitled to reinstatement.
3. The discharge of Robert Lawrence
Lawrence was employed on Lee Cylinder's stationary line beginning in July 1962.
On or about October 2, 1962, he signed a UAW authorization card. Starting about
2 days later he wore a "Vote UAW" button daily while at work.
On November 19 Lawrence rang in as usual following his lunch period and went
back to work at 11.50 a.m. He did not go to the parking lot meeting. Shortly after
noon Foreman Gabbard asked him if he was going to work and Lawrence replied
in the affirmative. Then Gabbard left. While he continued to work, "several guys"
from other areas of the plant, including employee Herbert, came to his line and
asked him to stop working if he was with them. Lawrence continued to work and
only stopped working at 2:30 p.m. Later, Gabbard told Lawrence that he had his
timecard (I find a discharge at this point) and that Lawrence could work if he
wanted to. Lawrence replied that he had to go along with the rest of the men and
would not work. With others he left the plant shortly before 4 p.m., although he
stopped working at 2.30 p.m. I find that Lawrence joined the strike at 2:30 p.m.
to protest the discharge of Paris.
About a week later he received form 501 from Respondent stating he was dis-
charged for participating in a sitdown strike and refusing to vacate premises. About
December 10 Lawrence called on Personnel Director Lunsford at the plant to get
his job back. I find that this was an unconditional offer to return to work. Luns-
ford replied that he could not do it and that such a decision was out of his hands.
18 Except as otherwise noted , all employees receiving a form 501 were notified that they
were discharged for participating in a sitdown strike and refusing to leave the plant
premises.
19 Raby was paid for working until 3 p.m , this being Respondent's approximation of
when he was discharged.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1285
Lawrence signed General Counsel's Exhibit No. 6 after the letter attached thereto
was read to him. I find that this is an unconditional offer to return to work. He
has not been recalled to work since November 19. He was paid for about 71/z hours
on November 19.
Concluding Findings as to Lawrence
In an application for unemployment compensation on December 10 Lawrence
stated that he was discharged for participating in a sitdown strike and refusing to
leave the premises of the Lee Cylinder plant, but I find that he was repeating what
had been sent to him in a written notification from Respondent on form 501 and
not that he conceded the truth of the matters stated in form 501. I find that Law-
rence was discharged shortly after 2:30 p.m . on November 19 for engaging in a
strike protesting the discharge of Paul Paris.
Since Lawrence did not join the strike until 2:30 p.m., I find that his discharge
shortly thereafter 20 is unlawful because a reasonable time elapsed between his quit-
ting work and his discharge during which he did not engage in misconduct. More-
over at the time of his discharge Lawrence was told by Foreman Gabbard that he
could work if he so desired . Manifestly such an offer signifies an approval of
Lawrence's conduct until then.
However, Lawrence lingered in the plant until shortly before 4 p.m., when he
went out. Although normally this deprives Lawrence of a right to reinstatement,
I find it does not in the instant case because I find condonation. This latter finding
flows from the fact, which I find, that when Lawrence unconditionally offered to
return to work in December his misconduct was not mentioned . Lawrence on
December 10 was flatly told he could not be rehired; but this is not sufficient to
show that misconduct entered into the decision not to take him back. Hence I find
that Respondent has not sustained the burden of showing that misconduct prevented
Lawrence 's return to work; in fact, it appears that Respondent was merely adhering
to the fact that it had already discharged Lawrence as the only reason for failing
to take him back. As noted above. I have found such discharge unlawful.
Accordingly, I find the discharge of Lawrence unlawful and he is entitled to
reinstatement.
4. The discharge of John Jamison
Jamison started as an employee of the Lee Cylinder plant early in 1962 on the
stationary line. He signed a UAW authorization card on or about October 2, 1962,
and daily wore a union button also at work.
On November 19 Jamison went home for lunch. On returning he attended the
parking lot meeting for 5 minutes and then rang in. He performed work following
lunch from 11:50 a.m. to about 2:30 p.m. While he was working in the early after-
noon Superintendent Moore and Foreman Gabbard asked him if he would continue
to work. Jamison replied that he would "if the rest of them would." Shortly there-
after Gabbard and Moore again asked him if he was going to work. Again Jamison
stated that he would if the others would, although he was working at the time. About
2.30 p.m. employee Herbert of the 100-pound line spoke to the employees on the
stationary line as a group. Thereupon Jamison did not resume work and shut off
his machine. Gabbard and Moore came a third time and told Jamison that if, he
was not going to work they were going to have to discharge him for participating
in a sitdown strike. (This was a few minutes after he stopped working to join the
strike.) Then they told him he was discharged for refusing to work. Although his
normal quitting time is 3:30 p.m, Jamison did not leave until about 4 p.m. Jamison
remained at his station from 2:30 until 3.30 p.m. and then went to the vending
machines in the 20-pound department where he talked to a group of employees
gathered there. He was paid for 71/z hours. He received form 501 from Respond-
ent and signed General Counsel's Exhibit No. 6 after the first page was read to him.
I find this latter is an unconditional offer to return to work.
Concluding Findings as to Jamison
I find that Jamison was unlawfully discharged shortly after 2:30 p.m.,21 which
was a few minutes after he had joined the strike to protest the discharge of Paris
and before he had been granted a reasonable opportunity to leave the plant. Fol-
lowing his discharge Jamison loitered in the plant until about 4 p.m. I find that by
remaining that long in the plant after his discharge Jamison engaged in misconduct
20 He was paid for working until 3 p m ; i e., for 7'/_2 hours
21 Jamison was paid for working until 3 p m. ; i.e , for 71/ hours.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
depriving him of the right to be reinstated. I further find that the evidence fails to
connect Jamison with misconduct on the picket line on November 20.
Accordingly, I shall recommend dismissal of that part of the complaint praying
for relief for Jamison.
5. The discharge of Carl Wyramon
Wyramon last worked for Respondent on its Lee Cylinder hydro stationary line.
On or about October 3, 1962, he signed a UAW card. On November 19 he joined
the parking lot group at lunchtime. Returning to his post at 11:50 a.m., he rang
in and turned on his machines. Early in the afternoon President C. R. Golay had
asked Wyramon if he was going to work. Wyramon said he would continue to work.
About 2.45 p.m., while Wyramon was still working, Superintendent Moore and
Foreman Gabbard asked him if he was going to continue working. Wyramon replied
that he would as long as he had tanks to work on. Then Moore said, "How about
sweeping the floor?" Wyramon refused to sweep because "I've got tanks that have
to be put out," and because he was hired as a hydro tester. (At other times Wyra-
mon swept the floor only if he was out of work.) Thereupon Moore discharged him
with the words "You are automatically discharged right now." This was about
3 p.m.
After being discharged, Wyramon shut off his machines with the express permis-
sion of Moore. Two other employees on the line continued to work after Wyramon
shut off his machines. Wyramon was paid for 71/2 hours. He left the premises
about 4 p.m. with about 25 others.
In December 1962 Wyramon asked Superintendent Moore for reinstatement to
his job but Moore merely said no. Wyramon also signed General Counsel's Exhibit
No. 6 after the letter thereon was read to him. This is an unconditional offer to
return to work. He has not been recalled since November 19.
Concluding Findings as to Wyramon
I find that Wyramon was discharged because of a desire of Respondent to break
up a strike protesting the discharge of Paris, and thus by discharging Wyramon
Respondent sought to impress the remaining working employees with the futility
of joining in the strike. This offends against the Act because it interferes with,
restrains, and coerces employees in the statutory right to engage in protected con-
certed activities. I further find that the alleged reason given for the discharge, i.e.,
insubordination by failing to sweep, is not the real reason and is but a pretext to
disguise the effort to undermine the strike.
This conclusion is based on the entire record and the following factors, all of
which I find as facts
1. Unlike most of the other employees who were asked if they would remain at
work, Wyramon gave an answer instead of standing silent; and his answer patently
was that he would work.
2 Since Wyramon replied that he would work the first time he was interviewed,
and since at this time he was told to continue working, no rational reason appears
to explain why he again was asked a long time later and at a time when he was
working unless it is to manifest Respondent's intent to discourage adherence to the
strife.
3. If Respondent genuinely wanted Wyramon to sweep, it could have directed him
to do so when he was first asked whether he would work and not about 2 hours later.
In fact, two other working employees on the line were not told to sweep at all.
4. Other employees displaying an inclination to be sympathetic to the strike were
peremptorily ordered to sweep on pain of being summarily fired, while those not so
sympathetic were given work elsewhere or allowed to stay on the jobs they were
performing.
5. Wyramon was not hired as a sweeper and no necessity for sweeping is shown,
especially since he had not finished his regular tasks.
6. Although Wyramon did sweep in the past it was only because he was out of
work.
7. Since Respondent was interested in maintaining production, it is reasonable
to infer that Wyramon would not be taken off production work during a crisis.
Thus, two other employees on Wyramon's line continued work after his discharge
without being told to sweep.
Wyramon did not leave the plant until 4 p.m. While this may justify a refusal
to reinstate Wyramon, I find that this conduct has been overlooked or condoned by
Respondent. This is so because it was not relied on or mentioned when Superin-
tendent Moore on December 10 denied Wyramon's request to be reinstated.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1287
The record will not support a finding that Wyramon engaged in any misconduct
on the picket line on November 20.
Accordingly , I find that Wyramon has been wrongfully discharged and that he is
entitled to reinstatement.
6. The discharge of Paul Edward Sams
This employee was hired on July 15, 1962 , as welder on the 100-pound line in the
Lee Cylinder plant. For 3 days in late September or early October he performed
foot ring welding formerly done by Jesse James. Thereafter employee Herbert
performed this foot welding work . Sams had seniority over Herbert but not on
James. On or about October 1 Sams signed a UAW authorization card. He also
attended "all" the UAW organizational meetings, twice passed out union handbills,
and wore two different kinds of UAW badges at work.
At lunchtime on November 19 he attended the parking lot meeting of Lee Cylin-
der employees . He heard Bill Tyree say that if they did not do something they were
all going to be fired one at a time; i .e., those who had anything to do with the Union.
He was present when they took a vote whether they would stop working until Paris
was put back to work. When lunchtime ended Sams returned to the plant and
worked until after the second break . This break lasts from 2:20 to 2:30 p.m.
Shortly after noon on November 19 Art Gabbard , stationary line foreman, asked
Sams if he would continue to work. Sams replied that he would "if the rest of the
men on the line would." Gabbard then listed Sams on a piece of paper as willing
to work. By about 2:45 p.m. "everybody " had stopped working, including Sams.
Gabbard and Moore, the plant superintendent , then came to him and asked him
if he would work. But Sams would not answer and remained silent. They told
him if he wanted to work he could pick up paper, but he refused . At that time
there was no work to do because the line stopped working, and he had no tanks.
Moore then in the presence of Sams instructed Gabbard to "put [him] down as
fired" and Sams was fired by Moore for refusing to work. This was about 2:55
p.m. He was paid for 7 hours.
After he was fired Sams stood by his machine until 3:30 p.m., the regular quit-
ting time . Then he walked over to the 100-pound line (he was on the stationary
line that day ) and remained in the plant until about 4 p.m ., at which time he left.
Following his discharge , he received from Respondent a written notice, form 501,
stating he had been "discharged for participating in sitdown strike and refusing to
leave premise at Lee Cylinder plant." He also signed General Counsel's Exhibit
No. 6 after being told by Strickland that it "was asking for our jobs back ." It was
the only time he requested reinstatement . Sams has not been rehired or recalled
since November 19.
Concluding Findings as to Sams
I find that Sams was discharged about 2:55 p.m. for joining in a strike to protest
the discharge of Paris. Further, I find that the firing of Sams is illegal because,
although he worked after lunch and did not join the strike until 2:45 p.m., he was
summarily discharged without being given a reasonable opportunity to leave the
plant; i.e., he was fired before being ordered to leave. While it is true Sams was
fired for refusing to pick up paper, I find this is a pretext and that the true reason
is that expressed above. Indeed the form 501 mailed by Respondent to Sams, stating
why he was discharged , omits any reference to a refusal to pick up paper.
Nevertheless , Sams failed to leave the plant within a reasonable time after his
discharge , remaining there until about 4 p.m . During this time he associated him-
self with the strikers who, as found in another subsection herein, engaged in mis-
conduct. Sams contributed to that misconduct not only by his failure to leave the
plant within a reasonable time after his discharge , but also by wandering around
the plant without permission . I find that such misconduct warrants a refusal to
reinstate Sams. If material , I find that Sams did not engage in misconduct on
November 20.
Accordingly , I find that Sams is not entitled to reinstatement . Although his dis-
charge was illegal , I find that no backpay is due Sams because the interval between
his discharge and his subsequent misconduct amounts to de minimis . Hence I
recommend dismissal of that part of the complaint praying for relief on behalf of
Sams.
7. The discharge of Earl Ford
Ford began employment in July 1962 on the stationary line at the Lee Cylinder
Division . On or about October 1 , he signed a UAW authorization card. In addi-
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, he attended all but the first two UAW organizational campaign meetings,
passed out union handbills on three occasions at Respondent's plants, and wore two
UAW badges at work.
On November 19 someone notified Ford that the Lee Cylinder employees would
hold a meeting on the parking lot. He attended it at lunchtime where he learned
that it was called to protest the dismissal of Paul Paris. Then Ford returned to work
after lunch at the customary time and worked until the 2:20 p.m. break.
Shortly after noon on November 19 Foreman Gabbard asked Ford if he would
work. Upon receiving an affirmative reply, Gabbard listed Ford's name under a
column entitled "Work" on a slip containing two columns, one headed by the words
"Not work" and the other designating the word "Work." When he returned at the
expiration of the break at 2.30 p.m., Ford found that "the rest of the line had quit
so I quit my job." Shortly thereafter Superintendent Moore and Gabbard asked
him if he would continue to work. Ford replied that he did not see how he could
"if anybody else wasn't." Moore then said that Ford could push a broom and clean
up. Ford refused. Then Moore told Ford to consider himself discharged. After
being fired Ford remained at his station until 3:30 p.m. After 3:30 p.m. he went
to the Coca-Cola machine, had a Coke, and talked to a group of employees there.
At 4 p.m. he went home.
About 2 weeks after his dismissal, Ford received a form 501 from Respondent.
Thereafter, in February 1963, he asked Personnel Director Joe Lunsford what his
chances were of returning to work. I find this is an unconditional offer to return to
work. Lunsford replied that "nothing had been settled yet." Ford signed General
Counsel's Exhibit No. 6 after reading it. He has not gone back to work for the Com-
pany since November 19.
Concluding Findings as to Ford
I find that Ford was fired shortly after 2:30 p.m. for joining the strike to protest the
discharge of Paris and that as of the time of his discharge Ford had not participated in
any misconduct. In fact Ford continued to work after lunch and had been on strike
only a few minutes when he was fired. And I further find that Ford was not afforded
a reasonable time to leave the plant after he decided to join the strike. Finally,
although Superintendent Moore discharged Ford for refusing to "push a broom," I
find this not to be the true reason, but is a pretext. As noted above, I find that Ford
was discharged for joining the strike. To some extent this finding is fortified by the
fact that Respondent mailed Ford a form 501 which gave as the reason for his dis-
charge participation in a sitdown strike and refusal to vacate the premises without men-
tioning any refusal to push a broom. Accordingly, I find that the discharge of Ford
violates Section 8 (a) (1) of the Act.
However, Ford did not vacate the premises within a reasonable time after his dis-
charge, but remained in the plant until about 4 p m. During this time he associated
himself with the other strikers, thus ratifying their misconduct, and also wandered
around the plant. Such misconduct disqualifies Ford for reinstatement, and I so find.
Accordingly, I find that Ford is not entitled to reinstatement. Although Ford was
illegally discharged, the backpay due for the time between his discharge and loss of
right of reinstatement is de minim is and need not be calculated. Hence I recommend
denial of any relief to Ford.
8. The discharge of Howard Durham
Durham began his employment with Respondent on September 20, 1961, on the sta-
tionary line at the Lee Cylinder plant. On or about October 2, 1962, he signed a
UAW authorization card. Prior to November 19, 1962, he attended three union
organizational meetings and daily wore a UAW badge at work.
On November 19 Durham attended the parking lot meeting for a while. He
returned to work at 11:50 a.m. About 1 p m., Foreman Gabbard asked him if he
would work, and Durham answered that he would "keep doing what I've been doing."
Between 2:40 and 3 p.m. Gabbard and Plant Superintendent Moore came to see him.
Moore asked Durham if he would continue to work. Durham, who had quit work
before this, remained silent and said nothing. Moore then told Durham to leave the
plant if he was not going to work, discharged Durham for participating in a sitdown
strike, and again ordered him to leave the plant. (Durham was paid for 71/2 hours.)
Durham did not leave until about 4 p.m., although he stopped working at 2:20 p.m. for
the break and did not work thereafter. Two other employees worked at the stationary
line (Riall and Mercer) after the others struck on the stationary line. I find that
Durham joined the strike at 2:30 p.m. to protest the discharge of Paris.
LEE CYLINDER DIVISION OF GOLAY & CO . , INC. 1289
On or about November 21 Durham received form 501 from Respondent . He also
signed General Counsel's Exhibit No. 6 after Strickland read the letter to him.
Respondent has not recalled Durham since November 19.
Concluding Findings as to Durham
I find that Durham was discharged shortly after 2:30 p.m. for joining the strike
protesting the discharge of Paris. Since this discharge occurred simultaneously with
Moore's requesting Durham to leave the plant , and a few minutes after he struck, I
find that Durham was not granted a reasonable time to leave the premises after he
struck, and , therefore , that Durham had not engaged in any misconduct prior to his
dismissal . Consequently , I find that his discharge was unlawful.
Nevertheless , although Durham was twice ordered to leave the plant before 3 p.m.,
he did not go until about 4 p.m. During this time he associated himself with the
other strikers , thus approving their misconduct , and also contributed to that miscon-
duct by not departing within a reasonable time following his discharge . Such deliber-
ate disregard of duty destroys Durham 's right to reinstatement.
Accordingly , I find that Durham has lost his right to reinstatement . Nor is he
entitled to backpay for the time between his discharge and his misconduct because it
partakes of de minimis . Therefore I recommend denial of relief to Durham.
9. The discharge of Earl R. Blair
Blair was hired on May 20, 1959 , to work on the stationary line of the Lee Cylinder
Division . On or about October 2 , 1962, he signed a UAW authorization card, but
attended none of its organizational meetings.
He did not attend the parking lot meeting on November 19. At 11 : 50 a m., on
completing his lunch recess , he returned to the plant and worked until shortly after
the second break which ended at 2 : 30 p.m. About 1 p.m. on November 19 Foreman
Gabbard asked Blair if he would work and learned from Blair that he would. Shortly
after 2:30 p.m. Blair stopped working because "everybody else had stopped." Not
long after that Plant Superintendent Moore and Foreman Gabbard asked if he was
going to work , but Blair did not answer . Moore then said, "If you don't work, we'll
have to pull your timecard ," and directed Blair to sweep . Blair told them he would
not sweep . Thereupon Moore discharged Blair. At 3:30 p.m., the quitting time,
Blair left, approximately 30 to 40 minutes after his discharge . He was paid for 71/2
hours. He signed General Counsel 's Exhibit No. 6, but did not read or have read
to him the letter. He has not been recalled or offered a job since November 19.
He received a form 501 from Respondent notifying him that he was "discharged for
participating in sitdown strike and refusing to leave premise at Lee Cylinder plant."
Concluding Findings as to Blair
I find that Blair worked until shortly after 2:30 p.m., that he joined the strike to
protest the discharge of Paris shortly after 2:30 p.m , and that a few minutes there-
after he was discharged for joining in that strike . Moreover , although Blair refused
to comply with Moore's order to sweep, I find that Blair was not discharged for such
refusal. `" Moreover , Blair engaged in no misconduct prior to his discharge . Conse-
quently, I find Blair was unlawfully discharged.
The question then is whether Blair has rorfeited his right to reinstatement. I find
that he has not because he did not engage in misconduct following his discharge.
Although Blair did not leave until about 30 minutes after being fired, I find that he
remained at his station and did not associate himself with the misconduct of the other
strikers . N.L.R.B. v. American Manufacturing Company, and Nu-Art Employees,
Inc., 106 F. 2d 61 (C.A. 2).
Accordingly , I shall recommend that Blair be reinstated.
10. The Discharge of Richard Allen Toney
Toney started as an employee of Respondent in late 1959 on the 20-pound line at
Lee Cylinder . On or about October 3 , 1962, he signed a UAW card. He also
attended some union organizational meetings before November 19, and daily wore a
UAW button while in the shop on the 20-pound line. Once he passed out UAW
handbills in October at Respondent 's Converto plant, and also gave out union authori-
zation cards to any employee who asked him for one.
22A form 501 received by Blair from Respondent does not allude to any refusal to
sweep gas the ground for his discharge.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At lunchtime on November 19 Toney briefly joined the parking lot group but did
not remain. At 11:50 a.m., he went back and worked until the 2.20 p.m. break.
About 1 p.m., while Toney was working, Foreman Ramalez asked him if he would
continue to work. Toney replied that he had not made up his mind. However, Toney
did not resume work following the end of the break at 2.30 p.m. Shortly after
2:30 p.m., when Toney was not working, President C. R. Golay and Personnel
Director Joe Lunsford came to him. Golay asked him whether he would or would
not work Toney replied that he was not going back to work "until the lest of the
guys did." I find that at this point Toney joined the strike to protest the discharge
of Paris. At this time Ramalez arrived and told Toney that if he was not going
to work he was discharged and asked Toney to leave the premises Toney said
nothing and "just stood there." However, he did leave at 4 p.m. He received a
form 501 from Respondent. He also signed General Counsel's Exhibit No. 6 after
glancing at the letter. This was the only time after November 19 he asked for
reinstatement. He was paid for 7i/ hours. He has not been recalled since Novem-
ber 19. During the time Toney did not work some employees continued to work
on the 20-pound line.
Concluding Findings as to Toney
I find that shortly after 2:30 p.m. Toney joined the strike to protest the discharge
of Paris, that he had not previously engaged in misconduct, that a few minutes there-
after he was discharged for joining such strike, and that such discharge is unlawful.
However, although ordered to leave the premises at the time of his discharge, Toney
stayed on without permission until about 4 p.m. Thereby he associated himself with
the misconduct of the other strikers and contributed to such misconduct by loitering
in the plant until 4 p.m. Accordingly, I find that Toney has destroyed his right to
reinstatement.
It follows that I shall recommend that Toney not be reinstated. In addition, back-
pay resulting from his discharge is insignificant, and I shall not recommend reim-
bursement therefor.
11. The discharge of Robert Meyer
Meyer started his employment with Respondent in April 1955. On or about
October 2, 1962, he signed a UAW authorization card. He also attended UAW
organizational meetings.
On November 19 Meyer was employed on the 100-pound line at Lee Cylinder.
When his lunch period started at 11:20 a.m., Meyer joined the parking lot meeting
and "discussed Paul Paris being discharged." After he rang in at 11:50 a.m , "we all
went back to our jobs and stood there." When he punched in he knew he would not
do any work, and he did no work. I find that Meyer joined the strike at 11.50 a.m.
to protest the discharge of Paris. Between 12.30 and 1 p.m. Foreman Fink, accom-
panied by Superintendent Moore, came to Meyer and inquired whether Meyer would
work, but Meyer "would not answer him." Fink continued with a statement that
"If you don't answer, the answer must be no then." Still Meyer "didn't say nothing
[and Fink] wrote `No' down."
Fink, again accompanied by Moore, came around a second time, 20 or 25 minutes
later, and asked Meyer if he was going to work, but Meyer did not answer. There-
upon Fink told Meyer that if he failed to answer it would be construed as "No" and
directed Meyer to "vacate the plant." However, Meyer did not leave. Fink and
Moore came a third time about 5 minutes later. This time, about 2 p.m., Meyer was
told that he was discharged for participating in a sitdown strike and again ordered to
leave. Although quitting time was at 3.30 p in , Meyer stayed on until 4 or 4.30 p.m.,
when he left with some other employees of the 100-pound line.
After he was discharged Meyer went to the breakroom on another floor and joined
other employees from the 100-pound line. He iemained there until the time he left.
Meyer signed General Counsel's Exhibit No. 6 on March 25, 1963, after reading
the first page thereof. I find that this is an unconditional offer to return to work. He
has not been recalled to work since November 19, 1962.
Concluding Findings as to Meyer
I find that Meyer at 11:50 a.m., when he returned from lunch, engaged in a strike
to protest the discharge of Paris Further, I find that Meyer engaged in misconduct
continuing from 11:50 a.m. until he left the plant between 4 and 4:30 p.m. This
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1291
misconduct consists of (a) punching in his timeclock without intending to work,23
(b) remaining on the piemises for a protracted period of time without permission,
(c) failing to respond to reasonable inquiries by his employer as to whether his
presence in the plant was for the purpose of working, and (d) wandering around in
the plant to areas not related to his assigned tasks. Finally I find that Meyer was
discharged for participating in such misconduct and that such discharge is lawful. In
my opinion the credible evidence does not establish misconduct on the picket line
on November 20 by Meyer.
Accordingly, I recommend that Meyer be denied reinstatement The fact that he
made an unconditional application for work in March 1963 does not alter this conclu-
sion since an employer need not heed an offer to return by an employee previously
lawfully dismissed for misconduct.
12. The discharge of John Raby
On November 19, 1962, Raby was working as a welder on the 20-pound line.
Although he signed a UAW authorization card on October 2 he never attended any
meetings of that organization. At the plant he often wore a "Vote UAW" insignia for
about a month preceding November 19. At lunchtime on November 19 he attended
the parking lot meeting. Returning to the shop at the termination of the lunch period,
he resumed work at 11.50 a.m. Shortly after noon Superintendent Moore and Fore-
man Ramalez came to him with a piece of paper bearing the notations "Will Work"
and "Won't Work." When Ramalez asked him, "Will you work?" he replied that
he was working. Ramalez claimed, "That's not the question" and asked, "Will you
work or won't you work?" But Raby did not answer.
About 3 p.m. on the same day Ramalez twice asked Raby "if we was going to
work," but each time Raby did not answer although he was working. Raby was
then discharged and ordered to leave the plant At this time Raby was working.
Although he was fired, Raby stayed at his work station until 3:30 p.m. Then he left
the area at 3.30 p.m., and later left the building about 4 p.m. with some other
employees. He was paid for 8 hours. Shortly after November 19 he received form
501 from Respondent. Be signed General Counsel's Exhibit No 6 after the letter
was read to him. He has not been offered reemployment since November 19.
Concluding Findings as to Raby
I find that Raby did not join or participate in the strike to protest the discharge of
Paris, but that he was discharged at 3 p in. for joining or participating in that strike.
Form 501 mailed by Respondent to Raby confirms that he was discharged allegedly
for engaging in a strike. That form also mentions that Raby engaged in a sitdown
strike; i.e., he engaged in misconduct prior to his discharge. But I expressly find that
Raby was working from 11:50 a.m. to the time of his discharge and that he did not
during that period engage in misconduct. Although Raby did not reply to questions
eliciting his willingness to continue to work-which may have justified his discharge,
I find that form 501 does not refer to this, that failure to reply does not constitute a
strike or joining in a strike, and that, in any event, he was not discharged for his refusal
to answer. Hence I find his discharge to be unlawful.
Nevertheless although Raby was fired and ordered to leave the plant shortly after
3 p.m., he did not do so until about 4 p.m. I find that thereby he associated himself
with the other strikers and their misconduct and contributed to that misconduct by
remaining in the plant much longer that reasonably necessary after his discharge and
by wandering around in the plant when his job specifications did not require it.
Accordingly, I recommend that Raby be denied reinstatement. Since he has been
paid for 8 hours on November 19 no backpay is due him for his unlawful discharge.
If material, I find that the credible evidence does not connect Raby with misconduct
on November 20 although he did picket on that day.
zs While this may or may not amount to a crime , or, if not a crime, to fraudulent mis-
representation-which I do not decide-I find that it is contrary to accepted principles of
morality to punch in with the expectation of being paid for work not to be done and
that, if material , it justifies the refusal to reinstate him This comment and finding
applies to all other employees who rang in not intending to resume work at the con-
clusion of the lunch period on November 19.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13. The discharge of Walter L. Jones
Jones was employed in the Lee Cylinder shipping department since 1958. On
October 2, 1962, he signed a UAW authorization card. He also attended union
organizational drive meetings, regularly wore a union button to work, and once passed
out handbills at Respondent's Converto plant.
On November 19 Jones attended the parking lot meeting for about 5 minutes at
lunchtime. At 11:50 a.m., when the lunch period terminated, Jones rang in and
resumed work. About noontime Foreman Webb asked Jones if he was going to work,
and, after being pressed when he remained silent, finally stated that he would. Jones
worked until about 2 p.m., when he stopped working to "go along with" the other
employees who had stopped. I find that at 2 p m. he joined the strike to protest the
discharge of Paris. Not long thereafter, when Superintendent Moore asked Jones
if he was going to work, Jones replied that "I'm with the rest of them." Thereupon
Moore fired Jones for participating in a sitdown strike and asked him to leave the
plant. However, Jones did not leave until about 4 p.m.
Jones was paid for about 7 hours on November 19. A few days later he received
a form 501 from Respondent He signed General Counsel's Exhibit No. 6 after the
letter was read to him. He has not been recalled since his discharge.
Concluding Findings as to Jones
I find that Jones joined the strike to protest the discharge of Paris at 2 p.m., and that
shortly thereafter he was discharged for this. Further, I find such discharge illegal,
for Jones had not engaged in any misconduct prior thereto.
Nevertheless, since Jones was ordered to leave the plant, an obligation fell upon
him to obey this command, which I find was lawful. By staying on until 4 p.m.
instead, Jones identified himself with the strikers and their misconduct and additionally
contributed to that misconduct by continuing to remain in the plant without permis-
sion. Hence I find that Jones has cut off his right to reinstatement by reason of such
misconduct.
Accordingly, I recommend that Jones be denied relief. Since the backpay due for
his discharge is de minim is, no recommendation providing therefor is being made.
Finally, if material, the credible evidence fails to show that Jones engaged in miscon-
duct on November 20 although I find he picketed on that date.
14. The discharge of George Eldridge
Eldridge started as an employee in late August or early September 1962, and was
assigned to the 100-pound line at Lee Cylinder. On October 3 he signed a UAW
authorization card. He also before November 19 attended two or three organization
meetings, daily wore a UAW badge at work, and solicited Golay employees to sign
UAW authorization cards.
During his lunchtime on November 19 Eldridge attended the parking lot meeting.
He voted with the majority in favor of punching in but not working. After the meet-
ing he rang in and went to his work station, but did not work. I find that Jones
joined the strike at 11:50 a.m. to protest the discharge of Paris. About 12:30 p.m.
Foreman Fink and Superintendent Moore came around. Although Fink asked him
if he was going to work, Eldridge did not utter a word. Fink then asserted he would
be back a little later. About 30 to 50 minutes later, Fink, accompanied by Superin-
tendent Moore, returned and again asked Eldridge if he would work. Again Eldridge
remained mute. Moore then told Fink to "check him off," and ordered Eldridge to
leave the plant.
About 3 p.m. on November 19 Moore and Fink spoke to Eldridge for a third time
without succeeding in ascertaining whether he would work. Moore then discharged
Eldridge for participating in a sitdown strike and ordered him again to leave the plant.
Eldridge did not heed this order until 4 p.m. From 11:50 a.m., when he returned
from lunch, until 4 p.m., Eldridge did not perform any work. A few days later he
received a form 501 from Respondent.
About a week after November 19 Eldridge called on Secretary-Treasurer Don
Golay (whom I find to be an agent under Section 2(13) of the Act), and asked for
his job back. I find this is an unconditional offer to return to work. Golay replied
that it was out of his hands and that he could not do anything about it, but would see
what he could do. Continuing, Golay stated that Respondent has been without a
union for years and they did not need a union in there to tell them what to do or to
ask for permission to do anything. That same night Eldridge called on Personnel
Director Lunsford to ask for reinstatement. This also is an unconditional offer to
return to work. Lunsford replied it could be accomplished only by "the National
Labor Relations Board to put [Eldridge] back."
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1293
Eldridge signed General Counsel 's Exhibit No. 6 after the first page was read to
him. He has not been reinstated or offered work by Respondent since November 19.
About 5:30 a.m. on November 20 Eldridge arrived at the plant but did not go in.
At that time some pickets were parading back and forth . By 6 a.m., according to
him, about 60 were on the picket line; and at 7 a.m., the number had increased to
about 70, as he testified . They were walking in a circle in front of the driveway at Lee
Cylinder. Eldridge served as a picket, walking in this circle . Some cars had stopped
at the circle . About 6 a.m. C . R. Golay told the employee drivers of some of these
stopped cars "Run over the sons of bitches ," meaning the pickets. I find that the fore-
going picketing at times physically prevented some employee cars from entering the
parking lot.
Concluding Findings as to Eldridge
I find that Eldridge was discharged about 3 p.m . on November 19 for misbehavior
in connection with his participating in a strike remonstrating against the discharge of
Paris, and that such misbehavior was continuous from 11:50 a.m. to the time of his
discharge . Further, I find that his wrongdoing consisted of (a) punching in after
lunch without intending to resume work, (b) remaining on the premises without work-
ing and without permission to do so, ( c) associating himself with the misconduct of
other strikers from 11:50 a.m. and thereafter , and contributing to such misconduct
by not leaving the premises , ( d) wandering around the plant without permission, and
(e) refusing to reply to reasonable requests whether he would work at a time when he
intentionally idled himself. Hence I find that his discharge was lawful.
Moreover , I find that Eldridge was involved in additional misdeportment after
3 p.m. in that he remained in the plant until 4 p.m. although he was both discharged
and instructed to leave at 3 p.m., and thereby prolonged his prior wrongdoing. Con-
sequently, I find that this conduct nullifies any right to reinstatement even if the
discharge may be found unlawful . Nor is a contrary result demanded because
Eldridge specifically asked orally and in writing for reinstatement after November 19
and each time was turned down. Since Respondent lawfully could refuse to reemploy
Eldridge, denial of a request for reinstatement cannot convert this lawfulness into an
unfair labor practice.
Finally, without reiterating the subsidiary findings above , but on the basis of them
and the entire record, I conclude and find that Eldridge picketed in a formation which
prevented or tended to prevent cars from entering the parking lot between 6 and
7:30 a.m. on November 20, and that this activity likewise legally disables him from
being reinstated.
Accordingly , I shall recommend that the complaint be dismissed insofar as it is
prosecuted on Eldridge 's behalf.
15. The discharge of Marion K. Baker
On November 19, 1962, Baker had been employed for about 18 months on the
100-pound line at the Lee Cylinder plant. On October 3 he signed a UAW authori-
zation card . In September he passed out a few similar cards to fellow employees, and
he also attended four union organizing meetings prior to November 19.
On November 19 he participated in the lunchtime parking lot majority vote pro-
testing the discharge of Paul Paris. At 11 : 50 a.m. he rang in, went to his work
station, but did not perform any work thereafter although work was available. I find
he joined the strike at 11:50 a.m . to protest the discharge of Paris. About 12:20 p.m.
Foreman Fink asked him if he was going to work , but Baker stood silent. About 30
minutes later , this time accompanied by Superintendent Moore, Fink again asked
Baker whether he would work, but still he did not reply. Fink and Moore came
around a third time about 2:30 p.m., and Fink repeated the previous question. Baker
again said nothing. Then Fink told Baker he was "automatically discharged," and
directed him to leave the premises.
Baker did not leave the shop until about 4 p .m., although his normal quitting time
is 3:30 p.m. About 4 p.m. he and other employees met outside the plant where it was
agreed among them to picket the next day to protest their discharge and that of Paul
Paris. A few days later he received form 501 from Respondent. He signed General
Counsel 's Exhibit No. 6 after it was read to him. He has not been recalled or rein-
stated since November 19.
Concluding Findings as to Baker
I find that Baker participated in the strike objecting to the discharge of Paris, and
that beginning at 11:50 a.m . and continuing to the time he was discharged he was
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guilty of misbehavior identical to that of Eldridge depicted above as occurring from
11:50 a.m. to 3 p.m. Further, I find that Baker was discharged about 2.30 p.m. for
such misconduct and that it was lawful to discharge him therefor.
Moreover, I find that Baker did not leave until about 4 p m. and that he extended
his misconduct after 2:30 p.m. in that he engaged in conduct identical to that of
Eldridge recited above as occurring between 3 and 4 p.m. Further, I find that this
conduct deprives Baker of the right to be reinstated. Finally, I find that, although
Baker picketed on November 20, the credible evidence is insufficient to identify him
with any misconduct between 6 and 8 a in., so that his conduct of November 20 does
not disable him per se from obtaining reinstatement.
Accordingly, I find that Baker is not entitled to relief and that the complaint should
be dismissed to the extent that it seeks to aid him.
16. The discharge of Bivon Fowler
Fowler was last hired by Respondent in July 1961, as a tester on the Lee Cylinder
stationary line. On October 2, 1962, he signed a UAW authorization card. He
attended two UAW organizational meetings.
On November 19 he ate lunch in the shop but did not go to the parking lot meeting.
At the end of his lunchtime Fowler punched in and resumed work. Before the
2:20 p.m. break Foreman Gabbard asked him if he wanted to work or would stop
work and recorded the affirmative answer. Following the break's end at 2.30 p m.
Gabbard and Superintendent Moore together repeated the above question. Fowler,
who was working at the time, replied that he would work as long as there was work to
do. Later, however, about 2:45 p.m., Fowler was unable to continue working because
he ran out of jobs to do and for no other reason.
About 3 p.m. on November 19 Moore and Gabbard again came to Fowler. Moore
"wanted to know if we was going to work or not." Fowler replied that he would
work as long as the jobs came down the line, and that "when the jobs stopped I had
to." Moore then told Fowler that he would either have to work by getting a broom
and sweeping or Moore would "pull" his card for "taking part in the sit down strike."
Moore then told Fowler to sweep the floor, but Fowler said and did nothing in
response to this. But Fowler remained at his work station until 3.30 p.m., the regular
quitting time, when he punched out and went home; yet has was paid for work only
until 3 p.m. A few days later Fowler received a form 501 from Respondent.
Concluding Findings as to Fowler
I find that Fowler at no time was on strike on November 19 and that he did not
participate in any action to protest the discharge of Paris. I further find that at no
time on November 19 was Fowler discharged or ordered to leave the premises; that
he was never reprimanded or disciplined for refusing to sweep on November 19, and
that such refusal, if an act of insubordination, was condoned by the absence of discipli-
nary action and the failure to remove his timecard from the rack as was the case with
others who refused to work that afternoon. Finally, I find that Fowler was discharged
only when he received form 501 from Respondent, and that the statement 24 thereon
is unfounded and not true.
The latter part of the week on November 19 Fowler asked Personnel Director Joe
Lunsford for his job back. I find this is an unconditional offer to return to work.
Lunsford said that he thought Fowler should not have been fired and that it was a
mistake that Fowler was fired. About March 1, 1963, Fowler again asked Lunsford
for his job. Lunsford replied that he would do so if he could but that he could not do
anything "until this trouble was settled." Fowler has not been offered reemployment
since November 19, 1962. Fowler, who did not have his glasses with him, had his
son sign General Counsel's Exhibit No 6 for him after Strickland read it to him.
I find that this also is an unconditional offer to return to work.
On the Friday following November 19, Fowler's son, Kenneth, asked Personnel
Director Lunsford when Kenneth's father could return to work. Lunsford replied,
"Not before this was settled," but added that "they thought there was three mistakes
[in firing on November 19] and [Bivon] was one of them " Lunsford then said that
Bivon might be put back to work "when this was all settled."
On the basis of the entire record and the foregoing facts, I find that Fowler did
not engage in a strike or misconduct during a strike; that he never was under an obli-
gation to leave the Lee Cylinder plant before 3 30 p.m. on November 19, because he
24 That statement reads, "Discharged for participation in sit down strike and refusing
to leave premises at Lee Cylinder plant." Hence I find that Fowler was unlawfully
discharged.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1295
was working or was ready , able, and willing to work until then , and had not been
ordered to leave; and that Fowler was discharged assertedly for engaging in miscon-
duct during a strike ( which is denominated a "sitdown strike" in the form 501 mailed
to him by Respondent ) and for refusing to leave the Lee Cylinder premises . I further
find that Fowler was in fact discharged because the Respondent believed that Fowler
engaged in the strike which complained of the discharge of Paris and because Respond-
ent believed that Fowler engaged in misconduct during such strike. Finally, I find
such discharge illegal because it proximately and directly pertained to a lawful strike.
It is no defense that Respondent believed that Fowler engaged in misconduct. In
the first place I find that Respondent did not entertain a good-faith belief that Fowler
engaged in misconduct , especially because the agents of Resopndent who spoke to him
knew that Fowler was not on strike and that Fowler had remained at his post working
or ready to work during the first day of the strike . Moreover , good faith is not a
defense when a striking employee who has not engaged in misconduct during a lawful
strike is discharged mistakenly for allegedly engaging in such misconduct. Rubin
Bros. Footwear, Inc., and Rubin Brothers Footwear , Inc., 99 NLRB 610, reversed
on other grounds 203 F. 2d 486 (C.A. 5). A fortiori, the discharge of an employee
who has not even engaged in the strike is unlawful regardless of whether the employer
honestly believed that such employee participated in the strike . The discharge then
falls into the comparable classification as the discharge of an employee in the honest
but mistaken belief that the employee was a union member. It cannot seriously be
advanced as a defense in the latter situation that a nonunion employee has been law-
fully discharged under the honestly mistaken belief that he was a union member.
Evidence that Fowler picketed on November 20 is lacking . Hence I find that his
right to reinstatement has not been forfeited.
Accordingly , I shall recommend that Fowler be reinstated.
17. The failure to recall Kenneth W . Fowler
Fowler was hired on January 5, 1960, and assigned to the 100 -pound line at Lee
Cylinder. In October and November 1962, he attended two union organizational
meetings , and on October 2 signed a UAW authorization card. In the shop he wore
a UAW button, and for a week before November 19 passed out handbills at the Con-
verto (plant No. 1 ) plant of Respondent.
On November 19 he attended the parking lot meeting . After lunch he punched in
and went back to his machine ready to work but, there being no work to do, he
waited until Foreman Fink came around about 12:45 p.m. When Fink asked Fowler
if he would work, Fowler replied that he would. Fink thereupon directed Fowler to
report to the shipping department . Fowler worked in the shipping room by rolling
tanks to awaiting trucks until the 2:20 p.m . break. At this time Fowler told Superin-
tendent Moore that, because he had only a week before recuperated from a hernia
operation , he should not be required to lift tanks . Moore then assigned Fowler to
clean up around Fowler's machine , and Fowler obeyed this instruction . At 3:30 p.m.,
the regular quitting time, Fowler punched out and "went back in the shop then."
Accosting him, Fink asked Fowler why he was in the plant. When Fowler replied that
he wanted to "see what happened ," Fink merely laughed and walked on. Before
leaving, Fink asked Fowler if he intended to work the next day. Fowler replied that
he would but would not cross a picket line if one were posted. Pledging that there
would be police protection the next day , Fink assured Fowler that he would be able to
come in; but Fowler reiterated that, if a picket line were present , he would not try to
cross it.
On November 20 Fowler picketed for an undisclosed period and at an undisclosed
time. Although Personnel Director Lunsford testified that he saw Fowler engage
in circular picketing , I do not find this occurred before 7:30 a.m. because ( a) Plant
Manager Bigler , who was with Lunsford at the time , did not corroborate this,
although he testified ; (b) Respondent failed to establish in its cross -examination of
Fowler at what time he engaged in circular picketing ; (c) Lunsford on direct exami-
nation at first could not recall Fowler as a picket and identified him only after lead-
ing questions by counsel suggesting the answer ( see p. 1922-1924 of the transcript);
and (d ) it is not clear what time of the morning Lunsford is referring to. Accord-
ingly, I find that Fowler did not engage in misconduct while picketing.
While at the picket line on November 20, Fowler heard President C. R. Golay
twice holler to drivers of cars, "Run over the son of a bitches."
Fowler has never received a written or oral notice of discharge from Respondent.
However, on the Friday following November 19, when Fowler called for his check,
Personnel Director Lunsford asked him when he would return to work. Upon
replying that he would come back as soon as the picket line was "pulled down,"
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fowler was told to report on the following Monday as Lunsford thought it would
be removed by then.
On Thursday or Friday of the following week Kenneth again returned to the plant,
crossing the picket line this time, intending to go to work . On encountering and
telling Superintendent Moore of his desire to work, Fowler was directed to see
Lunsford. I find that at this time Fowler unconditionally offered to return to work.
While Fowler was waiting in Lunsford's outer office, Plant Manager Bigler came
to Fowler and told him that he was "replaced." Inquiry by Fowler of Bigler dis-
closed that Fowler had not been fired or laid off. A stranger in the room at the
time, who had been hired the preceding week, was directed by Bigler to report to
Moore to be put to work. Fowler has not since been recalled.
Fowler signed General Counsel's Exhibit No. 6 after it was read to him by Strick-
land. I find this also is an unconditional offer to return to work.
Concluding Findings as to Fowler
As noted above, Fowler did not strike or engage in wrongdoing on November 19,
and worked until the 3.30 p.m. quitting time when he punched out. Although
Fowler lingered on for a short while in the plant after 3:30 p.m., I find that he did
not engage in any misconduct during this time and that, even if he did, it was never
relied on in not recalling him or even mentioned to him by Respondent. Further,
I find that Fowler did not forfeit his right to reinstatement by picketing on Novem-
ber 20 or by misconduct while so picketing. I further find that Fowler refused to
cross the picket line from November 20 to the second Thursday or Friday thereafter
because he joined the strike to protest the discharges of November 19; that thereby
he became an unfair labor practice striker; and that as such striker he was entitled
to reinstatement upon an unconditional offer to return to work, regardless of whether
he had been replaced by another or not.
Additionally, I find that Fowler has not been discharged, laid off, or dismissed;
that he was replaced; and that Respondent refused to rehire Fowler not because he
was replaced,25 but because Fowler had refused to cross the picket line after Luns-
ford inquired as to when Fowler intended to come back to work.
Accordingly, I find that since on or about November 30 Respondent has unlaw-
fully refused to recall or employ Fowler because he engaged in protected concerted
activity, and that he is legally worthy of reinstatement. I shall so recommend.
18. The discharge of Edward E. Herbert
Herbert has been intermittently employed by Respondent since 1959. He was
last rehired on August 28, 1961. On November 19, 1962, he was employed on the
100-pound line at Lee Cylinder. On October 3 he signed a UAW authorization
card. He also solicited fellow employees to sign such cards from October 3 to
November 19, passed out UAW handbills at Respondent's Lee Cylinder and Chore
Boy plants, and attended all union meetings . At work almost daily he wore two
union buttons, a union paper hat, and a union pocket holder.
On November 19 Herbert went to the parking lot meeting. He voted with the
majority to have Bill Tyree act as spokesman in asking the Company to reinstate Paul
Paris, to clock in and return to the plant, but to refuse to work until Paris' reinstate-
ment was accomplished. It was further voted by Herbert with the majority that
employee Tyree should inform company officials that the employees refused to work
until Paris was put back to work. Herbert then rang in and returned to his work
station but did not intend to and did not resume work. About 12:30 p.m. and again
a short while later Foreman Fink asked Herbert if he would work. Each time
Herbert said nothing. About 2:30 p.m. Fink, accompanied by Superintendent
Moore, again asked the same question, and again Herebrt stood mute. Then Fink
said, "Silence means no. Vacate the plant. You are discharged." Herbert did not
heed the command to vacate until about 3:45 p.m. Shortly after his discharge
Herbert visited the stationary line and told the employees there to "shut her down"
if they were "with us." In the company of two other strikers at some time during
the afternoon of November 19 Herbert "came at" Foreman Webb, but I find the
evidence insufficient to establish this as an assault.
ti I find that the normal complement at Lee Cylinder had not been reached, as Lunsford
testified, until December 3 ; that it had not been completed by the preceding Thursday or
Friday (November 29 or 30) when Fowler asked to return to work ; and that when
Fowler told Superintendent Moore on November 29 or 30 that he wanted to work, Moore
did not mention that he was replaced but instead directed Fowler to see Lunsford.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1297
A few days later Herbert received a form 501 from Respondent. He also signed
General Counsel's Exhibit No. 6 after reading the first page. If material, I find this
is an unconditional offer to return to work. Herbert has not been recalled or offered
reinstatement since November 19.
On November 20 Herbert engaged in circular picketing between 6 and 7:30 a.m.
in a manner which prevented some employee cars from gaining access to the park-
ing lot, and also called employee Welch as he crossed the picket line a "scab son-
of-a-bitch" and yelled "you will get it" at Welch. I find that such picketing, such
foul language, and the threat constitute misconduct depriving Herbert of the right
to reinstatement.
Concluding Findings as to Herbert
I find that Herbert participated in the strike protesting the discharge of Paris,
and that beginning at 11:50 a.m. and continuing to the time he was discharged he
was not only derelict in the same manner as many others, but also in that he incited
working employees during this time to become insubordinate; i.e., to stop working
but remain in the plant.26 Further, I find that Herbert was discharged about 2:30
p.m. for misconduct and that such dismissal does not transgress the Act.
Additionally, I find that on November 19 Herbert after 2:30 p.m. persisted in the
foregoing conduct until about 3.45 p.m. when he left the plant; that this also is like-
wise culpable; and that thereby he lost whatever right of reinstatement existed, if
any. Finally, I find that Herbert picketed between 6 and 7:30 a.m. on November 20
in a formation which stopped or tended to stop cars from entering the company
parking lot; during this time he called employee Welch a "scab son-of-a-bitch," and
threatened Welch with "you will get it," so that thereby Herbert aggravated his
misconduct on the picket line; and that such misbehavior also forfeits Herbert's
right to reinstatement.
Accordingly, I recommend that the complaint be dismissed as to that part praying
for a remedy on Herbert's behalf.
19. ' The discharge of Andrew Transier
Transier was hired in July 1961 as a stamper on Lee Cylinder's 100-pound line.
In 1962 he attended three UAW organizational meetings and at the shop he wore
two UAW buttons. On October 1, 1962, he signed a UAW authorization card, and
once before November 19 passed out handbills at Respondent's Converto plant.
On November 19 Transier attended the parking lot meeting. When the buzzer
sounded to signal the end of the lunch period at 11:50 a.m. he returned to his station,
punched in not intending to work, and he did not work. I find that Transier joined
the strike at 11 50 a.m. to protest the discharge of Paris. Between 12:45 and 1 p.m.
Foreman Fink asked him, "Do you want to work?" but Transier "just said nothing."
About 45 minutes later Fink, this time accompanied by Superintendent Moore,
repeated this question, but Transier "gave him no answer." Fink then said that by
failing to answer "in any shape or form ... means that you mean no." Still Transier
said nothing. Thereupon Fink fired Transier and directed him to leave the plant.
However, Transier did not depart until about 3:45 p.m. A few days later Transier
received form 501 from Respondent. He has not been offered reinstatement since.
He signed General Counsel's Exhibit No. 6 after reading the first page.
On November 20 Transier picketed at the plant but I am unable to find on the
credible evidence that he engaged in any misconduct in connection therewith.
Concluding Findings as to Transier
Although I find that Transier became an unfair labor practice striker at 11:50
a m., I also find that he engaged in misconduct in connection with the strike because
he (a) punched his timeclock after lunch with no intention of working and of
deliberately remaining idle, (b) stayed on the premises without working and with-
out permission to stay for such purposes, i.e., he was trespassing,27 (c) failed to
answer the employer's reasonable questions designed to arrange production schedules,
and (d ) loitered and wandered on the premises without permission and in a manner
not required by the nature of his assigned tasks. Hence I find that his discharge is
2' It is not necessary to decide whether merely inviting employees at work to join the
strike and to leave the plant immediately thereafter constitutes blameworthy conduct.
27 The finding of trespass applies to all strikers who punched in after lunch on Novem-
ber 19 without intending to work and also to those employees who at first worked but
failed to leave within a reasonable time after their discharge or after they became strikers.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not repugnant to the Act. I further find that Transier engaged in additional mis-
conduct after his discharge by not leaving the premises and continuing to trespass
on the premises on November 19 until about 3:45 p.m.
For the foregoing reasons I shall recommend that Transier has no recourse and
that the complaint be dismissed insofar as it seeks his reinstatement . If material,
I find that the credible evidence is insufficient to fix misconduct on Transier on
November 20 although I find that he picketed on that day.
20. The discharge of Delbert Vickers
Vickers was hired in May 1962 on the 100-pound line at Lee Cylinder . In Sep-
tember and October he attended three UAW organizational meetings in Conners-
ville, and at some undisclosed time wore two UAW buttons while at work. On
October 3 he signed a union-authorization card. That same month he passed out
handbills at the Converto plant.
On November 19 he attended the parking lot meeting and voted with the majority.
Upon returning to his station following lunch , he did not work. I find that he joined
the strike at 11 : 50 a.m. to protest the discharge of Paris. About , 1 p.m. Foreman
Fink said to him, "You will have to go one way or the other ; yes or no. Either you
work or you are not going to work." But Vickers did not utter a syllable. About
2 p.m. Fink, Superintendent Moore being with him this time , again asked Vickers
if he would work. Receiving no answer , Fink then discharged Vickers and ordered
him to leave the plant. But Vickers did not leave until between 3:30 and 4 p.m.
A few days later Vickers received a form 501 from Respondent . He also signed
General Counsel 's Exhibit No. 6 after Strickland read him the first page. He has
not been recalled since November 19.
Concluding Findings as to Vickers
I find that Vickers engaged in conduct substantially similar to that of Transier.
Accordingly , I find that the discharge of Vickers is lawful and that he is not entitled
to reinstatement . Therefore I shall recommend dismissal of that part of the com-
plaint seeking to obtain a remedy for Vickers. If material , I find that the credible
evidence fails to link Vickers with any misconduct on November 20.
21. The discharge of Thomas J. Harrison
Harrison was last hired in December 1961 to work at Lee Cylinder . He attended
UAW organizational meetings in Connersville on September 26 and October 7, 21,
and 30, 1962. On September 29 he signed a UAW card . After October 7 he wore
a union badge and paper hat at work.
On November 19 Harrison attended the parking lot meeting and voted with the
majority. After lunch Harrison went to his working area and stood around without
working. I find that he joined the strike protesting the discharge of Paris at 11:50
a.m. About 1 or 1 : 30 p.m. Foreman Fink asked him if he would work, but received
no reply. About 2 p.m. Fink, while with Superintendent Moore, repeated the ques-
tion, but Harrison said nothing. Shortly after 2:30 p.m. Fink, with Moore at his
side, again propounded the same question but Harrison still said nothing. Fink then
said, "Silence means no work . You are here discharged . Leave the premises."
But Harrison did not go until 3:30 or 4 p.m . Harrison has not since been recalled
although he signed General Counsel's Exhibit No. 6 after Strickland read the first
page to him. Shortly after November 19 Harrison received a form 501 from
Respondent . He was paid for 5 hours and 20 minutes on November 19.
Concluding Findings as to Harrison
I find that the facts in Harrison 's case are substantially comparable to those appli-
cable to Transier and Vickers . Those facts need not be repeated here in detail.
I further find that although Harrison was an unfair labor practice striker remon-
strating the discharge of Paris, he nevertheless engaged in misconduct while so
striking ; that thereby Harrison removed the protection of the Act from himself and
subjected himself to being discharged for such misbehavior ; that his discharge was
lawful; and that he is not entitled to reinstatement.
Accordingly , 1 shall recommend dismissal of the complaint as it relates to Har-
rison. If material , I find that the credible evidence is not adequate to pin miscon-
duct on Harrison on November 20, although he did picket on that date.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1299
22. The discharge of Robert Isaacs
Isaacs was hired on December 10, 1959. On October 2, 1962, he signed a UAW
authorization card. He attended all union organizational meetings in September,
October, and November, 1962. He wore a UAW badge and on three occasions
passed out union handbills at Respondent's Converto plant.
On November 19 Isaacs attended the parking lot meeting. After lunch he punched
in and returned to his grinding machine on the 100-pound line but did not intend to
work and in fact did not work at all. I find that he engaged in the strike protesting
the discharge of Paris at 11.50 a.m. About 12:45 p.m. Foreman Fink asked him
if he would work, but Isaacs did not answer. About an hour later Fink, with Super-
intendent Moore, repeated the same question and again Isaacs remained silent. Fink
and Moore came again shortly after 2 p.m. and Fink reiterated the same question,
but Isaacs still said nothing. Thereupon Fink discharged Isaacs and ordered him
to leave the plant. However, Fink did not withdraw until between 3:45 and 4 p.m.
A few days later Isaacs received a form 501 from Respondent. Isaacs has not been
recalled. He signed General Counsel's Exhibit No. 6 after Strickland read the letter
to him. If material, I find this is an unconditional offer to return to work.
Concluding Findings as to Isaacs
Like Transier, Vickers, and Harrison, I find that employee Isaacs became an unfair
labor striker at 11:50 a.m. and that he engaged in misconduct similar to theirs while
so striking. Hence I find that his discharge is lawful and that he is not entitled to
reinstatement.
It follows, and I find, for the reasons set forth in connection with the cases of
Transier, Vickers, and Harrison, that the complaint's allegations relating to relief
for Isaacs should be dismissed. If material, I find that the credible evidence is
insufficient to fasten misconduct on Isaacs on November 20, although I find he
picketed on that day.
23. The discharge of James Powell
Powell was hired in 1959 as a welder on Lee Cylinder's 100-pound line. On
September 30, 1962, he signed a union authorization card. He attended the Union's
organizational meetings in September and October, and wore a UAW button on
his hat at work.
Powell did not attend the parking lot meeting on November 19. After lunch he
punched in but did not work. I find that he went on srtike at 11:50 a.m. to protest
the discharge of Paris. Between 12 and 12:30 p.m. Fink and Moore came to him,
asking him if he would work. Powell gave no answer. Later they came again,
asked the same question, and still received no reply. Moore then said, "No," dis-
charged Powell, and ordered Powell to leave the premises. Powell did not go until
between 3:30 and 4 p.m. He received a form 501 from Respondent a few days
later, and has not been recalled. He signed General Counsel's Exhibit No. 6 after
Strickland read the first page.
On November 20 Powell went to the plant but did not enter. However, he did
not engage in picketing on that date.
Concluding Findings as to Powell
I find that Powell became an unfair labor practice striker at 11:50 a.m. and that
shortly thereafter he engaged in misconduct consisting of (a) trespassing, in that he
stayed on the premises without working and without authority to remain except for
work, and (b) refusing to respond to the employer's reasonable questions ascertain-
ing whether he would work at a time when patently he was not working, said ques-
tions being calculated to arrange work schedules for the remainder of the day.
I further find that Powell was discharged for such misconduct not long after 12:30
p.m., and that his discharge is lawful. Finally, I find that Powell engaged in supple-
mentary misconduct by (a) not leaving within a reasonable time subsequent to his
discharge and the order to leave the premises, and (b) wandering around the plant
after his discharge without permission and in a manner not related to his work tasks
or preparations necessary before leaving.
Accordingly, I shall recommend dismissal of those allegations of the complaint
seeking a remedy for Powell. If material, I find that the credible evidence does not
establish misconduct by Powell on November 20.
217-919-66-vol. 156-83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
24. The failure to recall Ronald L. Keal
Keal was hired in August 1959. He signed a UAW authorization card on Sep-
tember 29 , 1962, attended two organizational meetings prior to November 19, and
daily wore a UAW pin to work. He did not report for work on November 19.
On November 20 about 6 . 30 a.m. Keal drove to the Lee Cylinder premises but,
refusing to cross the picket line , did not enter the plant and drove away . Sometime
on December 4 he called Plant Manager Bigler on the telephone to ask "if I had
my job." Bigler said no. When Keal asked if he had been fired or laid off Bigler
still said no , adding that Keal had been replaced because it was necessary to main-
tain production.
Keal signed General Counsel's Exhibit No. 6 in 1963 after reading it. He has not
been recalled by Respondent since November 19.
Concluding Findings as to Keal
I find that at 6:30 a . m. on November 20 Keal became an unfair labor practice
striker by refusing to cross the picket line and not reporting to work, and that at no
time did he engage in misconduct while in the status of an unfair labor practice
striker. Further , I find that as an unfair labor practice striker Respondent was
under a statutory obligation to restore Keal to his job upon an unconditional offer
to return to work, that Keal made such an unconditional offer on December 4, 1962,
that Respondent 's refusal to accept Keal on December 4 and since is unlawful; that
such unlawfulness is not excused by the fact that Keal was replaced ; and that since
December 4 Keal has been entitled to reinstatement.
Accordingly , I shall recommend that Keal be reinstated.
25. The discharge of Marvin Frady
Since 1957 Frady was employed on the furnace of the 100-pound line at Lee
Cylinder. He signed a UAW authorization card in September or October 1962,
regularly wore a union badge while at the plant, and attended one or two union
meetings at Connersville.
Frady did not attend the November 19 parking lot meeting . After lunch he
returned to his furnace intending to work but was unable to do so because cylinders
which he processed were not coming through. About 1:20 p in. Superintendent
Moore and Foreman Fink , accosting him, inquired as to whether he would work or
not. Frady replied that he would but that he was idle for want of materials. Moore
and Fink returned 20 or 25 minutes later, when they renewed the above inquiry.
Frady gave the same answer. Moore then offered Frady work "out in the new
building ... if you want to go out there and work." Frady , who is 49 years of age,
declined this offer because , as he had just recovered from "the flu" and was not
dressed for an unheated environment , did not wish to be exposed to "that cold place"
out of doors . 28 Moore then told Frady that if he was not going to work he was fired.
Frady has not since been recalled.
Afterwards , about 2 p.m . on the same day, Fink ordered Frady to depart from
the premises. Frady replied that, because the person with whom he rode home,
employee Stewart , did not quit until 3:30 p .m., and it was cold outside , he would
remain within until that time. During this time Frady reported to employee Hicks
that the conveyor chain was not operating properly, and this was repaired by Hicks.
Frady did go shortly after 3.30 p.m. when Stewart met him. In 1963, he signed
General Counsel's Exhibit No. 6 after Strickland read the first page to him.
On November 20 Frady showed up at the plant about 8 a.m . and at some time
thereafter he joined in picketing there. He also picketed on subsequent days. To
the extent that Lunsford 's testimony , which is indefinite as to time , may be said to
place Frady on the picket line before 8 a.m. on November 20, I do not credit it.
I find that Frady did not engage in obnoxious conduct on November 20.
Concluding Findings as to Frady
I find that at 2 p.m. Frady was assertedly discharged for engaging in misconduct
while striking to protest the discharge of Paris; that in fact Frady did not participate
in the strike or misbehave on November 19; that Respondent mistakenly believed
that Frady engaged in such strike and misconduct ; and that Respondent 's mistake
was not made in good faith because both Fink and Moore knew that Frady was
as Actually, the work mentioned was to be performed in an unheated building.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1301
working up to the time of his discharge . Further, I find that such discharge is
unlawful for the reasons elucidated with respect to the discharge of Bivon Fowler.
Finally, I do not find that Frady was insubordinate in declining to work in the new
building because Frady was not actually directed to work there ; rather I find that
he was given an option to work there and that he rejected it. In any event I find
that, if Frady did refuse to work in the new building , he was discharged in the mis-
taken belief that he was striking , that the assertion of such refusal is but a pretext,
and that the form 501 mailed to Frady by Respondent did not allude to such refusal.
Frady did not leave at 2 p.m. when he was discharged and ordered to leave.
Rather, because it was cold outdoors , he remained in the plant until 3:30 p.m. when
he joined his car pool 29 and went home . But I find that while Frady was properly
ordered to leave the plant at 2 p.m., he did not engage in any misconduct from then
until he left at 3 . 30 p.m. In fact, he even conferred a benefit upon Respondent
during this period by reporting and causing another employee to repair a defectively
operating conveyor chain. Hence I find that his remaining in the plant does not
wipe out Frady 's right to reinstatement . Finally, I find on the credible evidence
that Frady 's conduct in picketing on November 20 is unobjectionable and cannot
deprive him of a right to be reinstated.
Accordingly, I shall recommend that Frady be reinstated.
26. The discharge of James Winchester
On November 19 Winchester was employed on the 100-pound line at Lee Cylin-
der. Prior to November 19 he signed a UAW card, attended three union meetings,
wore a UAW button, and passed out union handbills.
He attended the parking lot meeting on November 19 and voted with the majority.
After lunch he punched in and returned to his station at 11 : 50 a.m., but did not
work. I find that at 11:50 a.m . Winchester joined the strike to protest the discharge
of Paris. About 20 minutes later Foreman Fink asked him if he would work, but
Winchester did not answer . After about another 10 minutes Fink , accompanied by
Superintendent Moore, returned and again asked the same question but Winchester
still said nothing. Moore then told Winchester that if he would not work he was
discharged and to leave the plant. Nevertheless Winchester failed to leave until
about 4 p.m.
A few days later Winchester received a form 501 from Respondent . He has not
been recalled . He signed General Counsel 's Exhibit No. 6 after Strickland read the
first page to him.
Concluding Findings as to Winchester
I find that prior to his discharge Winchester engaged in the same type of miscon-
duct as Transier and Vickers prior to their discharge , and that , therefore , Winchester
was lawfully discharged . Further, I find that after the discharge Winchester's mis-
conduct continued unabated until he departed from the plant about 4 p.m ., and that
such additional wrongdoing vitiates his right to reinstatement in case his discharge
is found to be unlawful. Finally, I find that although Winchester picketed on
November 20, the credible evidence will not support the conclusion that he mis-
behaved in connection therewith.
Accordingly , I shall recommend that the complaint be dismissed to the extent that
it is brought on Winchester 's behalf.
27. The discharge of Donnie Ray Purvis
Purvis has been intermittently employed by Respondent since 1956. On Novem-
ber 19, 1962, he was in Respondent 's employ as a valve assembler on the 100-pound
line of the Lee Cylinder plant. On October 1 he signed a UAW card; thereafter he
wore union buttons at work, passed out cards , and attended union meetings.
On November 19 Purvis attended the parking lot meeting and voted with the
majority. When he rang in after lunch he went back to his work station but did not
thereafter perform any work. I find that he joined the strike to protest the discharge
of Paris at 11:50 a.m. About 12:50 p.m. Foreman Fink asked him if he was going
to work, but Purvis did not give him an answer. About 1:50 p.m. Fink returned
with Superintendent Moore. Fink then asked Purvis if he was going to work and
said that if Purvis did not work he would have to leave the plant. Then Fink told
19 The driver of this car, a fellow employee who was not on strike , did not get through
work until 3: 30 p.m.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Purvis that he was automatically discharged . Purvis did not leave until about 3:50
p.m. Earlier in the afternoon Purvis turned off employee Bennie Halls' line without
authority to do so. He has not since been recalled
A day or two later Purvis received a form 501 from Respondent . He signed
General Counsel 's' Exhibit No. 6 after reading it . I find this is an unconditional
offer to return to work.
Concluding Findings as to Purvis
In its essential features, Purvis' case substantially parallels that of many others
heretofore discussed, including that of Vickers and Winchester, and I so find. Addi-
tionally, Purvis without permission shut down another employee's line. Hence I
find that Purvis engaged in misconduct beginning at 11.50 a.m. and continuing until
he left the building about 3.50 p.m.; that his misconduct from 11:50 a.m. to 1:50
p.m. justified his discharge shortly after 1.50 p.m.; that such discharge is lawful;
and that his misconduct from after his discharge until he left the building is suffi-
ciently opprobrious to forestall his reinstatement, assuming his discharge was unlaw-
ful. Finally I find that Purvis did not engage in any wrongdoing on November 20.
Accordingly, I shall recommend dismissal of the allegations of the complaint
pressed on behalf of Purvis.
28. The discharge of Gerald Goble
Goble was last hired by Respondent in March 1959 to work on the stationary line
at Lee Cylinder. He signed a UAW authorization card on or about October 1, 1962,
and attended all but one union meeting prior to November 19. On that day he went
to the parking lot meeting at lunchtime and voted with the majority. Then he
punched in at 11:50 a.m., but, unlike some others, he resumed work.
About 1.30 or 2 p.m. on November 19 Superintendent Moore and Foreman Fink
came to him inquiring whether he would work or not and, if he would not, to leave
the plant. Although he was working at the time, Goble replied he would not com-
mit himself either way, and continued to work. About 2:45 p.m., Moore and Fore-
man Gabbard approached Goble and again propounded the previous question.
Goble had quit work about 5 minutes previously. This time Goble replied that he
would not work Thereupon Moore told Goble that he was discharged for partici-
pating in a sitdown strike. Shortly after 3:30 p.m. Goble sought to punch out but
was unable to do so because his timecard had been removed from the rack by
Moore. Goble then left.
If material, I find that the credible evidence fails to show misconduct by Goble
on November 20.
Goble signed General Counsel's Exhibit No. 6 after it was read and explained to
him. He has not been recalled since November 19. Three days after November 19
he received form 501 from Respondent.
Concluding Findings as to Goble
I find that Goble joined the strike to protest the discharge of Paris about 2:40 p.m.
on November 10; that thereby he became an unfair labor practice striker; that he
did not engage in any misconduct prior to 2.45 p.m.; that he was discharged at
2:45 p.m. assertedly for participating in a sitdown strike; and that such discharge
is unlawful.
Although Goble did not immediately leave the plant after he was discharged, but
remained there until the 3:30 quitting time, I find that he did no more than this;
that such staying does not amount to misconduct affecting his right to reinstatement;
and that he did not ratify or become identified with the misconduct of the other
strikers. Finally, I find that although Goble picketed on November 20 the credible
evidence fails to show that he engaged in misconduct on that date.
Accordingly, I shall recommend that Goble be reinstated.
29. The discharge of James Caudill
This employee was hired on November 12, 1959, on the second shift's (3:30 p.m.
to midnight) 100-pound line at Lee Cylinder. On October 3, 1962, he signed a
UAW authorization card. He also attended all union meetings before November 19,
and wore a UAW badge daily at work for some time prior to November 19.
On November 19 Caudill arrived at the plant about 2.45 p.m. Noticing that
"everything was down," he inquired what happened and ascertained the reason for
the idlness was to protest the discharge of Paul Paris. About 3:45 p.m. the foreman
of the night shift, Floyd Ailes, asked Caudill if he would work or not, but Caudill
- LEE CYLINDER DIVISION OF GOLA_1 & CO., INC. 1303
made no answer. Then about 3:55 p.m. Ailes again asked Caudill the same ques-
tion. This time Caudill said he would not work. Ailes thereupon told Caudill, "You
are dismissed." Immediately Caudill left. Caudill never received a form 501 or
other written confirmation of his discharge, and has not been recalled since Novem-
ber 19. He signed General Counsel's Exhibit No. 6 after Strickland read it to him.
I find this is an unconditional offer to return. On November 20 Caudill engaged
in picketing.
Concluding Findings as to Caudill
I find that Caudill engaged in no misconduct prior to his discharge and that he
was discharged for joining in the strike protesting the dismissal of Paris. Although
Caudill failed to answer a reasonable request at 3:45 p.m. as to whether he would
work, I find that it did not assume the dignity of serious misconduct particularly
since the second shift is not shown to have stopped working. Hence I find that,
since Caudill was an unfair labor practice striker free of misconduct, his discharge
is unlawful. Finally, I find that although Caudill picketed on November 20, the
credible evidence fails to show that he engaged in misconduct on that date.
Consequently, I shall recommend that Caudill be reinstated.
30. The refusal to reemploy Willie Joe Mills
Mills was hired on July 16, 1962, as an employee on the 100-pound line at Lee
Cylinder. On October 1, he signed a UAW authorization card. He also attended
a meeting of the Union in September and October.
On November 19 Mills did not work. He picketed on November 20 to protest the
discharge of Paris and the dischargees of November 19, but I find that he did not
engage in misconduct in connection therewith. About 2 weeks later Mills asked
Lunsford if he could go back to work, but Mills also said in his conversation that he
did not want to cross the picket line. I find this is not an unconditional offer to return
to work. But Lunsford, claiming that Mills had been replaced, refused him further
employment, told Mills that he did not blame him for not desiring to cross the picket
line; and promised to keep Mills in mind when an opening occurred.
Mills has not been reinstated since November 19. He signed General Counsel's
Exhibit No. 6 after Strickland read it to him. I find that this is an unconditional
offer to return to work.
Concluding Findings as to Mills
I find that on November 20 Mills joined the strike protesting the discharges of
November 19; that thereby Mills became an unfair labor practice striker; and that,
as such striker, Mills was lawfully empowered to demand that he be reemployed upon
an unconditional application for work. Making of an unconditional offer is excused,
however, when an employer expressly states that he will not rehire an employee, as
such an offer would be a futile gesture. Although I find that Mills did not make an
unconditional offer about 2 weeks after November 20 (because his offer on that date
was conditioned on the removal of the picket line), I find that the condition expired
or was removed by its own terms when the picketing terminated in December 1962,
and that then the offer became unconditional. Hence it was not necessary thereafter
to make a new unconditional offer not only because the offer had become such by its
own terms but also because Lunsford unequivocally stated that Mills would be refused
further employment.
Nor is it a defense that Mills had been replaced by another employee, for an unfair
labor practice striker may not lawfully be denied employment after he has signified
his intention to return. On the record I find the Mills signified that he would return
as soon as the picketing ceased. Hence I find that Respondent was legally obliged to
take back Mills as of that time. In any event I find that Mills made an unconditional
offer to return on or about March 26, 1963, when Respondent received General Coun-
sel's Exhibit No. 6.
Finally, I find that Mills has not surrendered his right to reinstatement by any mis-
conduct. Although he picketed on November 20, the credible evidence fails to con-
nect him with any misdoings on that date
Accordingly, I shall recommend that Mills be reinstated.
31. The refusal to rehire Charles Nash
Nash first started working for Respondent in 1959 on the 100-pound line at Lee
Cylinder. On October 3, 1962, he signed a UAW authorization card. He also
attended several union meetings in September and October, passed out handbills, and
wore UAW buttons. He did not work on November 19.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Nash arrived at the plant on November 20 he learned from employee Tyree
that Paris had been discharged and that the employees were striking to protest it and
their discharges. Consequently, Nash did not enter the plant; nor did he picket that
day. I find that on November 20 he joined the strike protesting the discharges of
November 19.
In December 1962 Nash reported to work 30 but could not find his timecard. When
he talked to Foreman Fink and Superintendent Moore about it, they sent Nash to see
Plant Manager Bigler. While Nash was in Bigler's outer lobby, Bigler told him,
"Charles, I have replaced you." Further inquiry by Nash disclosed that he was neither
fired nor laid off-"just replaced." Nash has not been reinstated since December
1962. He signed General Counsel's Exhibit No. 6 after Strickland read it to him. I
find that this also is an unconditional offer to return to work.
Concluding Findings as to Nash
I find that Nash became an unfair labor practice striker on November 20, and that
an obligation rested on Respondent to accept him for reemployment upon an uncondi-
tional offer to return to work. In addition I find that Nash has not engaged in any
misconduct by which he would suffer a loss of the right to be reinstated. Finally I
find that Nash made an unconditional offer to return to work in December 1962, and
again in March 1963, and that, since Nash enjoyed the status of an unfair labor prac-
tice striker, it is no defense that Respondent replaced him.
Accordingly, I shall recommend that Nash be reinstated.
32. The failure to recall James Steele
Steele last worked for Respondent from 1961 to November 19, 1962, on the sta-
tionary line of Lee Cylinder. On October 1, 1962, he signed a UAW authorization
card. He attended all UAW organizational meetings in September and October, and
daily wore a UAW button and hat at work.
Steele did not work on November 19. On the 20th, when he went to the plant
about 6 a.m., he noticed some employees congregated outside. From them he learned
"they was out on strike protesting." He did not therafter enter the plant, but stayed
around all day, and did engage in circular picketing between 6 and 7.30 a.m. He also
called employee Welch a "scab son-of-a-bitch" and "you will get it." The following
Friday, November 23, when Steele picked up his check, Personnel Director Lunsford
asked him when he would return to work. Stating that he was reluctant to cross the
picket line, Steele replied he would come to work as soon as the picket line "pulled
out." Lunsford commented that he did not blame Steele for not going through the
picket line and assured Steele that any time he was ready to come to work "the door
would be open."
When Steele reported to Lunsford on December 4 for work, Lunsford told him that
he had been replaced. I find that this was an unconditional offer to return to work by
Steele. Further discussion revealed that Steele had not been fired or laid off.
Steele has not been recalled since December 4. He signed General Counsel's
Exhibit No. 6 after Strickland read the letter to him. I find that this also is an uncon-
ditional offer to return to work.
Concluding Findings as to Steele
I find that Steele became an unfair labor practice striker at 6 a.m. on November 20,
and that between 6 and 7:30 a.m. he engaged in misconduct which would have war-
ranted Respondent in discharging him therefor. The ingredients of this misbehavior
included picketing in a manner which rendered it impossible for some cars to enter
the employee parking lot without injuring the pickets, calling employee Welch a "scab
son-of-a-bitch," and threatening Welch with "you will get it." But I further find that
Respondent condoned or waived its privilege to discharge Steele for this misbehavior
in that: (1) On or about November 23 Personnel Director Lunsford asked Steele
when he was going to work, thereby manifesting a willingness to regard Steele as an
employee and to accept him for employment notwithstanding prior misfeasances; and
(2) on or about December 4, when Steele offered to return to work, he was denied
employment solely because he had been replaced, without any mention that his mis-
conduct had disqualified him for further employment.
Finally, I find that Steele, as an unfair labor practice striker, was entitled to reem-
ployment upon an unconditional offer to return to work; that he made such an offer
111 find this is pan unconditional offer to return to work.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1305
on December 4, 1962, and again in March 1963; that it is no defense that Steele has
been replaced by another person; and that the refusal to employ Steele since Decem-
ber 4 is unlawful.
Consequently I shall recommend that Respondent be enjoined to take back Steele.
33. The failure to recall Harold E. Comet
This employee was hired on August 23, 1962, by Respondent's Lee Cylinder Divi-
sion, and by November 19 he was employed on its 100-pound line as a press operator.
On October 2 he signed a UAW authorization card, and he also attended four or five
union organizational meetings between September and November.
At lunchtime on November 19 he attended the parking lot meeting . After lunch
he punched in and proceeded to his work station. About 1 p.m., at a time when
Comet was not working although there was work to do, Foreman Fink asked him
whether he was going to work. Cornet at first replied negatively but, in a matter of
seconds, stated that he would. Within the succeeding half hour Fink returned with
Superintendent Moore and told Cornet to go to the shipping department to help
Ralph Webb there. Pursuant to orders Cornet went to and worked in the shipping
department until the 3.30 p.m. quitting time. As he left Comet told Fink he would
not cross a picket line.
On the following Friday, November 23, when Cornet called for his check, Person-
nel Director Lunsford asked him when he was coming back to work. Cornet
answered, "When you get the strike settled." On December 5 Cornet went to the plant
to work and to ascertain the truth of rumors he heard that some employees on strike
had been replaced and whether he was affected thereby. I find this is an unconditional
offer to return to work. Upon inquiring from Personnel Director Lunsford, Cornet
learned that he had been replaced. Comet has not since been recalled. He signed
General Counsel's Exhibit No. 6 after Strickland read the letter to him. I find that
this also is an unconditional offer to return.
On November 20 Cornet arrived at the plant between 5 30 and 6 a. m. and remained
outside until 3 or 3:30 p.m. During that time he picketed in a "circular picket line
revolving in front of the driveway to the parking lot." He also picketed several times
in the next 2 or 3 weeks.
Concluding Findings as to Cornet
I find that Cornet at 6 a.m. on November 20 joined the strike protesting the dis-
charges of November 19, that he thereby became an unfair labor practice striker, that
between 6 and 7:30 a.m. he engaged in misconduct consisting of picketing which at
times prevented cars from proceeding to the employee parking lot, and that such
misconduct would have justified his dismissal. But I further find that Respondent has
condoned or waived any right to dismiss Cornet for such misbehavior by: (1) Luns-
ford's asking Cornet on November 23 when Cornet was returning to work, thereby
evincing an intent to continue his employee status and to reemploy him; and (2) when
Cornet offered to return to work on December 5 he was denied employment solely
on the ground that he had been replaced, without reference to or mention of any
misconduct.
Further I find that, as an unfair labor practice striker, Cornet was entitled to resume
work upon an unconditional offer to return to work; that he made such an offer on
December 5, 1962, and again in March 1963; that Respondent has unlawfully refused
to reemploy Cornet since December 5; and that it is no defense that Cornet has been
replaced.
Therefore, I shall recommend that Comet be reinstated.
34. The discharge of Robert Lee Nick
Nick was hired on May 21, 1959. On October 2, 1962, he signed a UAW authori-
zation card, and attended several of its meetings between September and November.
He also wore a UAW button daily at work and passed out handbills at Respondent's
Converto plant in October.
At lunchtime on November 19 he attended the parking lot meeting and voted with
the majority. Although he punched in and returned to his station after lunch, he did
not go to work. I find he joined the strike protesting the discharge of Paris at
11:50 a.m. About 1 p.m. Foreman Fink asked him whether he wanted to work or not,
but Nick said nothing. Fifteen minutes later Fink, accompanied by Superintendent
Moore, asked the same question, but Nick again refused to answer. About 2 p.m.
Fink and Moore again asked him "the same thing," and Nick "didn't make no sugges-
tions." Thereupon Nick was "dismissed" for engaging in a sitdown strike and was
ordered to leave the plant. However, he did not go until about 4 p.m. A few days
later he received a form 501 from Respondent.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nick has not since been recalled. He did not sign General Counsel's Exhibit No. 6.
Concluding Findings as to Nick
In its salient features, Nick's case is substantially similar to that of Transier and
Vickers, and I find that the findings in and disposition of the cases of Transier and
Vickers are applicable to Nick. Hence I find that Nick on November 19 engaged
in misconduct which warranted his discharge; that he was lawfully discharged about
2 p.m. for such misconduct; that he continued and prolonged his misconduct after his
discharge until about 4 p.m., at which time he left the plant; and that if he had any
right to reinstatement flowing from his discharge it was lost by reason of his miscon-
duct during the period from about 2 to 4 p.m. on November 19. Finally, I find that
the credible evidence is inadequate to show misconduct by Nick on November 20,
although I find that he picketed on that date.
Hence I shall recommend dismissal of that part of the complaint seeking relief for
Nick.
35. The failure to employ William Clemons
Since the spring of 1960 Clemons has been employed on the 100-pound line at Lee
Cylinder. On October 3, 1962, he signed a UAW authorization card and while at
work wore a UAW badge, but he did not go to any of the UAW meetings.
On November 19 he went to lunch as usual, but did not visit the parking lot meet-
ing. After lunch he resumed work. Between noon and 1 p.m. when Foreman Fink
asked him whether he would work or not, Clemons replied that he was working. A
half hour later, while Clemons was still at work, Fink and Superintendent Moore came
to him. Again Fink asked Clemons if he would work. Notwithstanding that Clemons
again answered that he was working, Fink threatened Clemons, "You are either
going to work or I am going to fire you." Moore then ordered Clemons to clean up
his machine, and Clemons complied.
After Clemons cleaned his machine Foreman Fink directed him to haul out some
flux. Clemons obeyed this order. At 3:30 p.m., the usual quitting time, Clemons
rang out and went home. As Clemons departed, Fink told him to arrive at 6 a m.
the next day, and Clemons replied that he would unless there was any "trouble."
Fink then assured Clemons that police would be present "to bring you through."
Although Clemons drove to the plant shortly before 6 a m. on November 20, he
did not enter because he saw "fire barrels and the men." I find that he thereby
became an unfair labor practice striker. He did not engage in any picketing. A few
days later, when Clemons picked up his paycheck, Personnel Director Lunsford told
him he could go to work, but Clemons replied that he would not cross a picket line
and would not go "down where there is any trouble." About 2 weeks after this, when
Clemons called for another check, Lunsford again made the same statement and
Clemons offered the same explanation for not working. As Clemons left Lunsford
said, "You will be hearing from me." But Clemons has not since heard from Luns-
ford or Respondent.
Clemons signed General Counsel's Exhibit No. 6 after Strickland read the letter to
him. I find that this is an unconditional offer to return to work.
Concluding Findings as to Clemons
I find that Clemons at 6 a.m. on November 20 joined the strike protesting the dis-
charges of November 19, that since some of those discharges were unlawful the
strike was an unfair labor practice strike, and that he was an unfair labor practice
striker; and that he did not engage in any misconduct which would destroy his right to
be employed. However, as an unfair labor practice striker Clemons was charged with
a duty of communicating his intent to regain his job by making an unconditional offer
to return.
Although Clemons expressed a willingness to return to work in November and
December it was dependent upon the disappearance of the picket line. Hence I find
that on these two occasions Clemons made a conditional offer to return; but I further
find that such condition vanished when the picketing was terminated, and that there-
after his offer became unconditional. Finally, I find that when the offer became
unconditional Respondent was under an obligation to invite Clemons to return to work
in view of Lunsford's assurance that Clemons would hear from him. Moreover, I find
that in any event, on March 26, 1963, when Respondent received General Counsel's
Exhibit No. 6 Clemons tendered an unconditional offer to come to work, so that
Respondent was then legally under a duty to recall Clemons, and that the failure
to do so constitutes an unfair labor practice.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1307
Finally, I find that even if the strike which Clemons joined is found to be economic,
the failure to recall him is unlawful because economic strikers are entitled to their jobs
upon request so long as they have not been replaced. I expressly find that Clemons
was not replaced on the evidence before me and that he asked for his job.
Accordingly, I shall recommend the reinstatement of Clemons.
36. The failure to recall Lester Pebworth
Pebworth started working for Respondent in February 1960 as a shear operator at
Lee Cylinder. On October 2, 1962, he signed a UAW authorization card. From
September to November he went to three UAW meetings. He also distributed UAW
authorization cards.
On November 19 he went to the parking lot meeting during his lunch period, but he
left before a vote was taken. When he returned after lunch he learned of the vote
taken, but he nevertheless resumed work. Between 12:30 and 1 p.m. Foreman Fink
asked Pebworth if he would work and received a reply that Pebworth was working
About 3 p.m. some employee shut off his machine and another employee told him
not to work until UAW Representative Strickland arrived. When Pebworth walked
away a few moments later "to see if everybody had quit" in another building, he
encountered Foreman Fink who told him and others who were with Pebworth to
"go back ... and just stand there." Pebworth complied, and worked until the usual
3:30 quitting time, rang out then, and joined a group of employees by Tyree's paint
booth on the way out.
Before Pebworth went home Foreman Fink asked him if he was coming in the next
day. Pebworth replied that he would but would not cross a picket line. Thereupon
Fink told Pebworth that he would not have to come in if a picket line was established;
but shortly thereafter Fink returned and told Pebworth to "come on in anyway; if
there is a picket line there will be police protection." Pebworth replied that the
presence of police would not change his mind. Pebworth finally went home about
4 p.m.
On November 20, between 7 and 7:30 a.m., he participated in circular picketing of
a nature which I have found elsewhere herein constitutes misconduct. On the Friday
following, November 23, when Pebworth picked up his check, Personnel Director
Lunsford asked him when he would return to work, stating that the doors were open
any time Pebworth desired to come to work. I find this to be a condonation of the
foregoing misconduct since Lunsford had knowledge thereof.31 Pebworth replied
he would work "when the picket line was down." I find that this is a conditional offer
to return to work. A week later, when Pebworth went for another check, he asked
Lunsford when he would be able to return to work. I find that this is an unconditional
offer to return to work. Lunsford replied that Pebworth had been replaced, was not
discharged or laid off, and would be recalled whenever an opening arose. However,
he has not since been told to return.
Pebworth signed General Counsel's Exhibit No. 6 after Strickland read the letter
part of it to him. If material, I find this is an unconditional offer to return to work.
Concluding Findings as to Pebworth
I find that Pebworth did not engage in any misconduct on November 19; that if he
did, it has been condoned or waived by Respondent; that on November 20 he joined
the strike protesting the November 19 discharges, thereby becoming an unfair labor
practice striker; that he engaged in misconduct while picketing on November 20; and
that such misconduct has been condoned or waived. Further, I find that as an unfair
labor practice striker he was entitled to be employed upon an unconditional offer to
return to work; that he made such an offer on or about November 30, 1962, and again
in March 1963; and that Respondent has unlawfully failed to refused to recall Peb-
worth since that date. Finally, I find that it is no defense that Pebworth has been
replaced.
Accordingly, I recommend that Pebworth be reinstated.
37. The discharge of Bill O'Dear
O'Dear started employment in 1959 with the Lee Cylinder Division. In October
1962 he signed a UAW authorization card He also wore a UAW button.
On November 19 O'Dear joined the parking lot meeting during his lunch break
and, although not present when the vote was taken , "went along with them " when he
learned of it before returning at the end of lunch. Upon entering the plant after
31 Lunsford testified that he observed Pebworth in circular picketing on the morning of
November 20.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lunch, he made one cylinder and then stopped working on the 100-pound line. I find
that at this time he joined the strike to protest the discharge of Paris. About 1 p.m.
Foreman Fink asked O'Dear if he was going to work but received only silence in
reply. Fifteen or twenty minutes later, Fink, with Superintendent Moore at his side,
again received no answer upon asking the same question of O'Dear. Then Fink
asked O'Dear, "Does silence mean not" But O'Dear persisted in saying nothing.
Again Fink asked if O'Dear would work but O'Dear "didn't say a word." Fink then
ordered O'Dear to leave the premises. But O'Dear stayed in the plant for some time
thereafter.
Later that day, shortly after 2 p.m., Fink and Superintendent Moore returned to
propound "the same questions," only to receive no answer. Thereupon O'Dear was
discharged for engaging in a sitdown strike and was ordered to leave the premises.
Although he had been commanded to leave previously (about an hour after lunch), he
stayed on until 4 p.m., a half hour after his normal quitting time. After shutting off
his machine, O'Dear walked around the plant with a ballpeen hammer in his hand
which he used in his work. President Golay, who noticed this, asked him who owned
the hammer. When O'Dear told him that it was O'Dear's personal property, Golay
told him to put it away, but O'Dear did not. When he left at 4 he carried the hammer
with him.
On November 20 O'Dear picketed the plant, but I am unable to find on the credible
evidence that he engaged in misconduct on that day.
About November 21 O'Dear received a form 501 from Respondent. He has not
been recalled to work. Although O'Dear signed General Counsel's Exhibit No. 6, he
did not read it before or after and "did not know what the paper was at the time." If
material, I find that O'Dear did not thereby make an unconditional offer to return
to work.
Concluding Findings as to O'Dear
I find that O'Dear joined the strike protesting the discharge of Paris shortly before
1 p.m., on November 19. Further, I find that O'Dear engaged in misconduct until
shortly after 2 p.m. while so striking, in that: (1) He remained on the premises with-
out working and without permission to stay on such terms; (2) he wandered around
the plant on a personal mission unconnected with his work requirements and without
Respondent's consent thereto; (3) he refused to leave the plant when ordered to do
so after it became evident that he intentionally was not working and would not work;
(4) he refused to answer reasonable questions as to whether he would work after he
deliberately stopped working, when such questions were proper and necessary to plan
production operations; (5) he carried a hammer in his hand while wandering around
the plant when such carrying was not part of his job and thus gave the impression to
employees that he might use the hammer to induce them to strike. I expressly find
that the hammer could have been stored in O'Dear's locker, even though he had no
key therefor, as it had been in the past, and that the use of the hammer in a tense situa-
tion loaded with strong emotional feelings tended to create in the minds of observers
that the hammer might be used to enforce adherence to the purposes of the strike.
Thus I find that O'Dear was lawfully discharged for the above misconduct. Further,
I find that after he was discharged O'Dear persisted in his foregoing misconduct 32
until his departure about 4 p.m., and that thereby he further stripped himself of the
protection of the Act.
Accordingly, I shall recommend that O'Dear be denied reinstatement.
38. The discharge of John H. Fox
Fox started work on June 28, 1959, in the Lee Cylinder plant as a welder on the
20-pound line. On October 2 , 1962, he signed a UAW authorization card. Addi-
tionally, he attended its meetings in October , passed out union handbills at the Con-
verto plant in October, and daily wore a UAW button at work in October and
November.
Fox worked through his lunch period on November 19, and continued working
until the 2.20 p.m. break. When the break ended at 2:30 p.m., he did not resume
work. I find that Fox joined the strike to protest the discharge of Paris at this time.
Shortly after noon , while Fox was working , Foreman Ramalez showed him a paper
with "yes" written at the top of one side and "no" at the head of the other. Ramalez
then asked Fox if he would work, insisting that he had to indicate Fox's intention
under "yes" or "no." But Fox did not give a reply.
Shortly after 2:30 p.m. Ramalez repeated the above question , insisted upon a yes
or no answer , assured Fox that he did not have to work at that station , and offered
to assign Fox to "any place" he desired . But Fox said "no" and volunteered the
32 Other than refusing to answer reasonable questions, which were not asked of him.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1309
statement that, although he did not know exactly what the problem was, someone had
been fired and he preferred to wait until that was settled before he went back to work
at his welding or elsewhere. Fox had stopped working shortly before this. Although
Ramalez then ordered Fox to "vacate the premises," Ramalez did not fire Fox.
Nevertheless Fox did not leave until about 4 p.m.
A few days later Fox received form 501 from Respondent. He has not been rein-
stated or recalled since November 19. He signed General Counsel's Exhibit No. 6
after Strickland read it to him. This I find is an unconditional offer to return to work.
He was paid for 8i/2 hours' work on November 19; i.e.; from 6 a.m. to 3 p.m.
Concluding Findings as to Fox
I find that Fox about 2:30 p.m. on November 19 joined the strike protesting some-
one's discharge, that by doing so he joined the cause of the strikers, and that since
the strike protested the discharge of Paris, Fox became an unfair labor practice
striker. Further I find that Fox was ordered to vacate the premises shortly after
2.30 p.m. at which time Foreman Ramalez ascertained that Fox would not perform
any kind of work or services; that such order to leave was lawful; and that Fox
engaged in misconduct warranting his discharge by disobeying such order, remain-
ing on the premises without permission until 4 p.m., and wandering around the plant
without permission after being told to leave.
Finally, I find that Fox was discharged when he received form 501 from Respond-
ent, and that such discharge was lawful. But I do not find that Fox engaged in
misconduct on November 20 although I find he picketed on that day.
Accordingly, I shall recommend dismissal of the complaint to the extent that it
seeks relief for Fox.
39. The discharge of Henry Cecil, Jr.
Cecil last was hired by Respondent in June 1962 as a welder on the 100-pound
line at Lee Cylinder. On October 2 he signed a UAW authorization card; he also
went to two of its meetings in September and October and he wore a UAW button
daily at work.
On November 19 Cecil went to the parking lot meeting at lunchtime and voted
with the majority. After lunch Cecil rang in, went back to his work station, and
just stood around without performing any labor. I find that Cecil, at 11:50 a.m.,
joined the strike to protest the discharge of Paris. Shortly thereafter, Foreman Fink
asked Cecil if he would work but received no response. A half hour later Fink,
accompanied by Superintendent Moore, again asked the same question, and, receiving
no answer, stated that "silence means no." After some discussion, Cecil said he
would work when the line started to move again. (The line had stopped by reason
of the strike.) Fink then asked if Cecil would do other work, but Cecil said nothing
in reply. Thereupon Cecil was discharged and ordered to leave the premises.
A half hour later, around 1:30 or 2 p.m., Fink again told Cecil he was discharged
and to please leave the premises. But Cecil did not leave until about 3:30 or 3:45
p.m. On November 21 or 22 he received form 501 from Respondent. He signed
General Counsel's Exhibit No. 6 after' Strickland read it to him. I find this is an
unconditional offer to return to work. He has not been recalled since November 19.
Concluding Findings as to Cecil
I find that Cecil about 11:50 a.m. on November 1 joined the strike protesting the
discharge of Paris; that thereby he became an unfair labor practice striker; that he
was discharged for engaging in such strike; and that such discharge was unlawful.
Further, I find that Cecil engaged in misconduct as follows: punching in his time-
clock at the conclusion of the lunch period without intending to perform work or
services and actually not performing work or services; refusing to leave the plant
after twice being ordered to do so; remaining on the premises without permission
long after his discharge, and wandering around the plant without permission after
being told to leave. Finally, I find that, although his discharge was unlawful, the
foregoing misconduct vitiated his right to reinstatement as an unfair labor practice
striker, and that, consequently, he has lost his protection as an unfair labor practice
striker.
Accordingly, I shall recommend that Cecil be denied reinstatement. Although
Cecil's discharge was unlawful, I find that no backpay is due him because the amount
involved (i e., for the brief period elapsing between discharge and misconduct)
amounts to de minimis. Hence I shall not recommend that Cecil be reimbursed for
backpay.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
40. The discharge of Walter W. Chaney
Chaney started his employment on July 17, 1959, on the 100-pound line of Lee
Cylinder. On October 2 , 1962, he signed a UAW authorization card. In September
and October he attended two or three UAW meetings.
On November 19 Chaney went to the parking lot meeting at lunchtime and cast
his vote with the majority . After lunch he rang in about 11:50 a.m., went to his
workpost , turned on his machine , and stood around without performing any labor.
I find that thereupon Chaney joined the strike to protest the discharge of Paris.
About 1 p.m. Foreman Fink asked him if he was going to work , but received no
answer. About 20 minutes later Fink repeated the same question , and again Chaney
remained silent. Some time between 2 and 3:30 p .m. Fink came once more, this
time with Superintendent Moore, and again asked the same question . Still Chaney
did not answer . Moore then told Chaney that by not answering " that means no,
and by answering no you are hereby discharged ," and ordered Chaney to leave the
premises immediately . Chaney did not leave, however , until about 3:30 or 4 p.m.
That weekend Chaney received form 501 from Respondent . He signed General
Counsel 's Exhibit No. 6 after Strickland read the first page to him . If material,
I find that the credible evidence is insufficient to connect Chaney with misconduct
on November 20.
Chaney has not been recalled to work.
Concluding Findings as to Chaney
I find that Chaney about 11:50 a.m. on November 19 joined the strike protesting
the discharge of Paris; that thereby he became an unfair labor practice striker; that
he was discharged for participating in an unfair labor practice strike; and that such
discharge was unlawful . Additionally , I find that Chaney engaged in misconduct
as follows: punching in after lunch without intending to work or perform services
and in fact not performing any work or services ; refusing to answer reasonable ques-
tions elicited to plan a production program for the remainder of November 19;
refusing to leave the premises within a reasonable time after lawfully being ordered
to go; and wandering about the premises without permission . Further, I find that
such misconduct nullifies Chaney 's right to reinstatement as an unfair labor practice
striker.
Accordingly , I shall recommend dismissal of that part of the complaint asking
for a remedy on Chaney 's behalf. No backpay is being recommended for Chaney
because the amount of it is de minimis , since the length of time between his discharge
and subsequent misconduct is of short duration.
41. The discharge of Bennie J. Hall
Hall was hired in March 1962 . On October 3 he signed a UAW card . There-
after he wore a UAW button at work until he was discharged.
On November 19 he was employed in the shipping department of Lee Cylinder.
He did not attend the parking lot meeting at lunch. After lunch he resumed work.
About 1 : 30 p.m., when Foreman Webb asked Hall if he would work , Hall replied
he would wait to see what the others did because they had seniority over him. When
Webb pressed for a yes or no answer , Hall said he would work and, at Webb's
request, "signed his name on it." A little later Webb returned and, again asking
if Hall would work, again received an affirmative reply.
Hall continued to work until about 2:15 p.m. when someone turned off his line.
When Hall tried to again an unnamed employee stopped him. As a result of the
inability to turn on the line , some men were forced to carry cylinders up and down
stairs by hand, but Hall did not so carry any . About 2:30 p in. Superintendent
Moore, accompanied by Webb, asked Hall if he would work, but received no reply.
I find that Hall thus became a striker. Moore then summarily discharged Hall and
ordered him to leave the premises. However, Hall did not go until 3:30 or 4 p.m.
The next week Hall received a form 501 from Respondent . He also signed General
Counsel's Exhibit No. 6 without reading it after Strickland explained its purpose to
him. I find this was an unconditional offer to return to work. Hall has not been
recalled.
Concluding Findings as to Hall
I find that about 2:30 p.m. on November 19 Hall joined the strike protesting the
discharge of Paris, that Hall thereupon became an unfair labor practice striker, that
he was discharged shortly thereafter for participating in an unfair labor practice
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1311
strike, and that such discharge was unlawful . Further, I find that Hall engaged in
misconduct 33 by refusing to depart from the plant within a reasonable time after
being lawfully bidden to leave, and by remaining in the plant without permission
when not engaged in the actual performance of work or otherwise occupying himself
consistently with his contract of hire in some manner pertaining to or incidental to
his employment . Finally, I find that such misconduct bars Hall's reinstatement.
If material , I find that the credible evidence fails to show that Hall engaged in
any misconduct on November 20.
Accordingly , I shall recommend that Hall be denied reinstatement . Since the
period between his unlawful discharge and ensuing misconduct is so negligible that
backpay would be nominal , no provision is being made for backpay.
42. The discharge of Billy Tyree
Tyree was hired in September 1958 on the 100-pound line at Lee Cylinder. On
October 1 , 1962, he signed a UAW authorization card. At work in the fall of 1962
Tyree daily wore a UAW button, pocket protector , and clip pencil and also dis-
tributed UAW handbills and pamphlets . On or about September 27 or 28 Plant
Manager Bigler told him that Respondent could not meet competition if raises were
granted and also that those employees who could not read or write might be let go
if a union got in.
On November 19, after learning of the discharge of Paris, Tyree called a meeting
of Lee Cylinder employees to be held at the company parking lot during lunch.
Shortly after the vote was taken Tyree returned to his station and informed Fore-
man Fink, in response to a question as to why no work was being done, of the
contents of the vote. About 20 minutes later Fink told Tyree that Paris would not
be rehired . Tyree then complained to Fink that Paris was unjustly discharged and
that Respondent was trying to fire the strong union supporters one at a time. I find
that Tyree did not work after he rang in about 11:50 a m.
About 1 p.m. on November 19 Fink asked Tyree if he was going to work, but
Tyree did not reply. Although Fink then insisted upon a yes or no answer, Tyree
persisted in remaining silent. A half hour later Fink, with Superintendent Moore
at his side , reiterated the same question, and Tyree again said nothing. Fink then
told Tyree that his silence meant no, discharged him for participating in a sitdown
strike, and asked him to leave the premises . But Tyree did not leave until much
later.
Around 3 p .m. of the same day Fink, accompanied by Moore, again asked Tyree
to leave the premises , reminding him that he had been discharged for participating
in a sitdown strike. Still . Tyree would not leave until about 3:45 p.m. and then only
after UAW Representative Strickland , who had just arrived, requested the striking
employees to do so. Although he saw President C. R. Golay, Superintendent Moore,
and Personnel Director Lunsford on the afternoon of November 19, Tyree did not
speak to them about Paris or the nature of the strike.
On November 20 about 5 : 30 a.m. picketing of Lee Cylinder commenced . Tyree,
who arrived about 6:15 a.m., took part in it in a manner constituting misconduct
in that he engaged in circular picketing blocking ingress of some cars.
A few days later Tyree received form 501 from Respondent . He signed General
Counsel's Exhibit No. 6 after reading it . I find that this is an unconditional offer
to return to work. He has not been offered reinstatement since.
Concluding Findings as to Tyree
I find that Tyree about 11.50 a.m. on November 19 joined the strike protesting
the discharge of Paris; that by reason thereof he became an unfair labor practice
striker; and that he was discharged for engaging in such strike and for no other
reason. However , I further find that Tyree engaged in misconduct in the following
respects: on November 19 he failed to respond to reasonable interrogation as to
whether he would work ; 34 he refused to depart within a reasonable time after being
directed to leave the plant ; and he remained in the plant for an appreciable length
3s Hall's failure to reply to Superintendent Moore 's question at 2: 30 p in. as to whether
he would work I find not to be so serious as to constitute misconduct defeating reinstate-
ment. Nor do I find that Hall was fired for failing to answer this question.
34 Tyree 's failure to notify Respondent promptly of the strike and its purpose cannot be
considered misconduct . N.L.R.B. v. Washington Aluminum Company , 370 U.S. 9, 15
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of time without permission on matters unrelated to his regular tasks. Hence I find
his discharge was lawful. Further, I find that Tyree also misbehaved on Novem-
ber 20 by picketing in a manner blocking or tending to block access to the plant by
some cars. Finally, I find that, even if the discharge is unlawful, the foregoing mis-
conduct overrides the illegal discharge, so that Tyree has invalidated his right to
reinstatement.
Accordingly, I shall recommend that the complaint be dismissed as to Tyree.
Since his backpay would be nominal, no remedy therefor will be recommended.
J. The picketing of November 20
As a result of a call received from employee Paul Paris about 1 p.m. on Novem-
ber 19, Strickland went to Cambridge City, where he arrived about 3.30 p.m. After
parking his car he walked to a door on the loading platform about in the center of
the Lee Cylinder plant on Church Street, where he found several employees congre-
gated about 3.35 or 3:40 p.m. Upon inquiring from employee Tyree, one of those
present, Strickland ascertained that Paul Paris had been discharged, that some
employees had refused to work in protest thereof, and that Tyree, as their spokesman,
had asked for the reinstatement of Paris. Tyree also said nearly all the day-shift
employees had been asked to work or leave the plant, and that many of such employ-
ees had been discharged. It was now about 4 p.m. Strickland then told these men
that they could not remain in the plant and that they had better leave. They then
vacated the plant.
About this time Joe Lunsford, Respondent's personnel director, happened to notice
the presence of Strickland. Informing Strickland that he was trespassing on com-
pany property, Lunsford asked him to move off. Strickland obeyed, but before
doing so he said to Lunsford, "You are able to settle this in a very few minutes. All
you need to do is return the people to their jobs." Lunsford walked away without
replying. I find this statement by Strickland is not an unconditional offer to return
by the employees affected thereby.
After leaving the plant, a group of the striking employees and Strickland met in
the street opposite Respondent's parking lot where they agreed to commence picket-
ing the next day to protest the discharges of November 19, which they considered
unjust.
About 5.30 a.m. on November 20 a small group of striking employees arrived at
the Lee Cylinder plant. At first they loitered around a fire in a nearby barrel to keep
warm. Then beginning about 6 a.m., when the first shift started to come to work,
they commenced picketing. Strickland arrived about 7:30 a.m. and remained for
about 15 minutes. He estimated the number of pickets at between 40 and 50, and
observed that they were walking in a circle in front of the driveway at the parking
lot entrance. He recognized only employee Tyree on the picket line.
The pickets varied in number from 15 to 70 between 6 and 7:30 a.m. Thereafter
their number decreased considerably. Misconduct occurred only during the picket-
ing between 6 and 7:30 a.m., so that only picketing during this period is described
herein. Pickets walked in an oval or oblong line, which some witnesses character-
ized as a circular motion, at the entrance to the company parking lot. They were
often 3 or 4 feet apart, a few times even less than that, although often they were
separated from each other sufficiently to permit the ingress of employees desiring
to drive cars into the parking lot. However, I find that at times the pickets were so
close together 35 that employee cars could not proceed into the parking lot lest they
strike the pickets. Peace officers present testified they saw only one car able to enter.
At one time this blockage of cars caused the stopped cars to back up the street to
U.S. 40. President Golay at about this time suggested to some of the drivers to "run
overs the sons-of-bitches." After a while Golay "broke it up," as he claims, and
cars then were able to enter the parking lot. Occupants of other cars parked off the
lot on nearby streets and walked in to work. I further find that, as a result of the
tight picketing, some employees driving cars either did not risk going through this
line and failed to report for work, while others drove away, parked elsewhere, and
crossed the picket line on foot to enter the plant; that one employee-driven car was
able to proceed to the parking area only by bumping a couple of pickets to disperse
them from its path; that one employee was struck in the leg by an object like a rock
"One witness described the formation as a human chain and another characterized it
as back to belly marching. I do not so find ; but I do find that the proximity of the
pickets to each other was such that some cars could not enter without harming the pickets.
LEE CYLINDER DIVISION OF GOLAY & CO., INC . 1313
while walking from the parking lot to the plant; and that pickets threatened to "get"
one employee who was also called a "scab son-of-a-bitch" by pickets as he went to
work.36
Respondent on November 19 had unsuccessfully sought to call the town marshall
to come to the plant while the "sitdown strike" persisted. However, it did succeed
in bringing the county sheriff and three deputies to the scene about 5 a.m. on Novem-
ber 20. Two of them testified for Respondent. Although they made no arrests for
violence or breaches of the peace, they did corroborate other witnesses, some of them
called by the General Counsel, that the pickets sometimes between 6 and 7:30 a.m.
marched so close to each other that employee cars could not enter the parking lot.
One of the deputies testified that he informed the pickets in the afternoon that they
could not form a solid line to keep out cars and were obliged to let cars go in and
out, and the pickets concurred in this.
On the basis of the foregoing subsidiary findings and the entire record, I find that
between 6 and 7:30 a.m. misconduct having a coercive effect on employees occurred
on the picket line, and that those participating in such misconduct are not entitled
to reinstatement (regardless of whether they had been lawfully or unlawfully dis-
charged the day before). I also find that such misconduct consisted of picketing in
formations deliberately calculated to prevent entry of some cars to the employees'
parking lot, the use of profane language directed at one employee seeking to enter,
the threat to "get" this employee, and the hurling of an object which struck one
employee's leg. However, I expressly find that in any event the picketing in a tight
circle, so as to block cars seeking to enter, in itself suffices to constitute misconduct
which precludes reinstatement. Finally, I find that the urging by President Golay
of some drivers of cars to run over the pickets, while unlawful as a violation of
Section 8(a)(1), does not afford a defense to such misconduct or otherwise justify
or countenance it. (This conduct by Golay is not alleged in the complaint as a
violation.)
Nevertheless it is incumbent upon Respondent affirmatively to identify those
employees engaging in misconduct on the picket line for the purpose of denying them
reinstatement, and I so rule. It is not sufficient, in order to sustain any refusal to
reinstate, that an employee was at, near, or on the picket line on November 20; it
must also be shown that the employee in question participated in, authorized, or
ratified misconduct on that date. N.L.R.B. v. B.V.D. Co., Inc., 237 F. 2d 545
(C A.D.C.), enfg. in part 117 NLRB 1455; Local 833, International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America (Kohler
Co.) v. N.L R B., 300 F. 2d 699, 702, 704 (C.A.D.C.).
Finally, I find that the picketing of November 20 and thereafter was resorted to
solely to protest the discharges of November 19 and for no other purpose.
In finding that the above-described misconduct on the picket line is sufficiently
grave to destroy the right to reinstatement, I have been steered by the rule in H. N.
Thayer Company, 115 NLRB 1591, 1604-1606, whereby both the employer's con-
duct and that of the employees must be assessed "in the light of all the circumstances
surrounding it," a balancing of equities is to be made, and sanctions are to be devised
"which will remedy obstructions to commerce for the public benefit." Judged by
those standards I am of the further opinion, and find, that the impetuous actions of
the employees in trespassing and interfering with production while striking on Novem-
ber 19, and that the November 20 picketing so as to physically block some cars from
entering the plant, are not justified by the discharge of Paris or their own discharges.
I find that the employees could have effectively protested the unlawful discharge of
Paris and themselves by a strike which removed their presence from the plant and by
picketing which did not obstruct incoming employee cars. Nor do I find that Presi-
dent Golay's exhortation to run over pickets requires a different result.
This conclusion in my opinion may not be assailed because the peace officers
present at the picket line neither made arrests nor considered the pickets disorderly.
The massing of the pickets in a tight formation may not have caused alarm to the
county law enforcement officials, but it does not follow that such conduct may be
resorted to with impunity under our Act. Even orderly picketing may amount to
misconduct. The issue is not whether arrests were made, or whether the pickets
cooperated with the sheriff's office, or whether the pickets were orderly; rather it is
whether, under our Act, misconduct occurred and, if it did, whether, on balancing
All alleged misconduct is contended by Respondent to have occurred only on Novem-
ber 20. Moreover , if material , I find that shortly after 7 : 30 a.m. on that date the
picketing was unobjectionable.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the equities, it is serious enough to deprive employees participating therein of the
right to be reemployed. I find the mass picketing was so blameworthy as to dis-
qualify employees participating therein from reinstatement.
The conduct of specific employees on the picket line and elsewhere, and its effect
upon their right to be reinstated, is set forth above in another subsection of this
Intermediate Report discussing each employee's rights.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of Respondent set forth above in section III, above, occurring in
connection with the operations of Respondent as set forth above in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in specified unfair labor prac-
tices, I will recommend that Respondent cease and desist therefrom and that it take
certain affirmative action, as related below, designed to effectuate the applicable
policies of the Act.
Having found that Respondent violated the provisions of the Act in discharging
some employees and refusing to recall other employees, I will recommend that
Respondent offer to each of these employees immediate and full reinstatement to
his former or a substantially equivalent position, and make each whole for any loss
of earnings suffered by reason of the discrimination against him by payment to each
of them of a sum of money. Such sum shall be equal to the amount each would
normally have earned as wages from the date of the discrimination against him to
the date of an offer of reinstatement or actual reinstatement, as the case may be,
less net earnings during the intervening period. Such loss shall be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB 289. If a sum is found
to be due, interest shall be added thereto at the rate of 6 percent per annum as formu-
lated in Isis Plumbing & Heating Co., 138 NLB 716. I will further recommend that
such reinstated employees shall be restored to work without prejudice to their senior-
ity and other rights and privileges.
Respondent's unfair labor practices as found above manifest a disregard for the Act
of a serious nature. Accordingly an order broad in scope (i.e., one which enjoins
commission of any act colliding with employees' Section 7 rights) is warranted. Such
order will be recommended so that its preventive objectives may be commensurate
with the legislative design as enunciated in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. UAW is a labor organization within the meaning of Section 2(5) of the Act.
2. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. By discriminatorily discharging employees Jesse James and Paul Paris Respond-
ent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of
the Act.
4. By discharging those employees named in the footnote,37 and by refusing to
employ or recall other employees named in the margin upon their making and uncon-
ditional offer to return to work,38 Respondent has engaged in unfair labor practices
condemned by Section 8 (a) (1) of the Act.
5. By (a) interrogating its employees concerning their own and other employees'
union membership, activities, and desires; (b) engaging in surveillance and also ask-
ing its employees to engage in surveillance and report on the union activities and
sentiments of their fellow employees; (c) threatening employees with discharge, lay-
off, loss of overtime, closing, selling, moving, or terminating its operations if its
employees joined, designated, or assisted the UAW; (d) granting or promising its
employees economic benefits if they refrained from becoming or remaining members
of the UAW or gave the UAW assistance and support; (e) attempting to form a labor
s7 James Raby, Robert Lawrence, Carl Wyramon, Earl Blair, Bivon Fowler, Marvin
Frady, Gerald Goble, and James Caudill.
3'Kenneth W. Fowler, Ronald L. Beal, Willie Joe Mills, Charles Nash, Harold E.
Cornet, William Clemons, Lester Pebworth, and James Steele.
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1315
organization among its employees; and (f) interfering with the rights of employees to
wear union insignia, Respondent has engaged in unfair labor practices in violation of
Section 8 (a)( 1 ) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent has not committed any other unfair labor practices within the mean-
ing of the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Respondent, Golay & Co., Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the UAW, or in any other labor organization, by
discharging employees, or in any other manner discriminating against them in regard
to their hire or tenure of employment or any other term or condition of employment.
(b) Discharging employees for engaging in lawful strikes, picketing, and other
lawful protected and concerted activities, or for respecting and honoring lawful picket
lines.
(c) Refusing to employ or recall employees for engaging in lawful protected and
concerted activities.
(d) Interrogating its employees concerning their own and other employees' mem-
bership in, activities on behalf of, and sympathies for the UAW, or any other labor
organization, in a manner constituting interference, restraint, or coercion.
(e) Engaging in surveillance and also making its employees to engage in surveil-
lance of the UAW, or any other labor organization, and to report on the union activi-
ties and sentiments of their fellow employees.
(f) Threatening its employees with discharge, layoff, loss of overtime, closing, sell-
ing, moving, or terminating its operations if they joined, designated, or assisted the
UAW, or any other labor organization.
(g) Granting or promising its employees economic benefits if they refrained from
becoming or remaining members of the UAW, or any other labor organization, or if
they refrained from giving such labor organization assistance and support.
(h) Attempting to form a labor organization among its employees.
(i) Interfering with the right of employees to wear union insignia.
(j) In any other manner interfering with, restraining, or coercing employees in the
right to self-organization, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities.
2. Take the following affirmative action designated to effectuate the policies of
the Act:
(a) Offer the employees named below in this paragraph immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously enjoyed, and make each of
them whole for any loss of pay, plus interest at the rate of 6 percent per annum,
which they may have suffered by reason of the discrimination against them:
James Raby Gerald Goble Charles Nash
Robert Lawrence James Caudill James Steele
Carl Wyramon Jesse James Harold E. Comet
Earl Blair Kenneth W. Fowler William Clemons
Bivon Fowler Ronald L. Keal Lester Pebworth
Marvin Frady Willie Joe Mills Paul Paris
(b) Preserve and , upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its plants in the vicinity of Cambridge City, Indiana, copies of the
attached notice marked "Appendix C." 39 Copies of said notice , to be furnished by
391f this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
In the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, "a Decree of the United States Court of Appeals, Enforcing
an Order" shall be substituted for the words "a Decision and Order."
217-919-66-vol. 15 6-8 4
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 25, shall, after being signed by a duly authorized
agent of Respondent, be posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 25, in writing, within 20 days from
the receipt of this Intermediate Report, what steps the Respondent has taken to comply
herewith 40
It is further recommended that unless the Respondent shall within the prescribed
period notify the said Regional Director that it will comply, the Board issue an order
requiring the Respondent to take the action aforesaid.
It is further recommended that the complaint be dismissed in all other respects.
"In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days from
the date of this Order; what steps the Respondent has taken to comply herewith "
to >AeIT,
APPENDIX A
INDIANA IMPLOYMIM 110010 OIVINON
ELIOIRILITY INFORMATION REPORT
SOCIAL 1100111' MYMIII :
289-18-2663
=11 IS r1SrpMIe
2 -
DAT1 WA011 PATAIl1 to
1 111
9 /
2
W OVII
27116
1 -AM1
Earl ti._alatr elgy aCo._Inc. --___--
•501111 ADb1ISI
311 Central Avenue P. 0. BIV, I11
CITT AMe -1. CITY Axe 1TATI
Connersville, Ind. ^^ambrldo City, Ind,
I-ASOY 1011 .MCMnala.M. - 11aLAIM , IM. IMrtIVOr1OM1 ON NVII1111011
Discharged for participating in alt dorm. strike and rei'ultng to Leave. Premise at
Lee Cylirufer-
Dtn
11/20/62
nm
ersonnel Secretary
11oxAron or IMnorn
INSTRUCTIONS TO EMPLOYEE- If you with to inquire rego1ding y r eligibility for unemployment insu'anke , present this ro
port with your social security card to the Employment Security D,vis o 's full -time or part -time office serv n your locality
DATI IIC11V10 qoM IMNOtl1 tAt! CLAIM CONDO WIICV 11MNa Aaaalrt DRRMINIO IT -
DO NOT
III tNq
IMCL CLAIM No CLAP CO1 A DUTIUI1 0TION 'All Ce DIIIMINArIOM
Na0 rce I - tAMUMOt0
LEE CYLINDER DIVISION OF GOLAY & CO., INC. 1317
APPENDIX B
, TOMOBILE AEROSPACE AGRICULTURAL IMPLEMENT lNORKBRS
a/AMER9CA (HAW)
IRT.RN.TIDNALN.AOAU.R•[R. P>..t*.T,...t..ON ATIRVI . ttTRDIT 51.515.1
WALT[R P R[UTN[R [MIL MUSSY
RICHARD OOSS[R ......... PAT ORSATNOUO[ •• •• L[OMARD WOODCOCK
r^.v ....^o.+•
RAYMONDU BCRNDT, OnUc,o.
rle..r..ne..•
ISO.
T[LtPNOw[^•
palaAL o .nu-wnRO.[ ^ TeaA
March 25, 1963
Joseph Lunsford, Personnel Manager
Uolay and Company, Inc.
General Offices
Church Street
Cambridge City, Indiana
Dear Mr . Ivnsfordl
REDIONAL OPPICC
"DI W IOYM STRCR
INDIANAPOLIS T, INDIANA
We, the undersigned , do hereby reaffirm the unconditional
offer to return to work which was made for us and on our behalf
by Lewis Strickland on the 19th day of November, 1962.
We have been willing to return to work on each and every
day since such demand was made by Mr. Strickland and our offer
to return is unconditional and we now repeat that we are uncon-
ditionally willing to return to work and still desire to return
to our jobs.
We hereby renew our original offer to make such unconditional
return and repeat this as a prow offer of an unconditional offer
to return to work. We awal Wear reply and earnestly hope that
you eee fit to reinstate ue
Cordially,
.oeiu#l/slv
cc: NLRB, Oeo. Dick , Asst . Dir. GC-6
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B-Continued
Colay & ConpM7 , ..0. -y_
1T- _
^d1 k^'i,>
x(`97 ?iG Jam-
cUu.Lt^l 12a
rz,
3^ J
s.. L"2
ui^z2..... ...yo, C( /. -A- -C
V
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT unlawfully interrogate our employees concerning their own and
other employees' union membership, activities, or desires, or threaten them with
discharge or reprisals for engaging in activities on behalf of International Union,
DULUTH AVIONICS, GUIDANCE & CONTROL SYSTEMS 131.9
United Automobile, Aerospace, and Agricultural Implement Workers of Amer-
ica, UAW-AFL-CIO, or any other labor organization, or promise or grant them
benefits for the purpose of discouraging their union activities.
WE WILL NOT engage in surveillance of the union activities of our employees
or ask them to engage in surveillance and report to us on the union activities and
sentiments of their fellow employees.
WE WILL NOT threaten to close, sell, move, or terminate our operations if our
employees join, designate, or assist the above-named UAW, or any other labor
organization, as their collective-bargaining agent nor will we attempt to form or
organize a labor organization for our employees.
WE WILL NOT interfere with the right of our employees to wear union insignia.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of their right to self-organization, to join or assist the above,
named Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL offer the employees named below immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and will make them whole for any loss
of pay, plus interest at the rate of 6 percentum per annum, which they may have
suffered by reason of the discrimination against them:
James Raby Gerald Goble Charles Nash
Robert Lawrence James Caudill James Steele
Carl Wyramon Jesse James Harold E. Cornet
Earl Blair Kenneth W. Fowler William Clemons
Bivon Fowler Ronald L. Keal Lester Pebworth
Marvin Frady Willie Joe Mills Paul Paris
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
GOLAY & CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis 4, Indiana, Telephone No. Melrose
3-8921, if they have any question concerning this notice or compliance with its
provisions.
Duluth Avionics , Guidance & Control Systems Division of Litton
Systems, Inc. and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
UAW, AFL-CIO, Petitioner. Case No. 18-RC-6583. Febru-
ary 4, 1966
DECISION ON REVIEW
On November 12, 1965, the Regional Director for Region 18 issued
a Decision and Direction of Election in the above-entitled proceeding
in which he rejected as inappropriate the requested unit confined to
the Employer's Duluth, Minnesota, plant, and found appropriate a
two-plant unit including the Employer's subassembly plant at Hib-
156 NLRB No. 124.