Kayser-Roth Hosiery Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1970

187 N.L.R.B. 562 (N.L.R.B. 1970)

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kayser-Roth Hosiery Company , Inc., and Textile
Workers Union of America , AFL-CIO. Cases
10-CA-7654 and 10-CA-7669
December 30, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On July 21, 1970, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled cases,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent did not engage in
certain unfair labor practices alleged in the complaint
and recommended dismissal as to them. Thereafter,
the Respondent filed exceptions to the Trial Examin-
er's Decision and a supporting brief. The General
Counsel filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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 exceptions and brief, and
the entire record in these cases, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner subject to the modification set forth
below:
Contrary to the Trial Examiner, we find that
Respondent did not have reasonable cause to believe
that unfair labor practice striker Brady engaged in
picket line misconduct sufficient to disqualify her for
reemployment. Instead we find that Respondent
violated 8(a)(3) by refusing to reinstate her upon her
unconditional application to return to work. The
record shows that on May 20, 1969, a crowd of strikers
gathered and stoned the cars of nonstriking employ-
ees as they left the plant's parking lot. The Trial
Examiner found that although Mrs. Brady was not
throwing rocks, she was in a group of strikers who
I The Trial Examiner , in finding that Frances Miller Pendleton was
denied reinstatement in violation of Section 8(a)(3), stated that there was
no evidence as to who informed Plant Manager Roberson that Pendleton
had engaged in alleged misconduct Although Roberson testified that
employee Bonnie Wolfe reported the alleged misconduct to Roberson,
Bonnie Wolfe did not testify at the hearing As other statements supported
by the record which the Trial Examiner relied on indicate that misconduct
attributed to Pendleton was actually committed either by another striker or
a nonemployee , and, since Bonnie Wolfe's alleged report to Plant Manager
stood in front of the crowd of rock throwers which
shielded from the view of management personnel the
identity of those strikers who were actually throwing
the rocks. The Trial Examiner reasoned that her
conduct was no less than participation in the rock
throwing itself, and it was solely on the basis of this
conduct that he concluded that Respondent had good
cause for refusing to reinstate her. We do not agree
with this conclusion. The record shows little more
than Mrs. Brady's presence in the crowd of strikers at
the time of the incident. There is no probative
evidence that she was part of a conspiracy to provide
a shield for the rock throwers, nor is there any
suggestion that she knowingly located herself in the
vicinity from which rocks were thrown with any
understanding that others would engage in such
misconduct. In our opinion, neither the testimony nor
the film account of this incident supports the
inference that Brady intended to shield the rock
throwers. Indeed, the inconsequential nature of
Brady's role in this incident is borne out by the
testimony of plant manager Roberson that no striker
was denied reinstatement solely because he or she was
alleged to have shielded the rock throwers.
In these circumstances, we find that the Respon-
dent's refusal to reinstate Mrs. Brady was in violation
of Section 8(a)(3) of the Act, and we shall order the
necessary remedy.
THE REMEDY
Having found that Respondent unlawfully denied
reinstatement to Helen Brady, we shall order that the
violation be redressed as set forth in section V of the
Trial Examiner's Decision entitled "The Remedy."
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 Trial Examiner as modified below and
hereby orders that the Respondent, Kayser-Roth
Hosiery Company, Inc., Dayton, Tennessee, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order, as so modified:
1. Substitute the following as paragraph 2(b) of the
Trial Examiner's Recommended Order:
"Offer to Barney Henderson, Margaret Irwin,
Roberson constitutes uncorroborated hearsay, we shall affirm the Trial
Examiner's finding that Pendleton was denied reinstatement in violation of
Section 8(a)(3)
2 In affirming the Trial Examiner's finding that the Respondent did not
violate Section 8(a)(5) by its refusal to post certain union notices on its
bulletin board pursuant to a provision in the contract between the parties,
we do not rely on the Trial Examiner's statement that the bulletin board
"can scarcely be termed a matter of wages , hours or conditions of
employment "
187 NLRB No. 76
KAYSER-ROTH HOSIERY CO.
Lucille Pendleton, Frances Miller Pendleton, Nancy
Reed, and Helen Brady immediate and full reinstate-
ment 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, discharging, if necessary, all replacements
hired after the commencement of the strike and make
said employees whole for any loss of wages they may
have suffered to the extent and in the manner set forth
in the section entitled `The Remedy.' "
2. In footnote 25 of the Trial Examiner's Decision
substitute "20" for "10" days.
3. Substitute the attached Appendix for that
attached to the Trial Examiner's Decision.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, a Trial Examiner of the
National Labor Relations Board has found that we
violated the National Labor Relations Act, and has
ordered us to post this notice and to keep our word
about what we say in this notice.
The Act gives all employees these rights:
To engage in self-organization;
To form, join or help unions;
To bargain collectively through a repre-
sentative of their own choosing;
To act together for collective bargaining
or other mutual aid or protection; and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT refuse to bargain collectively with
Textile Workers Union of America, AFL-CIO, as
the exclusive collective-bargaining representative
of our employees in a unit appropriate for
collective bargaining by failing and refusing to
furnish the Union, upon request, with an up-to-
date departmental seniority list of all employees in
the unit.
WE WILL NOT discourage membership in the
above-named Union or any other labor organiza-
tion by discriminatorily refusing to reinstate unfair
labor practice strikers, or delaying in reinstating
unfair labor practice strikers while continuing to
employ strike replacements, or otherwise discrimi-
nate against any employee.
WE WILL make whole all of our employees
whose reinstatement after the strike was delayed
for any loss of pay they may have suffered as a
result of our discrimination against them, by
563
payment to each of them the amount of money
they lost as a result of our action.
WE WILL offer to the employees named below
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivallent jobs, discharging if necessary all
replacements hired during the strike, and make
them whole for any loss of wages they may have
suffered as a result of our discrimination.
Barney Henderson Lucille Pendleton
Margaret Irwin Nancy Reed
Frances Miller Pendleton Helen Brady
Dated By
KAYSER-ROTH HOSIERY
COMPANY
(Employer)
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, T6024 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113, Telephone
504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner : On February 7, 1969,
Textile Workers Union of America , AFL-CIO, hereinafter
called the Union , filed a charge against Kayser-Roth
Hosiery Company, Inc., hereinafter called Respondent,
alleging a violation of Section 8(a)(3) by discrimination
against a long list of employees since on or about December
2, 1968. Thereafter on February 24, 1969 , the Union filed a
second charge against Respondent alleging additionally a
violation of Section 8(a)(5) by refusing to bargain in good
faith with the Union and a general allegation of the
violation of Section 8(a)(1). On May 5, 1969, the Regional
Director for Region 10 of the National Labor Relations
Board (Atlanta , Georgia), for the General Counsel , issued a
complaint and notice of hearing and ordered consolidation
of the two charges. The complaint alleges a violation of
Section 8(a)(3) in a refusal of Respondent to reemploy 26
unfair labor practice strikers on their unconditional offer to
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return and an additional violation of Section 8(a)(3) in that
Respondent did not timely reinstate some 240 additional
employees on their unconditional offer to return. In
addition Respondent is charged in the complaint with
refusing to bargain by refusing to furnish to the Union a
seniority list required by the Union to use in its collective
bargaining with Respondent. By its timely answer Respon-
dent admitted the jurisdictional facts and that there had
been a strike, denied that it was an unfair labor practice
strike and admitted that a substantial number of employees
who had been out on account of the strike offered to return
to work but alleged that the 26 individuals were not
reinstated because they were guilty of various acts of
violence and misconduct and therefore had rendered
themselves unfit for reemployment by the Respondent.
With regard to the allegedly dilatory rehiring of the strikers
Respondent answered that the delay was caused by the
business delays of reopening the plant, training new people
and rebuilding the business after the lengthy and violent
strike. Respondent generally denied the commission of all
unfair labor practices and specifically the failure to give a
seniority list as requested by the Union.
On September 11, 1969, the Regional Director issued an
amendment to the complaint and further notice of hearing
adding an allegation that the Respondent additionally
violated Section 8(a)(5) by refusing to post certain notices
on the bulletin board pursuant to the contract and that
Respondent violated Section 8(a)(1) by the action of
various supervisors in soliciting employees to revoke their
checkoff authorizations. By a duly filed answer Respondent
denied all allegations in the amendment to the complaint.
Thereafter on January 26 and at various dates between
February 24 and March 13, 1970, a hearing was held before
me at Dayton, Tennessee, the site of Respondent's plant.
All parties were represented by counsel and had an
opportunity to adduce relevant evidence, to call witnesses,
to examine and cross-examine them, to argue orally on the
record and to file briefs. A brief was received from the
General Counsel. On the entire record in this matter and in
consideration of the brief I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a North Carolina corporation with an
office and place of business located in Dayton, Tennessee,
where it manufactures hosiery and socks which it annually
ships of a value in excess of $50,000 directly to customers
outside the State of Tennessee. Respondent is and at all
times material herein has been engaged in commerce with
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is and at all times material herein has been a
labor organization within the meaning of Section 2(5) of the
Act.
111. THE UNFAIR LABOR PRACTICES
A. Background
At all times relevant the Union has represented all
employees of Respondent at the Dayton plant excluding
office clerical employees and method and standard
employees, professional employees, guards and supervisors
as defined in the Act, a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act. On or about May 6, 1968, the employees
commenced a strike which continued until December 2,
1968, on which date the striking employees made an
unconditional offer to return to work.
The events leading up to the strike and the nature of the
strike were the objects of litigation before the Board
culminating in a decision (176 NLRB No. 139) adopting the
Decision of Trial Examiner Thomas A. Ricci finding that
Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain in good faith and that the strike which
resulted therefrom was an unfair labor practice strike.
At the close of the hearing the General Counsel deleted
the names of 8 of the 26 employees alleged to have been
discriminated against by Respondent's refusal to rehire
them after the strike and additionally deleted the names of
a few of the 239 employees alleged to have been rehired
only after a delay.
B. The 8(a)(5) Allegation
There is no general 8(a)(5) allegation. The General
Counsel contends that Respondent violated Section 8(a)(5)
by two distinct courses of action: (1) the Respondent's
refusal to post certain notices on the bulletin board
pursuant to the contract between the parties and (2) the
failure of Respondent to timely make available to the
Union a seniority list for its use in collective bargaining.
The contract signed by Respondent and the Union on
December 2, 1968, contains the following provision (art.
XXII):
Bulletin Boards
The Employer will provide the Union with ample space
on its bulletin boards to post notices of the time and
place of union meetings and social gatherings. Such
notices shall not contain controversial statements and
shall be presented to the plant manager for his approval
before they are posted.
The record contains several notices submitted for posting in
accordance with the above provision which Respondent
declined to post. One such notice announces a meeting of
Local Union 1769 Textile Workers Union of America and
urges all members to attend. A second announces a special
meeting of the Local and states that election of temporary
representatives for the Local will be held and urges all
members to attend. A third announces a training institute
for members of the Local and gives as the purpose of the
training institute to orientate and instruct Local member-
ship how to conduct their Local affairs and urges all
members to attend. All three of the notices are signed by
Ted Benton, International representative.
The bases on which Respondent declined to post the
KAYSER-ROTH HOSIERY CO
notices were two. First it would post no notice which states
the purpose of the union meetings and second it would post
no notice which had to do with the affairs of the Local
Union on the ground that the only certified bargaining
agent was the International.' Respondent contends that its
position with regard to notices is based on its interpretation
of the contract provision recited above.
The Supreme Court in Charles Dowd Box Co. v. Courtney,
368 U.S. 502, pointed out that violations of collective-
bargaining agreements were specifically rejected as unfair
labor practices by the Congress which "deliberately chose
to leave the enforcement of collective agreements to the
usual process of the law," citing H.R. Rep. No. 510, 80th
Cong., 1st Sess., 42. "Once parties have made a collective
bargaining contract the conference report stating the
enforcement of that contract should be left to the usual
processes of the law and not to the National Labor
Relations Board."
While under some circumstances the Board must
construe collective-bargaining agreements to determine an
issue in connection with the commission of an unfair labor
practice as for instance a unilateral change in working
conditions, it has no original jurisdiction to enforce
collective-bargaining agreements , especially such portions
of them that have no direct bearing on the wages, hours and
conditions of employment of the employees whom they
purport to cover. In the instant case , for instance, the
contractual provision which the Board is asked to enforce is
a bulletin board provision which, while it may be highly
salutory to the Union in communicating with the
employees can scarcely be termed a matter of wages, hours
or conditions of employment. I see this allegation as
nothing more than an attempt by General Counsel to
enforce this contractual term. Accordingly, I shall recom-
mend that the complaint be dismissed insofar as this alleged
breach of contract is alleged to be a breach of Respondent's
bargaining duty.
With regard to the second allegation of a violation of
Section 8(a)(5) the record is clear that the employer over a
period of months declined to afford the Union a seniority
list based upon departmental seniority. All that the Union
had was a seniority list of all employees in the plant prior to
the inception of the strike. The Union was aware that
employees had been hired during the strike but not where
they had been employed in the plant or who they were or
what positions they held. Similarly, the Union was unaware
of the departmental seniority of the employees who had
been employed prior to the strike The matter came to a
head when the Union sought to grieve over determinations
of the employer with regard to three employees which were
unquestionably based on their departmental seniority. The
Union at that time pointed out to the employer that its
failure to supply a departmental seniority list made it
impossible for the Union to handle the grievances. The
employer answered that it had no such seniority list and
that it determined departmental seniority on a case-by-case
basis as issues were raised. With regard to three employees,
Respondent informed the Union that the information the
Union sought was available only in their personnel files and
i It appears that after the International won bargaining rights a Local
Union was formed Respondent has at all times declined to recognize the
565
declined to disclose their personnel files or remove the
information from them unless and until the employees
themselves were brought into the presence of the employer
and gave the employer permission to disclose the contents
of the personnel files to the Union. The Union protested
that it had no desire to go into the personnel files of
employees other than to obtain the information required
for the processing of these grievances.
I conclude that Respondent violated Section 8(a)(5) by its
refusal to furnish the list to the Union. It is not a sufficient
answer that the employer has not prepared a list per se on a
departmental basis but for its own purposes determines
departmental seniority on a case-by-case basis. Departmen-
tal seniority was a factor in employee placement under the
terms of the collective-bargaining agreement, and in the
reinstatement of the returning strikers.
The test of the employer's duty to furnish information is
that it be relevant or necessary to the Union in the
negotiation of a contract or the enforcement thereof or the
negotiation of grievances thereunder. Clearly, the informa-
tion sought by the Union here was relevant. The second test
is of course that the information sought be available.
Clearly the information was available. Respondent has not
contended that it would have been burdensome to put it
together. Plant Manager Roberson testified that all of the
reinstatements of employees were by department seniority
which is arrived at by going to the records and verifying the
dates whenever they had to call back additional employees.
Inasmuch as they called back additional employees in every
department, it must have been necessary to go through the
departmental seniority in every department. Accordingly,
Respondent was working with the very facts and figures
requested by the Union constantly between December 2
and sometime after March 15 when the recall was finally
completed. I find that there was no valid reason for the
Respondent to withhold the list sought by the Union,
especially under the circumstances that the Union's need
for it continued on a day-by-day basis throughout the
period set forth above. The list was essential if the Union
were to fulfill its function of testing the basis on which
reinstatement of employees was being accomplished. I find
that Respondent violated its duty to bargain in good faith
and constituted a violation of Section 8(a)(5) and (1) of the
Act.
C. The Checkoff Authorizations
The General Counsel alleges that Respondent by its
supervisors solicited certain employees to revoke their
checkoff authorizations for union dues. The Respondent
denies that such solicitation took place.
The subject of checkoff was one of the large bones of
contention between the parties during the strike. The
contract as it was finally entered into provided that upon
proper written authorization the Company would deposit
an employee's paycheck in the bank of his choice in Dayton
until such authorization is revoked. The Union prepared a
triple authorization card. The first part of it, addressed to
the employer, requests that it deposit all payroll checks in
Local Union as any part of the representative of its employees
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such and such a bank and furnish the employee each
payday with a deposit slip and check stub in the usual form.
There is no provision on that card with regard to
withdrawal of the authorization other than the words "and
until further notice from me." The second card is addressed
to the Textile Workers and states that the signatory accepts
membership in the Union and assigns to the Umon and
authorizes the bank to pay the Union the Local dues in the
sum of $2.50 every second week. This card provides "this
assignment shall remain in effect until such time as I shall
revoke it, in writing to the . . . bank and Local Union by
registered mail." The third card is in the same form. The
disposition of the cards was as follows, the first card was
sent to the employer, the second to the bank, and the third
retained by the Union. The result of the language on the
cards, I find, is that with regard to the authorization to the
employer, mere notice to the employer in any form
acceptable to the employer that the signatory employee
desires to stop the authorization to deposit the checks in the
bank is sufficient. With regard to the authorization to the
bank and to the Union, rescission must be in the form of a
writing sent by registered mail to the bank and to the Local
Union.
There was some delay in starting the dues-deduction
system. The cards were apparently collected by the Local
Union and sometime in January or early February
delivered to the employer with the deductions to become
effective the second payday thereafter. On the occasion of
the first payday on which checks were to be delivered to the
bank rather than to the employees, a few of the supervisors
inquired of employees whether they wanted their checks
and in some cases recited the alternative "or should I send
it to the bank." General Counsel adduced evidence of 12
employees that this had taken place with regard to their
checks. In no case did a supervisor attempt to persuade the
employee to accept a check and in each case concerning
which evidence was received the employee informed the
supervisors that the checks should be sent to the bank.
Some of the employees reported these occurrences to the
Union and an International agent complained to Roberson
that supervisors were soliciting withdrawal of the authoriza-
tions. They theorized that by simply accepting a check on
one occasion an employee would effectively cancel his
authorization to Respondent's satisfaction Roberson
testified that this was not in fact the employer's procedure
but that any employee could inform any supervisor or
managerial agent of employer that he no longer wanted his
checks to be sent to the bank and his authorization would
be considered revoked.
Inasmuch as the contract contains no provision regarding
the rescission of the authorizations and the cards them-
selves provide only for "notice" to the employer, it appears
to me that the employer is free to accept whatever sort of
notice satisfies it. I do not find that the supervisors by
offering to give the employees their checks can effectively
be considered to have solicited them to withdraw the
authorization. I find that the evidence does not support the
allegation and I shall recommend that it be dismissed.
D. The Delayed Reinstatement Issue
The General Counsel alleges that Respondent on or
about December 2, 1968, and thereafter, failed and refused
to timely reinstate the employees who had made an
unconditional offer to return to work at the close of the
strike. This allegation does not include the 26 employees
alleged to have been discriminated against as the result of
Respondent's refusal to reemploy them at all.
Respondent denies that it failed to reinstate the
employees in a timely fashion and produced evidence that
as a result of the strike various things took place which
made it impossible for Respondent to go back into full
production immediately. I shall briefly summarize this
evidence.
The Dayton plant produces tights, or leotards as they are
sometimes called in the trade, and children's socks. It is the
only plant of the Kayser-Roth complex of plants that
produces these items. Up until the strike commenced a
large portion of Respondent's production consisted of "fish
net" tights which was a fad at the time and of which
Respondent was selling large quantities. Most of the fish
net tubing from which the tights were made was produced
by Respondent. Some of it was procured from another
plant. The machinery for knitting fish net was somewhat
different from that used for knitting the material from
which Respondent's tights are normally made.
During the period of the strike the fad ran its course as a
result of which Respondent not only did not make any
more fish net tights after the strike but was left with large
quantities of the merchandise which had been completed
prior to and during the strike.
During the period of the strike some of Respondent's
supervisors, its plant engineers, and various other key
personnel left Respondent's employ and were not immedi-
ately replaced.
During the strike, because Respondent' s sales force could
not promise delivery of the items produced only at the
Dayton plant at any future time, their customers went
elsewhere. When a contract was finally reached and
Respondent was then able to resume production there were
no orders on the books for its product. The initial
production went into stock and it was a matter of at least
weeks before a sufficient backlog of orders was generated
by the sales force to enable Respondent to go back into full
production.
During the strike because of violence committed at the
plant premises, they were left vacant between June 24 and
some date in September when production resumed. The
result was that some of the machinery became rusty or
other types of deterioration took its toll, for a considerable
amount of rehabilitation of machinery was necessitated
before it could be used productively. To accomplish this
rehabilitation Respondent needed not only its complete
force of "fixers" but brought in maintenance people from
other plants to expedite the procedure. As the result of its
efforts to resume normal production Respondent started its
first shift in the knitting department on December 2 at the
completion of the strike. Roberson testified that 145
employees worked on December 2. The second week
thereafter the plant shut down for the Christmas season.
The second shift was started on December 30 and on
January 1, 186 employees were working and 11 others had
KAYSER-ROTH HOSIERY CO.
been offered and declined reinstatement. A third shift
commenced on February 10.
Respondent contends that no replacements for the
strikers were employed after December 2. However, on a
plant seniority list furnished the Union April 11, 1969,
names of 39 employees with hiring dates during the strike
appear. Whether additional employees hired during the
strike remained in Respondent's employ between Decem-
ber 2 and April 1 I does not appear in the record nor did
General Counsel make any attempt to adduce evidence that
there were such additional employees. Roberson testified
that the 39 employees were not strike replacements because
the Company was aware that some of the employees would
not return to work and some would be discharged. The
Company hired no replacements for the strikers.
The Company further takes the position that the presence
of these employees hired during the strike in fact
accelerated the process of calling employees back because it
was easier to get production going again with employees
who had been in there doing some work. There is no
question that these were employees hired during the strike
and there is no evidence that any specific person hired
during the strike was hired to fill a position of any specific
employee who was on strike. Thus I can make no finding
that any given striker's job was filled by any given
replacement. Admittedly, the Company did not discharge
any replacement to make room for strikers. Equally
admittedly the Company did not call back some of the
strikers until long after December 2, during which period
the replacements were working. In my opinion it is
inconsistent for the employer to take the position that it
could not recall strikers any sooner because of the various
factors that precluded it from going into full production
immediately on December 2, yet to keep replacements on
the payroll while unfair labor practice strikers were waiting
recall. I find, as the General Counsel contends in his brief,
that to the extent that any employee who was on strike and
had offered to return to work on December 2 was not
recalled to work at a time when a replacement was doing
the same or similar work the unreturned unfair labor
practice striker was discriminated against.
The parties stipulated to a list of employees who had been
employed prior to the strike, did not work during the strike,
offered to return to work on December 2 and were returned
to work on various dates thereafter. Comparison of the list
referred to immediately above and testimony of Plant
Manager Roberson reveal that in every category in which
strike replacements were employed and continued working
until April 11, unfair labor practice strikers were delayed
reinstatement by as much as 5 months.
The Board decisions make it ultimately clear that unfair
labor practice strikers are entitled to immediate reinstate-
ment upon their unconditional application to return to
work and that the employer must terminate replacements
hired during the strike if it is necessary in order to
accomplish this. In a situation such as this where the
employer cannot immediately go back into full production,
to the extent that unfair labor practice strikers are denied
2 The cases on this point are legion The General Counsel cites
Mississippi Steel Corp, 169 NLRB No 96, Davis Wholesale Co, 166 NLRB
No 119
567
reinstatement for a period of time while replacements
continued in their employment, the unfair labor practice
strikers are the victims of discriminatory action on the part
of the Respondent.2 I find as the General Counsel argues
that to the extent that the continuing employment of
replacements overlapped the continued unemployment of
unreinstated unfair labor practice strikers Respondent is
guilty of a violation of Section 8(a)(3) and (1) of the Act.
E. The Strikers Denied Reinstatement
The complaint lists 26 employees denied reinstatement
after the strike. The Respondent contends that each of
these employees lost their protection under the Act by
reason of misconduct during the strike which makes them
unemployable. At the hearing counsel for the General
Counsel amended the complaint to delete the names of
eight individuals so alleged. Regarding the 18 remaining
employees the parties stipulated that they were employees
prior to the strike, did not work during the strike, and
sought to return to work after the strike. Respondent
admits that it refuses to rehire each of them and presented
evidence that it had a reasonable basis to believe that each
of them committed acts of strike misconduct of a serious
enough nature to excuse it from any remedial duty to
reinstate them. The General Counsel adduced evidence in
an attempt to prove that each of the 18 did not in fact
commit the act or acts of misconduct upon which
Respondent relies. The issues as to each of them then
resolve themselves to three: (1) whether Respondent had a
reasonable basis to believe that each employee committed
the acts on which it relied; (2) whether these acts were of a
serious enough nature to excuse it from such remedial duty;
and (3) whether the employees did in fact commit the acts.3
I shall consider each of the 18 separately.
1. Conway Ballard
Conway Ballard was discharged, according to the
testimony of Manager Roberson, because he participated in
turning over the car of nonstriking employee Margaret
Reed on June 24 and because of other acts including
blocking entrance to the plant on various dates and
threatening employees with bodily harm, throwing rocks
and eggs at the plant and cars of nonstriking employees and
having his hand on a station wagon trying to turn it over.
Roberson himself testified credibly that he saw Conway
Ballard, Woodrow Tumlin, Bucky Wilkey, Johnny Loual-
len, Johnny Owens, and Gene Smith, who is not an
employee, and other individuals whom he could not then
identify turn over the Reed car.
On May 7, shortly after the strike started, a supervisor in
the company station wagon attempted to bring a number of
clerical employees into the plant through the picket lines.
They were stopped by a group of employees, including Con
Ballard, who gathered around the station wagon and
rocked it while one of their number, Woodrow Tumlin,
cried, "turn it over, turn it over." The strikers did not turn
the car over but forced it to stop and unload, allegedly so
3 See M R & R Trucking Company, 171 NLRB No 35, Rubin Brothers
Footwear, Inc, 99 NLRB 610, N LR B v Burnup and Sims, 379 U S. 21
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the strikers could check to be sure that there were no
production workers in the car. As the office workers got out
of the car they were permitted to enter the plant without
further incident. Without consideration of the other
allegations with regard to Ballard , I find that these two
incidents both of which were observed by Roberson afford
a sufficient basis for Respondent 's refusal to reinstate
Ballard . General Counsel called Ballard to the witness
stand in an attempt to meet the testimony of Respondent's
witnesses . With regards the station wagon incident Ballard
testified on direct examination that he saw the station
wagon had pulled up at the gate and walked over and
"pecked on the glass " and called to the supervisor driving it
"What's the matter?" The supervisor told him that the
pickets wouldn't let him in and that they wanted the
employees to get out and walk. Ballard answered , "What's
wrong with that?" and turned and walked away. With
regard to the incident of the Reed car Ballard testified that
he was standing near the intersection where it was turned
over and he saw a boy who was not an employee walk over
toward the car and say "Let's turn it over." He told the boy
not to do that and caught the boy by the hips. The boy
kicked him in the legs and said "get the hell away from
here" whereupon Ballard walked away. Somebody threw a
rock and it hit him on the leg. He testified he saw no one
else go to the Reed car and he did not see it turned over
because he was not looking until he heard it roll.
I consider that Ballard's testimony was completely
uncredible . I cannot believe that he was present at the scene
when the car was rolled over and the only one of the
participants that he saw and could identify was a boy who
was not an employee . Ballard testified that he was present
on the occasion of the Reed car being turned over for a
period of some hours . Motion pictures taken of this scene
and the testimony of many witnesses adduced by both
General Counsel and Respondent reveal that there was
literally a rain of rocks being thrown from the field across
the street from the plant, yet Ballard testified that he could
identify no one who was throwing rocks. The General
Counsel cannot prevail unless he proves affirmatively that
the employee did not participate in the misconduct
charged. The evidence clearly shows that Respondent
reasonably believed that Ballard participated in the
misconduct and his testimony to the contrary is unbelieva-
ble. Under the circumstances, the General Counsel has
failed to sustain his burden. I find that the discharge of
Ballard was not unwarranted and does not constitute a
violation of Section 8(a)(3) as charged.
2. Robert Bean
June 24 was the last day that Respondent attempted to
operate the plant. That was the day on which the Reed car
was overturned. Also on that day, a mob estimated to 400
persons gathered on an empty lot across the street from the
plant and stoned the automobiles of the nonstriking
employees as they left the plant. During these activities a
4 During the incident the station wagon belonging to the employer had
been turned upside down
5 There is no doubt that Gene Smith threw rocks The movies clearly
show him doing so The movies also show other employees throwing rocks
Further there can be no doubt that no one person threw all the rocks that
group of strikers left the empty lot and walked down the
street the length of the plant, breaking windows of the
plant, throwing rocks through the ventilators and breaking
out the windows of automobiles belonging to employees,
managerial employees and to the Respondent which were
parked alongside the plant. Jerry Jones, who had been
employed by Respondent as assistant plant manager at the
time of the strike and has since left Respondent 's employ,
testified that on that occasion he took moving pictures from
within the plant of the strike activities and that he also
watched the strikers and particularly the group of strikers
who walked along the side of the plant breaking windows.
He identified Robert Bean as one of the striking employees
whom he saw throwing rocks and breaking windows out of
the cars. Jones identified Bean from the motion pictures
that he took of the occasion also. Bean did not deny the
identification when he took the witness stand . Bean was
also identified by Jones from the motion pictures of the
scene at the Reed car.
Bean testified that he was present in the group of people
across the street from the plant on June 24 . He testified
there were about 75 people in the group and that he saw
rocks thrown from the group. However, he saw only one
person throwing rocks and that was Gene Smith. Gene
Smith fortuitously is not an employee . He testified also that
he saw the Reed car after it was turned over but did not see
anyone turn it over . He testified that after the Reed car was
turned over he walked up alongside the plant in a group
with Gene Smith, Buckey Wilkey, Tommy Louallen and
Johnny Louallen and when he passed the cars parked
alongside the plant he did not see anything wrong with
them nor did he see one that had been turned over.4 About
35 minutes later he walked back down the street in front of
the plant with Tommy Louallen and noticed that the cars
parked alongside the plant building were damaged. He
testified that at no time did he see anyone throwing rocks
except Gene Smith and that he never threw any rocks.5 I
find Robert Bean 's testimony incredible. Again, as in the
case of Ballard, I find that Respondent had good reason to
believe that Bean had engaged in misconduct and that the
General Counsel has failed to offer convincing evidence
that he did not. Accordingly, I find that the failure to
reinstate Bean was no violation.
3. William E. Bowman
William E . Bowman , known as Eddie Bowman , accord-
ing to Roberson 's testimony , was discharged because he
was identified by Jerry Jones as being a participant in the
rock-throwing incident on June 24 . Jerry Jones testified on
direct examination that Eddie Bowman was in the group
that turned the station wagon over and broke out the
windows of all the cars alongside the plant on the evening
of June 24. On cross-examination Jones testified that in fact
he saw Bowman throwing rocks at the cars on that
occasion .6 Bowman testified that on June 24 he sat on the
bank across the street from the plant for about 15 minutes
day
6 Bowman was also identified as being one of several strikers that
blocked entry into the plant on another occasion by a delivery truck
However, according to the testimony of Roberson, the only reason for his
KAYSER-ROTH HOSIERY CO. 569
after 4:30 when the nonstriking employees commenced
coming out of the plant. He did not observe the Reed car
being turned over. He left that location and went up
Broadway alone, although others were on the street. He saw
someone in an upstairs window who appeared to be taking
pictures so he went to his car to get his binoculars. He drove
back down Broadway again observing people all up and
down the street. When he reached the south end of the
plant where the crowd was stoning the nonstrikers' cars, he
looked through his binoculars at an upstairs window and
identified Jerry Jones taking pictures. He testified that he
did not throw any stones or break any windows on any
occasion. He specifically denied that he was part of a group
that "paraded up and down Broadway Street throwing
rocks at cars and destroying the Company's property." On
cross-examination he testified that there were between 100
and 150 employees on the bank at the time he was there,
that he saw "literally a hail of rocks" coming from all
around him and that windows broke. He was there when
the Reed car came out but he did not remember seeing it
and was present while Jerry Jones was taking pictures of it.
He also testified that he was the picket captain at that time
but that he did not know one soul who threw a rock or
broke a glass in a car or participated in turning over the car.
He testified that he finally left at 5 o'clock or thereafter, and
that when he left the station wagon was still on its wheels
and no windows were broken out of any of the cars. He
admitted that in an affidavit he had furnished the Board
during the investigation of these matters he had stated "at
about 5 p.m. I walked back up Broadway in front of the
plant and noticed the station wagon turned over on
Company property in front of the plant." When confronted
with the affidavit he then recalled that after he had left the
scene of the riot he had gone back to the union
headquarters and at that time he saw the station wagon
turned over. I find that Respondent had a reasonable belief
that Bowman committed the acts of which he is charged
and, because I discredit Bowman, the General Counsel has
failed to present any convincing evidence that he did not.
Accordingly, I find that Respondent's refusal to reinstate
him does not constitute a violation of the Act.
4. Helen Brady
Roberson testified that Brady was refused reinstatement
because on the first day of the strike, as a group of
supervisory employees including Roberson approached the
plant, she told them that they could enter the plant but that
if anyone else tried to come in the strikers were going to
"whip some." She was also involved in some incidents on
the picket line of blocking people as they tried to get into
the plant and in two or three incidents where strikers
blocked the use of a company bus attempting to bring
nonstriking employees into the plant.
There is no evidence that any employee was in the
vicinity when Brady made the remarks attributed to her on
May 6, nor is there any evidence that Brady thereafter took
any action consistent with the remarks attributed to her on
that day.
The incident on May 20 in which a crowd of strikers
gathered and stoned the cars of nonstriking employees as
they left the plant presents a small variation on the usual
rock-throwing incident. This incident was recorded on film
which is in evidence. The film clearly discloses a tightly knit
group of striking employees with a line of strikers across the
front, all standing or milling around facing the camera and
not apparently doing anything. The testimony is clear that
from the group behind the employees standing facing the
camera a large number of rocks were thrown breaking out
the windows and otherwise damaging the automobiles of
the nonstriking employees.
Normally an employee must be identified as having
committed an act of violence in order to lose the protection
of the Act. It is not adequate that an employee merely be
identified as having been present when such an act was
committed by someone else in a group.? However, in the
instant situation it is clear to me from the motion pictures
and from the testimony of various witnesses adduced by
Respondent that the group of strikers was more than a
fortuitous assemblage at that time and place. It appears to
me and I find that the front rank of strikers in which Brady
was placed by credible testimony had as its purpose on that
occasion shielding from the camera and from the view of
management personnel in the plant the identity of the
persons who were actually throwing the stones. This to me
is no less than participation in the stone-throwing incident
itself and I find that the Respondent had good cause for
accusing Mrs. Brady of misconduct.
Mrs. Brady took the witness stand and testified that she
did in fact make the statement attributed to her by
Roberson on the first day of the strike. With regard to the
May 20 incident she testified that she was in a group of
people, standing in front of the group with her hands folded
watching nonstriking employees as they came out of the
plant and down Broadway Street towards the south. She
testified that she did not hear any crashes of stone going
through windows or hitting the sides of automobiles. She
heard nothing about any stones being thrown, she saw two
automobiles which were otherwise identified as having
been stoned on that occasion and nothing took place in the
group of people in which she was standing except that they
stood there with their arms folded and shouted "scab" at
the employees.
Mrs. Brady also admitted that she was one of a group of
strikers who boarded a company bus on one occasion. This
incident was one of a number of incidents where strikers
nullified the usefulness of a bus procured by Respondent to
bring employees to and from the plant over the picket line.
On various occasions the strikers met the bus at various
places along its route and crowded aboard it, sometimes
riding on it, sometimes merely delaying it. On one such
occasion they refused to dismount from the bus at the plant
until Plant Manager Roberson came to the gate and shook
hands with each striker as he dismounted.
Once again I cannot find that the General Counsel has
carried his burden of proving that Mrs. Brady did not take
part in activity warranting her discharge. As I have found
above, her participation in the shielding of the rock-
discharge was his alleged participation in the June 24 rock-throwing
incident.
7 See Beaver Bros. Baking Co., Inc., etc., 171 NLRB No. 98, with regard
to striker Kelley (TXD).
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
throwing crowd on May 20 was adequate cause for her
discharge. Her testimony that while she was standing in
front of the crowd with her arms folded facing the plant, no
rocks were thrown and she heard no cars hit is unbelievable
in the face of the evidence that I have before me of the
damage done to cars at that time and place by the group of
strikers throwing rocks. Accordingly, I recommend that the
complaint be dismissed insofar as it alleges a violation in
the Respondent's refusal to reinstate Mrs. Brady.
5. Sandra Bishop
Roberson testified that Sandra Bishop was refused
reinstatement because she was in the crowd of rock
throwers on May 20, discussed above with regard to Helen
Brady, and because she participated in incidents of
blocking entry of trucks into the plant. She appears in
movies depicting the May 20 incident discussed above, the
June 24 rock-throwing incident discussed above and also in
a film where a Kayser-Roth truck attempted to enter the
property. Mrs. Bishop and another striker, Aylene Wilkey,
walked back and forth in front of the truck so it could not
enter the plant without striking them. They held up the
truck until the sheriff's car arrived. The sheriff talked to the
driver of the truck but not to the pickets and directed the
driver of the truck to proceed on up the street. I have
already found with regard to Mrs. Brady that the strikers
who shielded the rock-throwing pickets on the May 20
incident lost the protection of the Act even as though they
threw rocks themselves. I would make no such finding with
regard to presence of any individual in the crowd on June
24. While unquestionably large numbers of rocks were
thrown and a great deal of damage was done by them and a
lot of misconduct took place, I cannot attribute this
misconduct to all of the strikers, estimated as up to 200. No
one identified Mrs. Bishop as a rock thrower on that or any
other occasion. With regard to the truck-blocking incident
the Board distinguishes between a situation where a striker
briefly impedes the progress of vehicles across the picket
line for the purpose of calling the picket line to the attention
of the driver or pleading with the driver to respect the
picket line and the situation where a vehicle is blocked so
that it cannot gain entry. In the instant case, the vehicle was
so blocked. The sheriff made no move to stop the blocking
and in fact on the guise of keeping the road clear apparently
sent the vehicle on its way. It did not gain entrance to the
plant. Under these circumstances it would appear that
either the first or third of these alleged incidents is sufficient
to protect the employer in its refusal to reinstate.
Mrs. Bishop testified that while she was walking picket
a number of times, trucks would stop and the pickets,
including her, would ask the truckdrivers to honor the
picket line and that on some occasions the truckdrivers
would accede to their requests. She stated she had no
recollection of the incident recorded on film but that there
was no occasion when she assisted in blocking a truck to the
point that it was not able to enter the plant. With regard to
the May 20 incident Mrs. Bishop testified that she was
walking picket and saw a group of people down below the
gate on that afternoon but saw no rocks thrown. She
testified that she was not one of those in the crowd but that
at the time she was walking picket. With regard to the
incident of stopping the truck she testified on cross-
examination that in her affidavit she had in fact stated that
no truck ever turned away from the gate because of her
picketing.
This last statement I considered to be deliberately
obfuscatory in view of the fact that she identified herself as
one of the pickets in the incident shown in the film in which
the truck in fact was turned away by a policeman. Mrs.
Bishop also testified that she was present throughout the
incidents on June 24 when the nonstriking employees came
out of the plant, their cars were stoned and the Reed car
turned over. She testified that she did not see anyone throw
any rocks although she admitted there were hundreds if not
thousands of rocks thrown that day, that she heard rocks
hit the cars, saw glass break from the windows and saw the
Reed car after it was turned over. I do not credit Mrs.
Bishop's testimony with regard either to the May 20 or the
June 24 incident. However Respondent's evidence does not
place her in a position where she may be charged with
having committed anything on those dates. Jerry Jones, the
only witness of Respondent who placed her at the May 20
incident, testified that she was walking in front of the
crowd. This is consistent with her testimony that she was
one of the pickets. No one testified that she threw any rocks
on any occasion or was other than one of a group of
employees watching the episodes on June 24. The only
remaining incident on which Respondent relies is the truck
blocking. The film in evidence clearly discloses that her
blocking of the Kayser-Roth truck on one occasion was
such as to impede its entrance into the plant until the sheriff
required it to move along without entering. It had nothing
to do with any plea to the driver that he honor the picket
line. Under these circumstances I find that Respondent had
adequate cause to terminate this employee and does not
violate the Act in so doing. I shall recommend that the
complaint be dismissed insofar as it alleges Respondent's
refusal to reinstate her as a violation.
6. Barbara Gravett
Plant Manager Roberson testified that Barbara Gravett
was refused reinstatement because she was identified as one
of the group of rock throwers on June 24 both at the time
the nonstrikers' cars were exiting from the plant and in the
crowd of strikers that walked up along side the plant
breaking the windows and turning over the station wagon.
She was also identified as one of two pickets who blocked
the entry of a Thurston Motor Lines truck briefly and
caused the arrest of the truckdriver allegedly for hitting
them. She was also identified as having been involved in an
incident where Trewhitt Dodd was beaten up while trying
to repair a tire on another employee's car. On that occasion
she tried to pull another nonstriking employee physically
out of her car.
Mrs. Gravett was identified by Jerry Jones as one of the
rock-throwing strikers on June 24. She testified about the
entire incident of June 24 but denied throwing any rocks.
She testified that she saw the Reed car turned over. She also
testified that she did not see the Reed car turned over. She
testified that she saw many people throw rocks but did not
know any of them. She testified that she did not see anyone
turn the Reed car over and she also testified that she saw a
KAYSER-ROTH HOSIERY CO 571
young blond boy run out to the Reed car and it flipped
over. She testified that she saw many rocks thrown but saw
none hit. She also testified that she saw rocks hit cars but no
glass broken. Her testimony with regard to this incident was
thoroughly incredible. I cannot find that she was not
engaged in throwing rocks on Broadway on June 24, as
Jones testified. Accordingly I find it unnecessary to
consider the various other allegations of misconduct by
Respondent. I find that Respondent did not violate the Act
in refusing to reinstate her.
7. Audrey Goforth
Plant Manager Roberson testified that Audrey Goforth
was refused reinstatement because she was involved in the
Thurston truck incident with Barbara Gravett, because she
was among the employees on the bank on June 24 and
because of her involvement in an incident connected with
Trewhitt Dodd's car dunng which she was accused, along
with two other women, of trying to pull a nonstriking
employee out of a car. Films were shown of the Thurston
truck incident and a considerable amount of testimony with
regard to it appears on the record. The film discloses that
the Thurston truck pulled up at a gate at the Company's
plant. Two pickets Barbara Gravett and Audrey Goforth
were picketing in a crisscross manner, that is to say one
started from each side of the entry at the same time and
crossed in the middle. The result of such picketing is that it
was a practical impossibility for a truck to pass without
striking a picket as long as the pickets continued their
parade. The truck was signaling for a right turn with a
flashing amber light. The truck stopped because of the
presence of the pickets and a union agent spoke to the
truckdriver for a few moments after which the truckdriver
put his vehicle in gear and proceeded into the plant. The
pickets moved to the side as the truck moved forward and
they were not touched by the truck. The two pickets
immediately went to the police station and swore out a
warrant for the truckdriver charging him with attempted
assault. The police came to the plant and arrested the
truckdriver and his helper and took them both to the police
station. The warrant was apparently never processed any
further. It is not clear what it is about this incident that
particularly disturbed Respondent. The actual blocking of
the truck was a matter of a few moments but the effect of
the incident was that the truck departed empty and
Thurston Motor Lines thereafter refused to service the
plant. It would appear from Roberson's testimony that it
was the latter effect that was most disturbing The
testimony of Goforth as well as that of Gravett was
completely incredible with regard to this incident Goforth
testified that the truck moved forward at a very rapid pace
with the result that she was forced to run for her life into the
plant grounds, however the film showed that this is not the
8 As a result of which she was found to have been in contempt of court
for violating an injunction against picket line activities
9 The record contains evidence that at thejail a large number of striking
employees freely addressed themselves to the Thurston drivers threatening
them with injury if they returned to Respondent's plant it does not appear
that the drivers were afforded any protection whatsoever by the local
police
10 Mis Goforth was also identified by Arnold Fitzgerald, who had been
case. She identified an affidavit she had given in support of
a State court caue8 in which she stated that the truck did not
signal a turn, bore down unexpectedly on her, did not stop
and chased her into the plant. This of course is contradicted
by her testimony, by the films and by the testimony of
witnesses called by Respondent.
I do not find that the incident is sufficient to warrant
Respondent's refusal to reinstate Mrs. Goforth. Temporary
blocking of a vehicle at a picket line while a plea is made to
the driver not to cross the picket line has not heretofore
been held by the Board to be misconduct of such a nature
as to remove an employee from the protection of the Act.
The Respondent appears to contend that some part of the
gravamen of the offense is the swearing of a false affidavit
against the driver of the truck. While it is clear that the
affidavit was untruthful there was not an adequate basis for
the warrant, I am not prepared to find that the picket, in an
excitable condition, was knowingly guilty of false swearing.
On cross-examination Respondent's counsel made quite a
point of the fact that it was not until Mrs. Goforth had seen
the films of the incident, which she obviously knew had
been taken, that she determined that her testimony would
not support the allegation. Whether this be so I do not find
that this constitutes misconduct of such a nature as to
warrant the refusal to reinstate her. With respect to the
refusal thereafter of Thurston to service the plant it appears
to me that the threats and activities which were shown to
have taken place at the jail were much more likely to have
been the cause than the momentary stopping by the pickets
on the picket lme 9
As far as the incident on the bank is concerned Mrs.
Goforth is not shown to have committed any violent
activity, her mere presence among the many persons on the
bank does not constitute misconduct. The only testimony
with regard to her activities was that she was talking to a
policeman during part of the matter.10
With regard to the incident involving Trewhitt Dodd's
car, testimony reveals that the automobile with several
women and Trewhitt Dodd left the plant and immediately
had a flat tire. Dodd took the tire to a service station
leaving a nonstriking employee, Della Fields Solomon' 1 in
the car. Three strikers approached who were at that time
unknown to Miss Fields and attempted to pull her out of
the car, according to her testimony. At any rate they
reached through the open window of the car and grasped
her by the arm and pulled. All that she could recall of what
they said was that one of them accused her of crossing the
picket line. She identified the three persons as Judy
Rockholt, Audrey Goforth, and Barbara Gravest and
testified that they had been identified to her after the
occurrence. She picked Audrey Goforth and Barbara
Gravett out of the crowd at the hearing.
Audrey Goforth denied that she was present on this
occasion stating that at the time of the occurrence she was
personnel manager at the time of the strike , as being in a crowd at a bus
stop when nonstriking employees were blocked from entering the plant No
specific action was attributed to her by Fitzgerald His demeanor on the
witness stand was such that I would not make any finding based on his
uncorroborated testimony
ii Miss Fields was married after the incident but before the hearing and
appears in the transcript as Della Solomon
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketing at the gate of the plant furthest removed from the
incident.
While the identification by Mrs. Solomon is suspect, Mrs.
Solomon appeared to be a rational and credible witness and
I believe her. On the other hand Miss Goforth's testimony
with regard to the Thurston truck incident was so incredible
that I would not credit her denial that she was present at the
automobile incident. Under the circumstances of the large
amount of violence that had been taking place and was
then taking place at the site of the plant and throughout the
city of Dayton in connection with the strike, I consider that
the action of the three girls in pulling on Mrs. Solomon's
arm constituted a serious threat to her no matter what was
said and I find that such a threat is adequate to warrant
Respondent's refusal to reinstate her. Accordingly, I shall
recommend that the complaint be dismissed insofar as it
alleges that such refusal to reinstate her was a violation of
Section 8(a)(3) of the Act.
8. Barney Henderson
Plant Manager Roberson testified that Barney Hender-
son was refused reinstatement because he had thrown eggs
at automobiles on May 20. He attributed this information
to reports by Arnold Fitzgerald. Fitzgerald testified that he
saw two employees, Barney Henderson and Billy Adams,
throw eggs at automobiles on May 10 and stated that
Adams threw an egg at him on that occasion. On cross-
examination , confronted with his testimony in the State
court injunction proceeding, he admitted he had not seen
Adams throw an egg at him but was told that Adams had
done so by Jerry Jones who was present on that occasion.
As I stated above I do not credit Fitzgerald except to the
extent that he was corroborated by otherwise credible
testimony. Jerry Jones was asked both on direct and cross-
examination about the incident and on each occasion was
asked who he saw throwing eggs. On neither occasion did
he identify Henderson, only Adams. There is nothing in his
testimony to indicate that Barney Henderson was present at
that occasion Henderson took the witness stand and
testified that he never threw eggs during the strike and that
he had no recollection of any occasion on May 20, the date
attributed to the occasion by Roberson. On cross-examina-
tion he testified that he had seen crowds of employees but
was not present during any of the violence that took place.
This in a way is corroborated by the fact that he is not
named by any witness as being present at any of the
incidents with which we are concerned in this matter other
than the egg-throwing incident where he was named by
Fitzgerald. I credit Henderson that he was not present with
Adams on that occasion. I believe that he is substantially
corroborated by the testimony of Jerry Jones It might be
questioned whether Respondent had adequate cause to
believe that Henderson had engaged in misconduct.
However, I find that Respondent did solely because
Henderson was among the striking employees found by the
State court guilty of contempt as a result of violations of the
State court injunction against picket line violence. He did
not appear and testify in the State court proceeding
Assuming that the same evidence was offered there by
Respondent as is offered here it is conceivable that the
court predicated such a finding on Fitzgerald's testimony,
inasmuch as Henderson was not called to the witness stand.
However, I find that the General Counsel has sustained his
burden of proof with regard to Henderson that he did not
take part in this incident and he is charged with no other.12
Accordingly, I find that Respondent by its refusal to
reinstate him violated Section 8(a)(3) of the Act, and I shall
recommend an order that he be reinstated with backpay.
9. Margaret Irwin
Plant Manager Roberson testified that Margaret Irwin
was denied reinstatement because on the first day of the
strike, May 6, she was involved in keeping Anna Mae
Patton and Gladys Kelly out of the mill. The testimony
reveals that on the morning in question a large group of
strikers appeared at the entrances to the mill and formed
shoulder to shoulder between the mill and the street. As
nonstriking employees arrived the strikers attempted to
block their entry into the plant. Margaret Irwin was one of
these persons. As Anna Patton got out of the car and
proceeded toward the mill, Margaret Irwin blocked her
with her body and kept moving back and forth keeping
between Patton and the mill. As Patton came near the door
she ran for the door with Irwin and another employee
running after her. Irwin apparently grasped Patton and
deflected her into a car.13 Patton then eluded Irwin and the
other striker and entered the plant. A few minutes later
another employee, Gladys Kelly, arrived at the plant and
Irwin, together with others, attempted to block her. Kelly
tried to push on through and Irwin grasped her by the
shoulder telling her that there was a picket line and she
could not come through. Kelly's supervisor came up at that
time and Irwin went back into the picket line and Kelly
entered the plant.
Mrs. Irwin testified that she was present on the
occasion and she saw both Patton and Kelly. She said when
Patton got out of the car she immediately started running
toward the door, she did not come within 10 feet of Mrs.
Irwin at any time. Mrs. Irwin never touched her or chased
her. As Patton neared the plant door she slipped on some
gravel and ran into a car. She almost fell, recovered her
balance and entered the plant. With regard to Kelly, Irwin
testified that she was talking to another nonstriking
employee asking her not to cross the picket line when Kelly
got out of a car, came up to her, pushed her with her
shoulder and went through the picket line and entered the
plant. I do not completely credit any of the witnesses as to
this occurrence. I believe that what happened was that both
Patton and Kelly were blocked by a crowd of pickets,
including Mrs. Irwin, and that she attempted to hold them
back both with her hands and her body. I believe that she
told them, as she testified she told another striker, that they
should not cross the picket line. It is clear that employees
attempting to cross the picket line can reasonably expect to
be accosted by pickets and it is clear that under the
circumstances here the two employees were definitely
12 N L R B v Burnup & Sums, 379 U S 21 appears from the testimony of other witnesses that the contact of Patton
13 1 do not credit Patton's testimony that she "slung her into the car " It with the car was largely accidental
KAYSER-ROTH HOSIERY CO.
impeded at least for a matter of a minute or two by the
pickets including Mrs. Irwin. The Board has adopted the
rule first set forth in N.L.R.B. v. Thayer Co., 213 F.2d 748,
cert. denied 348 U.S. 883, that the Board will balance the
alleged misconduct of the strikers against the unfair labor
practices of the employer and determine whether under the
circumstances the misconduct is justifiable. The General
Counsel cites this rule and argues that under the
circumstances here a greater latitude should be afforded the
strikers in their strike activities. Respondent on the other
hand argued at the hearing 14 that the rule is not applicable
in this case because the unfair labor practices found to have
been committed in the past were committed by supervisory
and managerial people no longer employed at the plant and
that there is no occasion for such a balancing. The decision
of the Board in which the strike was determined to be an
unfair labor practice strike reveals that the strike resulted
from a course of bargaining in bad faith which completely
stultified the collective-bargaining process and substantial-
ly nullified the action of the employees in choosing to be
represented by the Union. From the very start of the strike
it is clear that the striking employees were incensed and
attributed to Plant Manager Roberson, who had been the
employer's spokesman throughout the negotiations, much
of their distaste for the Respondent's activities. This does
not seem to be the case of a belligerent minority attempting
to impose its will on the passive majority of the employees
who are not personally involved. On the contrary not only
does it seem that a majority of the employees supported the
strike but the entire community seems to have been solidly
behind them, with the exception of a few employees willing
to work in spite of the strike. Under all these circumstances
it appears to me that the activities at the inception of the
strike charged against Margaret Irwin are insufficient to
warrant the extreme action taken by Respondent in
refusing to reinstate her. There is no evidence that at any
time after the first day Mrs. Irwin took part in any of the
violent activities that so many other strikers were engaged
in. Both the incidents charged against her took place in the
first few moments of the strike and obviously were activities
in which many other strikers participated. Testimony of
Jones, Fitzgerald and Roberson all reveal that the strikers
formed an almost solid wall the length of the plant at that
time.
While both Patton and Kelly testified that they were
substantially injured by Irwin's actions it does not appear
that the injury amounted to any more than a bruise in either
case and it is extremely improbable in my mind that Irwin
took any action that she could reasonably have anticipated
would injure any woman. I do not believe that the alleged
injuries add in any respect to the justice of the sanction
applied to Irwin by Respondent.
I find that while the action of Irwin with regard to Patton
and Kelly is not to be condoned, under all the circum-
stances present in this case, it does not warrant the refusal
by Respondent to reemploy her. Accordingly, I find that
Respondent violated Section 8(a)(3) of the Act in refusing
to reemploy her and I shall recommend that it be ordered to
reinstate her with backpay.
14 No brief was filed by Respondent.
15 Frances Miller Pendleton was married after the strike but before the
573
10. Tommy Louallen
Tommy Louallen was refused reinstatement, according
to the testimony of Roberson, because he was a member of
the group of employees who went down alongside the plant
on June 24 breaking the windows of the cars and turning
over the station wagon. Jerry Jones positively identified
Tommy Louallen as one of the strikers whom he saw
throwing rocks on that occasion. Tommy Louallen took the
witness stand and like others of the strikers on the witness
stand admitted that he had been present on the afternoon
of June 24 on the bank, that he was in the midst of all the
rock-throwing people there, that he saw the rocks thrown,
saw them hit the cars, break the glass, while he was not
watching at the second that it occurred he saw the Reed car
before and after it was turned over, that he thereafter
walked up Broadway the length of the plant with Robert
Bean but that he at no time threw any rocks, he saw no one
that he knew throw any rocks and he does not have any
idea who turned the car over. I found his testimony
completely incredible.
I find that Respondent had reason to believe that Tommy
Louallen had been engaged in misconduct on June 24
adequate to warrant its refusal to reinstate him. I find that
the General Counsel has failed to present convincing
evidence that Tommy Louallen was not in fact engaged in
the misconduct charged. Accordingly, I find that Respon-
dent did not commit an unfair labor practice in its refusal
to reinstate Tommy Louallen. I shall recommend that the
complaint be dismissed insofar as it alleges that Respon-
dent violated the Act in that regard.
11. Frances Miller Pendleton 15
Plant Manager Roberson testified that he refused to
reinstate Frances Miller for a number of reasons, that she
was one of a crowd who attempted to force her way onto a
bus on June 6 and again on June 7, that she was picking up
rocks on June 24 at the time that the crowd of employees in
the field on the bank across from the plant were throwing
rocks although he had no evidence that she had thrown
any, that on May 23 she pretended to be hit by Robbie
Riggs' car when in fact she was not hit and on May 20 she
threw a rock through the window of Robbie Riggs' car.
Roberson also testified that on May 5, 6 or 7 Mrs.
Pendleton was one of several girls that attempted to take
the trousers off Joe Gornik, the driver of the company bus.
With regard to the incident of the breaking out of a
window in Robbie Riggs' car, Roberson testified that he
was informed that Frances Miller Pendleton had thrown a
brick or a rock and had broken out the window. There is no
evidence as to who so informed him. Fitzgerald, whom I
found to be less than fully credible, testified with regard to
the incident which took place on May 20. According to
him, Lucille Pendleton, Frances Miller Pendleton's sister-
in-law, threw a block of concrete or a rock which broke out
the window of Robbie Riggs' car. He identified a number of
persons present on May 20 in a crowd from which rocks
were thrown but Mrs. Frances Pendleton was not among
those he identified. Jerry Jones testified that the rock that
hearing, accordingly the references to her in the transcript for the most part
are under the name Frances Miller.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
broke out Robbie Riggs' window was thrown by Gene
Smith, a nonemployee shown by the record to have
engaged in a large amount of rock throwing. There is no
evidence in the record from which I can infer that Mrs.
Pendleton was responsible for any action on May 20 or that
Respondent had any good-faith belief that she was
responsible.is Mrs. Pendleton denied participating in the
incident or throwing any rocks at any time. While her
credibility is minimal, I find substantial corroboration to
her denial in the failure of both Fitzgerald and Jones to
name her as the culprit and the fact that each of them
named a different person other than Mrs. Pendleton.
Roberson also testified that Mrs. Pendleton was identi-
fied by Robbie Riggs as picking up rocks on June 24 while
others were throwing them. According to her testimony she
was not present at this scene and she was not identified by
any witness who appeared before me as having been seen
on June 24 on the occasion of the rock-throwing and car-
turning incidents. It may also be noted that she was not
identified in the motion pictures taken on that occasion.
Again I find there is no support in the record for
Roberson's assertion.17 Roberson admitted that he had no
report that she had thrown any rocks.
Respondent also contends that it declined reinstatement
of Mrs. Pendleton because she "forced her way" onto the
company bus on three occasions. She admitted one of these
occasions and there is substantial credible evidence that she
was present on at least one other occasion with a group of
strikers attempting to board a bus. She was also accused of
trying to take the trousers off the busdnver on one of these
occasions, however, the story with regard to that leads me
to believe that the incident is blown up far beyond its actual
worth. It appears that several strikers were addressing
themselves to Joe Gornik, the Company's busdriver, and
threatening to remove his trousers ostensibly for the
purpose of searching them to determine whether he was
carrying some sort of pills in them that would render him
unfit to drive the bus. From all the accounts on the record it
does not appear that anyone seriously attempted to remove
his trousers or that the several women involved would have
had any trouble doing so if they had tried.
Mrs. Pendleton was also identified as having participat-
ed on two occasions in incidents in which trucks or cars
were stopped entering or leaving the plant. On each such
occasion it does not appear that the vehicle was more than
delayed by the action of the pickets or that any violence or
untoward blocking was taken part in by Frances Pendleton.
I conclude that the rock-throwing incidents of which
Frances Pendleton was accused have not been established
to have taken place with her as an active participant. That
she was present on various occasions is clear, but there is no
substantial evidence that she threw any rocks and
Respondent's evidence convinces me that she was not
reported to have done so. While I find Frances Pendleton
generally incredible, I credit her to the extent of believing
that she was not present on June 24 and did not throw any
rocks at Mrs. Riggs' car at any time. With regard to the
16 Roberson testified that he received complaints from Robbie Riggs as
well as others but he did not attribute to Robbie Riggs any complaints that
Mrs Pendleton was responsible for breaking out her rear window It
appears that Robbie Riggs testified at the State court injunction matter,
incidents of the company bus and the brief blocking of
vehicles on the picket line, I do not believe that the activity
complained of is of such a nature as to warrant
Respondent's action in refusing to reinstate Frances
Pendleton. I find that her discharge was discriminatory and
in violation of Section 8(a)(3) and (1) of the Act.
12. Lucille Pendleton
According to Roberson's testimony, Lucille Pendleton
was refused reinstatement because on several occasions she
rode the company bus. She participated in the incident with
her sister-in-law relating to taking off Joe Gornik's trousers,
she together with her sister-in-law blocked cars coming into
the plant, she engaged in harassing phone calls to Robbie
Riggs and she was in the group on May 20 at which rocks
were thrown through the window of Robbie Riggs' car. She
was also one of the persons found guilty of contempt of
court for violating the injunction of the State court. With
regard to the rock-throwing incident she was identified,
according to Roberson, by two employees, Bonnie Wolf
and Robbie Riggs, as having thrown a rock through Robbie
Riggs' car window on May 20. As I mentioned above,
Fitzgerald and Jones each identified other persons as
having thrown the rocks that broke out Robbie Riggs' car
window on that occasion. Fitzgerald testified that he did
not see Lucille Pendleton throw any rocks but that she was
in the crowd. Jerry Jones did not testify that he saw her in
the crowd. No testimony was offered that Mrs. Pendleton
at any time threw any rocks.
Mrs. Pendleton testified that she was present on the
May 20 incident walking the picket line and that she saw
the crowd but was not a part of it. While she denied seeing
anyone throw rocks, she admitted that rocks were thrown.
She was not among those identified as being in the group
shielding the rock throwers on May 20 from the motion
pictures. Nor can I identify her in that group from my own
viewing. I credit her that she was walking the picket line on
that occasion and in view of the testimony of Fitzgerald
and Jones which must have contradicted the stones of
Robbie Riggs and Bonnie Wolf to Roberson I find that
Roberson could not have had a good-faith belief that she
was the person who broke out Robbie Riggs' window on
May 20.
With regard to the blocking of automobiles her
participation was shown to be the same as that of Frances,
her sister-in-law, which I have found not to be sufficient to
warrant the employer's refusal to rehire her. With regard to
the bus-riding incident, her participation also seems to have
been the same as that of her sister-in-law with the exception
that she was admittedly on the bus which on one occasion
was driven into the Company's parking lot and the strikers
refused to disembark until Plant Manager Roberson came
to the bus and shook their hands. Accordingly, they all sat
on the bus until he anived and shook their hands
whereupon they departed and went back to the picket line.
Respondent contended at the hearing that this was
adequate cause for the refusal to reinstate Mrs. Pendleton.
but she was not called at the instant case to testify
i7 It may well be that Roberson had Frances Miller Pendleton and
Lucille Pendleton confused
KAYSER-ROTH HOSIERY CO. 575
Under all the circumstances of this case I do not agree. It is
true that the strikers by riding the buses inhibited
Respondent's use of the buses to transport nonstriking
employees across the picket line. In fact this was
accomplished to the extent that for a period of time the
Respondent discontinued using the bus. However, with the
exception of a single incident on the record it does not
appear that the strikers engaged in any violent or
destructive activities with regard to their riding the buses or
that any nonstriking employees were coerced by their
presence.
With regard to the alleged harassing phone calls Lucille
Pendleton denied that she ever has telephoned Mrs. Riggs
and there is no evidence to the contrary. Under all the
circumstances I find that Lucille Pendleton did not engage
in activities of such gross misconduct that she lost her
protection as an employee. Accordingly, I find that
Respondent by refusing to reinstate her violated Section
8(a)(3) and (1) of the Act.
13. Robert Pierce
also testified that he knew Buckey Wilkey, Tommy
Louallen, Johnny Louallen, Robert Bean and Gene Smith
as well as others when he saw them but he didn't see any of
them on June 24. He also testified that he could not swear
that it was not he portrayed in a movie together with
Buckey Wilkey on the occasion of the stone throwing at the
plant on June 24, although he testified that he had never
been with Buckey Wilkey on that date. Based on his
demeanor and on his complete inability to recall seeing
anybody on June 24 although he was present at the site of
all of the violence that has been spelled out above, I find
Robert Pierce's testimony to be incredible. On the other
hand, I credit Trewhitt Dodd that he saw Pierce throw a
stone through his window. In my opinion Respondent had
good cause to believe that Pierce had engaged in
misconduct such a nature that Respondent was justified in
refusing to reinstate Pierce and I find that there is no
violation implicit in its refusal. Accordingly, I shall
recommend that the complaint be dismissed insofar as it
alleges a violation with regard to the failure to reinstate
Robert Pierce.
Plant Manager Roberson testified that Pierce was denied
reinstatement because of a number of incidents including
throwing a rock through the window of Trewhitt Dodd's
automobile, being in the company of persons who walked
down Broadway on June 24 breaking the windows out of
the automobiles and overturning the Company's station
wagon and being involved in the Thurston truck incident
which I have discussed above, as well as the incident which
took place at the jail when the Thurston truckdriver was
arrested.
Trewhitt Dodd testified credibly that he drove out of the
plant and saw Robert Pierce, whom he had known well over
a period of years, throw an object at his automobile which
broke out a window behind his head. Jerry Jones testified
that Pierce was one of the group that marched down
Broadway on June 24 breaking automobile windows and
overturning the Company's station wagon. Pierce testified
that he never threw any rocks at anything or anybody and
knew nothing about Trewhitt Dodd's window being
broken. He testified on June 24 he had been walking picket
duty until 4:30. When he was relieved at that time he heard
some commotion on Highway 30 and walked down and
saw a car turned over on the road and a large crowd, so he
turned and went back north up Broadway, got his car and
went home. He testified that he threw no rocks or any other
objects on that day. He testified that at the time he went
north along Broadway to get his car he did not see Buckey
Wilkey or Tommy Louallen or anyone else that he knew
and that he had nothing to do with turning over the station
wagon. On cross-examination Pierce testified that he didn't
know whether a rock might have been thrown from a group
in which he was located on the afternoon of May 20 when
the rock was thrown through Dodd's car but, in any event,
he testified he did not throw the rock. He testified that he
had heard that a lot of objects had been thrown on the
picket line, a lot of things happened, but he didn't know. He
18 Leona Cooley testified she did not attempt to return to Respondent's
employ until after September.
19 Mrs . Cooley 's testimony concerning the incident named Mrs. Reed as
Nancy Diller. The record does not contain positive proof that Nancy Diller
14. Nancy Reed
Nancy Reed was denied reinstatement solely because on
May 9, 1969, she physically blocked nonstriking employee
Leona Cooley who was trying to enter the plant, causing
Mrs. Cooley to return to her home.18 Roberson testified
that he was informed by the knitting room supervisor of the
incident involving Mrs. Reed and Mrs. Cooley. Mrs. Reed
testified that on the third or fourth day of the strike she was
standing in the line of strikers with her arms crossed and
Leona Cooley came up to her. Mrs. Reed said, "I wish you
wouldn't cross our line" whereupon Mrs. Cooley started
back down the road crying and said, "I'll go home and pray
for you" and that was the end of the incident. She testified
that she at no time touched Mrs. Cooley and that Mrs.
Cooley came into work the next day.
Mrs. Cooley testified in substantial corroboration of the
testimony of Mrs. Reed.19 The only substantial differences
in the testimony of Mrs. Cooley and Mrs. Reed are that
Mrs. Cooley stated that she was touched by Mrs. Reed's
shoulder when she was blocked and that thereafter she did
not return to her job until shortly before the contract was
signed which took place in December. Mrs. Cooley testified
that she was hurt, not by the touching of Mrs. Reed's
shoulder, but by the fact that people she had worked with
all those years would treat her like that and try to keep her
from going to her job when she had no other way to make a
living. She testified that she knew Nancy Reed well whereas
Nancy Reed testified that she had to be told who Leona
Cooley was. The testimony of the two women in this regard
is not necessarily inconsistent.
The only real issue I can see in this matter is whether the
alleged misconduct of Mrs. Reed is sufficient to warrant
Respondent's refusal to reinstate her. There is no question
that Respondent had Mrs. Cooley's story in its possession
at the time it decided not to reinstate Mrs. Reed, who was
is Nancy Reed . However from the story given by Nancy Reed and Leona
Cooley it is clear that Nancy Reed and Nancy Diller are the same person,
as Respondent offered to stipulate.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed when she attempted to collect her vacation pay
during the summer of 1969 that it had been denied her
because of the incident . Under the circumstances of this
case it is shown that on the third or fourth day of the strike
Nancy Reed was I of perhaps 200 picketing employees who
formed a line around the plant . There can be no doubt from
the copious testimony regarding the occurrences of the
early days that there must have been many incidents where
nonstriking employees were touched by the strikers in their
line. The fact that Leona Cooley reacted so strongly that
she walked away from the Respondent 's plant and made no
further attempt to enter it for a matter of months could
scarcely have been within the contemplation of Nancy
Reed or of anyone else. It is clear that other employees
successfully negotiated the picket lines especially after the
first day and there is no reason to believe that Mrs. Cooley
had any harder time than any of the others. She did not
complain that she was hurt by the physical contact with
Nancy Reed, rather she was hurt by the thought that her
fellow workers would "turn against her" by attempting to
keep her from entering the plant. There is no evidence that
after this incident Nancy Reed took any part whatsoever in
the strike which was long and violent . The record contains
examples of other employees who were reinstated by
Respondent although they had committed acts or had been
accused of committing acts more serious than that charged
against Nancy Reed. Under the circumstances I conclude
that her misconduct was not of such a nature that she
should be denied her rights guaranteed under Section 7 of
the Act. I conclude that Respondent 's refusal to reinstate
her violated Section 8(a)(3) and (1) of the Act and I shall
recommend an order in accordance with that conclusion.
15. Venus Reed
Roberson testified that the only reason Venus Reed was
refused reinstatement was because he got a report from
Margaret Reed, a nonstriking employee, that on June 13
Mrs. Reed together with three other employees were driving
home on a highway when a car driven by Kenneth Toole
with Venus Reed as a passenger followed her car blowing
the horn and then passing them and as the car passed
Venus Reed threw tacks out the window underneath the
wheels of her car. Venus Reed testified that on the day in
question he was driving with Kenneth Toole on the same
highway when Mrs. Reed's car passed them driving at an
excessive speed on the left side of the road and went on
after which he saw her no more. He testified that Woodrow
Tumlin was in the car with Kenneth Toole and him. Mrs.
Reed, who is not related to Venus Reed, testified that on
June 11 she had been followed from the plant for some
miles by a car which cut her off and the driver stopped her
and told her not to come back to Dayton. The next day
another car followed her and cut her off and then slowed
down so that she could not drive at a normal speed. This
car was driven by Kenneth Toole who had another man
with him. On June 13 she was followed by a car driven by
Kenneth Toole in which another man whom she could not
identify and Venus Reed were passengers, with Venus Reed
riding in the rear seat. She testified that the car followed her
closely and then passed her and as it passed her Venus
Reed leaned out and threw roofing nails under the tires of
her car . She proceeded up the mountain and passed Toole's
car farther up the mountain after which Toole followed her
almost to her destination . She stopped at the sheriff's office
in Pikeville and complained about the harassment on the
road and the sheriff promised to have a deputy posted on
the road to give her protection thereafter. She continued
driving that road until the 24th on which occasion her car
was overturned.
Based on his demeanor and inconsistencies in his
testimony I discredit Venus Reed . I consider Margaret
Reed credible and I believe her story. The question remains
whether the misconduct charged against Venus Reed is
adequate to justify the Respondent 's refusal to reinstate
him. I find that it was . In my opinion it is an extremely
dangerous thing to throw roofing nails under the tires of an
automobile driving over the mountains . I find that Venus
Reed thereby jeopardized Mrs. Reed and her three
passengers warranting his dismissal and Respondent's
refusal to rehire him. Accordingly, I shall recommend that
the complaint be dismissed insofar as it alleges that
Respondent violated the Act in connection with Venus
Reed.
16. Agnes Smith
According to the testimony of Roberson, Agnes Smith
was denied reinstatement solely because of an incident in
which she was alleged to have set up roofing nails on their
heads across the entrance to the plant so that automobiles
entering the plant would necessarily drive the nails through
their tires.
The incident as reported to Respondent took place at
lunchtime while Agnes Smith and Emma Suttles were
walking the picket line across the entrance to gate 3 of the
plant. The entrance way hadjust been hosed down and the
pavement may still have been wet. A collection of nails and
gravel had been washed by the hosing to the side of the
driveway. Agnes Smith picked up some of the nails and
started making a line of them across the driveway to the
inside of the area on which she and Emma Suttles were
patrolling . Emma Suttles kicked some of the nails from the
pile of debris beside the culvert which Agnes Smith placed
on their heads in the driveway. Shirley Holden, Martha
Scoggin and Betty Smith all testified that they watched
Agnes Smith for up to 10 minutes during their lunch period
while she was setting up the nails and that at one time she
saw them watching and waved to them.
Agnes Smith testified that she walked picket that day at
that gate at that time with Emma Suttles and that she saw
no nails or tacks in the driveway with the exception of one
nail. She testified that she was walking barefoot and Emma
Suttles pointed out the nail and warned her against it and
then gave it a kick out toward the culvert. She testified that
she noticed the girls watching through the windows of the
loading dock door as she picketed but did not know who
the girls were. She also testified that a guard was standing
beside the driveway when she commenced picketing with a
hose in his hand and that the ground was still wet. When
the ground, which was hot, commenced to dry she asked
the guard to wet it again to keep it cool for her. He just
laughed. She testified that she was stooping and picking up
small stones as she walked and would throw them up and
KAYSER-ROTH HOSIERY CO 577
catch them on the back of her hand to pass the time The
only time Mrs Suttles bent over or stooped over was when
she put her shoes back on because she had been barefoot
too and that at no time did she hand her any nails or tacks
The guard disappeared while she was still patrolling Emma
Suttles testified in complete corroboration of Agnes Smith's
testimony On cross-examination Emma Suttles admitted
that in the contempt hearing the same testimony had been
offered by Respondent that was offered in the instant
hearing and the same testimony had been given by Agnes
Smith and Emma Suttles denying that nails had been set up
but neither Agnes Smith nor Emma Suttles testified at any
time that Agnes Smith had picked up gravel and tossed it in
their hands I credit Holden, Scoggin, and Smith and
discredit Agnes Smith and Emma Suttles I find that in fact
Agnes Smith set the nails up on their heads to damage
automobile tires of cars entering or leaving the Respon-
dent's property
There is no question that the use of roofing nails and
large construction nails bent in such a way that when
thrown to the ground they would more readily fall with the
point upwards were used extensively by the strikers
throughout the strike Large numbers of punctured tires
ensued Indeed Roberson testified that on one occasion all
four of the tires on his automobile were flat Both Agnes
Smith and Emma Suttles testified that at other gates and at
other times they had seen nails scattered in the plant
driveway but denied that they had anything to do with it I
find that Agnes Smith's conduct in setting the nails up so
that they would almost certainly be picked up by
automobile tires was misconduct of such a nature that
Respondent did not act unlawfully in denying reinstate-
ment to her 20 Accordingly, I shall recommend that the
complaint be dismissed insofar as it alleges discrimination
with regard to Agnes Smith
17 Chester Smith
Plant Manager Roberson testified that Chester Smith was
refused reinstatement because of a number of incidents
Roberson identified Chester Smith as one of the strikers
who turned over the Reed car and stated that Chester Smith
was identified to him as one of the persons who rocked the
company station wagon on May 7, blocked the company
truck at the picket line which was subsequently waved on
by policemen on May 8, forced his way with four other men
onto the company bus on June 7, and threw rocks on
various dates in May
Chester Smith was cross-examined vigorously especially
concerning the incident on June 24 when the Reed car was
turned over His demeanor convinced me that he was not
telling the truth and his testimony on direct examination
and cross-examination contained so many internal incon-
sistencies that I halted the cross-examination before it was
completed and found on the record that his testimony was
incredible The Charging Party took exception to my
finding I have carefully reviewed the testimony as recorded
in the transcript and I am more than ever convinced that
Mr Smith's testimony is worthy of no credit whatsoever
Accordingly, I find that the General Counsel has failed to
present convincing probative and preponderating evidence
that Chester Smith did not commit the acts of misconduct
charged to him and upon which Respondent declined to
reinstate him Accordingly, I shall recommend that the
complaint be dismissed insofar as it alleges that the failure
of Respondent to reinstate Chester Smith is a violation
18 Woodrow Tumlin
According to the testimony of Roberson, Woodrow
Tumlin was involved in a number of incidents all but one of
which have been referred to above and he was among the
group on May 7 who stopped the station wagon full of
clerical employees driven by Arnold Fitzgerald On that
occasion he was identified by several witnesses as a
participant who urged the others to turn the station wagon
over On May 20 he was identified as being one of the group
that was throwing rocks at Robbie Riggs' car as well as
others Also on that date he was one of a group of pickets
that blocked the entrance of a United Parcel Service truck
He addressed himself to the driver and told him he could
not enter the plant and the driver left the plant without
making his delivery or pickup On June 10 when the
company bus broke down in the neighboring town of
Evansville, and Roberson went up to see what could be
done, Tumltn was in a crowd of pickets and yelled to the
crowd "if you want to kill somebody there's the man to
kill " Finally he was identified as one of the individuals who
turned over the Reed car on June 24
Tumlin admitted his presence at the station wagon
episode and testified that he walked over to the car and
leaned against it and told Fitzgerald who was driving it that
the people suspected that he was trying to take scabs into
the plant and wanted the passengers to get out and walk
into the plant so that the employees could see that they
were all office people He testified that the car was not
rocked but was "jumping up and down from front to
back like somebody had their foot on the bumper or
something " He testified he had nothing to do with that, he
had his hand on the side of the car while he was talking to
Fitzgerald With regard to the UPS truck incident he
testified that the truck was not stopped from going into the
plant He testified that he asked the driver, whom he knew,
to honor the picket line and the driver said that he would do
so because he was a union man himself With regard to
another truck-stopping incident he testified that he asked
the driver of the truck to honor the picket line and the
driver refused to do so, so he walked away With regard to
the stoning of Robbie Riggs' car he testified that it had a
broken window but he saw no rocks thrown, heard no rocks
hit any cars on the occasion of the 20th, although he
"supposed" that he was in the group from which it has been
testified by others rocks were thrown With regard to the
Evansville bus incident he testified that he said nothing
about killing anyone but he suggested to a policeman that if
he wanted to arrest someone he should arrest Roberson
because he was trying to get Joe Gornik, the busdriver,
killed or hurt in some way With regard to the incident on
20 Farmers Co Operative Gin Association Ibi NLRB 887 enfd sub nom
Dallas General Drivers 389 F 2d 553 (re F 0 Hankins & Frank L
Hendrick)
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 24 he admitted that he was present throughout the
incident and that he saw quite a few rocks, a couple
hundred more or less , thrown from the crowd but he did
not know who threw any of the rocks, he did not see any
rocks hit any vehicles, he did not see the Reed car turned
over and indeed did not come within 30 or 40 yards of it but
stayed in the field until the car had been turned back up
and had been taken away. He testified that he had a
conversation with the police chief, Robinette, who asked
him to ask the people to back off from the lot because he
was afraid they would be hurt. He testified no rocks were
being thrown at that time.21 He testified that he walked
north on Broadway in front of the plant after the Reed car
was turned over, perhaps between 40 minutes and an hour
later, and saw various vehicles parked alongside the
company building none of which were damaged in any
way. Later that evening he passed in an automobile and
found that the same vehicles had been damaged and the
station wagon turned over. He denied that he had anything
to do with damaging or turning over any vehicles on that
afternoon. On cross-examination various inconsistencies
appeared in Tumlin's testimony. By that time however I
was convinced that he was not telling the whole truth. I do
not believe it possible that he could have been present
throughout the incident on June 24 when the testimony and
the movies clearly revealed that large numbers of rocks
were thrown and not have seen any person whom he could
identify throw a rock. I credit Mrs. Reed's testimony that
Tumlin was present when her car was turned over, although
she did not see him touch it, and discredit Tumlin's that he
was 30 or 40 yards away. I find that Tumlin's testimony is
incredible with regard to that incident as well as the UPS
truck incident concerning which he gave contradictory
testimony in his pretrial affidavit.
I conclude that the General Counsel has not sustained his
burden of proof that Woodrow Tumlin did not engage in
the activities charged against him. Accordingly, I find that
Respondent did not violate the Act in refusing to reinstate
him. I shall recommend that the complaint be dismissed
insofar as it alleges a violation with regard to Woodrow
Tumlin.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
21 Other testimony suggests that at that time Chief Robinette was hit in
the back with a rock
22 As General Counsel points out in his brief not only would some 38
employees have been immediately reinstated on December 2 but for the
retention of the strike replacements but each of the succeeding employees
would have been called back to work sooner but for the employment of the
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having found
that Respondent discriminated against certain unfair labor
practice strikers in that it did not timely reinstate them
while at the same time strike replacements were employed
and working, I shall recommend that Respondent make
whole each of the strikers, whose reinstatement was delayed
by reason of the employment of the strike replacements, for
any loss of pay they may have suffered because of the
discrimination against them, by payment to each of them of
a sum of money equal to the amount they would normally
have earned during the period between December 2 and
their reinstatement or the period between the date on which
they would have been reinstated and the date on which they
were reinstated.22 Loss of earnings shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289, together with interest at the rate of 6 percent per
annum as provided in Isis Plumbing & Heating Co, 138
NLRB 716.
While of the 18 employees alleged to have been
discriminated against by reason of Respondent's refusal to
reinstate them at all, 13 are disqualified by reason of the
misconduct alleged or of Respondent's reasonable belief
that such misconduct occurred, five are not so disqualified,
as found above. With regard to these five, Barney
Henderson, Margaret Irwin, Lucille Pendleton, Frances
Miller Pendleton, and Nancy Reed, I shall recommend that
Respondent offer each of them immediate and full
reinstatement to his former job or if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
discharging, if necessary, any employee hired on or after
the inception of the strike and make each of them whole for
loss of earnings which he may have incurred as a result of
the Respondent's discrimination by payment to each of
them of a sum of money equal to the amount he normally
would have earned as wages during the period from
December 2, 1969, to the date of Respondent's uncondi-
tional offer of reinstatement. Said loss of earnings should
be computed in the manner set forth in F. W. Woolworth
Company, supra, together with interest at the rate of 6
percent per annum as provided in Isis Plumbing & Heating
Co., supra.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to reinstate Barney Henderson, Margaret
Irwin, Lucille Pendleton, Frances Miller Pendleton and
Nancy Reed upon their unconditional application for
reinstatement after the strike and by delaying reinstatement
replacements Accordingly , all of the sinking employees who were
reinstated to fob classifications in which strike replacements were employed
have been discriminated against with the possible exception of those who
for one reason or another could not have returned to Respondent's employ
at a date earlier than they did.
KAYSER-ROTH HOSIERY CO. 579
of other employees while strike replacements were em-
ployed, Respondent discriminated against employees
within the meaning of Section 8(a)(3) and (1) of the Act.
4. Textile Workers Union of America, AFL-CIO, has
been at all times relevant hereto the exclusive certified
collective-bargaining representative of a majority of
Respondent's employees in a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By failing and refusing upon request to furnish the
Union with a list of employees together with their
departmental seniority, Respondent engaged in conduct
violative of Section 8(a)(5) and (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.
RECOMMENDED ORDER23
Upon the foregoing findings of fact and conclusions of
law and upon the basis of the entire record in this case and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended , I recommend that Respondent, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Workers Union
of America , AFL-CIO, or any other labor organization by
discriminatorily refusing to reinstate unfair labor practice
strikers or delaying in reinstating unfair labor practice
strikers while continuing in its employ replacement
employees hired during the strike or in any like or related
manner discriminating against any employee with regard to
his hire or tenure of employment or any term or condition
of employment.
(b) Refusing to bargain collectively with Textile Workers
Union of America , AFL-CIO, as the exclusive representa-
tive of all Respondent 's employees in an appropriate
collective-bargaining unit by refusing to furnish said Union
an up-to-date seniority list by department of all employees
within the unit.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in their right to self-
organization , to form their own labor organization, to join
or assist the Union, or any other labor organization, to
bargain collectively with representatives of their own
choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Make whole all of its employees whose reinstatement
was delayed by the continuing employment at the close of
the strike of strike replacements for any loss of pay they
may have suffered as a result of the discrimination against
them in the manner set forth in the section entitled "The
Remedy."
(b) Offer to Barney Henderson , Margaret Irwin , Lucille
Pendleton , Frances Miller Pendleton , and Nancy Reed
immediate and full reinstatement to their formerjobs or, if
those jobs no longer exist , to substantially equivalent
positions of employment , without prejudice to their
seniority or other rights and privileges , discharging, if
necessary , all replacements hired after the commencement
of the strike and make said employees whole for any loss of
wages they may have suffered to the extent and in the
manner set forth in the section entitled "The Remedy."
(c) Post at its plant at Dayton, Tennessee, copies of the
attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 10, 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
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Preserve and, upon request, make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, especially including records
disclosing the departmental seniority of all employees
necessary in determining the amount due as backpay.
(e) Notify Barney Henderson if presently serving in the
Armed Forces of the United States of his right to full
reinstatement 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.
(f) Notify the Regional Director for Region 10, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.25
IT IS FURTHER RECOMMENDED that the complaint herein
be dismissed insofar as it alleges violations of Section
8(a)(1) and (5) which have not been sustained.
23 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
24 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 National 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 "
25 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps 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
After a trial at which all sides had the opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to post
this notice and to keep our word about what we say in this
notice.
The Act gives all employees these rights:
To engage in self-organization;
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To form , join or help unions;
To bargain collectively through a representa-
tive of their own choosing;
To act together for collective bargaining or
other mutual aid or protection; and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights . More specifically,
WE WILL NOT refuse to bargain collectively with
Textile Workers Union of America, AFL-CIO, as the
exclusive collective -bargaining representative of our
employees in a unit appropriate for collective bargain-
ing by failing and refusing to furnish the Union, upon
request, with an up -to-date departmental seniority list
of all employees in the unit.
WE WILL NOT discourage membership in the above-
named Union or any other labor organization by
discriminatonly refusing to reinstate unfair labor
practice strikers , or delaying in reinstating unfair labor
practice strikers while continuing to employ strike
replacements , or otherwise discriminate against any
employee.
WE WILL make whole all of our employees whose
reinstatement after the strike was delayed for any loss of
pay they may have suffered as a result of our
discrimination against them , by payment to each of
them the amount of money they lost as a result of our
action.
WE WILL offer to the employees named below
immediate and full reinstatement to their former jobs,
or if those jobs no longer exist , to substantially
equivalent jobs, discharging if necessary all replace-
ments hired during the strike , and make them whole for
any loss of wages they may have suffered as a result of
our discrimination.
Barney Henderson
Margaret Irwin
Frances Miller Pendleton
Lucille Pendleton
Nancy Reed
Dated By
KAYSER- ROTH HOSIERY
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, T6024
Federal Building (Loyola) 701 Loyola Avenue, New
Orleans, Louisiana 70113, Telephone 504-527-6361.