Jones & McKnight, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1970

183 N.L.R.B. 82 (N.L.R.B. 1970)

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones & McKnight , Inc. and Alice J. Steele and Lu-
venia Johnson . Case 38-CA-718
June 8, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On February 13, 1970, Trial Examiner Harry H.
Kuskin issued his Decision in this case, finding that
the Respondent had engaged in and was engaging
in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief, and the General Counsel filed
limited exceptions and a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
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 Decision, the Respondent's and
General Counsel's exceptions, their briefs, and the
entire record in this case,' and hereby adopts the
findings,2 conclusions,3 and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Jones & McKnight,
Inc., Kankakee, Illinois, its officers, agents, succes-
' The Respondent 's request for oral argument is hereby denied, as, in our
opinion , the record in this case , including the exceptions and briefs,
adequately sets forth the issues and positions of the parties
' We find merit in the General Counsel's limited exceptions , and shall
delete the name of Ann Johnson , apparently inadvertently included by the
Trial Examiner in the list of unfair labor practice strikers entitled to rein-
statement , and shall include the name of Annabelle Parks, omitted by the
Trial Examiner.
3 In agreeing with the Trial Examiner that the Respondent condoned the
July 17 strikers ' conduct, we rely on his finding , which the record supports,
that the condition attached by the Respondent to the offer of condonation,
that picketing cease before the third shift on that day , was met before the
Respondent withdrew its offer We find it unnecessary to decide whether,
as also apparently concluded by the Trial Examiner , the Respondent con-
doned the strikers' conduct regardless of whether such condition was, in
fact, met.
sors , and assigns , shall take the action set forth in
the Trial Examiner 's Recommended Order, as
modified below:
Substitute the name of Annabelle Parks for that
of Ann Johnson in the Recommended Order and
notice.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This proceed-
ing was heard at Kankakee, Illinois, on November
19 and 20, 1969. The complaint, as amended both
before and at the hearing, issued herein on August
21, 1969, based on a charge, a first amended
charge, and a second amended charge filed on July
23, August 21, and November 4, 1969, respective-
ly. The complaint, as amended, alleges , in sub-
stance, that Jones & McKnight, Inc., herein called
Respondent, has violated Section 8(a)(1) and (3)
of the Act by discriminatorily refusing on July 18,
1969, to reinstate 3 employees' whom it had
discharged on the day before, and by discrimina-
torily discharging, at the same time, 7 additional
employees, all because of their union and con-
certed activity;2 and by also discriminatorily
discharging on July 23, 1969, 24 employees3 who
had assisted and supported a strike, called on July
18, 1969, which was an unfair labor practice strike,
in protest of the discrimination against the afore-
mentioned 10 employees. Respondent's answer, as
amended, denies that it has violated the Act in any
respect alleged herein.
Upon the entire record, including my observation
of the witnesses, including their demeanor while on
' Leslie Harshberger , James Goldsberry , and Fred Harrawood.
' Joan Gray , Alice Steele, Luvenia Johnson, Mary Jones, Mary Stahl,
Roger Kilman , and Roger Wesselman.
a The employees discharged were.
Charles Johnson Jean Harrison
Philip McCormac Annabelle Parks
Edna Marsh Tom Brooks
Larry Smith Sandra Jensen
Jonnie Louis Linda Archer
Eva Hale Leslie Longtin
Darlene Courtney Robert Potter
Vera Washington Robert Jackson
Edith Robinson Kenneth Gremar
Jean Ann Johnson Jerry Kuntz
Mary Kurtz Delona Gale
Domingo Gomez Mildred Daily
At the hearing , the General Counsel , who had amended the complaint
before the hearing to increase the number of employees in this group from
17 to 24 , further amended this list by adding one name, Eva Emery, and
deleting another, Delona Gale. This left the number 24, intact. Ac-
cordingly , while the General Counsel requested and was granted, without
objection, permission to amend the figure 24 to 25, it is clear that there was
no warrant for such an amendment
During the hearing , I granted the motion of counsel for Respondent to
dismiss the complaint , as amended, with respect to Domingo Gomez on the
ground that the record shows that Gomez was on sick leave at all material
times during July 1969, that he returned to work for at least 2 weeks in Au-
gust, and that the discharge of Gomez was unrelated to the matters herein
183 NLRB No. 10
JONES & McKNIGHT, INC. 83
the witness stand, and after due consideration of
the briefs of the General Counsel and Respondent,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint, as amended, alleges , and Respon-
dent admits, that it is an Illinois corporation en-
gaged in the business of manufacturing steel mats
and related products; that during the 12 months
preceding the issuance of the complaint it sold and
shipped, to points outside Illinois from its Kan-
kakee, Illinois, plants, products valued in excess of
$50,000; and that during the same period it
purchased and caused to be transferred and
delivered to its Kankakee, Illinois, facilities, from
points outside Illinois, goods and materials valued
in excess of $50,000. I find upon the foregoing, as
Respondent also admits , that Respondent is en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
the tieing was being done inside the building, with
restroom facilities and drinking water nearby. The
first shift was from 7 a.m. to 3:30 p.m.; the second
shift was from 3:30 p.m. to 12 midnight, and the
third shift was from 11:30 p.m. until 7:30 a.m. the
next day. Employees were paid on an incentive plan
for tieing these mats. The start of the regular work-
week in July for the third shift was Sunday evening
at 11:30 and the end of the workweek occurred on
Friday morning at 7:30; the regular workweek for
the other two shifts was Monday through Friday.
These mats were either 31 feet, 4 inches, or 36 feet,
4 inches, long, either 6 or 12 feet wide, and 1-1 /4
inches thick; they consisted of woven metal and
wires, with the smallest mat weighing 442.95
pounds; and they were to be used for continuous
road construction; i.e., the mats were to be put into
the roadbed and were then to be covered by
concrete. Noteworthy, too, in connection with the
issues herein, are the following details of the plant
itself and the surrounding area: South of the plant is
a blacktop county road called the Robert Hall
Road. Access to, and egress from, the plant are by
the east and west gates and inside these gates are
parking lots.7
The complaint, as amended, further alleges, and
Respondent also admits, that International Union of
District 50, United Mine Workers of America,
herein called the Union, is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts4
Respondent operates three plants in the Kan-
kakee, Illinois, area ; namely, one called the North
plant, one at 210 West Lawn, and one on Highway
54. Only the North plant is involved herein. At all
times material , the Union has been the exclusive
bargaining agent of the affected employees and has
had a collective-bargaining agreement with Respon-
dent which includes, inter alia, a grievance and ar-
bitration procedure, which culminates in final and
binding arbitration , and an express no-strike clause.
These clauses have relevance here.'
The North plant was engaged in mid-July 1969,6
which marks the commencement of the critical
period, in the tieing of both 12-foot and 6-foot
mats, primarily the latter, on a three-shift basis. All
Unless otherwise indicated, the findings hereinafter are based on unde-
nied or uncontroverted testimony , which I credit
'Of these clauses, section 181 , under article XVIII-grievance
procedure, provides that
Should differences arise between the Company and its employees or
the Union as to the meaning and application of the provisions of this
Agreement , or should any local trouble of any kind arise in the Plant,
there shall be no suspension of work until an earnest effort has been
made to settle the difference in accordance with Steps I, II, 111, and IV
below An employee or employees who violate the provisions of this
Article may be discharged from the employ of the Company in ac-
cordance with the procedure of this Agreement in discharge cases
And section 18 2 of the same article provides that
B. The Critical Events and the Discharges Which
Ensued
On Tuesday, July 15, near the end of the first
shift, Jim Rollins, the foreman on this shift, assem-
bled the mat tiers and told them that all of them
would be tieing 12-foot mats in the future. The fol-
lowing morning, Rollins assembled the mat tiers
again and advised them further that they would all
be tieing 12-foot mats that day and some of the 12-
foot mats would have to be tied outside in the sun.
Rollins added that he knew that it would be hot out
in the sun, but to alleviate the situation lie would
rotate the various crews of mat tiers so that a crew
would be tieing outside for 2 hours at a time. In this
way, according to Rollins, the employees would
spend most of the day on the inside at the tieing
operation. Although the mat tiers were willing to tie
mats on the outside that day, no such tieing oc-
curred because a welding operation had to be per-
formed on the 12-foot mats before the mats could
be tied. The next morning, July 17, Rollins assem-
bled the mat tiers on the first shift again and ap-
prised them of a further change in plans, saying that
During the term of this Agreement neither the Union, its officers, its
agents or members, nor any employee will authorize, instigate, and
condone or engage in any strike, slowdown, or other interruption of
work, but that any disputes or differences shall be taken up under the
Grievance and Arbitration Procedure of this Agreement
The Company agrees that during the term of this Agreement there
shall be no lockouts
o All dates hereinafter are in 1969
' Respondent had tried to get its employees to use the east gate because
of truck traffic through the west gate However, because of the fact that the
parking lot off the east gate was not yet finished and could not accom-
modate all its employees, some employees parked on the west side of the
plant
427-258 O-LT - 74 - 7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the tables on which the 12-foot mats are tied
had been moved outside and that thenceforth all
12-foot mats would be tied outside the plant. Rol-
lins again adverted to the difficulties attendant
upon working in the hot sun, and offered, by way of
amelioration, in the event the tiers worked hard, to
give them 1 hour down time on those days when it
rained and they could not work on the outside. Em-
ployee Jean Johnson was rebuffed by Rollins some-
time during the meeting when she interjected to ask
if she could transfer to another department as she
had high seniority in the plant; Rollins told her that
seniority did not count in this matter and that if she
wanted her job she would be tieing mats on the out-
side with the others.8 During the rest of the morn-
ing the mat tiers worked outside the plant tieing 12-
foot mats.
During the lunch break on July 17, i.e., between
11:30 a.m. and 12 noon, Gray, Steele, Luvenia
Johnson,9 and other employees went to the
Hawaiian Inn, in the vicinity, for lunch and there
discussed the matter of tieing 12-foot mats in the
sun.10 It was the sense of the group that they should
get a copy of the contract in order to see what it
had to say about having to tie mats outside in the
sun. Shortly before noon, these individuals returned
to the plant and gathered in the lunchroom. They
were determined to wait until they saw the contract
and resisted Isaacs ' importuning that they go to
work. At the suggestion of Gray, the matter was
seemingly resolved on the basis that the mat tiers
would go to work and that Issacs would, in turn,
make the contract available to them at the 1:30
break that afternoon, thereby meeting Isaacs' ob-
jection that the employees may not read the con-
tract on company time . However, the employees
had a change of heart. They started moving in the
direction of their work stations outside the plant,
but when they reached the west door they stopped
and refused to spend another 1-1/2 hours in the sun
before seeing the contract. Shortly thereafter,
Keeler, the daytime union steward, approached the
group and took Steele and Johnson with him to
Isaacs ' office. There, Isaacs supplied them with the
contract. As Isaacs would not allow them to read
the contract in his office, they took the contract to
the lunchroom.
After handing the contract to Steele and John-
son, Isaacs went to the west door of the plant. He
separately asked "quite a few" of the women as-
sembled there if they were going back to work, in-
dicating that he wanted "a yes or a no" answer.'[
Each replied, in substance, that she was with the
rest of the women, that is, if they would go back,
she would too. Isaacs then turned to James Gold-
sberry, Leslie Harshberger, Roger Kilman, and Fred
Harrawood12 and asked each one, separately, if he
was going back to work. Each one responded that
he was "thinking about it," and repeated his answer
when Isaacs insisted on a "yes or no" answer. Upon
such refusal to give a "yes or no" answer, Isaacs
discharged each one. Isaacs then ordered all four of
them to "get off the property," and also said to the
assembled women, "If you're not going back to
work, get off the property." With this, Isaacs left
the group. Isaacs stayed in the building while most
of those in the group left the building and assem-
bled on the county road outside the plant.
Isaacs appeared in the lunchroom shortly
thereafter. There he found Steele, Johnson, Keeler,
and Gray13 looking over the contract. Isaacs asked
them what they were looking for in the contract
and, upon being told, he replied that there was
nothing in the contract about having to work out in
the sun for 8 hours tieing mats . Isaacs said further
that only work on the 12-foot mats was available
and the tieing of the mats was going to be done out-
side, that they should go out and so inform the rest
of the employees, and that he wanted them to make
up their minds as to whether they were going to tie
the mats. Isaacs thereupon took the contract from
Johnson's hand and left.
Steele , Johnson, and Gray then joined the assem-
bled employees at the west gate and Steele reported
to them what Isaacs had said about the contract
and informed them that Isaacs' position was
unchanged on tieing the 12-foot mats on the out-
side. About this time, Isaacs appeared. He queried
the four men again as to whether they were going
back to work and, receiving the same answers as
before, discharged each one a second time. 14 Isaacs
then told the women in the group that if they
wanted to go back to work they could, but none of
them did. With particular reference to those
' Employees Joan Gray and Alice Steele , both of whom were present,
testified to these developments on July 17 According to Gray, Rollins also
said that " if [the mat tiers] didn 't like it [they] could quit [They] had
[their ] choice " Steele, however, made no such attribution to Rollins Ac-
cording to her, the mat tiers on this shift, all of whom were women, went
into a huddle to decide whether they wanted to work out in the hot sun, and
at that point Wayne E Isaacs, the plant superintendent, who had observed
the proceedings , said, "All right , girls There is 12-foot mats to tie and 12-
foot mats only from now on, until October 1st They will all be tied outside
And if you don't want to get over there and start tieing 12-foot mats, then
you can get the hell out of here " Rollins did not testify and Isaacs was not
questioned concerning this attribution to him I find it unnecessary to de-
cide whether Rollins or Isaacs or both threatened all the mat tiers directly
with discharge, for apart from this it is clear, and I find, from the mutually
corroborative testimony of Gray and Steele as to Rollins' colloquy with
Jean Johnson, which I credit , that the mat tiers were therey told, in effect,
that, like Jean Johnson, they would be discharged if they refused to tie 12-
foot mats on the outside
e The name Johnson, whenever used hereinafter , refers to Luvenia John-
son and not Jean Johnson
10 There is undenied testimony by Gray, which I credit , that at noon that
day, the temperature " was in the mid to upper 90's" and "terribly humid "
11 Gray identified Mary Stahl , Edith Robinson, Darlene Courtney, and
Linda Archer as being among those so interrogated
" These four individuals were part of the yard crew and had nothing to
do with the tieing of mats
i0 Gray had not left the building after Isaacs had spoken to those assem-
bled at the west door, including her Instead, she proceeded to the
lunchroom in search of Steele and Johnson
t° Isaacs explained that he discharged them a second time because "[he]
wanted to make sure they understood , that they got the message they were
fired "
Although Isaacs testified that the four yardmen were discharged for
refusing to go to work and for rowdiness accompanying such refusal, his
testimony in the latter connection was that he meant thereby that they
"were talking pretty loud " In these circumstances , I am unable to find
either that the four yardmen were rowdy or that this claimed rowdiness was
an operative factor in their discharges
JONES & McKNIGHT, INC.
women who were specifically asked by Isaacs
whether they were going back to work, each replied
that she would return if Isaacs would allow the four
men to return also. Thereupon, Isaacs left and
walked into the plant.15
While some of the employees were milling
around the county road, Gray and others
proceeded to the Hawaiian Inn. There, Gray
telephoned Vernon Morris, the International
representative of District 50, United Mine Workers
of America, to enlist his aid. About 3 p.m., Steele,
Gray, and Morris arrived at the North plant where
they met with Isaacs and Donald J. Rasor, who is in
charge of personnel, purchasing, maintenance, and
the general direction of the work forces of Respon-
dent's three plants in the Kankakee area. Forelady
Hermaine Hart, who is Rollins' counterpart on the
second shift, and an office girl were also present.'s
Morris wanted to know why Respondent was
requiring that these women tie mats in the hot sun
for 8 hours, and Rasor replied that there was no
other work available. The matter of incentive pay
and other issues were raised by Morris and he
asked to see Respondent's records. As these
records were not available at this plant, the parties
had to withhold further meaningful discussions until
later that day, when they met at the West Lawn
Street plant.
The meeting at the West Lawn Street plant began
about 4:45 that afternoon and ended about 6:45.
Present were Rasor, Isaacs, Morris, Johnson, Mr.
and Mrs. Gray," and employees Blanchie Glenn
and Margaret Milton.18 Only Gray, Johnson, Mor-
ris, Isaacs , and Rasor testified concerning this meet-
ing. A composite of their credible testimony
establishes that Rasor there agreed with the ad hoc
grievance committee to lower the quota for the 12-
foot mats, to give the mat tiers a 10-minute break
in the shade each hour, to increase the incentive
rate on 12-foot mats from 58 cents per mat to
$1.16, and to make the raise retroactive to July 14,
with the further qualification that the matter of the
raise in incentive pay was conditioned on the ap-
proval of President McKnight. Whereupon, accord-
ing to the rather detailed testimony of Morris,
which I credit, the following occurred: 19 Rasor in-
dicated that, notwithstanding the fact that there
11 In those instances discussed above in which Issacs was engaged in
discussion with the employees on the first shift , there is record testimony
only by Steele, Gray, and Issacs I have credited the testimony thereon of
either Steele or Gray or both , rather than that of Issacs I do so because
Steele and Gray impressed me as more reliable witnesses than Issacs and
wherever they testified concerning the same discussion their testimony was
largely mutually corroborative Isaacs, on the other hand, testified in sum-
mary fashion as to these discussions and did not deny any of the remarks at-
tributed to him by either Steele or Gray, or both of them
16 According to Hart, only 2 employees out of "anywhere from 45 to 55
people " showed up for work on the second shift that day
17 Mrs Gray had to pick up her husband by automobile at his place of
work at the end of his workday Accordingly, Mr Gray was picked up and
taken along to the meeting Rasor agreed that Mr Gray could attend the
session As heretofore , I shall continue to refer to Mrs Gray as Gray
18 The second -shift employees had that afternoon , while outside the gate
and in the presence of Morris , chosen Glenn and Milton to represent them
85
would be some delay in getting McKnight's ap-
proval of the raise, he wanted not only to have nor-
mal production resumed the next day by his em-
ployees but also to get the pickets away from the
gate so that the third shift could go to work that
very evening. Some of the women present then
queried Rasor as to what he was going to do about
yardmen who had been discharged by Isaacs that
afternoon. Rasor showed a reluctance to do
anything about these discharges. At this, Morris
told Rasor that he "thought it advisable to take the
employees back because we had got up to that
point of settling the trouble"; and Rasor "finally
came to an understanding that he would agree that
the three male employees (Goldsberry, Harsh-
berger, and Harrawood)20 would be put back on the
job and that he would appreciate if we could go out
and get the pickets off the gate." Johnson and Gray
then undertook to talk to the first-shift employees,
and Glenn and Milton agreed to talk to the second-
shift employees, outside the plant. The meeting
ended at this juncture.
The record shows that Gray, Johnson, Glenn, and
Milton returned to the area adjacent to the North
plant21 and spoke to the employees on their respec-
tive shifts as they had promised Rasor. According
to the mutually corroborative testimony of Johnson
and Gray, they and the others told the employees
that Rasor had said that if they could talk the em-
ployees into going home and letting the third shift
go to work, he would take all the employees, as
well as the men who had been discharged, back to
work effective the following day, that no punish-
ment would be administered to the employees, and
that there would be certain changes as to break-
times, quotas, and incentive pay, all of which they
detailed to the employees. They testified further
that, except for the yardmen, the other employees
believed that Rasor would keep his word and were
ready to go home. However, the yardmen said that
they preferred to have what Rasor had said, in writ-
ing, from him. In consequence, also according to
Johnson and Gray, they consulted with each other
and decided to go into the plant and call Rasor on
the telephone.
Gray testified that her husband and Johnson ac-
companied her into the plant and there, in the
at this meeting The first-shift employees had, at the same time , selected
Johnson and Gray to represent them Morris gave all four of them steward's
badges at the start of the meeting It is clear therefore , and I find, that this
group functioned as an ad hoc grievance committee
1B Morris was called by Respondent as its witness Since his testimony as
to this portion of the meeting was detailed and straightforward and had the
ring of truth , whereas the testimony of Gray, Isaacs, and Rasor on this cnti-
cal part of the meeting appeared to be influenced by their strong partisan
feelings, I find that Morris' testimony correctly reflects what then occurred,
and I credit him Johnson 's testimony in this connection was exceedingly
brief
20 I find , consistently with Issacs ' testimony in this regard , that Kilman,
who had also been discharged when the above three were discharged, had
planned, in advance of the events detailed above, to leave Respondent's
employ on the next day
21 Mr Gray accompanied his wife to the North plant
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presence of Forelady Hart and the others with her,
she spoke to Rasor on the telephone, as follows:
She told him that "for the most part the women
were satisfied and were ready to go home and let
their shift go to work but the men thought that we
should have an agreement written down on paper
as far as what we agreed on, because this way they
felt there would be no mistake because of it," and
"otherwise they were satisfied."22 Rasor's answer
was that he would not talk to her; that she should
call her union representative. This ended the con-
versation. She testified further that she then called
Morris and told him of these developments, and
that Morris replied that he would see what he could
do, adding, at the same time , "But be sure you get
that picket line down because Mr. Rasor gave you
his word and you gave him your word and just get
the picket line down." Upon terminating the con-
versation, also according to Gray, Johnson wanted
to know what Morris had said. Her reply, made in
the presence of her husband, Johnson, and Hart,
was that Morris had said "he would try to get it
written down on paper and to tell the people out at
the gate that the picket line had to come down."23
After these telephone calls were concluded, the
Grays and Johnson left the plant and approached
the employees who were still outside, consisting of
Goldsberry, Harshberger, Harrawood, and "a few
women ." According to Gray, she reported to these
employees what Rasor and Morris had said during
her telephone conversations with each of them; and
her husband told the men present that they were
hurting themselves by staying there as Rasor had
given his word at the meeting, and as Gray and
Johnson had, at the same time, given their word to
get them off the picket line. Also according to
Gray, the men then agreed to go home and she and
her husband left for home between 7:30 and 7:45
that evening. When the Grays left, only Johnson
and the three individuals named above were left
from among the pickets.24 According to the credi-
ble testimony of Johnson, the following then oc-
curred: She tried to get these individuals to go
home, but they refused to leave her there alone.
Thereafter, Harrawood removed the picket sign
which was posted on a telegraph pole "across the
road on the southside [of the plant]," and she took
down the picket sign that was "on the eastside of
the road that goes to the steel plant." Both signs
were then thrown into the ditch in the vicinity of
the telegraph pole. She then left the plant site with
her daughter, who called for her in an automobile
at 7:30 that evening, but only after she saw Gold-
22 Although Gray denied , during cross -examination , that she told Rasor
that unless she got a written statement , some of the people were not going
to take down the picket line, I am satisfied , and find , in the light of her own
testimony as set forth in the text above, the testimony of Johnson and Rasor
discussed hereinafter , and the probabilities of the situation , that she so im-
plied, and that Rasor so understood her remarks Thus, Johnson testified,
under cross-examination , that Gray indicated to Rasor, in substance, that
the boys would not leave until they got a written statement , and Rasor
testified that , when he told Gray on the telephone that he could not put the
agreement in writing because he did not have the final decision of manage-
sberry, Harshberger, and Harrawood get into their
cars and drive away.25
The testimony is in conflict as to whether there
was any picketing that evening after the time of
Johnson's and Harshberger's claimed departure.
According to the testimony of Harshberger, he and
the other two men went from the plant to the home
of employee Mary Kurtz, about 20 miles away from
the plant, arrived there "after 8 sometime," stayed
until sometime after midnight, and returned to their
respective homes about 1 a.m. Mary Kurtz testified
that these three men arrived at her home around
8:30 on the evening of July 17 and stayed "until
sometime after midnight." In addition, employees
Leslie Longtin and Larry Smith, who reported for
work on the third shift that evening at 10:45 and
11:25, respectively (Longtin entered by the west
gate of the plant and Smith entered by the east
gate), each testified that he saw nothing unusual
outside the plant in the way of cars parked along
the county road or employees outside the gate or
the presence of a sheriff's deputy in the vicinity,
when he entered the plant. In contrast to the above
testimony was the testimony of Isaacs, Rasor, and
Forelady Hart.26 Isaacs testified that at 9 o'clock
that evening, upon his return to the plant from
dinner, he saw both Harrawood and Goldsberry
outside the plant at a point on the county road near
where their car was parked; that about 11 p.m.
when the third shift reported, and at 1 a.m. when
he left for home, pickets were still outside the
plant. Rasor, in turn, testified that he personally
saw picketing in progress outside the plant when
the third shift reported for work; that there were
people out on Robert Hall Road and, at times, cars
would pull into the drive of the plant, stay there for
some periods of time and then pull back into the
road; and that a sheriff's deputy came in answer to
his call, pulled up to these cars, and asked the peo-
ple in the cars and those in front of the drive to
move out of the drive. Finally, Hart testified that
she saw Goldsberry, Harshberger, and Harrawood
outside the plant that evening, that she saw them
leave between 8:45 and 9:15, and return in about
one-half hour; and that, as far as she knows, these
three were still there, on the northside of the road,
when she left the plant a little after 12:30 a.m.
However, I note that Isaacs testified at one point
that those present outside the plant at 11 p.m. were
employees and, at another point, that he had no
idea who these people were; and, on another occa-
sion, he testified that he saw three or four cars and
four or five people out there, but altered his
ment , she said that "the people would not leave until they had the written
information "
23 Johnson corroborated Gray in this detail
24 So far as appears there was no picket line as such The employees who
were striking stood around outside the east gate and picket signs were
posted in several places nearby
25 Harshberger testified that Goldsberry , Harrawood , and he left the
plant area that evening between 7 and 8 p in
26 As heretofore found, Hart was a forelady on the second shift
JONES & McKNIGHT, INC.
testimony thereafter to say that he saw a couple or
three cars out there and does not know how many
people were outside the plant.27 In these circum-
stances , I find Isaacs' testimony untrustworthy and
unconvincing. As to Rasor, I note that nowhere in
his testimony does it appear that he recognized any
employees among those he claimed were outside
the plant that evening . And I note further that his
testimony that a sheriff's deputy was present out-
side the plant about 11 o'clock in response to his
telephone call to the sheriff's office is at odds with
the credible testimony of Deputy Sheriff Brais that
the sheriff's records fail to indicate that such a call
was received that evening from Respondent. Ac-
cordingly, I find here too that Rasor's testimony in
this respect is not convincing. Further, as to Hart,
she impressed me as one who was more concerned
with being helpful to Respondent's defense than
with testifying truthfully. I, therefore, find her
testimony unreliable. On the other hand, Longtin,
Smith, and Johnson impressed me as reliable wit-
nesses ; and Harshberger and Kurtz gave mutually
corroborative testimony as to the whereabouts of
Harshberger, Goldsberry, and Harrawood during
the periods covered by the testimony of Isaacs,
Rasor, and Hart. In addition, entries on company
records for the month of July, in evidence as part of
General Counsel's Exhibit 2, show that 20 em-
ployees worked on the third shift starting on the
night of July 17,28 and that this number exceeded
the employee complement on that shift at any time
that month. In all these circumstances and on the
basis of the above-mentioned testimony of Johnson,
Longtin, Smith, Harshberger, and Kurtz, which I
credit, I find that there was no picketing in progress
on July 17 after about 8 o'clock in the evening; and
I infer, and find further, that Rasor and Isaacs were
aware thereof by the time of the commencement of
the third shift that evening.
Gray's telephone call to Morris about the men
wanting Rasor to put the agreement in writing and
about her inability to get Rasor to deal with her
thereon resulted in a telephone call from Morris to
27 Isaacs acknowledged that , in his prehearing affidavit to a Board agent,
he swore that there were 12 to 15 employees outside the plant
Y8 Although these entries appear under date of July 18, it is clear, and
I find, that the reference is to the shift which started at 11 30 p m on July
17 and ended on the morning of July 18, and that this was consistent with
all third-shift entries therein for July
zB Morris could not fix the time more definitely
A letter and telegram dated July 18, 1969, from Rasor to Morris were
thereafter received by Morris Its text read as follows
This is to confirm our telephone conversation of July 17, at approxi-
mately 6 30 p in , with reference to the termination of specific em-
ployees at the North plant , ( known as Robert Hall Road or Swanson
Building ) We wish to confirm that the following employees have been
terminated for refusal to go back to their productive assignments as as-
signed by our supervisory personnel They are as follows
Name Clock
Joan Gray 892
Alice Steele 624
Mary Stahl 738
Leslie Harshberger 879
James Goldsberry 695
Fred Harrawood 31
87
Rasor. According to the credible testimony of Mor-
ris, he called Rasor and told Rasor that he "didn't
see any reason why what we agreed on, even
though it might have been tentatively for approval,
why it could not be put in writing for the time be-
ing." Rasor did not give his answer then but ar-
ranged with Morris to telephone him later that
evening after he had consulted with his superiors.
Morris testified further that "somewhere after 9 o'-
clock" and before midnight29 Rasor did call him
again and informed him that the position of the
Company was that, in addition to discharging Gold-
sberry, Harshberger, and Harrawood, certain other
employees, whom he named, were to be
discharged; Rasor also said that Morris "would
have a follow-up on the thing."" Morris, in turn,
relayed Rasor's response to Gray, reaching her
about 12:30 a.m. Gray testified credibly that Morris
then told her that Respondent had agreed to lower
the quota, to raise the incentive pay, and to give the
employees a 10-minute break in the shade every
hour, and that Morris also read to her the name of
the 11 employees who were being discharged. In
addition, according to Gray, Morris told her to go
to work that morning, as usual , and punch in on her
timecard and act as if she had not received his
telephone call.
It is apparent from the record, and I find, that the
letter and telegram erred in referring to the time
when Rasor apprised Morris on the telephone of
these discharges as 6:30 p.m. on July 17. Thus,
Rasor testified that: (1) at 7 o'clock that evening he
received the telephone call from Gray with respect
to reducing the agreement to writing; (2) shortly
after 8 p.m. he held a telephone conversation with
Morris;31 and (3) sometime after I1 p.m. he con-
ferred with Isaacs at the North plant as to whether
to take disciplinary action and decided to discharge
these 11 employees. Further, Isaacs testified that
the above conference with Rasor occurred "real
late at night" on July 17, in the time period when
the third shift was working.32 It follows, therefore,
and I find, from the foregoing time sequence in the
Mary Jones 618
Luvema Johnson 656
Roger Wesselman 960
Roger Kilman 890
Sidney Brister 870
" Rasor testified that he telephoned Moms and told Moma that [he]
understood that the people were not going back to work unless [he ] signed
the paper ", however, he could not remember Morris' answer As already
found, Moms testified that he initiated the telephone call and asked Rasor
about reducing the agreement to writing and that Rasor did not give him an
answer but promised to telephone him after he had consulted his superiors
In these circumstances, and as Rasor did not deny Gray's testimony that he
told her on the telephone to have the representative of the Union contact
him on the matter of reducing the agreement to writing , and, further, as the
logic of the situation suggests that Rasor would then have waited to hear
from Morris , I do not credit Rasor's testimony that he initiated the
telephone call And since Morris impressed me as a more credible witness
than Rasor, I credit Morris ' version of the content of that conversation
" In this connection, Issacs characterized as "a mistake " the statement
in his preheanng affidavit to a Board agent , in evidence as G C Exh 2, that
the decision to discourage employees Gray, Steele, Johnson, Jones, Stahl,
and Wesselman was made at a conference between Rasor and him "about
7 45 ain July 18"
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-mentioned testimony of Rasor and from the
above testimony of Isaacs, that the telegram did not
correctly reflect the time when Rasor commu-
nicated to Morris the decision concerning these 11
discharges. In addition, I conclude and find further,
from the foregoing, that Rasor decided to discharge
these 11 employees on July 17, after the third shift
had gone to work at 11:30 p.m., and that Morris
learned thereof through a telephone call from
Rasor shortly before midnight.33
Gray arrived at the plant between 6:30 and 6:45
on the morning of July 18. There were no em-
ployees standing outside the gates to the plant and
there were no cars parked along the county road. It
was raining at the time. She entered and looked for
her timecard in the customary place in the plant
and it was not there among the other timecards.
Nor could she find the timecards of those who were
on the list of dischargees that Morris had relayed to
her on the telephone. Gray then proceeded to the
area of the gates and, as employees arrived, Gray
communicated to the dischargees the fact of their
discharge and what she had learned from Morris in
that connection. Only 7 employees worked on the
first shift that day out of a normal complement, in-
cluding the dischargees, of about 20 employees.
Those who appeared at the plant and learned of
their discharge adjourned- to the Hawaiian Inn
along with some of their coworkers34 to decide on
their next step. There they contacted Morris, told
him of developments that morning, and arranged for
him to come to the inn. During the meeting with
Morris that followed, according to a composite of
the credible testimony of Morris and Gray, Morris
advised that they file a grievance with respect to
those 11 employees who reported for work that
morning and did not find their timecards inn the
racks. The assembled employees told Morris that
they were not going back to work until all 11 had
been rehired. A grievance was, in fact, prepared at
this time and the grievance was then presented to
Rasor at the North plant by Morris and employees
Gray and Johnson. Morris indicated to Rasor that
he had 72 hours within which to answer and Rasor
replied that Morris could expect an answer within
that period. At this, Morris, Johnson, and Gray left.
Outside the plant, at the gate, they found Goldsber-
ry, Harshberger, Harrawood, and " a couple of guys
on the second shift." Morris told these men not to
picket or cause any trouble out there, that they had
to give Respondent 72 hours to answer the
° As Morris placed Rasor's telephone call to him as "somewhere after 9
o'clock and before midnight ," it is apparent that the above finding is not in-
consistent with his testimony
" Some of their coworkers from the first shift remained outside the gate
and did not work that day I find hereinafter that they were striking in
protest against the above discharges
u The letter listed them as Joan Gray, Luvenia Johnson, Mary Jones,
Alice Steele, Leslie Harshberger, James Goldsberry, Roger Kilman, Fred
Harrawood , and Roger Wesselman
"1e The notation on the timecards of these individuals said, "Terminated
for creating a work stoppage "
grievance, and, further, that if Respondent did not
answer within that period they could strike.
The above grievance, which was signed by 20
employees, sought both an explanation from
Respondent as to "why our timecards were not in
the racks" on July 18, and backpay for time lost
from work that day. The grievance was denied by
Rasor, as plant superintendent, with an explanatory
letter, dated January 21, which Morris received on
July 22, a Tuesday. In it , Rasor explained that 935 of
the 20 employees did not find timecards in the
racks because they had been discharged on July 17
for refusing to work when their supervisor assigned
them to production tasks;36 that an additional 937
never showed up for their scheduled workday on
July 18; that another employee38 arrived for work
before the timekeeper's schedule for placing the
timecards for the first shift in the racks and would
not wait for the scheduled punch-in time of 6:45 to
7 a.m.; and that the remaining employee39 did
punch in at the scheduled time but left the premises
shortly thereafter.
It is obvious that, although the second step of the
contractual grievance procedure requires that a
meeting between a representative of Respondent
and the grievance committee be held within 72
hours of the date appearing on the grievance in
order to effect a settlement of the grievance, such a
meeting was not held. Instead, as seen above, Rasor
proceeded unilaterally by letter. Upon receiving
Rasor's answer, Morris initiated the third step of
the grievance procedure by calling the president of
the local of the Union herein, advising her of the
denial of the grievance, and urging that a meeting
as required by that step be arranged .40 A meeting
was then arranged for 3:30 p.m. on Wednesday,
July 23. According to Morris, he informed Gray on
Wednesday morning that a meeting between
management and the regular grievance committee,
which consisted of both the president and the vice
president of the local and the chief job steward, was
to be held that afternoon at 3:30 p.m. concerning
the pending grievance and asked her to contact the
employees who had grieved and have them appear
at the appointed place and time for the meeting.
However, Gray testified that on Tuesday, July 22,
her message from Morris was that all the grievants
were to wait at home for a telephone call from him
as to the meeting the following day, and that at
10:10 a.m. the following day she received a
telephone call from Morris saying that the meeting
'r The letter listed them as Jean Johnson, Edith Robinson , Jean Harrison,
Darlene Courtney, Vera Washington, Eva Hale, Judy Mussa, Donna A bras-
sart, and Annabelle Parks
Mary Kurtz
Mary Lambert
au Thus, the contract requires that notice thereof must be given within 2
days of the impasse reached in step 2 and calls for a representative of the
Union, the grievance committee, and an authorized company representa-
tive to meet in an effort to arrive at a satisfactory settlement of the
grievance
JONES & McKNIGHT, INC. 89
was canceled by Respondent without giving any
reason and asking that she inform the rest of the
grievants. She testified further that, after Wed-
nesday, she learned that the meeting had been held.
Steele , on the other hand, testified, in substance,
that she received a telephone call from Gray on
Monday that the meeting in connection with the
second step of the grievance procedure had been
called off; that the following day, a Tuesday, Gray
and she visited Morris at his home and were told by
Morris of the meeting to be held the following day;
and that Morris did not then know the time of the
meeting but said that he would let Gray know and
that she was to notify the others. In all these cir-
cumstances, I find that Morris' testimony, as in-
directly reinforced in part by the testimony of
Steele, is more reliable than that of Gray on this
point, and that Gray was, in fact, notified by Morris
of the meeting to be held on July 23 in connection
with the third step of the grievance procedure and
that he had asked her to be present and to notify
the other grievants to be present.
None of the grievants appeared at the appointed
time and place for the July 23 meeting. After wait-
ing an hour, the grievance committee of the local of
the Union and Rasor decided not to wait any longer
and left. According to Rasor, he regarded the
grievance as "dropped." There has been no request
by the grievants for reinstatement of their
grievance, nor has any written request been made
for submission of the grievance to arbitration,
which is the fourth step of the grievance procedure.
According to the allegations of the amended
complaint, on or about July 23 Respondent ter-
minated 24 employees for engaging in strike activi-
ty. This number was thereafter reduced to 23 when
I granted Respondent's motion, during the hearing,
to dismiss the complaint, as amended, with respect
to employee Vernon Gomez. With respect to 6 of
these 23 employees, namely, Charles Johnson,
Edna Marsh, Larry Smith, Jonnie Louis, Vera
Washington, and Edith Robinson, Respondent as-
serts that it discharged them about July 23 because
they refused to remove the picket lines and return
to work. With respect to eight employees in this
group, namely, Eva Hale, Mildred Daily, Darlene
Courtney, Jean Ann Johnson, Mary Kurtz, Jean
Harrison, Annabelle Parks, and Tom Brooks,
Respondent stipulated that they did not report for
work for 5 days, that Respondent presumed that
they had quit, and that on or about July 23 Respon-
dent sent each of them a telegram saying that he or
she was no longer working for Respondent. The
remaining nine employees in this group, namely,
Philip McCormac, Eva Emery, Sandra Jensen,
Linda Archer, Leslie Longtin, Robert Potter,
Robert Jackson, Kenneth Gremar, and Jerry Kuntz,
were terminated, according to counsel for Respond-
ent, when they failed to respond to telegrams
which said, "Report to work or you will be ter-
minated." As to all these last-mentioned 17 em-
ployees, except Brooks, it was also stipulated that
they were on the picket line either on July 17 or
during the ensuing week and that Respondent was
aware thereof. And as to Brooks, since it is ap-
parent that he suffered the same adverse personnel
action as seven other employees who were admit-
tedly seen on the picket line by Isaacs , I infer, and
find, notwithstanding Isaacs' noncommittal answer
as to whether he saw Brooks on the picket line, that
Respondent, at the least, believed that he was one
of the picketers. I am therefore persuaded, and
find, that, as Respondent either knew, or believed,
that all employees in the group of eight mentioned
above were picketing, there was no warrant for its
presumption that they had quit. And I conclude and
find further, in view of this and all the circum-
stances of the case, that these eight individuals
were terminated on or about July 23, during the
strike, because of their concerted activity in strik-
ing, as alleged . And since the remaining nine em-
ployees were also known to have engaged in picket-
ing and since they were offered the alternative of
returning to work or being terminated, and did not
return, it follows, and I find, that they were, like the
group of eight employees discussed above and the
six employees admittedly discharged because of
their strike activity, terminated on or about July 23,
during the strike, because of their concerted activi-
ty in striking.41
C. The Alleged Discriminatory Conduct
1. The first group of alleged discriminatees
The General Counsel concedes, in his brief, that
the strike activity at the North plant on July 17,
which began about noon, constituted unprotected
activity because it violated the no-strike clause of
the collective-bargaining agreement covering these
employees, and, further, that it follows therefrom
that the discharges of employees Harrawood, Gold-
sberry, Kilman, and Harshberger during the early
afternoon of July 17 for supporting the strike were
not violative of the Act. However, he argues, in ef-
fect, that at the meeting thereafter between Rasor
and the ad hoc grievance committee of the striking
employees, which meeting ended at 6:45 that even-
ing, Respondent condoned this unprotected strike
activity and reinstated these four dischargees on
condition that the employees take down their
picket line42 and allow the third-shift employees to
go to work that evening; and that the employees
complied with this condition in that they removed
the picket line by 7:50 p.m. and in that 20 em-
ployees did, in fact, work on the third shift that
" It is clear from the record that the strike was not sanctioned by the
Union
42 As already found herein, the employees on the ad hoc grievance com-
mittee undertook to talk the remaining employees on the picket line into
going home
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evening-a number not equalled or exceeded on
any third shift during July. Nevertheless, his argu-
ment continues, Respondent reneged on the con-
donation agreement by discharging the four above-
named employees, and by also discharging six other
employees 3 because they were the instigators of
the strike activity," and that such discharges vio-
lated Section 8(a)(3) of the Act.
Respondent takes the position in its brief, in sub-
stance, that no condonation agreement was reached
at the meeting between Rasor and the ad hoc
grievance committee; that, instead, an offer of con-
donation was made by Respondent which could
only be accepted by the removal of the picket line
itself and "could not be accepted by the mere
promise of a few of the employees to attempt to
remove the picket line," and, until the picket line
was, in fact, removed, there was no acceptance of
Respondent's offer to take the striking employees
back to work; that Gray's communication to Rasor,
about 7:45 p.m., that a number of striking em-
ployees would not leave the picket line until
Rasor's offer was put in writing, in effect advised
Rasor that his offer had not yet been accepted;
that, having verified, through Rasor, about 8 p.m.,
that the pickets were still outside the plant gate,
Respondent was free "under any interpretation of
standard contract law" to withdraw its offer, if it so
desired, prior to the acceptance thereof and the
communication of such acceptance to it by the em-
ployees; and finally that Respondent did withdraw
its offer45 in accordance therewith when it advised
Morris of the termination of these employees,
thereby becoming "free at that point to discipline
any or all of its employees who engaged in the work
stoppage and wildcat strike in clear violation of its
collective bargaining agreement with the Union."
I find Respondent's position to be lacking in
merit. "Condonation is a question of fact, and a
determination of whether an employer has forgiven
unprotected activity of its employees requires an
evaluation of all the relevant conduct."46 Also.
"condonation requires a demonstrated willingness
to forgive the improper aspect of concerted action,
to `wipe the slate clean.' After a condonation the
employer may not rely upon prior unprotected ac-
tivities of employees to deny reinstatement to, or
otherwise discriminate against, them."47 In addi-
tion, technicalities of contract law are not the key
to determining whether all the relevant conduct
constitutes condonation. Thus, the court in the
above-cited Confectionery & Tobacco Drivers Union
case, at page 111, in passing on the employer's ar-
Gray, Johnson, Jones, Steele, Stahl, and Wesselman
As already found, the telegram and letter dated July 18, which were
sent in this connection to Morris , the International representative of the
Union, listed I I employees However, it appears that it included one Sid-
ney Brister , who was discharged at that time for reasons unrelated to the
strike herein and whose discharge is not in issue in this proceeding
" Respondent places the time of the withdrawal of its claimed offer at
about 9 p in , on July 17 However, it argues that whether Respondent's
decision occurred at 6 30 p in , as set forth in the heretofore mentioned
guments that no condonation finding was warranted
because (1) the strikers never carried out their part
of the bargain wherein they were to withdraw a
pending unfair labor practice complaint, and (2)
the purported condonation agreement in open
court was never reduced to a confirmed order,
commented, as follows: "But the Company
withdrew from the reinstatement agreement before
either of these steps could be taken; and moreover,
its arguments are unpersuasive for they miscon-
ceive the nature of the condonation principle,
which, reflecting a clear public interest in the
prompt settlement of labor disputes, is more akin to
the doctrine of waiver than to the technicalities of
contract law (citing N.L.R.B. v. E.. Laboratories,
188 F.2d 885 (C.A. 2), cert. denied 342 U.S.
871)." It follows from all the foregoing, therefore,
that Respondent espouses a view of the condona-
tion principle which is at odds with existing legal
precedent when it urges that (1) there was no con-
donation agreement in effect at the time it
discharged the group of 10 employees because the
striking employees had not yet carried out their
part of the contemplated bargain of withdrawing
the existing picket line and advising it thereof, and
(2) all that occurred here was an offer of Respon-
dent to condone, which it withdrew in timely
fashion before the offer was accepted and it was ad-
vised thereof. Accordingly, as Respondent con-
cedes in its brief that it offered, at the meeting with
the ad hoc grievance committee, to forgive the im-
proper aspect of the concerted action, provided the
striking employees took the step of removing the
picket line so that the third-shift employees could
go to work that evening;48 as such an offer is tan-
tamount to an expressed willingness to forgive such
improper concerted action, "to wipe the slate
clean"; and as the fact that steps are still to be
taken by those who are the object of this forgive-
ness does not militate against a finding of condona-
tion, I conclude, and find, that Respondent did then
condone the unprotected strike action of all the
strikers.
Moreover, even assuming arguendo, the correct-
ness of Respondent's own view of the condonation
principle, the record, as found herein, would still
require a finding of condonation. Thus, I have
heretofore found that (1) the picket line had, in
fact, been withdrawn by about 8 p.m. that evening;
(2) the above discharges occurred more than 3-1%2
hours thereafter (i.e., between 11:30 p.m., when
the third shift began, and midnight), at a time when
Rasor was already aware of the cessation of the
telegram and letter from Rasor to Morris , or at 9 p m , "is immaterial,
because in either event the withdrawal of the offer was made before the
respondent had been advised of its acceptance "
' M Eskin & Son, 135 NLRB 666, 667, affd sub nom Confectionery &
Tobacco Drivers and Warehousemen's Union, Local 805, /BTCWHA v
NLRB,312F2dl08(CA 2)
" Confectionery & Tobacco Drivers and Warehousemen's Union, Local
805, (BTCWHA v NLRB , 312 F 2d 108,113 (C A 2)
'" All the relevant conduct establishes , I find, that this was so
JONES & McKNIGHT, INC.
picketing; and (3) the complement on the third
shift that night exceeded numerically any other
third-shift complement that month. Hence, before
Rasor proceeded to discharge the above-mentioned
10 employees, the striking employees had, to
Rasor's knowledge, complied with their obligations
in the premises, and the concern which Rasor had
over whether he would have the third shift at work
that evening had been effectively removed.
In conclusion, therefore, having once condoned
the otherwise unprotected aspect of the strike and
having thereby waived its right to discharge the
strikers or to refuse to reinstate them for breaching
the no-strike clause of the governing collective-bar-
gaining contract, Respondent's change of heart and
actual discharge or refusal to reinstate them
because of their strike activity constituted a reprisal
for their, by then, protected engagement in such ac-
tivity. And this is especially so where, as here, the
strikers had already removed the picket line in
reliance on Respondent's word that all strikers, in-
cluding those already discharged, could, if they did
so, return to work. Accordingly, I conclude and
find that by discharging Joan Gray, Alice Steele,
Mary Stahl, Mary Jones, Luvenia Johnson, and
Roger Wesselman, and by refusing to reinstate
James Goldsberry, Leslie Harshberger, Fred Har-
rawood, and Roger Kilman, Respondent violated
Section 8(a)(1) of the Act.49
2. The second group of alleged discriminatees
As heretofore found, in the wake of Respon-
dent's action of terminating the aforesaid 10 em-
ployees, there occurred on July 18 further strike
action. The record also shows that there was
picketing in support thereof and that this picketing
was enjoined by court action on July 25, at the in-
stance of Respondent. In the interim, on or about
July 23, as also found above, Respondent ter-
minated 23 additional employees-all of whom
Respondent either knew, or believed, had engaged
in picketing-for joining in the strike.
It is clear, and I find, that the strike action on
July 18 and thereafter was not caused by economic
considerations. So far as appears, the employees
were satisfied with the terms of the strike settle-
ment . Indeed, the only reason for the desire of
these striking employees to get the strike settlement
agreement in writing was the fact that the yardmen,
who were unaffected by the economic gains
achieved through the settlement, did not believe
that Respondent would keep its word to reinstate
them. And nowhere does it appear that Respondent
was reneging on its promise to grant the economic
gains embodied in the settlement. Accordingly,
since it is also clear that Respondent had, however,
'' Although Morris, the International representative of the Union , served
on the ad hoc grievance committee at the instance of the strikers, he repu-
diated their strike action throughout Accordingly , I find that the strike
constituted concerted and not union activity
30 See Mastro-Plastics Corp, et a! v N L R B, 350 U S 270, 281, and
91
reneged on its promise that no one would be
punished for striking in breach of the no-strike
clause, and since the further strike action occurred
soon after the fact that Respondent had reneged by
terminating 10 employees was broadcast to the em-
ployees by Gray, I infer and find that this further
strike action was triggered by these terminations
and was in protest thereof. And I find, here too, al-
beit for different reasons from those relied on in
connection with the strike action preceding the
condonation by Respondent, that the no-strike
clause of the contract does not adversely affect the
rights of the strikers. In this connection, it cannot
be gainsaid that by its unlawful discrimination
against 10 employees on July 17 Respondent com-
mitted serious unfair labor practices. And the law is
clear that even an express no-strike clause does not
waive the rights of employees to strike against an
employer's serious unfair labor practices. In addi-
tion, the law is also clear that unfair labor practice
strikers, as here, are not required to obtain prior
union authorization." In view of all the foregoing, I
conclude and find that Respondent violated Section
8(a)(1) of the Act by discharging the 23 employees
on or about July 23, 1969, because of their strike
activity during the period commencing July 18.
I am cognizant of the facts that (1) no one in the
group of 10 found above to have been dis-
criminated against on July 17 pursued the
grievance as to their separation, filed under the ex-
isting contractual grievance procedure which cul-
minates in arbitration, beyond the second step; and
(2) no one in the group of 23 found to have been
discriminated against ever filed a grievance con-
cerning his termination. However, the issues relat-
ing to all these individuals, namely, whether they
were discharged or refused reinstatement because
of their protected concerted activity, is not one
which falls within the special competence of an ar-
bitrator but is rather primarily one which calls for
resolution under the provisions of the Act, which
the Board is charged with enforcing. Accordingly,
contrary to Respondent, the failure on the part of
the individuals herein either to follow through with
the grievance procedure or to file a grievance, at
all, does not preclude a challenge of any of such
terminations before the Board.52
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of the Act.
Arlan's Department Store of Michigan, Inc, 133 NLRB 802
" See Mastro-Plastics, supra, 350 U S 270, 273, fn 4
"See McLean Trucking Company, 175 NLRB 440, Hoerner- Waldorf
Paper Products Co, 163 NLRB 772, and Pontiac Motors Division, General
Motors Corporation, 132 NLRB 413
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent violated Section 8(a)(1) of the
Act by: (a) discharging Joan Gray, Luvenia John-
son, Mary Jones, Mary Stahl, Alice Steele, and
Roger Wesselman on July 17, 1969, because of
their protected concerted activity in striking; (b)
refusing to reinstate James Goldsberry, Fred Har-
rawood, Leslie Harshberger, and Roger Kilman on
July 17, 1969, because of their protected concerted
activity in striking; and (c) discharging Linda
Archer, Tom Brooks, Darlene Courtney, Mildred
Daily, Eva Emery, Kenneth Gremar, Eva Hale, Jean
Harrison, Robert Jackson, Sandra Jensen, Ann
Johnson, Charles Johnson, Jean Ann Johnson, Jerry
Kuntz, Mary Kurtz, Leslie Longtin, Jonnie Louis,
Edna Marsh, Philip McCormac, Robert Potter,
Edith Robinson, Larry Smith, and Vera Washing-
ton, on or about July 23, 1969, for their concerted
activity in striking.
4. 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 engaged in certain
unfair labor practices , I will recommend that it
cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.
In order to remedy both the unlawful discharges
and the refusals to reinstate found herein , I shall
recommend the following: As to employees James
Goldsberry, Joan Gray, Fred Harrawood, Leslie
Harshberger, Luvenia Johnson, Mary Jones, Mary
Stahl, Alice Steele, and Roger Wesselman, all of
whom were no longer on strike on July 17, 1969, at
the time Respondent either discharged or refused
to reinstate them, as the case may be, and were
thereby precluded from resuming their employment
on July 18, 1969, in accordance with the settlement
agreement, I shall recommend that Respondent
offer each of them reinstatement and make each
whole for any loss of earnings suffered by him from
July 18, 1969, until the date of Respondent's offer
of reinstatement to him. However, as to Roger Kil-
man there is undenied testimony by Isaacs, which I
credit, that Kilman had, prior to the critical events
of July 17, told him that he was going to quit on
July 18. Accordingly, I shall recommend that
Respondent not be required to offer him reinstate-
ment or any backpay. Further, with respect to the
remaining 23 employees listed in the Conclusions
of Law above, who were unfair labor practice
strikers at the time they were discharged, and who,
so far as appears, had not abandoned the strike and
applied for reinstatement, I shall recommend that
Respondent reinstate them upon application,
dismissing , if necessary, persons hired by Respon-
dent on and after July 18, 1969; however, should
Respondent refuse to reinstate them, Respondent
shall then make whole each such employee for any
loss of earnings suffered by him for so long as such
refusal continues, beginning 5 days after he applies
for reinstatement.53 Reinstatement, where required
herein , shall be to their former or substantially
equivalent positions of employment, without preju-
dice to their seniority and other rights and
privileges; and backpay, where due, shall be com-
puted in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest added
thereon in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in the case, I recommend that Respondent, its of-
ficers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging employees and/or refusing to
reinstate them for engaging in conduct which con-
stitutes concerted activity protected by Section 7 of
the Act.
(b) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to self-organization , to form , join, or
assist labor organizations , to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such ac-
tivities , except to the extent that such right may be
affected by any agreement requiring membership in
a labor organization as a condition of employment,
as authorized by Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Offer James Goldsberry, Joan Gray, Fred
Harrawood, Leslie Harshberger, Mary Jones, Lu-
venia Johnson, Mary Stahl, Alice Steele, and Roger
Wesselman immediate and full reinstatement to
their former or substantially equivalent position,
without prejudice to their seniority and other rights
and privileges, and make each of them whole for
any loss of earnings each has suffered, in the
manner set forth in the section hereof entitled "The
Remedy."
(b) Upon application, offer immediate and full
reinstatement to all employees listed hereinafter to
their former or substantially equivalent position,
without prejudice to their seniority and other rights
and privileges , dismissing , if necessary , persons
hired by it on or after July 18, 1969. Make whole
any of such employees for any loss of earnings suf-
fered, if it should refuse to reinstate him, for so
long as the refusal continues, beginning 5 days after
said employee applied for reinstatement, and com-
puting the loss of earnings in the manner set forth
M See Sea-Way Distributing, Inc, 143 NLRB 460
JONES & McKNIGHT, INC.
in the section hereof entitled "The Remedy." The
employees in this group are: Linda Archer, Tom
Brooks, Darlene Courtney, Mildred Daily, Eva
Emery, Kenneth Gremar, Eva Hale, Jean Harrison,
Robert Jackson, Sandra Jensen, Ann Johnson,
Charles Johnson, Jean Ann Johnson, Jerry Kuntz,
Mary Kurtz, Leslie Longtin, Jonnie Louis, Edna
Marsh, Philip McCormac, Robert Potter, Edith
Robinson, Larry Smith, and Vera Washington.
(c) 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
amount of backpay due under the terms of this
Recommended Order.
(d) Notify those named in paragraphs (a) and
(b) above, if presently serving in the Armed Forces
of the United States of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
(e) Post at its North plant in Kankakee, Illinois,
copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by
the Officer-In-Charge for Subregion 38, shall, after
being signed by a representative of Respondent, be
posted by Respondent immediately upon receipt
thereof and be maintained for 60 consecutive days
thereafter in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the said Officer-In-Charge, in writing,
within 20 days from the date of the receipt of this
Trial Examiner's Decision, what steps Respondent
has taken to comply herewith.55
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the aforesaid Officer-In-
Charge, in wnting , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board,
93
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discharge or refuse to reinstate
employees for engaging in conduct which con-
stitutes concerted activity protected by Section
7 of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to self-organization, to form,
join, or assist labor organizations, to bargain
collectively 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 and all such activities,
except to the extent that such right may be af-
fected by any agreement requiring membership
in a labor organization as a condition of em-
ployment, as authorized by Section 8(a)(3) of
the Act, as amended.
WE WILL offer the following persons im-
mediate and full reinstatement to their former
or substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, and make them whole for any loss
of pay suffered as a result of the discrimination
against them:
James Goldsberry Luvenia Johnson
Joan Gray Mary Stahl
Fred Harrawood Alice Steele
Leslie Harshberger Roger Wesselman
Mary Jones
WE WILL, upon application, offer immediate
and full reinstatement to the following em-
ployees to their former or substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges,
dismissing , if necessary, persons hired by us on
or after July 18, 1969. Further, if we should
refuse to reinstate any of these employees
listed hereinafter, immediately upon applica-
tion, we shall make such employee or em-
ployees whole for any loss of pay suffered as
the result of such refusal from a date beginning
5 days after application was made for employ-
ment, and for so long as such refusal continues:
Linda Archer
Tom Brooks
Darlene Courtney
Mildred Daily
Eva Emery
Kenneth Gremar
Eva Hale
Charles Johnson
Jean Ann Johnson
Jerry Kuntz
Mary Kurtz
Leslie Longtin
Jonnie Louis
Edna Marsh
94 DECISIONS OF NATIONAL
Jean Harrison Philip McCormac
Robert Jackson Robert Potter
Sandra Jensen Edith Robinson
Ann Johnson Larry Smith
Vera Washington
JONES & MCKNIGHT, INC.
(Employer)
Dated By
(Reprk sentative ) (Title)
Note : We will notify the above -named employees, if
presently serving in the Armed Forces of the
LABOR RELATIONS BOARD
United States , of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act of 1948 , as amended , after discharge
from the Armed Forces.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office , Savings Center Tower , 10th Floor,
411 Hamilton Boulevard, Peoria , Illinois 61602,
Telephone 282-673-9282.