Gulf-Wandes Corp.

National Labor Relations Board - Board Decisions

Nov 23, 1977

233 N.L.R.B. 772 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf-Wandes Corporation and Oil, Chemical and
Atomic Workers International Union, Local 4-620,
AFL-CIO and Oil, Chemical and Atomic Workers
International Union. Cases 15-CA-6289 and 15-
CA-6289-2
November 23, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 25, 1977, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
exception and brief in opposition to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge to the extent they are consistent with our
findings herein, to modify the remedy so that interest
is to be computed in the manner set forth in Florida
Steel Corporation, 231 NLRB 651 (1977),2 and to
adopt his recommended Order, as modified herein.
I. We adopt the Administrative Law Judge's
finding that on or about October 22, 1976, Respon-
dent coercively interrogated and threatened an
employee in violation of Section 8(a)(1) of the Act;
that on October 25, 1976, Respondent discharged six
employees for engaging in union concerted activity,
thus violating Section 8(a)(3) and (1); and that, by
refusing to immediately reinstate unfair labor prac-
tice strikers after their unconditional offer to return
on November 15, 1976, Respondent violated Section
8(a)(3) and (1) of the Act.
2. The Administrative Law Judge found that
Woodrow L. Boatner had been legitimately dis-
charged for cause arising from conduct unrelated to
his participation in the unfair labor practice strike.
The General Counsel excepts, contending that the 6-
week delay in informing Boatner of his discharge,
when viewed in connection with Respondent's other
conduct where union animus was found, supports the
conclusion that this discharge was pretextual. We
agree with the General Counsel and find that the
t Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
233 NLRB No. 116
discharge of Boatner was a violation of Section
8(a)(3) of the Act.
On Friday, October 22, Boatner was circulating a
football pool when he was expected to be assisting in
a loading job. The warehouse foreman, James
Jackson, testified that he reprimanded Boatner, and,
in an ensuing argument, Boatner called Jackson a
"god-damned liar." Jackson, a minister, was in-
censed by this profanity and told Boatner, "We ain't
going to have this." He did not tell Boatner that he
was discharged. Boatner testified that he was excited
during his confrontation with Jackson and conceded
that he may have said "goddamn," but he denied any
recollection that he called Jackson a liar.
Although Jackson had the power to discharge
Boatner on the spot, Jackson testified that he had
only recently become a supervisor and decided to
consult with his immediate superior before taking
any action. On Monday, October 25, the day of the
unfair labor practice strike, Jackson conferred with
Controller Barry Piatt who told him to fire Boatner.
The Administrative Law Judge credited the testimo-
ny of these two supervisors and found that Piatt had
decided on October 25 to fire Boatner for his profane
and insubordinate conduct on October 22.
Piatt felt it was inappropriate to personally contact
Boatner while he was on the picket line. The
Administrative Law Judge discredited that portion of
Piatt's testimony which was to the effect that a letter
of termination had been sent to Boatner on or about
October 25, which was later returned undelivered.
The Administrative Law Judge found that the
discharge was effective only as of December 1, 1976,
when Boatner received a letter informing him of his
discharge.
The Administrative Law Judge found that Respon-
dent's 38-day delay in telling Boatner of his dis-
charge was due to Piatt's "probably having forgotten
the matter in the turmoil of the strike." Similarly, the
Administrative Law Judge apparently felt that
Boatner's unconditional offer to return to work made
on November 15, which was accepted along with the
other offers by the strikers, was a consequence of
Respondent's preoccupation with the strike at this
time.
Although an employer has a right to discharge an
employee for profane and insubordinate conduct, the
mere existence of a justifiable ground for discharge is
no defense if it is a pretext and not the moving cause.
In deciding whether a discharge is for cause or is
pretextual, it is necessary to examine the totality of
circumstances. Thus, where an employer enforces a
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
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GULF-WANDES CORPORATION
rule arbitrarily or imposes an excessive penalty, this
supports an inference that the discharge was discrim-
inatory. The timing of a discharge is also relevant as
when it follows the employer's discovery of union
activity or where the employer unduly delays in
effectuating the discharge until after union activity
occurs.
Three days after Boatner's insubordinate conduct,
six union members were illegally discharged for
engaging in protected concerted activity and an
unfair labor practice strike began which Boatner
participated in. After deciding to fire Boatner on
October 25 for his insubordinate conduct on October
22, Respondent inexplicably failed to send an
immediate termination letter or place a phone call to
Boatner. Supervisor Piatt's testimony that an imme-
diate termination notice was sent was completely
discredited by the Administrative Law Judge. Re-
spondent neglected another opportunity to discharge
Boatner when he, along with the other strikers, made
an unconditional offer to return to work on Novem-
ber 15. Instead, Respondent waited until December
1, almost 6 weeks after Boatner's altercation with the
supervisor to inform Boatner that he had been
discharged. It is in the context of this Employer's
determination to punish the Union for engaging in
concerted activity that we must analyze the sudden
memory of an incident which occurred prior to an
unfair labor practice strike to discharge a selected
striker after his unconditional application for rein-
statement had been accepted. Respondent's lapse of
almost 6 weeks in effecting the discharge, in the
context of Respondent's other conduct where union
animus was found,3 supports the inference that this
discharge was pretextual. It strains credulity to
believe that this unfair labor practice striker's prior
conduct of October 22 was the moving cause for his
dismissal on December 1. It is clear that this
discharge was only the last in a series of unfair labor
practices on the part of an employer who was found
to have "a fixed resolve to crack down on the union
show of strength."4 We conclude that Piatt's sudden
memory of the October 22 incident was an attempt to
clothe an unlawful discharge for concerted activity as
a discharge for insubordination. Accordingly, we
find Respondent's discharge of Boatner violated
Section 8(a)(3) of the Act, and that Boatner qualified
for reinstatement as of November 15, 1976, with
backpay computed in the same manner as the other
unfair labor practice strikers.
s As noted, Respondent interrogated and threatened an employee in
violation of Sec. 8(a)( 1) of the Act on October 22, the same day of Boatner's
insubordination. On October 25, Respondent in violation of Sec. 8(a)(3) and
(I) of the Act discharged six employees who concertedly refused overtime.
In addition, when Boatner and the other unfair labor practice stnkers made
an unconditional offer to return to work on November 15, they were denied
immediate reinstatement in violation of Sec. 8(a)(3) and ( I) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, Gulf-Wandes Corporation, Baton Rouge,
Louisiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following as paragraph 2(a):
"(a) Offer Warren Washington, Ralph Bowie,
Alfred Johnson, Robert Lee, Donnie Hallmark,
Donald Winfield, and the employees named in
Appendix A attached hereto (including Woodrow L.
Boatner), if it has not already done so, immediate
and full reinstatement to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges, dismissing,
if necessary, any employees hired as replacements,
and make them whole for any loss of pay they may
have suffered by reason of Respondent's unlawful
conduct, in the manner set forth in the section of the
Administrative Law Judge's Decision entitled 'The
Remedy,' as modified by the Board's Decision."
2. Substitute Appendixes A and B attached
hereto for those attached to the Administrative Law
Judge's Decision.
MEMBER MURPHY, concurring in part:
I agree with my colleagues' disposition of this case
except for their finding, contrary to the Administra-
tive Law Judge's, that the discharge of Boatner on
December 1, 1976-assertedly for insubordination
on October 22-was unlawful.
The credited testimony is that the decision to
discharge Boatner for insubordination was in fact
made on October 25 by Respondent's controller,
Piatt, after a discussion with Boatner's supervisor,
Jackson. However, at that time Boatner was on strike
and, for reasons not wholly clear on the record,
Respondent failed to notify Boatner of his discharge
then and in fact accepted his unconditional offer to
return to work on November 15 only to discharge
him for the October insubordination some 2 weeks
later.
The Administrative Law Judge concludes that the
delay in Boatner's discharge was caused by Piatt's
having overlooked the matter in the turmoil of the
T4 he dissent makes much of the fact that Boatner was the only unfair
labor practice striker discharged. It may well be that Boatner was the only
unfair labor practice stnker whose conduct offered even a pretextual basis
for discharge. In any case, the Employer's failure to commit every violation
possible is no grounds for excusing the violations which did occur.
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike; my colleagues see more sinister motives in
operation. But, be this as it may, 1 nevertheless can
perceive no sound basis for reversing the Administra-
tive Law Judge's conclusion that the December I
discharge was not unlawful. Indeed, the underlying
facts fully support that result.
Thus, Boatner was not, insofar as the record shows,
especially active in the Union or in bringing on the
strike. Also, though the six employees who concert-
edly refused overtime were discharged, none of the
employees who, like Boatner, struck in protest of
those discharges were themselves discharged and all
were reinstated when they sought to return to work
after the strike. Therefore, there is nothing in
Respondent's conduct which supports a conclusion
that it would single out Boatner for discharge "for
union or strike activity." Consequently, the only
plausible-and, I might add, credited-explanation
of the discharge is the October 25 decision to fire him
for insubordination. 5 My colleagues' holding that the
discharge was unlawful ultimately rests solely on the
delay between the decision to discharge and the date
it was effectuated. Obviously, an employer can quite
lawfully discharge an employee for any unprotected
conduct no matter how remote-even if there is
intervening union activity. This Board has no right to
stop it from doing so if the old "economic" conduct
is the real reason for the discharge and not a pretext.
The problem is one of proof, not simply one of the
remoteness of the incident involved, though that may
be a factor for consideration. It is no doubt an
unusual circumstance but hardly one which alone
warrants reversing the Administrative Law Judge's
finding, which I would adopt, that Boatner's dis-
charge was, indeed, for insubordination and thus was
not unlawful.
I The majority in its decision adverts to various unlawful conduct by
Respondent and its "fixed resolve to crack down on the union show of
strength" as supporting the conclusion that Boatner was unlawfully
discharged. But those factors were equally applicable to Boatner's fellow
October 2. stnkers, none of whom was discharged, and thus, as they did not
cause the discharge of other strikers, they clearly fail to explain by
themselves why Boatner was selected for discharge. Actually, all that
distinguished Boatner from the other employees who struck on October 25
was his prestrike insubordination and Piatt's decision to fire him at that
time. However, my colleagues suggest that Boatner was selected for
discharge just because those prestrike factors provided a convenient coverup
for an unlawful discharge and that Respondent did not fire the other strikers
because nothing was at hand to disguise its alleged improper motivation.
But a rationale of that kind really seems unacceptable to me, as it ultimately
turns on the premise that the existence of just cause for discharge and
claimed reliance on that cause are evidence of illegal conduct, a rather
perverse conclusion at best. In short, my point here is that the only factor
distinguishing Boatner from the other October 25 strikers is one that
properly supplies no support for a conclusion that he was discharged for
engaging in union activities or for the purpose of undermining the Union's
show of strength.
APPENDIX A
The following unfair labor practice strikers are
entitled to an offer of reinstatement and appropriate
backpay, in accordance with the foregoing Decision:
Jerry Stallion
Eugene Wilson
Edward Bickham
Al Glover
Alfred Williams
Russell Goins
Andrew Crawford
Willie Dunn
Lonnie Johnson
Charles Tullier
Roy Patterson
Percy Williams
Frankie Brown
L. C. Modica
Kenneth Johnson
Sally Sanders
Sanford Wiggins
Anthony Ray Anderson
Bernell Sims
James Atkins
Ronald Whitfield
Charles O'Conner
Woodrow L. Boatner
Burtell Noble
Wendell Jack
Vonciel Adams
William Keith Bell
Ulysses Walker
Anthony Nelson
Donald Jackson
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or
activity on behalf of Oil, Chemical and Atomic
Workers International Union, or any other labor
organization, or interfere with the protected
concerted activities of employees, by discriminat-
ing against employees who engage in such
activity, by refusing to reinstate upon uncondi-
tional application employees who have engaged
in an unfair labor practice strike, or by, in any
other manner, discriminating against employees
in regard to their hire and tenure of employment.
WE WILL NOT coercively interrogate employees
about their union sentiments.
WE WILL NOT threaten employees that they will
lose their jobs if they refuse to cross picket lines.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
National Labor Relations Act.
WE WILL offer to the following named employ-
ees, if we have not already done so, immediate
reinstatement to their former jobs, or if such jobs
no longer exist, to substantially equivalent ones,
without prejudice to their seniority and other
rights and privileges, and WE WILL make them
whole for any loss of earnings they may have
774
GULF-WANDES CORPORATION
suffered by reason of our unlawful discrimination
against them:
Warren Washington
Ralph Bowie
Alfred Johnson
Jerry Stallion
Eugene Wilson
Edward Bickham
Al Glover
Alfred Williams
Russell Goins
Andrew Crawford
Willie Dunn
Lonnie Johnson
Charles Tullier
Roy Patterson
Percy Williams
Frankie Brown
L. C. Modica
Kenneth Johnson
Robert Lee
Donnie Hallmark
Donald Winfield
Anthony Ray Anderson
Bernell Sims
James Atkins
Ronald Whitfield
Charles O'Conner
Woodrow L. Boatner
Burtell Noble
Wendell Jack
Vonciel Adams
William Keith Bell
Ulysses Walker
Anthony Nelson
Donald Jackson
Sanford Wiggins
Sally Sanders
GULF-WANDES
CORPORATION
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: This case was
heard in Baton Rouge, Louisiana, on March 15-17, 1977.
The complaint, denied in all material respects by Respon-
dent, alleges that one of Respondent's agents unlawfully
interrogated and threatened an employee on or about
October 22, 1976, in violation of Section 8(a)(1); that, on
October 25, Respondent discharged six employees for
engaging in union and protected concerted activities, thus
violating Section 8(a)( 3) and (I); and that, beginning
November 15 and until December 27, Respondent failed to
reinstate 30 unfair labor practice strikers who went on
strike on October 25 in protest of the discharges effected
that day, thereby violating Section 8(a)(3) and (I).
Briefs were received from the General Counsel and
Respondent on or about April 29, 1977; they have been
carefully considered.
Upon the entire record' and my observation of the
demeanor of the witnesses, I make the following findings:
I. JURISDICTION OF RESPONDENT
Respondent, a Louisiana corporation, is engaged in the
business of fabricating and distributing plastic materials at
its principal place of business in Baton Rouge, Louisiana.
Respondent concedes, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
' Certain errors in the transcript have been noted and are hereby
corrected.
2 Although Riley testified that he suggested Saturday, October 23, as the
day for taking such action, his pretrial affidavit states that he made
reference, in the October 14 conversation, to "that Saturday," which can be
1I. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union
(the International or the Union) is, as Respondent agrees, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. A Summary of the Pertinent Events
In April 1976, the International was certified as the
bargaining representative of Respondent's production and
maintenance employees, apparently some 60 or so in
number.
Bargaining began in July. The principal employee union
representative at the plant was Andrew Crawford; he was
the elected chairman of the "group," as the union members
at the plant are known in the Union's terminology, and he
was also chairman of the employee negotiating committee,
which included two other employees, Jerry Stallion and
Edward Bickham. Also bargaining for the Union, at
material times, was James Riley, an international represen-
tative working out of Sulfur, Louisiana.
The negotiators made progress, but not enough to
impress the employees. Two or three times, tentative
agreement was reached by the negotiators, only to be
rejected by the membership in ratification balloting. After
the members had so expressed their dissatisfaction in a vote
taken around October 13 or 14, Riley talked to Crawford
?nd Bickham about the advantages to be gained from
taking the job action of refusing to work overtime on a
Saturday. He pointed out that "it'd been one of the major
complaints all along that they had to work too much
overtime, and I felt it'd be a way to show the company that
they would stick together and ... do something unified." 2
The employee committee embraced the idea, and the
following week, Crawford, Stallion, and Bickham went
individually to the employees and urged them to refuse to
work overtime on October 23, if asked. Crawford also held
three meetings at the plant with the union members, the
first in the parking lot immediately after work ended at 4
p.m. on Thursday, October 21, and two more, at noon and
2:30 p.m., in the plant lunchroom on Friday. Some 20-25
employees were present on Thursday when Crawford
noted that Respondent had "made its final offer" and
urged them to refuse overtime on the coming Saturday as
"a means of applying pressure to the company because we
had been usually working every Saturday." The employees
present unanimously voted to resist overtime, by a show of
hands. Crawford also promised that if any employees were
discharged for refusing overtime, the others would strike in
retaliation. 3
The customary method of assignment of overtime on
Saturdays is to inform the employees on Friday morning
that their presence will be required. At the noon meeting
on Friday, with 15 or 20 employees present, Crawford
construed to mean October 16. I doubt that Riley, whose sincerity very
much impressed me, would have promoted the organization of a job action
only 2 days prior to its effective date. At any rate, the point is immatenal.
3 In July, the membership had authorized the employee committee to call
a strike whenever it thought such action would be appropriate.
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquired as to which employees had been asked to work on
Saturday, and then reminded them that if they did not, and
were fired, the other employees would support them by
striking. Crawford made the same inquiry and remarks at
the midafternoon meeting.
George Bickham, foreman of Shop 2, needed nine
employees for Saturday overtime work on a particular job.
Following the normal practice, he asked the employees
working on that job if they would come in on Saturday. All
nine said they did not want to. After attempting to find
other volunteers, Bickham returned to the nine and told
them to report on Saturday morning.4 Six of the nine were
union members; although, as set out below, they did not
intend to report, they said nothing to Bickham about their
plans.
The six referred to-Warren Washington, Ralph Bowie,
Alfred Johnson, Robert Lee, Donnie Hallmark, and
Donald Winfield-did not appear for work on Saturday,
nor did they call in to explain their absence.5 Foreman
Bickham conferred with Plant Superintendent Terry
Grenat during the day about the problem, and, according
to their testimony, they concluded that the six should be
terminated.
On Monday morning, as the six employees reported for
work, they were told by Bickham, according to his
testimony, that they had been "replaced." When Andrew
Crawford, shortly after arriving at 7:25 a.m., learned from
Hallmark that he had been let go, and apparently
ascertained that others of the six had also been terminated,
he attempted to speak to Foreman Bickham and then
Superintendent Grenat about the matter, but was rebuffed.
Crawford accused Grenat of discharging the employees
because of their "union participation," and said he would
have to call a strike. Grenat testified that he told Crawford
he had done what he had to do, and Crawford should do
the same.
Immediately, Crawford went to the work stations of the
other employees and told them that they were on strike.
Some 30 employees went out on the street and began
picketing. During the strike, they carried picket signs
bearing such legends as "unfair," "unfair treatment,"
"unfair labor practices," "higher pay," and "better working
conditions."
On November 15, the strikers voted to end the strike.
Riley and Crawford presented separate letters addressed to
the president of Respondent offering the unconditional
return of the strikers; in addition, 26 strikers submitted
separate unconditional requests for reinstatement. Two
strikers were immediately reinstated, and others were
eventually offered reinstatement in groups, on various
dates in November and December. The six dischargees
were apparently never reinstated.
The parties thereafter resumed negotiations, and execut-
ed a bargaining agreement in January 1977.
' One exception is discussed below.
5 The three nonunion members of the crew reported, as did nine other
employees scheduled to work on Saturday.
6 In distinguishing, in Polytech, supra, the earlier case of John S. Swift
Company, Inc.. 124 NLRB 394, 396 (1959), enfd. 277 F.2d 641 (C.A. 7, 1960),
B. Analysis and Conclusions
I. The discharges of October 25, 1976
Section 7 of the Act guarantees employees the right to
engage in "concerted activities for the purpose of collective
bargaining or other mutual aid or protection." The
collective refusal to work overtime on October 23 was such
a concerted activity. Section 7 does not immunize all
employment-related group activities without regard to the
means employed, however, and it has been recognized that
work stoppages which are "partial," "intermittent," or
"recurrent" may be unprotected because they produce "a
condition that [is] neither strike nor work." Valley City
Furniture Company, 110 NLRB 1589, 1594-95 (1954), enfd.
230 F.2d 947 (C.A. 6, 1956). But it has further been held
that a single concerted work stoppage of limited duration
does not necessarily cause participating employees to
forfeit the protection of the Act. N.LR.B. v. Washington
Aluminum Co., 370 U.S. 9, 17 (1962); N.LR.B. v. Plastilite
Corporation, 375 F.2d 343, 349-350 (C.A. 8, 1967).
With particular reference to the conduct at hand, the
Board has declared "the existence of a presumption that a
single concerted refusal to work overtime is a protected
strike activity; and . . . such presumption should be
deemed rebutted when and only when the evidence
demonstrates that the stoppage is part of a plan or pattern
of intermittent action which is inconsistent with a genuine
strike or genuine performance by employees of the work
normally expected of them by the employer." Polytech,
Incorporated, 195 NLRB 695, 696 (1972); McGaw Laborato-
ries, a Division of American Hospital Supply Corporation, 206
NLRB 602 (1973); Union Boiler Company, 213 NLRB 818
(1974); Florida Steel Corporation, 221 NLRB 554 (1975).
Such a restricted concerted withholding of services is
protected where, as here, it is part of an employee program
of "protesting their terms and conditions of employment
and of seeking concessions from the Respondent," Robert-
son Industries, 216 NLRB 361, 362 (1975).6
The evidence regarding Crawford's activities during the
week of October 23 leaves no doubt that the refusal to
work overtime on that Saturday was the product of
concerted activity classical in its nature.? The record,
furthermore, gives no indication that the employees
entertained any notion of embarking upon "a plan or
pattern of intermittent action" of that character.
Respondent contends, however, that it did not unlawful-
ly discharge the six employees for the simple reason that it
did not know they were acting in concert in failing to
report on Saturday. Although the question is arguable
whether such ignorance should be a viable defense in these
cases, the Board held in Diagnostic Center Hospital Corp. of
Texas, 228 NLRB 1215, 1216 (1977), that "[i]n order to
sustain an 8(aXl) discharge finding, it is necessary to
establish that at the time of the discharge the employer had
knowledge of the concerted nature of the activity for which
the employee was discharged."
the Board made clear that the presumption applied where the refusal to
work overtime was "a means of forcing the employer's concessions in
bargaining," 195 NLRB at 696.
? With two exceptions to be discussed, the employees testified that their
refusal to work on Saturday was intended to honor the union request.
776
GULF-WANDES CORPORATION
I conclude that Respondent had such knowledge. The
most inculpatory evidence was provided by former em-
ployee Wilbur Jackson, who testified that on the second
day of the strike, he crossed the picket line and, in the
course of work, fell into conversation with Superintendent
Grenat. In discussing the strike, the following colloquy
occurred:
[Grenat] said, well, they brought this on themselves,
and I said, how could this particular thing happen, and
he said, well, you see, Coty overheard the conversation
in the lunchroom that a group of guys had decided that
they wasn't going to work . . . and we can't afford to
have people going around and saying that they can't
work, and I said, well, if they wanted Saturday off, why
not give them Saturday off.
"Coty" is the nickname of Alvin Delcort, a shop
foreman. Employee Vonciel Adams, who made a good
impression during her brief testimony, said that as she was
entering the lunchroom for the 2:30 meeting on Friday, she
saw Delcort entering the mat room, which adjoins the
lunchroom, and Crawford also placed Delcort in the
vicinity at the time.
Grenat, an unconvincing witness, denied having had any
such conversation with Delcort.8 Delcort was, without
explanation, not called to testify, although he was obvious-
ly available (see fn. 8, supra); he had been a focal point of
General Counsel's testimony regarding knowledge; and the
denial of Respondent's motion to dismiss the complaint at
the end of General Counsel's case had been predicated on
Jackson's testimony.
Plainly, Delcort's denial of the portion of Jackson's
testimony which related to him, as well as the testimony of
Crawford and Adams placing him in a strategic location
for gaining knowledge, was virtually mandated by the basic
principles of trial practice. The failure to produce Delcort
in such circumstances irresistibly calls for application of
the rule that "when a party has relevant evidence within his
control which he fails to produce, that failure gives rise to
an inference that the evidence is unfavorable to him,"
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UA W) [Gyro-
dyne Co. of America] v. N.LR.B., 459 F.2d 1329, 1336
(C.A.D.C., 1972); Golden State Bottling Co., Inc., Formerly
Pepsi Cola Bottling Co. of Sacramento, et al. v. N.L.R.B.,
414 U.S. 168, 175 (1973).
Jackson is no longer employed by Respondent. On the
other hand, he was not a member of the Union while there,
and he crossed the picket line. I was favorably impressed
with his demeanor, and I credit his testimony.
8 It was curious, to say the least, for Grenat to testify that, after
becoming aware of Jackson's testimony, he consulted with Delcort. during
the course of the hearing, to "see if he had reported that" to Grenat. Why he
would have to refresh his memory on a point which would be contrary to the
whole thrust of his testimony is inexplicable. Even after such refreshment,
Grenat could only say, when asked if he was positive that Delcort had said
no such thing to him, "I'm pretty well sure. yes, sir."
9 Aucoin denied any such conversation; I thought Bell a much more
convincing witness, and I credit his testimony.
'o The complaint alleges that, in this conversation. Aucoin unlawfully
interrogated and threatened Bell. I agree. and conclude that the question
and the comment violated Sec. 8(aX 1).
"n Jackson's account of Grenat's remarks to him indicates that Grenat
Other evidence argues for an inference of employer
knowledge. The fact that large numbers of employees
gathered, on three occasions on Thursday and Friday, for
unprecedented union meetings on the plant premises, could
hardly have escaped the notice and curiosity of manage-
ment. The fact that six employees, also a precedent, failed
to report surely carried its own message. Employee William
Bell testified that on Friday, Assistant Shop Foreman John
Aucoin asked him "what I thought about the strike." Bell
replied that he did not care for strikes, and Aucoin said
that was good, "because just between you and me, anyone
that doesn't cross the picket line doesn't have a job."9
While it can be argued that Aucoin was speaking only
generally (and Bell conceded that employees had been
talking for a few weeks about striking over the contract),
there seems every reason to believe that Aucoin suddenly
broached the matter on October 22 because of the
anticipated imminent confrontation over the refusal to
work on Saturday.10
I find, therefore, that Respondent was aware, by October
25, that the refusal to work overtime was a collective action
encouraged by the Union and one in which the employees
were acting in concert. " Applying the principles previously
discussed, I further find that the discharge of the employees
on October 25, 1976, was violative of Section 8(a)(X ).
Respondent persistently contends that the six employees
automatically terminated themselves by virtue of an
alleged "no show-no report" rule under which, if an
employee fails to report for work and does not call in to
explain his absence, he is considered to have "quit."
It is highly unlikely that the asserted rule ever existed, at
least with the Gibraltar-like aspect attributed to it by
Respondent. While Respondent's President Atkinson
testified that he inaugurated the rule around 1965 to
combat a "tremendous" problem of employees failing to
call in when absent, the written rules and regulations
drafted, according to Atkinson, "sometime after February
1974," and concededly in effect in October 1976, make no
reference to such an automatic termination, while at the
same time containing a provision calling for only a warning
for "Unexcused absence or tardiness.... Absence is
automatically considered unexcused if the employee does
not call in," and another calling for discharge for "Three
days or more absence without calling in." 12 The testimony
of President Atkinson that a "no show-no report" results in
"automatic termination" was contradicted both by Plant
Superintendent Grenat and Foreman Bickham, who
testified that the termination does not take place until the
next day and after the absent employee has been given a
chance to explain himself.
had knowledge of the concerted character of the conduct before he
determined upon the discharges: "we can't afford to have people going
around and saying that they can't work."
Even if, however, Grenat did not acquire this knowledge until shortly
after the discharges, there is, as Administrative Law Judge Sherman points
out in Air Surrey Corporation, 229 NLRB 1064, 1070-72 (1977), foursquare
authority for holding that an employer's liability for discharging employees
who, unknown to the employer, have absented themselves in the course of
concerted activity, arises when the employer finds out about the "real
reason" for the absence.
12 As General Counsel notes in his helpful brief, how an employee can be
discharged 2 days after he allegedly "quit" poses an interesting problem in
personnel management.
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There seems little point in examining all the evidence on
this issue. What is clear is that there was no uniform
understanding among the employees, and no basis for
believing, 13 that absenting themselves for a day without
contacting Respondent was tantamount to a resignation.' 4
The evidence clearly shows, rather, that the consequence of
such conduct rested in the discretion of Respondent, as
shown by, among other things, the personnel notations
made out for these six employees stating that they were "let
go" because of their failure to call in. 15 Application of such
a discretionary rule to this particular form of protected
activity is as ineffective as applying to a lawful strike a rule
against leaving the work station. N.L.R.B. v. Washington
Aluminum Co., 370 U.S. 9, 16-17 (1962).
I find, in addition, that the discharge of these employees
also violated Section 8(a)(3). Wilbur Jackson's testimony
that Grenat told him on Tuesday that he fired the
employees because "he can't afford to have people going
around saying they can't work," repeated on the following
day ("we can't have people going around telling us when
they can work and when they can't"), referring to a
decision taken by employees at the known urging of the
Union, strongly suggests that a factor in the decision was a
desire to show the employees that Respondent would not
countenance such a demonstration of union solidarity.
The inference is bolstered by the fact that, as I find,
Foreman Bickham did not make any effort on October 25
to ascertain the reasons why the employees had failed to
report on October 23. Bickham testified that such an
inquiry was customary, and that he did in fact ask the
employees. Not one of the six corroborated Bickham, most
testifying instead that he simply told them to turn in their
tools or that they were no longer needed. I credit the
employees, and I infer from Bickham's lack of interest in
their explanations a fixed determination to indicate to the
Union that it would not be permitted to engage in such
tactics.
While International Representative Riley testified that
his bargaining relationship with Respondent had been
amicable, it appears to me that Respondent was deter-
mined to keep the Union in its place. Thus, when
Crawford, the acknowledged union leader at the plant,
sought to discuss the discharges with Bickham and Grenat
on Monday morning, he was told by both that it was "none
of his business." The matter was, of course, very much his
business. This attitude not only implies knowledge that the
problem was a "group" problem, which had to be dealt
with summarily, but also connotes a fixed resolve to crack
down on the union show of strength.
31 Insofar as Bickham's generalized testimony may be read to say that he
told employees during entrance interviews that they were automatically
through if they were absent without reporting. I do not believe it.
14 The record does not show, contrary to Respondent's contention, that
the employees understood that such conduct automatically resulted in
termination. For the most part, they simply testified that it could provoke
some discipline, perhaps discharge, perhaps only a warning "pink slip."
15 Respondent's statement of position after the charges were filed said
that the employees "were terminated ... for cause."
i' Had Hallmark not been so pigeonholed, he might have received more
generous, or at least more considered, treatment. Although President
Atkinson testified that the "automatic termination" effect of the "no show-
no report" rule was of long standing, Respondent, without putting the
In sum, the evidence does warrant, I believe, a separate
finding that the discharges constituted "discrimination ...
to . . . discourage membership" in the Union, thereby
violating Section 8(a)(3) of the Act.
Two special cases require further discussion. Donnie
Hallmark, who was discharged on Monday, testified, oddly
enough, that Bickham had never in fact ordered him to
work on Saturday. Bickham, even more peculiarly, testified
that he did give Hallmark such an order. John Aucoin,
Bickham's assistant, corroborated him. Hallmark was a
more convincing witness than Bickham and Aucoin, and I
am inclined to believe that he was not, probably through
inadvertence, told to report. Given that belief, I cannot, in
theory, conclude that Hallmark was deliberately absenting
himself on October 23 in concert with the other employees.
It is a firmly established rule, however, that when an
employee is disciplined for concerted or union activities
which his employer mistakenly believes he had participated
in, the statute affords him relief. Henning and Cheadle, Inc.,
212 NLRB 776, 777 (1974) ("Here, although it is uncontro-
verted that these discriminatees did not, in fact, engage in
concerted activity, in agreement with the Administrative
Law Judge, Respondent's belief that such concerted
activity had occurred is controlling."). See also N.LR.B. v.
Link-Belt Company, 311 U.S. 584, 589-590 (1941);
N.LR.B. v. Ritchie Manufacturing Company, 354 F.2d 90,
98 (C.A. 8, 1966); N.LR.B. v. Clinton Packing Co., Inc., 468
F.2d 953, 955 (C.A. 8, 1972). Since Hallmark was swept
into a personnel action designed to retaliate against the
Union's display of strength, his discharge must be consid-
ered unlawful. As in San Juan Lumber Company, 144
NLRB 108 (1963), I conclude that the discharge of
Hallmark was not motivated by his failure to report so
much as by his assumed participation in unacceptable
group activity.16
I reach the same conclusion as to Donald Winfield.
While Winfield testified that he did not work as ordered on
Saturday because, as a union member, he had agreed with
Crawford not to do so, he also stated, "I don't believe I
would have worked that Saturday, because I had worked
the Saturday before that, and-uh-uh-this Saturday I
had something to attend to . . . no, I wouldn't have
worked anyway." Winfield further testified that when he
arrived on Monday, Bickham simply told him that he was
through, without inquiring into the reasons for his absence.
In stating that he would not have worked on Saturday in
any event, Winfield was, of course, simply speculating; he
was in no position to say definitively what he would have
done had he not been encouraged by the Union, and its
promise of group support, to refuse the Saturday work.
records into evidence, offered testimony through Assistant Plant Superin-
tendent Malone of only two employees who, prior to October 1976, had
been deemed "quits" because of the rule, while naming three such instances
occurring after the events at hand. Malone testified, without explanation,
that he had not examined all the personnel records in the main office, which
seems quite inexplicable considering the importance Respondent attached
to the rule at hearing. It was later developed, through cross-examination of
Bickham, that Tate, one of the two employees named as a victim of the rule
prior to October, "had a record of coming in late and stuff," and Wilson, the
other one, was fired "for insubordination" after calling in, having his excuse
rejected, and disobeying a direct instruction to report for work. Hallmark
had only begun work in September and apparently had not violated
discipline before.
778
GULF-WANDES CORPORATION
However, even if I were to assume that the union tactic was
in no measure a causative factor in Winfield's absence, I
nonetheless would conclude that the summary discharge of
Winfield, who was lumped together in Respondent's view
as one of a group of "people going around and telling us
when they can work and when they can't," was violative
under the authorities previously cited.
2. The alleged unfair labor practice strike
The strike of October 25 was manifestly triggered by the
discharge of the six employees, found above to constitute
an unfair labor practice. Had the six not been terminated,
there is no question on this record that the employees
would not have walked out. The picket signs condemned
"unfair labor practices" and "unfair treatment." While the
picketers also displayed calls for "higher pay" and "better
working conditions," no principle is more soundly estab-
lished than that a strike may encompass more than one
grievance, and that "[a] strike may be an unfair [labor]
practice strike even though it also has economic objec-
tives." N.L.R.B. v. Fitzgerald Mills Corporation, 313 F.2d
260, 269 (C.A. 2, 1963). Here, the unlawful discharges
plainly provoked, and played a substantial part in
prolonging, the strike.
3. The refusal to reinstate the unfair labor
practice strikers
The written requests for reinstatement of all strikers
proffered to Respondent on November 15 by Riley and
Crawford effectively constituted group offers on behalf of
them all. Colonial Haven Nursing Home, Inc., 218 NLRB
1007, 1011 (1975).'1 Unfair labor practice strikers are
entitled to reinstatement upon their unconditional request,
even if replacements for them have been obtained. Mastro
Plastics Corp. et al. v. N.L.R.B., 350 U.S. 270, 278 (1956).
The strikers here were not afforded the reinstatement to
which they were entitled until sometime after November
15. I find, with one exception, that by refusing to reinstate
the strikers on November 15 and thereafter, Respondent
violated Section 8(a)(3) and (1).
The exception referred to above is Woodrow L. Boat-
ner. 18 Warehouse Foreman James Jackson testified that on
Friday, October 22, he was disturbed by the fact that
Boatner had been circulating a football pool when he could
have been assisting Warehouse Supervisor O. C. Brumfield
on a loading job. Jackson reprimanded Boatner, and in the
course of an argument, Boatner called Jackson a "god-
damned liar." Jackson told Boatner that "we ain't going to
have this"; he did not tell Boatner that he was discharged.
Although Jackson was empowered to discharge Boatner,
he had only recently become a supervisor, so he took no
action at the time. His immediate superior, Controller
Barry Piatt, was out of town on Friday, but on Monday
morning, around 8 or 9 a.m., Jackson went to see Piatt and
told him of the incident. Piatt told Jackson to fire Boatner.
17 The complaint names 30 employees as strikers, all of whom were,
without contradiction. identified by Crawford as having walked out on
October 25 and thereafter having performed picket duty. Of these, 26 also
made individual written requests for reinstatement on November 15.
Brumfield corroborated Jackson as to those events to
which he was privy. So did Boatner, in some respects,
stating that Jackson had become "excited" and that he,
Boatner, may have said "god damn," but that he did not
remember calling Jackson a liar. Piatt testified that he told
Jackson on October 25 to terminate Boatner on the ground
of insubordination. Boatner was, at that time, on the picket
line.
Piatt gave some very suspect testimony about having sent
a letter of termination to Boatner around October 25 which
was returned undelivered. He seemed to testify that he had
a copy of the letter at his office, but did not explain why it
was not brought to the hearing. Boatner did, however,
receive a letter from Respondent, dated December I,
notifying him "officially of your termination effective
10/23/76 for insubordination."
Although I found Piatt's testimony about the correspon-
dence unlikely, Jackson appeared quite forthright and
spontaneous (other than for his reluctance to admit that
the football pool was a game of chance). I had a similar
impression of Brumfield. It seems to me very probable that
Jackson, a minister, was incensed at Boatner's profane and
insubordinate attitude, and did seek out Piatt for the
purpose of obtaining agreement to discharge Boatner.
I find, however, that Piatt, probably having forgotten the
matter in the turmoil of the strike, did not terminate
Boatner until he did so by sending the letter of December
1. Prior to receipt of that letter, Boatner remained an
employee and an unfair labor practice striker, fully
possessed of the rights enjoyed by employees in that status.
Thus, I conclude that Boatner was entitled to reinstatement
in accordance with the request of November 15 and
thereafter, until he received the December 1 letter, at which
time, I find, he was lawfully discharged for reasons
unrelated to his union activity.
4. Respondent's last-ditch defenses
At the hearing, Respondent struggled valiantly to
demonstrate that the concerted refusal to work and the
strike were, in reality, an effort, in contravention of the
wishes of the International, by a "splinter group" to force
Respondent to bargain with a local of the International at a
time when the International was the certified representa-
tive. While there is no merit in the contention, I shall deal
with it briefly below.
The International, which received the certification here,
maintains locals throughout the country. In instances such
as this, where the International is named in the certifica-
tion, it conducts the initial bargaining together with
employee representatives of the "group," as the union
members in each separate bargaining unit are called. The
groups become associated with a nearby local or some-
times form their own; the former happened here, when the
Gulf-Wandes group affiliated with Local 4-620. The
OCAW locals play no active role in initial negotiations.
At the first bargaining meeting in June, the Union
presented a written proposal which would have accorded
Respondent does not argue that the failure of the remaining four to
individually request reinstatement precludes a remedy as to them; the
requests made by their representatives sufficiently encompassed these four.
is Named in the complaint as "Louis Boatner."
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joint recognition to both the International and Local 4-
620. Respondent objected to recognizing the Local; the
proposal was discarded; and, Respondent's witnesses
concede, the Union made no further attempt to raise the
issue thereafter.' 9
During the strike, some of the picket signs referred to the
Local; others, as President Atkinson confirmed, simply
referred to "OCAW."
The charge filed on November 10 stated that the six
employees had been terminated because of their activities
"in behalf of Oil, Chemical and Atomic Workers Interna-
tional Union Local 4-620, AFL-CIO," and it was filed by
International Representative Rousselle on behalf of that
same entity.
On November 15, the requests for reinstatement of the
strikers, identical in format, which were proffered by Riley
and Crawford, stated that "the Oil, Chemical and Atomic
Workers International Union and its Local 4-620" were
making the requests. At that time, Riley also handed
Respondent a written request for resumption of negotia-
tions in the name of "O.C.A.W. Local 4-620 of the Oil,
Chemical and Atomic Workers International Union."20
Respondent further attempted to prove that the employ-
ees were acting in defiance of the International, by eliciting
some evidence that International Representative Riley was
unaware of the strike until it occurred; that, according to
Piatt, Riley told Atkinson around October 14 that his
superiors had instructed him that "under no circumstances
is there going to be a strike at this facility"; and that, on
October 25, Riley told Piatt that the strike was unautho-
rized. The reference to the October 14 conversation was
substantially contradicted by President Atkinson's testimo-
ny that what Riley said on October 14, when asked whether
there would be a strike, was, "I don't know. I'm doing
everything I can for there not to be one," and by Riley's
testimony on the matter. Distilled, the credited evidence
shows that Riley himself recommended the refusal to work
overtime, hoped that there would be no strike but expected
that there would be one in a few weeks,2 ' and, within a few
days after the strike began, obtained International sanction
for the strike so as to enable the strikers to receive strike
benefits.
The foregoing evidence falls woefully short of establish-
ing that the employees were attempting to secure recogni-
tion for Local 4-620. The record gives not the slightest hint
that the employees had any interest in being represented by
the Local as opposed to the International, and I find that
their concerted activities were not remotely aimed at
accomplishing such an objective.
Nor does the evidence support the contention that the
employees had gone off on a frolic and detour in engaging
in the refusal to work or the strike. Riley himself had
suggested the refusal; it can hardly be assumed that the
International would have opposed the strike which fol-
lowed when it was in protest of unfair labor practices
arising out of a course of conduct suggested by its own
representative, and Riley testimonially supported this view.
19 Respondent's brief, asserting that "in September, 1976, during
negotiations, the International sought Local recognition," mischaracterizes
the record. Controller Piatt conceded that, on this occasion, International
Representative Riley simply made "just a reference" to the Local.
20 These letters were drafted by International Representative Ernest J.
Rousselle, who had been only peripherally involved in the negotiations.
There is, patently, no merit in this contention. R. C. Can
Company, 140 NLRB 588 (1963), enfd. 328 F.2d 974 (C.A.
5, 1964); Lee A. Consaul Co., Inc., et al. 175 NLRB 547, 549
(1969), enforcement denied 469 F.2d 84 (C.A. 9, 1972);
Herbert E. Orr, Inc., 185 NLRB 1002, fn. 2 (1970).
CONCLUSIONS OF LAW
1. Gulf-Wandes Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Oil, Chemical and Atomic Workers International
Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Warren Washington, Ralph Bowie,
Alfred Johnson, Robert Lee, Donnie Hallmark, and
Donald Winfield on October 25, 1976, and by refusing to
reinstate unfair labor practice strikers after November 15,
1976, Respondent violated Section 8(a)(3) and (1) of the
Act.
4. The strike which began on October 25, 1976, in the
bargaining unit was in its inception, and continued
thereafter to be, an unfair labor practice strike.
5. By coercively interrogating and threatening an
employee on or about October 22, 1976, Respondent
violated Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
I have found that Respondent unlawfully discharged
Warren Washington, Ralph Bowie, Alfred Johnson, Rob-
ert Lee, Donnie Hallmark, and Donald Winfield. I shall
recommend that Respondent be required to offer them
reinstatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent ones, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by the reason of the discrimination against
them, by payment to them of a sum of money equal to that
which they normally would have earned from the date of
their discharge to the date of Respondent's offer of
reinstatement, less their net earnings for such period. The
backpay provided here shall be computed in accordance
with F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Having found that Respondent unlawfully failed and
refused to restore the unfair labor practice strikers listed in
21 Riley testified that shortly after October 14, his director asked him to
try to postpone a strike at Gulf-Wandes until at least two weeks after
October 25 because of other pending union business.
780
GULF-WANDES CORPORATION
Appendix A hereto, upon the Union's unconditional
application effective November 15, 1976,22 I shall recom-
mend that Respondent be required to offer them, if it has
not already done so, immediate and full reinstatement to
their former jobs, or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of the discrimination against them by payment
to them of a sum of money equal to that which they
normally would have earned from November 15, 1976, to
the date of Respondent's offer of reinstatement, less their
net earnings for such period.23 With respect to Woodrow
L. Boatner, he shall receive backpay for the period
November 15-December 1, 1976. Backpay shall be com-
puted as set out above.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 24
The Respondent, Gulf-Wandes Corporation, Baton
Rouge, Louisiana, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in or activity on behalf of
Oil, Chemical and Atomic Workers International Union,
or any other labor organization, and interfering with the
protected concerted activities of employees, by discriminat-
ing against employees who engage in such activity, or by
refusing to reinstate upon their unconditional application
for reinstatement employees engaged in an unfair labor
practice strike, or by in any other manner discriminating
against employees in regard to their hire and tenure of
employment.
(b) Coercively interrogating employees about their union
sentiments.
22 The parties entered into some stipulations about the reinstatement of.
or reinstatement offers to, some strikers, but I do not regard the evidence to
be sufficiently clear as to warrant definitive findings as to the validity of
such offers.
23 The usual 5-day grace period is not applicable in this situation. Drug
Package Company. Inc. 228 NLRB 108. 114 (1977).
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
(c) Threatening employees that they will lose their jobs if
they refuse to cross picket lines.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Warren Washington, Ralph Bowie, Alfred
Johnson, Robert Lee, Donnie Hallmark, Donald Winfield,
and the employees named in "Appendix A" hereto (with
the exception of Woodrow L. Boatner, who shall not be
reinstated but who shall receive backpay), if it has not
already done so, immediate and full reinstatement to their
former positions or, if they no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges, dismissing, if necessary,
any employees hired as replacements, and make them
whole for any loss of pay they may have suffered by reason
of Respondent's unlawful conduct, in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this recommended Order.
(c) Post at its Baton Rouge, Louisiana, plant, copies of
the attached notice marked "Appendix B." 25 Copies of
said notice, on forms provided by the Regional Director for
Region 15, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
25 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
781