Keller Manufacturing Co., Inc

National Labor Relations Board - Board Decisions

Oct 15, 1984

272 N.L.R.B. 763 (N.L.R.B. 1984)

KELLER MFG CO 763
Keller Manufacturing Company, Inc and Doris M
Conrad and General Drivers, Warehousemen
and Helpers Local Union No 89, affiliated with
International Brotherhood of Teamsters, Chauf
feurs, Warehousemen and Helpers of America
Cases 25-CA-9702-1 25-CA-10106-2 25-
CA-10106--3 25-CA-10436 and 25-CA-10639
15 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 27 July 1981 Administrative Law Judge
Robert A Gntta issued the attached decision The
Respondent and the General Counsel filed excep
tions and supporting briefs and the Respondent
filed an answering brief to the General Counsel s
exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings ' and
conclusions only to the extent consistent with the
Decision and Order
The judge found that the Respondent construc
tively discharged employee Billy G Patton in vio
lation of Section 8(a)(3) and (1) We find merit in
the Respondent s exceptions and shall dismiss this
allegation
The Respondent employs approximately 600 em
ployees in its furniture manufacturing facilities in
Corydon and New Salisbury Indiana In October
1977 the Board certified the Union as the collec
tive bargaining representative of the production
and maintenance employees in those facilities and
1 We agree with the judge that the Respondent did not unlawfully
insist on a notification clause particularly since the evidence shows that
the Union first proposed such a clause We thus find it unnecessary to
reach the question of whether the judge erred in refusing to admit a copy
of the Respondent s 1975 contract with another union which contained a
similar clause since the result would not be altered by that document In
adopting the judge s findings we also place no reliance on Cross 12 May
telephone conversation with union official Manon Winstead
We further agree with the judge that the Respondent did not unlawful
ly deny vacation benefits to strikers but we do not rely on the distinction
drawn by the judge as to whether the loss of vacation pay is indirectly
the consequence or a direct consequence of engaging in protected ac
tivity
The judge cited PPG Industries 251 NLRB 1146 (1980) at fn 5 of his
decision We note that in Rossmore House 269 NLRB 1176 (1984) the
Board overruled that case to the extent that it found that an employer s
questioning of open and active union supporters about their union sent'
ments in the absence of threats or promises necessarily interferes with
restrains or coerces employees in violation of Sec 8(a)(1) For the rea
sons stated in his dissenting opinion in Rossmore House Member Zimmer
man would have adhered to PPG Industries
from 13 May to 27 November 1978 the unit em
ployees engaged in an economic strike 2
Patton was one of the striking employees and
the judge found that he engaged in picketing at
various times 3 Prior to the strike Patton operated
the 3 belt sander machine on the night shift at
the New Salisbury facility When Patton offered to
return to work at the end of the strike he told the
Respondent s personnel manager Gettelfinger that
he preferred a job on the day shift because his wife
was pregnant and feared being alone at night 4 A
few days later Gettelfinger offered Patton a posi
tion as a rip saw offbearer on the night shift
Patton asked why he could not simply return to his
prestrike job if work was available only on the
night shift and Gettelfinger replied that a striker
replacement still occupied that position Approxi
mately 2 weeks later Patton bid for and obtained a
job as a rip saw operator on the night shift and
he remained in that position until February 1979
During that time Patton unsuccessfully bid for day
shift positions
In February 1979 Patton bid for and obtained a
day shift subassembly position and he informed the
Respondent s new personnel manager Abell 5 that
the job was exactly what he wanted Patton
worked on the day shift until 21 March 1979 when
Abell told him to resume working on his prestrike
night shift job which had recently been vacated by
the striker replacement Patton indicated that he
did not want the job but Abell stated that the 3
belt sander was a crucial machine which only
Patton could operate productively According to
Abell Patton again stated that he could not work
nights because his wife wapregnant and did not
want to be alone in the evening Patton asked
whether he could train another employee on the
machine or whether he could change shifts with
the employee who operated the machine during the
day Abell responded negatively and Patton asked
whether all returning strikers were being forced to
return to their prestrike positions Abell stated that
the Respondent was requiring Patton to return to
his former job even though it was simply making
offers to the other returning strikers According to
2 The record does not establish the precise number of strikers but it is
clear that hundreds of employees participated in the strike The judge
found that at the end of the strike the Union submitted a list of 565 stnk
ers who desired reinstatement The Respondent s list placed the number
at 381 and testimony at the hearing established that between 200-250
strikers actually appeared at the plant to request reinstatement
3 The judge also found that Patton had previously attended several
union meetings and had signed an authorization card
4 The judge noted that there are conflicting versions of the circum
stances surrounding Patton s alleged constructive discharge We shall
consider only those facts which are most favorable to Patton s position
5 Abell replaced Gettelfinger as the Respondent s personnel manager
on 15 January 1979
272 NLRB No 118
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abell Patton stated that he would have to quit be
cause he was unable to work the night shift Patton
refused to accept the transfer but Abell suggested
that he discuss the issue with his wife over the next
several days
On the following morning Patton informed Abell
that his wife still did not want him to work on the
night shift Abell again told Patton to go home and
think about it but stated that the Respondent
would conclude that he had quit if he did not
report for work on the night shift at 4 p m that
evening On the same day Patton s foreman
Brown advised him to return to work on the 3 belt
sander and the Respondent s vice president of per
sonnel Stepro told him that he would have to do
so Patton left the plant and did not report to work
on the night shift
The judge found that the Respondent s attempt
to transfer Patton amounted to a constructive dis
charge since Patton had told the Respondent that
his wife feared being alone at night and that he
would quit if forced to accept a position on the
night shift The judge also found that the Respond
ent was more occupied with Patton s situation
than that of any other striker and he concluded
that Patton s participation in the strike was the
motive for his constructive discharge 6
In Crystal Princeton Refining Co 222 NLRB
1068 1069 (1976) the Board defined the elements
of an unlawful constructive discharge
There are two elements which must be proven
to establish a constructive discharge First
the burdens imposed upon the employee must
cause and be intended to cause a change in
his working conditions so difficult or unpleas
ant as to force him to resign Second it must
be shown that those burdens were imposed be
cause of the employee s union activities 7
Even if we assume arguendo that a transfer to the
night shift can be characterized as a burden we
find no evidence that the Respondent intended to
cause Patton to resign On the contrary the record
demonstrates that the Respondent exhibited pa
hence with Patton s reluctance to accept his pres
trike position We note that Patton flatly refused
6 The judge found that the Respondent established three conditions
which a returning striker must satisfy before he would be permitted to
remain on a job other than his prestnke Job (1) the employee must be
needed more on his current assignment than on his prestnke job (2) the
employee did not want to return to his prestrike job and (3) the employ
ee who remained on his current assignment did not block the return of
another striker to his prestrike job The judge concluded that Patton sat
'stied the three conditions and from this conclusion in part he drew the
inference that the Respondent was unlawfully motivated when it insisted
that Patton return to his prestrike job
7 See also Valley West Welding Co 265 NLRB 1597 1599 (1982)
Boyles Galvanizing Co 239 NLRB 530 540 (1978)
Abell s initial attempt to transfer him 'stating that
he would quit rather than return to the night shift
Instead of promptly seizing on and accepting that
refusal Abell suggested that Patton go home and
discuss the issue further with his wife When
Patton reported on the following morning that his
wife still opposed his return to the night shift
Abell once again declined to accept his refusal and
instructed him to return home and give further
thought to the issue
We find that Abell s conduct does not demon
strate an intent to force Patton to resign his em
ployment If Abell had been seeking to force Pat
ton s resignation it is reasonable to assume that he
would have accepted either of Patton s two refus
als to transfer to the job he originally held Instead
on each occasion Abell instructed Patton to give
the matter further consideration The more reason
able inference to be drawn is that Abell hoped that
Patton would change his mind and accept the
transfer to the night shift
We also disagree with the judge s finding that
because of Patton s prior statements the Respond
ent was fully aware that he would resign rather
than accept the transfer The judge noted that on
21 March 1979 Patton told Abell that a night shift
assignment would force him to quit However the
record establishes that Patton did not make this
statement until after the Respondent s decision to
transfer him had already been made and after Abell
had informed Patton of the decision Additionally
the judge emphasized that at all times the Respond
ent was aware of Patton s statements that he pre
ferred day work because of his wife s situation We
find it significant that in spite of those statements
Patton accepted work on the night shift soon after
the strike ended and remained there for approxi
mately 2 months Patton s conduct thus conveyed
the message that he would accept work on the
night shift albeit with some reluctance Conse
quently Patton s prior statements do not support
the judge s conclusion that at the time of its dem
sion the Respondent had reason to believe that
Patton would quit rather than accept a transfer to
the night shift
We also find no evidence that the Respondent s
motive was to retaliate against Patton for his par
ticipation in the strike We begin by noting the
judge s own finding that the Respondent welcomed
the return of the strikers and that it recognized its
legal obligations in connection with their reinstate
ment It is against this background that we consid
er the judge s additional finding that the Respond
ent was more occupied with Patton than any other
striker and attempted to transfer him because of his
participation in the strike In essence the judge
KELLER MFG CO 765
found that the Respondent selected Patton alone
for retaliation among the hundreds of employees
who engaged in the strike
The judge cites little evidence to explain why
the Respondent would have been so occupied with
Patton and the evidence in fact points to a differ
ent conclusion The record establishes only that
Patton engaged in some picketing attended several
union meetings and signed an authorization card
We do not suggest that an employee who engages
in limited union activity may never be the object of
discrimination nor do we suggest that one employ
ee among many may never,be singled out for retal
tation In the circumstances of this case however
we find no support for the judge s conclusion that
Patton s limited union activity provoked the Re
spondent to retaliate against him 'alone while it si
multaneously welcomed the return of the hundreds
of other strikers whose activities were indistin
guishable Our conclusion that the judge erred is
especially warranted in view of the absence of ac
companymg unfair labor practices or other evi
dence of animus in this case
We also fail to see any significance in Abell s
statement that Patton was required to resume
working in his prestrike position while other stnk
ers were simply given an offer We are unwilling
to infer from this requirement that the Respondent
was retaliating against Patton for his participation
in the strike The record contains no evidence that
the Respondent s motive was inconsistent with
Abell s statement that the 3 belt sander was a cru
cial machine and that Patton was the only employ
ee who knew how to operate it 8
In view of the foregoing we find that the Gen
eral Counsel has not met its prima facie burden of
establishing that the Respondent intended to cause
Patton to resign and that Patton s union activity
was a motivating factor 9 in the Respondent s deci
sion to transfer him to the night shift Because the
judge found no other violations of the Act 'we
sh'all order that the complaint be dismissed
ORDER
The complaint is dismissed
8 As noted above the Judge also found that Patton satisfied the three
conditions which the Respondent required before permitting an employee
to remain in a position other than his prestrike position Even if we
assume arguendo that the Judge s finding is correct we do not agree
that an inference of unlawful motive is warranted by this finding In the
absence-of accompanying unfair labor practices or other background evi
dence of animus and in the absence of more direct evidence of an unlaw
ful motive we see no significance in the Judge s finding that Patton satis
fled the three requirements
9 Wright Line 251 NLRB 1083 1089 (1980)
DECISION
STATEMENT OF THE CASE
ROBERT A GRITTA Administrative Law Judge This
case was heard on 28 separate days during March April
May and July 1979 based on charges filed by General
Drivers Warehousemen and Helpers Local Union No
89 affiliated with International Brotherhood of Team
sters Chauffeurs Warehousemen and Helpers of Amer
ica and Doris M Conrad an individual (Teamsters and
Conrad respectively) on various dates in March
August and December 1978 and four separate corn
plaints issued by the Regional Director or Acting Re
gional Director for Region 25 of the National Labor Re
lations Board in April and September 1978 and January
and February 1979 The complaints allege that Keller
Manufacturing Company Inc (the Respondent) violated
Section 8(a)(1) (3) and (5) of the Act by coercive inter
rogations threats warnings discriminatory discipline
and withholding of pay to strikers failure to reinstate re
turning strikers unlawful discharges and refusing to bar
gain in good faith with the Teamsters The Respondent s
timely answer denied the commission of any unfair labor
practices
All parties were afforded full opportunity to be heard
to examine and cross examine witnesses to introduce evi
dence and to argue orally Briefs were submitted by the
General Counsel and the Respondent Both briefs were
duly considered
On the entire record in this case and from my observa
tion of the witnesses and their demeanor on the witness
stand and on substantive reliable evidence considered
along with the consistency and inherent probability of
testimony I make the following
FINDINGS OF FACT
/ I JURISDICTION—STATUS OF LABOR
ORGANIZATION—PRELIMINARY CONCLUSIONS OF
LAW
The complaints allege the Respondent admits and I
find that Keller Manufacturing Company Inc is an Indi
ana corporation engaged in the manufacture and sale of
furniture products in Corydon and New Salisbury Indi
ana Jurisdiction is not in issue The Respondent in the
past 12 months in the course and conduct of its business
operations purchased and received at its Indiana facili
ties goods and materials valued in excess of $50 000 di
rectly from points located outside the State of Indiana I
conclude and find that Keller Manufacturing Company
Inc is an employer engaged in commerce and in oper
ations affecting commerce within the meaning of Section
2(2) (6) and (7) of the Act
The complaints allege the Respondent admits and I
conclude and find that General Drivers Warehousemen
and Helpers Local Union No 89 affiliated with Interna
tonal Brotherhood of Teamsters Chauffeurs Warehou
semen and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act
All dates herein are in 1978 unless otherwise specified
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II PRELIMINARY OVERVIEW

also contends that the Respondent s negotiation with the
Teamsters was in bad faith and violative of the Act
A Issues
The issues in these cases rest on the Respondent s con
duct subsequent to the successful organizing campaign of
the Teamsters with the exceptions of Conrad s charge of
discnmination and the General Counsel s theory and ar
gument that past conduct of the Respondent in relation
to the Teamsters and the previous representative of the
employees the Carpenters are part and parcel of the
total package of violative conduct by the Respondent
My determination of the various allegations of the
General Counsel s complaints and any collateral issues is
guided by certain pnnciples of law Thus I recognize
that the burden of proof rests on the General Counsel
and can only be sustained by a preponderance of the evi
dence Further the discrediting of any of the Respond
ent s evidence does not without more constitute affirma
live evidence capable of supporting the General Coun
sel s obligation to prove his case If the General Counsel
supports his case with substantial evidence and the Re
spondent fails to counter with affirmative evidence of its
own then the General Counsel shall prevail This burden
of proof never shifts to the Respondent nor is any onus
imposed on the Respondent to disprove any allegation
pleaded in the several complaints
B Background and Chronology
The Respondent employs in excess of 600 employees
in two separate manufacturing facilities in the contiguous
cities of Corydon and New Salisbury Indiana Although
not identical the products manufactured in each are sub
stantially the same In any event the methods of manu
facture the classifications of employees and the job func
lions in each plant where duplicated are identical
Following an organizing campaign by the Teamsters
and an election in February 1977 the Board issued its
certification in October 1977 2 Subsequently unfair labor
practices were found to have occurred during the cam
paign and a remedial order was issued by the Board 3
The parties thereafter began collective bargaining One
employee Conrad who was discharged during the
progress of negotiations filed a discrimination charge
The parties negotiated with little incident through May
13 at which time the employees went on strike The
annual plant shutdown and vacation week were sched
uled in May and observed in July The strike lasted until
November 27 when all employees wishing to return
were put back to work Both during and after the strike
several employees were discharged The General Coun
sel contends that five such discharges violate the Act
Further acts of discrimination are alleged by the General
Counsel to have occurred prior to during and after the
stnke in conjunction with various forms of interference
with employees statutory rights The General Counsel
2 The unit is
All production and maintenance employees of the Respondent em
ployed at its Corydon Indiana and New Salisbury Indiana facilities
exclusive of office clerical employees all salesmen all professional
employees guards and all supervisors as defined in the Act
a Keller Mfg Co 237 NLRB 712 (1978)
III THE ALLEGED UNFAIR LABOR PRACTICES
A 8(a)(1) Violations
1 Interrogation
Bube testified that he was employed by the Respond
ent March 7 1978 to February 9 1979 Within a month
of employment he was made foreman in the lumberyard
at New Salisbury Shortly thereafter in April Bube at
tended a supervisors meeting conducted by Plant Man
ager Heishman and Personnel Manager Gettelfinger
Gettelfinger told the assembled foremen to ascertain how
many employees might work if the Union did call its
planned strike Bube recalled that Gettelfinger said
without actually asking each person are you or are you
not going to be involved in the strike merely to talk to
the people and find out how they would be going out on
strike or not Bube stated that the people in his depart
ment were very outspoken in their sympathy for the
strike Bube testified that he did speak to two employees
I said to them did they know or did they realize that
there s a very good possibility of a strike coming up
before long Mathes said yes and Barr said he thought
so I asked these fellows if they felt like—well for in
stance if they would be involved in the strike to an
extent that they would not report back to work until the
end of it 4 On cross Bube stated that he followed Get
telfinger s instructions to list employees who were inter
ested or not interested in striking but to not question em
ployees directly Bube s affidavit contains a single state
ment relative to the allegation of interrogation to wit
We had weekly foremen meetings with management
Sometime before the strike Gettelfinger and Heishman
instructed us foremen to decide which of our employees
were most for the Union and how many employees
would join a strike and to report that
Analysis and Conclusion
The Bube testimony was offered in part to support an
amendment to the complaint in Cases 25-CA-10106-2
and 25-CA-10106-3 involving two subparagraphs 5(e)
and 6(d) Subparagraph 5(e) alleges that Bube interrogat
ed employees concerning their union and/or protected
activities Subparagraph 6(d) alleges the Respondent by
its following named supervisor and agent at the New
Salisbury facility requested and urged its foremen em
ployees to engage in interrogation concerning the pro
tected concerted activities of its employees on or about
the date April 1978 by Leo Gettelfinger and Robert
Byrd Although the substantiality of subparagraph 6(d)
was questioned it was allowed with a request for speed
lc briefing The General Counsel cites no cases in sup
port of his theory that the supervisory conversation sum
manzed above constitutes a violation of Section 8(a)(1)
of the Act It was no violation of the Act for Gettel
finger to be concerned about manpower in the event of a
4 Neither employee was called to testify
KELLER MFG CO 767
strike by employees and to enlist the aid of other super
visors to appraise the situation does not change the
nature of his concern Apparently the General Counsel
views the alleged vice as Bube s implementation of man
agement s concern via interrogation thus showing that
management s original concern was actually an order to
violate employees protected rights The General Counsel
argues that management told its foremen to inquire of
employees and that Bube did inquire and ascertained
that two of his employees would go on strike I find no
evidence supporting such a characterization for argu
ment Bube stated that Gettelfinger specifically told the
foremen not to ask the employees if they were going on
strike Bube s department was prounion and openly dis
played their sympathy for striking with the exception of
two employees (contrary to the General Counsel s repre
sentation of the facts) Bube undoubtedly hoped to rank
the two employees among one group or the other as re
quested by Gettelfinger and apparently was unable to do
so without some aid Bube did converse with these em
ployees but whether he questioned them in a coercive
manner cannot be gleaned from the record Even unso
phisticated employees know that management has some
fear of a strike and how the plant will operate without
them Bube s testimony shows that the majority of his
employees forced the issue with management by their
open display of strike sympathy At best Bube s testimo
ny of his conversation with the employees is conclusion
ary and thus not probative of the General Counsel s alle
gation Such disguised questioning if at all questioning
hardly approached the stature of unlawful interrogation
It would be normal to ascribe a conversation such as
Bube had with his employees to legitimate concern
rather than to unlawful coercive prying by manage
ment 5 Additionally no evidence is contained in the
record linking Robert Byrd to the meeting of supervisors
although the record does mention a plant manager
Heishman as taking part in the critical supervisors meet
ing In view of the above I conclude that Gettelfinger
did not order or require supervisors to coercively inter
rogate employees nor did Bube pursuant to the supervi
sors meeting engage in unlawful interrogation of his
employees I find therefore that the Respondent has not
violated the Act and will recommend dismissal of said al
legation
2 Threats to employees
a The June 7 letter6
Gilliland testified on reviewing the exhibit that she
received a similar letter in the mail about hiring people
to fill the places of the stnking employees
Snyder testified on reviewing the exhibit that she also
received one like it
Sizemore testified that she received a letter just like
the exhibit by mail between June 7 and 10 The General
Counsel then offered the exhibit through Sizemore The
5 The Instant case is much like that presented by alleged questioning of
employees in PPG Industries 251 NLRB 1146 (1980)
6 Received in evidence as G C Exh 46
Respondent voiced no objection and the exhibit was re
ceived into the record
Barnum testified that she received such a letter in the
mail from Keller sometime in June
b Company warning through several supervisors to
returning strikers that they must wait for replacements
to leave to get their former job on various dates
between November 27 and December 13
Gilliland testified that she asked Plant Manager Dick
Chnstley on December 13 as he came through her de
partment when she would get her old job back Christ
ley told her that her job was bid by Mary Frances
Porter during the strike and she is working it Chnstley
told Gilliland that her job was unavailable because of
Porter 7 On the same day Gilliland asked her foreman
Bill Brandenburg when she would get her job back
Brandenburg said when anything came open that was
similar to her old job she would get it
Wenmng testified to two conversations with supervi
sors on December 7 concerning if and when she would
get her old job back Her prestrike foreman Karaffa
who was promoted to superintendent told her she had
been permanently replaced during the strike but if her
job was ever available she would have the first chance
at it Cova Bates foreman over inspection said Well
you was replaced permanently during the strike and if
the job is ever open they 11 let you have a chance at it
Haub testified that when she was in the group on No
vember 28 awaiting reinstatement Bob Byrd told the
four inspectors present that permanent replacements
were filling the four positions When the striking inspec
tors did return to their old positions they would have to
do so by seniority Byrd told Haub that he would get in
touch with her in a couple days and that somebody was
presently doing her job
c Supervisor John Hoback on an unknown date in
June warned strikers that they would not be reinstated
to their positions at the end of the strike
d Supervisor Leo Gettelfinger on December I warned
strikers that they would not be reinstated to their
former posztions8
Analysis and Conclusions
The evidence discloses that a letter on the Respond
ent s letterhead relative to the strike in progress was re
ceived through the mail by several striking employees
The substance of the letter was identical to the Respond
ent s legal position extant during the strike and thereaf
ter Moreover the Respondent s actions with reference
to permanent replacements and returning strikers is in
keeping with the policy outlined in the letter Further
when the exhibit was offered by the General Counsel for
Gilliland testified to a conversation she had with Linda Rothrock rel
alive to a statement of Dick Chnstley s but the General Counsel dis
avowed the testimony as what Chnstley said Rothrock did not testify
to any statement by Chnstley
8 The General Counsel did not offer any evidence to support the alle
gations
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt into the record the Respondent voiced no objec
non I conclude and find the Respondent s protestations
to the contrary that the June 7 letter was authored by
the Respondent for circulation among its employees in
cluding strikers was circulated and expressed the policy
to be followed The General Counsel alleges that the
letter threatened employees with discharge by permanent
replacement during the strike It is well settled that an
employer when faced with an economic strike has the
right to continue his business by hiring permanent re
placements The employer has no duty to terminate those
replacements at the conclusion of such a strike Likewise
the employer can advise striking employees beforehand
of his intention to do so 9 The General Counsel has not
cited a case in support of his allegation nor did he pose
any argument in his brief I therefore conclude and find
that the Respondent s use of the letter is permissible
under the circumstances and does not constitute a threat
of discharge to striking employees Cf San Jeronimo
Hilton Hotel 187 NLRB 947 (1971) wherein a similar
notice was found deliberately calculated to interfere with
employees Section 7 rights because the representation
that employees had been permanently replaced was false
Also see Piezo Technology 253 NLRB 900 (1980) where
the employer included among statements of his legal
rights of replacement during an economic strike You
are no longer an employee of this company if replaced
during the strike The Board found the statement a
threat to employees that if they engaged in an economic
strike and were replaced they will lose their status as
employees
The Respondent s actions at the conclusion of the
strike confirms the genuineness of the Respondent s
desire to continue its business within its legal rights
There is no evidence to imply otherwise directly or in
directly In view of my finding below I do not decide
the effect of the letter in an atmosphere of an unfair
labor practice strike
The General Counsel s complaint alleges that eight su
pervisors of the Respondent on various dates in Novem
her and December warned returned striking employees
that they would have to wait for strike replacements to
leave voluntarily before their former jobs would be
available The evidence shows that any returning striker
whose position was not occupied returned to their pres
mice position Strikers whose positions were occupied by
replacements were placed in their prestrike department
on a similar job if possible and were told that if the re
placement left or a vacancy occurred they would be
placed in their prestrike position In a large number of
cases that is exactly what took place when vacancies
arose The General Counsel offered evidence to support
only three alleged supervisors conduct making no effort
on the remaining five Considering all the evidence I
conclude and find that the Respondent has not engaged
in Interference restraint or coercion by restating its
legal rights to returning strikers nor has the Respondent
engaged in any conduct implementing those rights which
constitutes a violation of the Act
9 Guyan Machinery Co 155 NLRB 591 (1965)
The absence of any evidence to support the separate
allegations against John Hoback and Leo Gettelfinger
relative to reinstatement of returning strikers dictates dis
missal of each allegation and I will so recommend
3 Reprisals for strike activity
a The incident of truck vs car
About June 1 an independent carrier was leaving the
New Salisbury plant with a loaded trailer destined for
Culpepper Virginia In keeping with the Respondent s
practice Marvin Miller vice president of engineering
was escorting the truck to the interstate highway Ap
proximately 200 yards out from the plant on the county
road Miller saw Moxley in his car waiting on the side of
the road Miller testified that he had previously told the
truck driver that Moxley was the union representative
and may initiate an encounter As Miller passed Moxley
he radioed to the truck driver This is the man we ve
been looking for After Miller passed him Moxley
pulled in between the truck and Miller Cassie Barnum
driving her car was behind the truck Thus the truck
was sandwiched between Moxley and Barnum Miller
was somewhat ahead of the truck and pulled off the road
to wait for the truck to catch up As the three vehicle
caravan approached Miller Barnum turned off the road
in the vicinity of Miller Miller then pulled back onto the
road behind the truck and Barnum pulled in behind
Miller Both Miller and the truck were then sandwiched
between Moxley and Barnum The caravan was alternat
ing speeds of 20 m p h up to 30 m p h on the county
road which is limited to 30 m p h When the caravan
reached the state road the limit was 55 m p h For sever
al hundred yards the caravan first accelerated then
slowed on the state road but shortly the truck pulled
into the passing lane and passed Moxley s car The truck
returned to the right lane of traffic before it had corn
plete clearance This caused Moxley to move to the
shoulder of the roadway so the truck could safely reen
ter the right lane Moxley then pulled in behind the truck
and followed for several miles then accelerated and
passed the truck assuming the lead position once again
Moxley pulled off the road within several more miles
and allowed the truck Miller and Barnum to enter the
interstate highway 10
b Changes in the standards of production and work
rules after the strike
In response to a question concerning conversations
about work standards for the employees after the strike
Bube testified
In regards to—well we had piece rates set up on
many jobs in the plant and in my department we
° There is little dispute between the Miller and Moxley version of the
incident Barnum differs from both in several particulars but it was obvi
ous to me that Barnum was attempting to minimize the influence of the
strike on her and Moxley s vehicular conduct whereas attempting to
maximize the usual strike conflict between pickets and common carriers
I therefore have discredited Barnum where her testimony conflicted with
Miller and Moxley
KELLER MFG CO 769
had the piece rate system on stacking lumber and
on offbearer inspection Now on these jobs they are
rated and they have what they call 100 percent or
120 percent piece rate that they should be able to
obtain And we were—you know we are required
to try to keep the employees as close to 120 per
cent We (the foremen) had received instructions
that we are you know supposed to keep these
people up as close to 120 percent production as we
can keep them for their own benefit and for the
company s benefit
In the first week of January Bube conversed with Su
pervisors Chnstley and Wolfe about two of his employ
ees Forbes and Lewis who were consistently on the
low earners report as achieving less than 100 percent
production Forbes had been hired as a replacement
whereas Lewis was hired before the strike Their pro
duction was roughly 65 percent and they had a high ab
senteeism Bube stated that he had tried previously to get
the employees dismissed during their 45 day probation
ary period During this conversation Christley said the
absenteeism was not all that bad and the Company
should help the employees a little bit now because they
had helped the Company during the strike Bube said he
agreed with helping the two employees but when the
figures were down in black and white they affected his
overall production as foreman and could cause him to
miss a raise at the end of the year Jim Wolfe told Bube
that during a strike situation 65 percent is better than
nothing and the employees helped the Company once
and might do it again if they were needed
Christley also told Bube that in addition to production
he is judged by management on his turnover If Lewis or
Forbes were dismissed they would count as turnover
against his rating but employees who had engaged in the
stnke when they quit or are dismissed would not count
as turnover
Bube stated that on January 24 a replacement employ
ee Eddie Hardesty assaulted a returned striker employ
ee Bettorf Witnesses to the incident were employees
Roscoe Shumaker Bobby Duke and Melvin Stone
cipher " Bube was not working that day but Bettorf
called him at home to report the assault The next day
Bube spoke to Wolfe by phone and Wolfe stated that he
wanted to go over the whole thing before acting on it
Bube told Wolfe From what I ve heard Hardesty
should be fired Wolfe repeated that they should talk
with Chnstley and go over the whole thing to find out
for sure what happened Later Bube suggested to Christ
ley that Hardesty be reprimanded but Chnstley said to
just write him up Bube expressed his thought that the
man should be fired for violating the company rules
Bube nonetheless wrote up the oral warning citing wast
ing time on the job causing unallowed downtime on an
other person s job and attacking another person at work
Bube presented the wnteup to Wolfe who signed it
then 13ube took it to personnel Bube was informed that
Chnstley had to okay the discipline for it to become ef
fective Bube checked with personnel on February 7 and
learned that Chnstley had not as yet authorized the dis
cipline Chnstley told Bube in response to Bube s inquiry
that he wanted to talk to Hardesty before acting on the
warning Bube never heard anymore about the incident
Bube further testified that a striking employee J B
Farrell while working kicked a hard hat that was in his
way Later he stumbled over the same hat and picked it
up and threw it in the direction of other working em
ployees Bube admonished him that his actions were
unsafe and he could get in trouble for such conduct
Later when recalling the incident to Chnstley Chnstley
told Bube that he should have written Farrell up for the
incident Bube related that Cnstley said if Farrell contin
ued with such outbursts or became insubordinate he
could be dismissed and his dismissal would not be
charged as turnover to Bube at the end of the year Bube
also recalled responding to an employee Pierce s ques
ton as to why nonstrikers were rarely disciplined Bube
told the employee that Chnstley and Wolfe told him not
to discipline the nonstrikers as he would normally 12
Another incident involved damage to a vending ma
chine An employee reported to Bube that Eddie Har
desty had damaged a candy machine by breaking the
glass and bending the door Bube reported the incident
to Wolfe and inquired as to discipline Wolfe told Bube
to take whatever disciplinary action he saw fit Bube
asked whether an oral warning or other would do
Wolfe said an oral warning would do Bube wrote up the
warning and presented it to Wolfe Wolfe okayed it and
Bube said he wanted to talk to Chnstley about It Wolfe
told Bube to do whatever he wanted to do about it
Bube tried to see Chnstley that day but he was absent
from the plant Several days passed without Bube at
tempting to see Chnstley and Bube let the entire incident
pass without administering the discipline to Hardesty
Bube was discharged by the Respondent on February
9 The Respondent told Bube he was discharged for
taking time off the job and giving false reasons to the
Company The following week Moxley for the first
time spoke to Bube and offered to get Bube a job Later
the same day Bube agreed to talk to the Labor Board
Bube stated that he did not mind talking to the Board if
he could help out Randy Cunningham a little bit
c Warning to employees that returning strikers subject
to harsher and more severe standards of production
and work rules
Bube testified that he treated the returning strikers as
fairly as he could He did not make strikers work harder
than nonstrikers nor did he apply harsher discipline or
production standards to strikers than he did to non
strikers However at times he did have to tell some re
turning strikers let s not spend as much time boanng
around let s go ahead and get to work Bube did not
play favorites among his employees and he did not have
occasion to discharge any striking employees Bube did
not issue any warnings to returned striking employees
with regard to company rules on production standards or
discipline
l l None of the named employees was called to testify 12 Pierce was not called to testify
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d Allegations
The General Counsel alleged in Case 25-CA-10436 as
follows
6(c) The Respondent by its supervisor and agent
John Hoback on or about an unknown date in June
1978 at the facilities warned its employees it would
not offer the Union as much as it had previously be
cause of the strike referred to in paragraph 5 above
No evidence was presented to support this allegation
(e) The General Counsel alleged in Case 25-CA-10436
as follows
6(f) The Respondent by its following named super
visor and agent on or about the date set opposite
her name at the facility warned its employees that
the Union would be unsuccessful in reaching a labor
agreement with the Respondent and that the Union
should terminate its efforts to represent the employ
ees of the Respondent
MiIda Boldstaudt—early November 1978
Katherine Foster testified that she went on strike May
13 After 3 weeks of striking she went back to work
While the strike continued she worked Each day she
ate lunch with Milda Boldstaudt her supervisor and
friend 13 At times other employees ate with them
During lunch each day there were conversations on
many subjects Frequently the strike was a topic At one
point in November while the strike was still on Foster
asked Boldstaudt her personal opinion on several topics
One was whether Mr Keller might or might not agree
to a closed shop? Another was whether or not he would
agree to a union shop9 A third was when do you think
this will ever be straightened out? Boldstaudt replied that
the Company would never agree to a closed shop a
union shop or whatever The Union just might as well
give up and go away It would never get it
Analysis and Conclusion
The General Counsel alleged that the truck against car
incident was an attempt by the Respondent to cause
bodily injury to the Union s agent Moxley to discour
age the employees from continuing their protected activ
ity of striking The facts relied on by the General Coun
sel are basically undisputed and fail to disclose any intent
to injure Moxley or damage his car The only abandon
ment of the protected activities caused by the incident
involves Moxley and Barnum leaving the strike area to
involve themselves with the departure of a loaded trac
tor trailer The entire incident takes place on the public
road and consists of vehicular interference with each
other—one side trying to escort the tractor trailer to the
open road and the other side trying to impede the
smooth departure of the load It is evident to me (from
all the evidence) that the compromising position Moxley
found himself in on the side of the road although poten
tially hazardous was not the direct result of the Re
3 Boldstaudt was not called to testify
spondent s acts or intent but grossly contributed to by
Moxley himself and Barnum But for Moxley s attempt
to stay in front of the tractor trailer and to govern the
speed of the truck by his automobile s speed the incident
would not have occurred unless Moxley attempted to
keep the tractor trailer from passing him by blocking the
road There were several intents present but none was
violative of the Act In my view (although I do not con
done any attempt to harass by vehicle) both parties were
doing their thing The Respondent was moving a load
and the employees were trying to make it more difficult
than usual The only relation of the incident to the em
ployees protected activity as I see it is that two agents
of the Union who had been engaged in the strike volun
tartly disengaged themselves from the strike and in
volved themselves with the truck I conclude that the
General Counsel has not supported his allegation by sub
stantial evidence and therefore find that the Respondent
has not violated the Act as alleged
The subparagraphs (b) and (c) above involve the fol
lowing complaint allegations and shall be analyzed to
gether due to the similarity of substance
Case 25-CA-10639
6 The Respondent has interfered with restrained
and coerced and is interfering with restraining and
coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act by the following
acts and conduct
(a) The Respondent by its following named su
pervisors and agents on or about the dates set
opposite their respective names at the Corydon
facility instructed its foremen to implement and
maintain a harsher and more severe standard of
production and adherence to the work rules of
the Respondent for those employees who partici
pated in that strike described above in subpara
graphs 5(a) and (b) than for those employees of
the Respondent who had not participated in the
said strike
John Wolfe—early January 1979
Dick Chnstley—early January 1979
(b) The Respondent by its following named su
pervisor and agent on or about the date set op
posite his name at the Corydon facility warned
its employees that it maintained a harsher and
more severe standard of production and adher
ence to the work rules of the Respondent for
those employees who participated in that strike
described above in subparagraphs 5(a) and (b)
than for those employees of the Respondent who
had not participated in said strike
Richard Bube—late December 1978 or early Jan
uary 1979
7(b) Since on or about November 27 1978 and
continuing to date the Respondent has discrimmat
ed and is discriminating against its employees em
ployed at the facility in regard to hire or tenure of
KELLER MFG CO

771
employment or term or condition of employment by
the following acts and conduct
(i) maintaining a harsher and more severe stand
ard of production for those employees who par
ticipated in that strike described above in sub
paragraphs 5(a) and (b) than for those employees
who had not participated in the said strike
(n) maintaining a harsher and more severe stand
ard of adherence to the work rules of the Re
spondent for those employees who participated in
the strike described above in subparagraphs 5(a)
and (b) than for those employees who had not
participated in the said strike
To begin with the Respondent argues that the allega
ton Respondent instructed its foremen to implement
and maintain for those employees who participated
in the strike is not discernible as a violation of the stat
ute While the actual implementation or maintenance of
such a change would constitute interference restraint
coercion and possibly discrimination by motivation if
not otherwise the instruction of such a policy could be a
violation if communicated to employees The General
Counsel s proof consists of that very communication al
though the conversation is not quite as substantial as the
allegation i e Bube told the employee only that his su
penors said to take it easy on the nonstrikers There was
no mention of making it harder on the strikers Addition
ally Bube s communication is limited to a department of
approximately 10 employees apparently split rather
evenly between strikers and nonstrikers Then too
Bube s communication dealt only with discipline i e no
mention of production standards 14 Nonetheless there
was communication of a disparity of discipline according
to Bube
Although lacking complete substantiality due to its
limited dissemination and somewhat isolated nature
(Bube s department) the evidence if credible would sus
tam a violation of the Act However the testimony of
Dube when considered in toto leads me to discredit his
conversation with the employee Besides Bube s obvious
prejudice he admittedly gave testimony in response to a
solicitation from a friendly employee involved in the
case and a possible facilitation of finding employment by
the union agent involved in the instant case This motiva
tion on the part of Bube coupled with inconsistencies
and contradictions in his testimony causes me to be sus
pect of his credibility Bube s conversations with his su
pervisor Wolfe shows no acknowledgement of any in
structions to favor the nonstrikers but rather uniformity
of discipline Such conversations with Wolfe followed in
quiry by Bube as to what would be proper (I am assum
ing both Bube and Wolfe knew who the nonstrikers
were so the failure to identify employees is not fatal ) In
those instances where Wolfe responded it clearly was
nondiscriminatory and nondisparate In addition the ob
14 The General Counsel offered no evidence of disparity in pay re
ceived by stnkers and nonstrikers whether base pay or incentive pay
However the record as a whole does show the Respondent continued
without change its existing pay structure both during and after the
strike
jective evidence in the record is contra to the alleged in
structions and Bube s action vis a vis nonstriking em
ployees likewise confirmed that they indeed were disci
plined according to company policy In summary the
General Counsel has not supported the allegation with
reliable credible evidence so I therefore find that no
such instruction was given by Wolfe or Chnstley nor
was such instruction communicated to an employee by
Bube
Assuming that the warning of employees alleged by
the General Counsel stems from the same conversational
circumstance I conclude and find for the same reasons
that the General Counsel has not sustained his burden of
proof for the warning allegation
The General Counsel s proof of the maintenance of
different rules for strikers and nonstrikers involved rela
non of several instances by witness Bube In those in
stances when other employees could testify and from
firsthand knowledge the General Counsel did not seek
their testimony Therefore the proof rests in the testimo
fly of Bube and may or may not suffer from lack of first
hand knowledge The General Counsel seems to place
some credence in the fact that Bube was a supervisor of
the Respondent at the time of the occurences but the
Respondent is not bound by his testimony or actions as a
result of his prior supervisory capacity Bube is simply a
witness called by the General Counsel in support of the
General Counsel s case in chief
The General Counsel s evidence relative to production
standards is more than inconclusive It shows that the
production standards by which employees are paid in
centive pay are and have been 100 percent and 120 per
cent Bube s testimony does not show that the Respond
ent after the strike required the striking employees to
make 120 percent production while allowing the non
striking employees to only make 10 percent Bube s testi
mony does show that all employees were expected to
make the same production The record also shows that
the low earners report alluded to by Bube when refer
ring to Forbes and Lewis contained both strikers and
nonstrikers The exhibits graphically show Bube s inaccu
racies by reflecting that Lewis was not a replacement
hired during the strike as implied by Bube s testimony
Thus the testimony simply does not show disparity
Even if Bube is credited as to Forbes and Lewis attain
ment of only 65 percent production such a fact would
not standing alone be substantial to prove a policy de
signed by the Respondent to penalize the strikers and
favor the nonstrikers Additionally Bube s testimony is
not that reliable The objective evidence establishes that
Lewis did not work for Bube during Lewis initial proba
tionary period and therefore Bube s desires of dismissal
could not have been countermanded by either Wofle or
Chnstley In my view Bube embellished his testimony in
an effort to help a friend and vindicate his summary dis
missal by the Respondent Bube s testimony of his con
versation with employee Pierce suffers further suspicion
in that he did in fact discipline both Forbes and Lewis
for absences and at his own violation As Bube did state
Wolfe told him to take whatever measure he thought
necessary Apparently Bube took what measures he
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought necessary and was not limited by any favoring
discipline policy for nonstrikers contrary to the clear im
plication of his testimony in response to the General
Counsel s question On cross Bube admitted that his deal
ings with his employees were fair and impartial without
regard to the employees strike sympathy
Bube s references to both Hardesty incidents are sub
ject to several inferences if considered reliable at all The
alleged altercation is fatally inconclusive and cannot be
assessed as evidence of disparity between strikers and
nonstrikers Bube s determination as related by him is
not based on a complete investigation nor is the hiatus
between the incident and discipline substantially recount
ed Indeed Bube simply stated he did not hear anymore
after February 7 In my view if the evidence did estab
lish that Hardesty a nonstriker was treated differently
than a striking employee for the same offense (which it
does not) it falls short of defining that difference as no
discipline for Hardesty The record does not show one
way or the other Additionally Bube s characterization
of an assault by Hardesty is not supported by the record
as a whole which evinces a provoked incident rather
than an assault
The Farrell incident represents oral discipline by Bube
and the suggestion by Christley that Bube should have
written Farrell up Christley did not demand that the dis
cipline be made more severe nor did he himself do so
Christley s reference to insubordination when talking
with Bube about Farrell does not in my view establish
an attempt to expedite the progressive discipline of Far
rell toward a desired result of discharge The foundation
for such an inference simply is not present Bube s ac
count is too sparse to be reliable even if fully credited
Bube s colloquy with Chnstley about his supervisory
evaluation based in part on turnover in his department
not suffering if an insubordinate employee is terminated
is not outside the normal personnel or reasonable prac
tees Unsafe or insubordinate employees are not an asset
to any work force and their manner is usually not attnb
utable to the quality of supervision they receive There
fore such a termination would not normally reflect on
the supervisor except to show that he is concerned for
the entire group and the influence of one inferior em
ployee I do not find the Farrell incident probative of
any allegation in the complaint mainly due to the unrelia
bility of Bube and the unsubstantial nature of the inci
dent
The Hardesty involvement with the candy machine is
not probative of laxity of discipline to nonstrikers as al
legedly dictated by the Respondent Rather it shows
that Bube did in fact admonish Hardesty orally and pre
pared a written discipline which was approved by his su
penor Wolfe Bube for reasons known only to himself
wanted to talk with the plant manager Chnstley before
turning in the discipline but was unable to meet with
Chnstley Bube then apparently rescinded the discipline
to Hardesty because he failed to turn it in to personnel I
cannot perceive any disparity present in the lack of disci
pline of Hardesty Assuming arguendo the fact that he
was not disciplined for some damage to a vending ma
chine does not without more establish that striking em
ployees guilty of the same infraction would be disci
plined without regard for the Hardesty precedent
In view of the above I conclude that the General
Counsel has not proved his allegations of disparity be
tween standards of work rules applied to striking and
nonstriking employees Accordingly I find that the Re
spondent has not violated the Act and will recommend
dismissal of the appropriate complaint allegations
The allegation that employees were warned that the
Union would be offered less now because of the strike
was not supported by testimony from the General Coun
sel No evidence contained in the record is probative of
the allegation I shall therefore recommend dismissal of
this allegation
The allegation of a violation charged to Supervisor
Boldstaudt deals with a warning to employees that the
Union s attempts to negotiate with the Respondent
would be futile The General Counsel did not argue this
allegation in his brief nor did he specify his proof there
of Foster s testimony was the only reference to a con
versation with Boldstaudt about the Union As her testi
mony shows the conversation occurred during lunch in
an amicable atmosphere with a friend and the supervi
sor s remarks were solicited as a personal opinion The
supervisor was not asked for a reply from management
nor was any special relationship between Boldstaudt and
Keller presumed by the employee or shown to exist to
the employee In my view the conversation is nothing
more than the usual speculation that abounds in a strike
situation between employees and their supervisors par
ticularly the employees who are working during the
strike I conclude and find that the supervisor s reply is
not a violation of the Act Assuming arguendo I would
not find the testimony probative of the allegation as
pleaded or to state it another way I would recommend
dismissal due to the overpleading of the allegation Ac
cordingly I shall recommend dismissal of the allegation
B Alleged 8(a)(3) Violations
1 Discrimination against Conrad
Doris Conrad testified that she was employed by the
Respondent from September 1973 to her discharge on
December 1 1977 For the last 2 years of her employ
ment she was a glaze wiper or a brusher in the glaze
group of the chair line The glaze group worked on a
group incentive shared by the whole group The last 4
months of her employment she was supervised by Cova
Bates Her previous supervisor was Clarence Wiseman
During November 1976 the Teamsters were handbill
mg the plant and she took a handbill as she came to
work Later the Teamsters held employee meetings
which Conrad attended Subsequent to the first meeting
she solicited about three employees to sign cards signed
a card herself and turned the cards over to the Team
sters The day before and the day of the election she
wore a union button which drew a comment from Plant
Manager Keller to the effect please take that off She
also wore a shirt that bore the legend vote yes on the
back Although she was observed by management wear
ing the shirt and the button she was not observed solicit
KELLER MFG CO 773
ing the cards Dunng a company meeting before the
election Conrad joined about 10 other employees in
voicing complaints to management relative to solving
employees problems without a union
While under Clarence Wiseman s supervision Conrad
received a reprimand for poor work following an inspec
lion of chairs by a management team on April 11
1977 15 The entire line of approximately 11 employees
received a reprimand under the Respondent s discipli
nary policy The Respondent holds all employees in a
group team or a line team responsible for all rejected
products The specific complaint of management was
failure to properly wipe and brush the seats and headrest
areas during the glazing operation Conrad testified that
her reprimand was identical to the others in the glaze
group and she read each of the other reprimands
Conrad recalled that the employees who received the
reprimand on April 11 1977 were Mary Carver Edna
Lawson Wanda DeLaney Bonnie Patterson Jolene
Mauck Robert Staple Fran Lens and Conrad Conrad
refused to accept hers until several days later when she
requested a copy stating to her supervisor I am going
to file charges against that reprimand Conrad did not
know whether Homer Wiseman or Edith Adamson from
the varnish group received similar reprimands
At some point in time after April 11 1977 Conrad s
supervisor changed from Wiseman to Bates Conrad re
ceived a written warning dated October 31 1977 for
loafing and wasting time on the job Conrad testified that
an employee s mother had died and she was taking up
flower money on the chair line She usually took such
collections and had done so 8 to 10 times in the past 2 or
3 years Usually employees are solicited before work or
at breaktime and then they would give their money
whenever they could On this occasion the line had
stopped (for unknown reasons) and she realized that
Homer Wiseman the varnish man was not aware of her
solicitations She left her work station and went to Wise
man s station to solicit Wiseman was working spraying
varnish on chairs when Conrad approached him After a
discussion lasting 2 to 3 minutes Wiseman gave Conrad
a 50 cent donation Conrad started back to her station
and saw Bates in the area She solicited Bates who said
he would contribute later Conrad went back to her sta
tion just as a pallet was coming down the line Later the
same day Bates did give Conrad a contribution The fol
lowing day Bates called Conrad to his office and told
Conrad he was writing her up for leaving her work sta
tion and talking to Wiseman for 5 minutes Conrad re
sponded that she was on an errand of sympathy and
should not be written up Bates nonetheless gave the
written warning to Conrad As he extended the warning
she began leaving the office and told Bates to stick it up
his tail whereupon Bates told her she was suspended
for such talk Conrad asked for how long and Bates
responded Whenever I decide to call you back
Conrad left the plant and went home The personnel
5 This testimony although dealing with material outside Sec 10(b)
was admitted pursuant to a Board Order ruling on a special appeal not
withstanding the General Counsel s statement that the particular repri
mand as a complaint allegation was included only for completeness not
for a finding (Tr 15-16)
office called Conrad and told her to report back to work
on Monday November 7 1977 Thus the suspension
was for 3 working days Conrad recalled during her tes
timony that an employee Mary Roland had been sus
pended when her foreman offered her a work apron
which she claimed was too short and rejected it by tell
ing him to stick it
When Conrad returned on Monday November 7
1977 she received a reprimand from Bates for her previ
ous insubordination The reprimand was dated Novem
ber 1 1977
On November 30 the chair line began running another
series of chairs The glaze group noticed dark spindles in
the chair backs and dark edges on the seats and head
rests The group called Bates over and showed him the
dark areas and told him the glaze was biting in making
it impossible to wipe off The group speculated that the
dark areas were the result of bad spin sanding Conrad
stated that Bates agreed the problem was caused by bad
spin sanding but said to continue running the chairs
and he would try naphtha to lighten the dark areas The
following day the same circumstances existed but Bates
again said to continue running the chairs About noon
the chairs started coming back from the shipping depart
ment via rejection in inspection Conrad stated that about
50 chairs came back Bates came to the group and point
ed to the rejected chairs stating glaze on the spindles
and walked away About 3 p m the glaze group was
called to Bates office and given reprimands for poor
workmanship Bates asked Conrad if she saw the 50
chairs that came back marked glaze on spindles Bates
said I have to give you a reprimand for it and this is
your third reprimand so therefore it discharges you
Conrad said the cause was bad spin sanding She then
proceeded to check each of the chairs Bates watched
her but made no comment After checking the chairs she
left the plant The following week Conrad got her final
paycheck Conrad was offered reinstatement during the
strike but she refused the Respondent s offer preferring
to stay on the job she had acquired after her termination
In declining the offer she avowed to pursue any back
pay due her
Edna Lawson testified that she had been a glaze wiper
for 6 years then transferred to the sanding room for
dining room furniture She stated that she was in the
group of glaze employees who received the repnmand
on April 11 1977 (see fn 15) The group receiving repn
mands consisted of Staples Carver Conrad Mauck De
Laney and Patterson Clarence Wiseman gave the repn
mands to the individual employees in the afternoon
Lawson first learned of the rejected chairs when she re
ceived her reprimand because she had been off work sev
eral days with measles returning to work on April 11
and therefore could not have participated in the faulty
work
Mary Carver testified that she was in the group of em
ployees who received reprimands on April 11 1977 (see
fn 15) Her reprimand was the same as Conrad s and for
the same infraction She was issued her reprimand by
Clarence Wiseman just as Conrad and the others
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Homer Wiseman testified that he has worked as the
varnish man on the chair line for 20 years In 1977 he
did talk to Doris Conrad at his work station while he
was working about a contribution for Leoma Lawson s
mother He gave 50 cents to Conrad who then talked to
Bates Wiseman stated that while Conrad talked to Bates
he (Bates) reached into his billfold and gave Conrad a
bill but he could not see whether it was a $1 or a $5 bill
His conversation with Conrad lasted 2 to 3 minutes but
he did not know if during that time the remainder of the
glaze group was working There are times that the line
slows down but when it is going to be down for 15 mm
utes or more the employees punch out Wiseman testi
tied that he contributes whenever he is asked and he has
been asked at all hours of the day but he does not know
if Bates permission is necessary to solicit Wiseman
could not recall that Conrad had solicited for anything
pnor to the Lawson solicitation or since the Lawson so
imitation Although Wiseman learned the next day that
Conrad had been disciplined for talking to him he did
not discuss the incident with anyone including his super
vision
Cova Bates testified that employees can solicit contn
butions for death funds flowers etc but they must have
his prior permission In addition if the solicitor is from
an incentive group he or she must also have their per
mission because the absence could affect the pay of the
whole group No collection had ever been taken by an
employee without permission except Conrad s She had
not collected before and she did not have permission to
leave her work station on October 31 1977 At that time
the line was working although it may have been slow or
the other employees took up the slack Although Con
rad s station is only 35 to 4.0 feet from Wiseman s station
the chairs upon leaving Conrad s station must go to the
accenter cow taller oven shade and spatter group
before getting to Wiseman s varnish spray
Bates was observing the line and had a stopwatch
which he used to determine percentage of productivity
by timing an operation s duration He timed Conrad with
the stopwatch and she was away from her work station
and stopped Wiseman from working for a total of 5 min
utes Bates was 20 to 25 feet from Wiseman and Conrad
and could not hear their conversation Conrad left Wise
man and came to Bates and asked for a contribution
Bates agreed to contribute but would actually pay her
later
The next day Bates called Conrad to his office in the
presence of Foreman Dennis Gurtz and told her he was
giving her a wntten warning for loafing on the job Octo
ber 31 1977 Bates read the warning to Conrad which is
company policy and then handed it to Conrad Conrad
said to Bates You can stick it up your tail as far as I m
concerned She then turned to walk out of the office
and Bates told her to stop He told her she was suspend
ed for talking to a supervisor like that to punch out and
go home Bates told her she would be contacted about
when to return to work Conrad returned to work No
vember 7 1977
Bates stated that one other employee had been sus
pended and given a reprimand for insubordinate remarks
to a supervisor Mary Roland had objected to a work
apron offered to her by her foreman Dennis Gurtz on
November 28 1977 and told him to stick it She was
reprimanded and suspended for three working days
On November 30 1977 a member of the glaze group
possibly Wanda DeLaney called Bates to the line The
group told Bates that the spindles were too dark and the
glaze was biting down and could not be wiped off Bates
told the group that it was just an excess of glaze and
needed extra wiping One in the group said it was bad
spin sanding Bates said it was not bad sanding and the
seats were too dark too (The seats and headrests are not
spin sanded ) Bates told the group to use naphtha to cut
the glaze and dipped a rag in naphtha to show them the
excess glaze would come off Naphtha has always
worked before and since It is the standard chemical that
cuts the glaze Bates specifically denied telling the group
to run badly sanded chairs at any time
The following day John Hoback was conducting his
daily check of the product at the inspection station and
called Bates to the shipping department Hoback pointed
out the excess glaze to Bates who flicked the glaze off
the seat edge with his thumbnail The glaze and the top
coat were removed by the flick Inspector Wenning had
made a count of 50 chairs listing excess glaze as the
cause of rejection and returned the chairs to the finish
department
Bates returned to the glaze group and told them the
chairs had an excess of glaze caused by failure to proper
ly brush or wipe the excess off The excess is caused by
what remains on the chair after brushing and wiping it
It is not a cause of too much glaze being sprayed on
Bates called the group to his office and gave each either
an oral warning written warning or a reprimand de
pending upon their personal history of discipline for poor
workmanship The policy is to progress the discipline
The discipline cannot regress although it can be lateral
Conrad was given a reprimand which caused her dis
charge by accumulation of two for the same infraction or
a total of three in any category within 1 year Conrad
protested by asking to see the chairs Bates showed her
the chairs and stood by as she viewed each one As she
looked at the chairs she remarked This could be mine
this is not mine and not all the mistakes are hers After
she finished viewing the chairs Conrad made a remark
to Bates that she hoped the Lord looked over him and
she would pray for him Conrad then left the plant and
Bates reported her discharge to his supervisor Hoback
Bates stated that the incident resulted in seven employees
in the glaze group being disciplined
John Hoback testified that twice a day he looks at 10
chairs in the final inspection before packing If the ma
jonty is bad he then looks at about 50 chairs to get a
perspective On December 1 1977 he had to look at 50
chairs They were all bad Inspector Wenning was
present and agreed the chairs were unacceptable and re
turned the chairs to the finish department The chairs
were rejected for too much glaze and not wiped proper
ly Hoback stated that the excess glaze was not the result
of spin sanding because bad spin sanding would have
caused the glaze to bite in The glaze was not biting in
nor was the excess confined only to the spindles which
KELLER MFG CO 775
are spin sanded This was the largest group of chairs that
Hoback had found with excess glaze He called Bates to
see the chairs and Bates confirmed the cause of excess
glaze and poor wiping and brushing After viewing the
chairs Bates returned to the finishing department
Analysis and Conclusions
It is undisputed that Conrad was discharged pursuant
to a progressive discipline which began with the April
11 1977 reprimand followed by two more reprimands on
November 7 and December 1 1977 A related written
warning dated October 31 1977 and a 3 day suspension
contained in the November 7 discipline emanate from the
same circumstances but are not part of the progression
the General Counsel claims is discriminatory The Gen
eral Counsel does contend generally that all conduct di
rected at Conrad was discriminatorily motivated
The Respondent counters with Conrad s various con
ducts as the cause of her discharge and evidenced in the
discipline she received Conrad s union activity is
claimed to have played no part in the Respondent s deci
sion to discipline or discharge Conrad
The cause is therefore presented as one of employer
motivation The General Counsel must show that
Conrad engaged in union activity the Respondent had
knowledge of Conrad s union activity the Respondent
harbored animus against Conrad or the Union and that
the discipline meted out to Conrad which resulted in her
discharge was motivated by her engaging in protected
activity or animus against the Union The General Coun
sel s successful presentation of a prima facie case of dis
crimination shifts the burden to Respondent to present
evidence that the discipline and discharge of Conrad
would have occurred in the absence of any union activi
ty on her part 16
Conrad s union activity is somewhat remote from her
discharge and her disciplines with the exception of the
April 11 1977 reprimand In addition Conrad was not
singled out by the Respondent for her union activity
other than Plant Manager Keller s noncoercive remark
about Conrad s union button Albeit Conrad was joined
by large numbers of employees in her union activity the
General Counsel has shown her involvement and the Re
spondent s knowledge thereof 17 I conclude and find that
Conrad did engage in protected activity prior to her dis
ciplines and discharge and that the Respondent had
knowledge of such activity Whether her protected ac
tivity motivated the Respondent to discipline and dis
charge her is another matter Such an Illegal motivation
must be found on the basis of inferences Inferences are
usually supported by coincidence of union activity and
discipline disparity of treatment as between the alleged
discnminatee and other employees the Respondent s
general bias and hostility toward the Union a variance in
the Respondent s normal routine or an implausible expla
nation by the employer for its actions
The General Counsel presented little evidence from
which an Inference of Illegal motive can be drawn Con
8 Wright Line 251 NLRB 1083 (1980)
7 I do not infer to the Respondent knowledge that Conrad was solicit
mg signatures in the fall of 1976
rad s union activity is not proximate to the disciplines
nor is there evidence present to show that the Respond
ent s preelection animus (previously found by the Board)
survived the election and continued to be impressed on
its employees 18 There is no evidence to show disparity
of treatment but rather the evidence shows that the Re
spondent recognized no favorites and disciplined any and
all employees based on the individual employee s or the
work group s conduct This is particularly true where
product quality is affected Except for Conrad s testimo
ny there is no evidence of the incidents Involved in the
disciplines Although several of Conrad s glaze group
testified on other matters they were not questioned
about the substance of the disciplines e g Carver who
is still an employee did not testify to glaze group disci
plines or to Conrad s involvement in solicitations al
though she was employed dunng Conrad s employment
Carver only testified to the April 11 1977 reprimand
Lawson did not testify to glaze group disciplines or to
Conrad s involvement in solicitations although she was
employed a portion of the time Conrad was employed
Lawson did testify to the April 11 1977 reprimand
Homer Wiseman was called to testify to a single incident
which precipitated the October 31 1977 written warning
for loafing but was not asked to recall the basis for the
other disciplines Inspector Betty Wenning was called to
testify to other matters but was not asked about the
product rejections that resulted in discipline for the glaze
group
Conrad s testimony of having engaged in prior solicita
lions and the implied provocation of death money
when subjected to discipline for soliciting I do not
credit Her own testimony evinced the rule to be as
Bates testified not without prior permission and the in
centive pay group s permission if during working hours
Conrad did not deny that she did not have permission or
that she should have Conrad s demeanor was not im
pressive to me nor was her recall persuasive I found her
candor at admitting that she told her supervisor to stick
the written warning up his tail instructive of her re
solve not her veracity for the truth Determined or not
her remark was clearly insubordinate and deserved the
discipline she received particularly with the decisiveness
and immediacy displayed by Bates Conrad s own testi
mony showed that she both expected and did not ques
tion the suspension She only asked how long The Gen
eral Counsel s attack on the suspension is only general
without any particularity and also acknowledges Con
rad s conduct on October 31 and November 1 1977
The November 30 and December 1 1977 episodes
which resulted in product rejection and discipline for the
entire glaze group are disputed Conrad states that Bates
admitted a prior operation of sanding was faulty but told
the glaze group to perform their own operation knowing
the chairs would be defective According to Conrad
Bates would use naphtha to try to lighten the color by
removing the excess glaze Bates denied having told the
group to continue running known defective chairs Bates
says he told the group it was not bad sanding but an
8 Supra fn 3
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excess of glaze left on the spindles and seats which could
be removed by applying naphtha and proceeded to show
the group how it was done Conrad s version is premised
on bad sanding the poorest of supervision and unsup
ported by logic or reason In addition several employees
with knowledge of the incident did not testify The most
noteworthy of which was the inspector who rejected the
chairs and returned them to the finish department Bates
version is supported by both accepted practices and Ho
back s recall of the incident including the involvement of
inspector Wenning Conrad s demeanor was no more im
pressive to me than the unrealistic substance of her testi
mony According to Conrad she did not protest the dis
cipline based on Bates orders to run the bad chairs but
rather inspected each chair to attempt to determine
which she was actually responsible for I view Conrad s
lack of protest as instructive of the nature of the entire
incident The glaze group was shown how to correct the
defect with an unordinary procedure but failed to follow
instructions which resulted in rejected products Both
the cause and effect were disciplined by Bates and appar
ently accepted by the entire group Conrad s testimony
to the contrary I do not credit In addition I draw an
adverse inference from the General Counsel s failure to
elicit testimony from witnesses with firsthand knowledge
of the facts who did in fact testify as well as those he
failed to call to the stand
I therefore conclude that the General Counsel has
failed to present a prima facie case of discrimination di
rected at Conrad through the several disciplines and her
discharge This however does not end the determina
non for the General Counsel has argued that the prior
Board case (supra fn 3) is controlling indeed is disposi
tive of the alleged discrimination against Conrad
The General Counsel points out that Judge Rose
found the April 11 1977 reprimand to be discnminaton
ly issued to four named employees not including
Conrad but fails to explain the variance between his ar
gument and the more specific allegation in his complaint
An additional finding that the discharges of the four
named employees were violative of the Act rested on the
April 11 1977 reprimand being the first in a series of
progressive disciplines culminating in the discharges
Subsequently the Board additionally found that the Re
spondent used its disciplinary procedure to retaliate
against union supporters relying in part on the pretextual
use of the discipline in several discharge cases The Gen
eral Counsel argues that the April 11 1977 reprimand re
ceived by Conrad was the same reprimand under consid
eration by Judge Rose and presented Carver and
Lawson two discrimmatees in Judge Rose s case to
identify it The General Counsel states that there is no
issue as to the discriminatory nature of the April 11 1977
reprimands and no question that Conrad s reprimand is
the same as that found by Judge Rose to be discriminato
ry Therefore Conrad s discharge based in part on the
April 11 1977 reprimand is a violation the same as the
four discriminatees found by Judge Rose To dispel the
10(b) attack the General Counsel explains that the dis
crimmatory nature of Conrad s April 11 1977 reprimand
is not rendered nondiscriminatory by the passage of time
and discharges based thereon are thus discriminatory so
long as they occur within 10(b) limits He does hasten to
add however that he does not seek to rehtigate the ille
gality of the April 11 1977 reprimand because the Board
has already found it to be discriminatory
With regard to the Board s additional finding the
General Counsel argues that since the Board found that
the Respondent used its disciplinary system discnmina
tonly all discharges flowing from an accumulation of
disciplines issued under the system would also be dis
cnminatory In addition the General Counsel contends
that Conrad s subsequent disciplines of October 31 No
vember 1 and 7 and December 1 1977 are a fortiori
violative of the Act because of the Board s prior finding
The Respondent attacks the admission of the evidence
and defends its April 11 1977 reprimand to Conrad
under Section 10(b) of the statute
In my view the Respondent must prevail The Gener
al Counsel s syllogistic reasoning has no basis in law or
in logic Board orders and remedies although prospec
live in some respects must first be based on specific
unfair labor practices having been committed and be de
signed to remedy those specific unfair labor practices
found The Board cannot remedy conduct not specifical
ly found to be an unfair labor practice and it need not
be stated that the Board can only remedy conduct which
is violative of the statute An obverse parallel is that
even in contempt proceedings a de novo finding that
certain complained of conduct constitutes an unfair labor
practice must be made before the prior Board order be
comes operative of the latest vice
A correlation is found in the application of the judicial
precedent law of the case when one considers whether
an issue is justiciable The Board s disposition of any
controversy is the law of the case particularly with
regard to the same parties or their privies Albeit the
current issue is a lesser of the greater it is nonethe
less foreclosed to further litigation Thus it seems clear
that to determine whether questionable conduct has been
considered and found violative by the Board one need
only view the Board s order Particularly in the case of
discrimination the order is controlling There is defined
the discrimination and how it is to be remedied The af
firmative portion of the order specifies each act of dis
crimination and what Respondent must do to remedy the
discrimination found The prior Board case discloses the
following applicable portions of the order 19
(f) Disciplining or otherwise reprimanding em
ployees in a manner more severe than is consistent
with established disciplinary policy because of their
interest in or activity on behalf of the above named
labor organization or any other labor organization
or to discourage such union activity
(b) Rescind and remove from its files any refer
ences to the oral warnings written warnings and
reprimands issued for discriminatory reasons to the
following employees and provide that these warn
ings shall not be used as a basis for further discipli
9 237 NLRB 712 at 728
KELLER MFG CO 777
nary action against said employees James Michael
Bright Daniel Milchling Joe Foster James East
Roy S Dearborn Gary Mattingly Mary Carver
Edna Lawson Homer Wiseman Edith Adamson
Cassie Mae Barnum Nicky Edwards Nancy Ruth
Pittman Barbara Jean Miller and Sharon Snyder
Conrad is not mentioned by name in the Board order
Therefore Conrad s discipline was not found to be an
unfair labor practice Having not been found violative
there of course was no remedy As far as the Board
case is concerned the discipline of Conrad was not
under consideration Indeed the General Counsel for
reasons known only to him chose not to allege or lin
gate Conrad s discipline even in the face of her individ
ual protestations at the time
With regard to the issue of the April 11 1977 repn
mand and admissibility of evidence what the General
Counsel alludes to as background is unavailable to him
in my view for several reasons First the event clearly
is outside 10(b) limitations Second the event if under
consideration could only be helpful to the General
Counsel s case by a determination that such event consti
tutes an unfair labor practice and thereby supports the
General Counsel s argument of progressive discnmina
tion which began outside the 6 month limitation period
Such a determination falls squarely within the proscnp
tion found in the standards for use of background evi
dence set down by the Supreme Court in Machinist Local
1424 (Bryan Mfg Co) v NLRB 362 US 411 (1960) The
Court stated as follows
It is doubtless true that Section 10(b) does not
prevent all use of evidence relating to events tran
spinng more than six months before the filing and
service of an unfair labor practice charge However
in applying rules of evidence as to the admissibility
of past events due regard for the purposes of Sec
tion 10(b) requires that two different kinds of situa
tons be distinguished The first is one where occur
rences within the six month limitations period in and
of themselves may constitute as a substantive matter
unfair labor practices There earlier events may be
utilized to shed light on the true character of mat
ters occurring within the limitations period and for
that purpose Section 10(b) ordinarily does not bar
such evidentiary use of anterior events The second
situation is that where conduct occurring within the
limitations period can be charged to be an unfair labor
practice only through reliance on an earlier unfair
labor practice There the use of the earlier unfair
labor practice is not merely evidentiary since it
does not simply lay bare a putative current unfair
labor practice Rather it serves to cloak with file
gality that which was otherwise lawful And where
a complaint based upon that earlier event is time
barred to permit the event Itself to be so used in
effect results in reviving a legally defunct unfair
labor practice [Emphasis added ]
In summary there simply is not a prior finding on
Conrad The General Counsel s evidence must therefore
be within the 10(b) limits and must be substantial
I conclude that the reprimand issued to Doris M
Conrad on April 11 1977 is not within the Board s prior
determination of discrimination as argued by the General
Counsel and further that any consideration of the sub
stance of the said reprimand in this case is precluded by
Section 10(b) of the statute In addition I conclude that
the subsequent disciplines to Conrad on October 31 No
vember 1 and 7 and December 1 1977 are not mcluda
ble in the Board s finding of discriminatory use of the
discipline system and must therefore stand on their own
substance In my view to conclude otherwise would
make a Board order operative ad infinitum in futuro and
compliance would include all subsequent actions by
form related to the prior unfair labor practice
The General Counsel has failed to sustain his burden
of proof of discrimination against Conrad There is no
evidence in the record substantial or otherwise to sup
port the General Counsel s case The allegations there
fore must fall and I shall recommend their dismissal
Accordingly I conclude and find that Respondent has
not violated the Act by disciplining Doris M Conrad in
eluding her discharge on December 1 1977
2 Discharges
a Gilliland Mullins and nine unknown employees
Hannah Gilliland was called by the General Counsel
to testify to events relating to other allegations in the
several complaints She did not testify to her having
been discharged or any other employee s discharge
during June Gilliland did testify that she returned to the
plant with the other striking employees after the strike
and was reemployed as were all other strikers seeking to
return to work
Connie Mullins testified that she engaged in the strike
and walked picket with the other employees While stnk
ing during the latter part of June she was called on the
phone by a person identifying himself as a supervisor
named Thevanott The person told Mullins not to report
to work because she had been replaced Mullins stated
that she had not asked to return to work nor had she in
tended to return during the strike Mullins also stated
that she had not been fired or discharged during the
strike She returned to work when the strike was over
with the group of employees on November 27 and was
put to work the following night
Analysis and Conclusion
The General Counsel s complaint allegations are
The Respondent on or about June 30 1978 dis
charged and thereafter failed and refused to rein
state its employees Hannah Gilliland Connie Mul
lins and nine other employees the names of which
are unknown to the undersigned but well known to
the Respondent
The Respondent did discharge and failed and re
fused and continues to fail and refuse to reinstate
the employees referred to and named above in para
graph 7(a) and did engage and is engaging in the
discriminatory conduct described above in para
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
graph 7(b) because said employees joined and as
sisted the Union and engaged in other union activity
and concerted activities for the purpose of collec
tive bargaining and mutual aid and protection and
because they engaged in the strike against the Re
spondent described above in paragraph 5(a)
Mullins testimony of her conversation with a person
identified to her as Thevanott is the only evidence relat
ed to this allegation 20 Assuming the identity of Thevan
Ott is acceptable (which it is not) the conversation does
not make out a constructive discharge no more than it
makes out a direct discharge The implication of the
words are not totally clear particularly in view of Mul
lins denial that she sought to abandon the strike and
return to work or had expressed any desire to do so As
is so often the case a short conversation is offered as the
basis for an unfair labor practice without the context or
the background of the conversation being exposed
Where questions or threats are concerned few words
may well be sufficient to establish the violation But
where a discriminatory discharge is alleged I find such a
terse conversation lacking substance to support the alle
gation Moreover the facts that are otherwise present
show the alleged discrimmatees (at least those named)
were reinstated upon their demand to return to work
contrary to the complaint allegation I do not discredit
Mullins I simply conclude that her testimony is not pro
bative of the General Counsel s allegation nor is it bind
ing on the Respondent as principal of the alleged agent
Thevanott if the substance did support a discharge alle
gation otherwise I conclude and find it has not been
shown that the Respondent is responsible for any con
duct which resulted in an employee s discharge and I
shall recommend dismissal of the complaint allegation
b Sharon Snyder—alleged discharge on December 19
1978
Snyder testified that prior to the strike she was as
signed subassembly light on days at the New Salisbury
plant At the time of her initial assignment 2 to 3 weeks
were needed to learn the job to a point where she could
achieve production standard The job has a base rate
equal to 100 percent of standard and group incentive
rates for all production over standard for the 8 to 10 em
ployees in her group Snyder s base rate just prior to the
strike was $3 33 per hour and with incentive she aver
aged $4 57 per hour 21 The pieces that Snyder and her
group worked on were composed of three basic series
with several subseries Each distinct series had its own
incentive rate Of the three basic series the 1100 series
comprised approximately 60 percent of the total time
worked Although not daily Snyder would be trans
ferred to other work stations in her group as well as out
side her group to fill in for absences or to help another
operation catch up when behind
20 This allegation was not briefed or argued by the General Counsel
" Snyder stated that she usually made 125 percent production and that
she had received three poor workmanship warnings prior to the strike
During this same time she was also discipltned twice for wasting time
away from her work station
The subassembly light work that Snyder performed
consisted of matching up door panels according to wood
grain and color attaching hardware to the panels and in
stalling the panels within the door frames The other op
erations that she performed when her work load was
slow or the others were rushed consisted of hand sand
mg table tops installing shelf supports building top
frames assembling door frames and installing drawer
guides on the cases These extra duties had Snyder s
original base rate but the incentives differed from each
other and her original incentive rate In her door panel
mg function as well as her extra functions Snyder used
air drills air hammers air screwdrivers hammer screw
driver pin nail gun and glue applicators
Snyder engaged in the strike the entire time and re
turned to work with the group of strikers Although she
did not get an immediate assignment on November 27
she was called to come to work on December 1 22 Get
telfinger personnel manager at the New Salisbury plant
offered Snyder a job in her old department on the night
shift Snyder declined stating she had to help out in her
parent s two businesses at night she had union business
relating to the strike to finish up and had a meeting
scheduled with a Board agent on December 18 Gettel
finger replied that if her excuses were verified by
Moxley it would be okay Her parent s businesses were
two establishments—one in Corydon and the other in
New Salisbury The union business was to distribute
strike benefit checks to those employees who had picket
ed
On December 7 Snyder accompanied by Rita Shields
saw Gettelfinger at the plant Snyder told Gettelfinger
she was there to see about her job on her shift at New
Salisbury Gettelfinger told Snyder that her prestrike po
sition was not open at this time but he did have an open
ing on the night shift in her prestrike job The base rate
and incentive rate were the same as her prestrike job
Snyder asked when she could get back on days if she
took the night job now Gettelfinger said he did not
know when it would be but it would be as soon as possi
ble Snyder accepted the offer and went to work the
same day
On December 12 Snyder had occasion to see Gettel
finger about her unemployment insurance papers and
while she was m his office Gettelfinger told her there
was a day shift job in her prestrike classification open at
the Corydon plant Snyder did not respond exactly but
she did later recall asking Gettelfinger about when they
was wanting me to go down there Later in the day
Gettelfinger told Snyder to report to the day job at Cor
ydon on Monday (December 18) Snyder stated she re
plied Monday? and Gettelfinger said Yes Nothing
more was said
On December 14 Snyder went to Gettelfinger and told
him that she only had interest in her prestrike day job at
New Salisbury Gettelfinger asked her to sign a state
ment to that effect and she did Snyder stated that while
she worked nights she could see that her prestrike job
22 The only reinstatement issue considered at this point is that alleged
subsequent to the alleged discharge
KELLER MFG CO 779
was being performed by Lou Ann Hensley a replace
ment employee hired dunng the stnke
Snyder testified that on December 19 Foreman Frank
Brown asked What would make you the happiest?
Snyder replied To get my job my shift at New Sails
bury Brown said That s what it is report back to
morrow morning The following morning Snyder re
ported to Gettelfinger and he told her to see Steve Book
foreman of subassembly She did and Book put her on a
job gluing blocks on the cases Snyder stated that Lou
Ann Hensley was doing her prestrike job of door panels
Snyder worked approximately 2 hours during which
time she checked her incentive rate standard and found
she was not making incentive at that point She went to
Book and asked why she was gluing blocks Book told
her it was the only opening in the subassembly group
Snyder admittedly was upset because someone else was
doing the door panel job and she asked Robert Harrison
to accompany her to see Gettelfinger While both were
on break they went to Gettelfinger s office Snyder testi
fled to the following
I told Gettelfinger that I was under the impression
by being told that I was to report to my job that I
would have my old job back which in fact I did
not I told him at that time that I was not quitting
but I would be leaving the plant and going home
When my job became available he could call me
Gettelfinger said that he did not want me to quit
but he did have my phone number and would be
getting in touch with me
Nothing more was said Snyder finished her break gath
ered her belongings and left the plant
On Friday December 22 Snyder received a phone
call from Stepro He informed her that the 1100 series of
furniture was being moved back to the Corydon plant 23
He also told Snyder that if she wanted her prestrike job
she could have it at the Corydon plant Snyder asked
Stepro which series was being transferred and Stepro re
plied that the 1100 series was going Snyder asked about
the other series and Stepro said they would be trans
ferred but for now they would continue at New Salis
bury Snyder testified that when she told Stepro that she
needed time to think he said that he would get back in
touch with her
Stepro again called Snyder on Tuesday December 26
He asked if she was planning on returning to work
Snyder told him that she was not interested in going to
the Corydon plant wanted to stay at the New Salisbury
plant but she would not be able to return before Thurs
day or Friday at the latest She told Stepro she was
having trouble with arthritis in her arms 24 Snyder asked
if she could call New Salisbury and talk about what jobs
were available Stepro told Snyder that her indecision
was holding up other job assignments and since Gettel
finger had left the Company Stepro would have to be
talking to someone else at New Salisbury Snyder ac
23 The 1100 series was originally in Corydon having moved to New
Salisbury about 1 1/2 years previously
24 Snyder admittedly did not consult a doctor for the arthritis
knowledged and Stepro told her he would be talking to
her again
On Friday December 29 Snyder received a letter
from the Company requesting an immediate contact with
the Company with regard to her work Snyder had not
before or after the letter initiated any contact with the
Company All contacts between her and the Company
originated in the Company Snyder was unsure but stated
she may have had another conversation with Stepro on
Wednesday December 27 Snyder testified that she did
not respond to the letter but rather attempted to get in
touch with Moxley unsuccessfully Snyder testified that
the letter she received from Stepro on December 29 she
considered as a notice of discharge
Rita Shields testified that the first week in December
at 7 a m she accompanied Sharon Snyder to Gettel
finger s office at the New Salisbury plant Snyder told
Getteffinger that they both were reporting to work for
their jobs if they were available Gettelfinger told
Snyder there was an opening and gave her a time and
place to report for work Later that same day Gettel
finger called Shields and gave her the time and place for
her job starting the following day 25
Robert Harrison testified that he had worked in subas
sembly on the same cases as Snyder since September
1975 On occasion he would fill in for Snyder on door
paneling Harrison joined the stnke for its entirety and
when the employees returned to work he was given his
prestrike position At that time Lou Ann Hensley was
working on Snyder s prestrike position Harrison stated
that Snyder was called back to work in subassembly but
not to her prestrike position Sometime after Snyder re
turned she asked Harrison to go with her to see Gettel
finger Harrison testified Sharon told him that she
didn t want to quit that she was not quitting but she
would not come back to work until she was put on her
job paneling doors Getteffinger replied Okay I have
you phone number Snyder told Gettelfinger that she
was going home and he could call her They both then
returned to their break area and finished the break
Snyder then left the plant
Harrison s work station is 5 to 6 feet from the door
paneling station and most of the time when he did door
paneling as an extra job after the strike he fixed half
turns and pilasters to the 1100 series doors whereas
before the strike he had also matched panels and fixed
door frames The 1100 series moved to Corydon in De
cember 1978 or January 1979 however after the move
was accomplished some 1100 parts that were being re
worked still dribbled down the line for some time The
work on those pieces was termed cleanup of the 1100
series
Robert Stepro vice president of personnel testified
that he telephoned Snyder on December 22 and stated
that because Gettelfinger was leaving Respondent s
employ he was personally following up on her work sit
uation He informed Snyder that the 1100 series was
being moved to Corydon and would take 2 to 3 weeks
25 Shields had not contacted the Company to go back to work but had
received a notice from the Company to report within 5 days
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stepro gave Snyder the option of going to Corydon and
having her door paneling job on the 1100 series or stay
ing in New Salisbury and doing other work in the subas
sembly group Snyder asked for time to think about it
and Stepro told her to do so over the holiday weekend
and to feel free to call him at any time at his home
Snyder did not call so on Tuesday December 26
Stepro placed another call to her He asked her if she
had made up her mind and she asked for additional time
stating that she was sick and had to see the doctor
Snyder asked Stepro to wait until noon at which time
she would call and give him an answer Snyder did not
mention a probability of not working until Thursday or
Friday Stepro agreed to wait until noon for her re
sponse Snyder did not call
Stepro again called Snyder on Wednesday December
27 to learn if she had made a decision since she had not
called by noon the day before Snyder told Stepro she
declined to work in Corydon and would accept a subas
sembly position at New Salisbury on days however she
could not come in that day because her arthritis was
bothering her but she would try to make it in the fol
lowing day Snyder did not report for work the follow
ing day or the day after nor did she contact the Compa
ny of her condition or probable reporting date Stepro
did not call Snyder again Friday he sent Snyder a letter
reviewing the exchange of the previous several days and
requested that she contact the Company or suffer the
consequences of a voluntary quit Union Representative
Moxley was sent a copy of the same letter The Compa
ny did not thereafter receive any response from Snyder
or Union Representative Moxley
Analysis and Conclusions
The General Counsel by way of amendment to Case
25-CA-10436 added Sharon Snyder s termination to the
complaint The allegations are as follows
7(c) The Respondent discharged and thereafter
failed and refused to reinstate its employee named
below on or about the date set opposite her name
Sharon Snyder—December 29 1978
7(d) The Respondent did fail and refuse and contin
ues to fail and refuse to reinstate the employees re
ferred to above in subparagraphs 7(a) 7(b) and 7(c)
for the reason that said employees had joined or as
sisted the Union or engaged in other concerted ac
twines for the purpose of collective bargaining or
mutual aid or protection and/or had participated in
the strike described above in paragraph 5
The General Counsel argues that few factual issues
exist to prove Snyder was discharged in violation of the
Act He cites her receipt of an unwarranted warning and
includes as fact in this record that the said warning was
never removed from Snyder s personnel file 26 No such
8 Apparently the General Counsel is referring to the discipline
Snyder received in December 1976 which was included in the prior case
supra at fn 3 and which is not identified as being among the exhibits
received herein
evidence is before me either via complaint or admission
in this record If the General Counsel is construing such
prior discrimination as evidence that Snyder was dis
charged in December 1978 I conclude that such remote
ness alone removes the prior incident from consider
ation In addition there is no evidence to suggest that
the Respondent kept said discrimination viable particu
larly with regard to Snyder
Of the evidence presented there is no dispute that
Snyder s prestrike job was door paneling in the subas
sembly group and neither is there any dispute that
Snyder was not returned to the door paneling Job be
cause Hensley was performing that job at the conclusion
of the strike The General Counsel argues that Hensley
was placed on that job after the strike but the evidence
in the record as well as arguments during the trial
evinces no real dispute over Hensley s striker replace
ment status at the end of the strike
The General Counsel also argues that the transfer of
the 1100 series back to Corydon is a sham but fails to
explain such a theory or relate it to evidence in the
record As I view the record the Respondent s transfer
of the 1100 series back to Corydon was an unassailable
judgment of management and in fact substantiated by the
General Counsel s own witnesses The General Counsel s
argument that the transfer was not effectuated prior to
Snyder s separation simply will not stand up The evi
dence is uncontroverted that the transfer was made in
December Snyder was informed of the transfer by
Stepro Hensley s work on the 1100 series door paneling
was reduced to practically nothing with only the cleanup
of old pieces previously sent back for rework remaining
on the line at New Salisbury On consideration of all the
evidence I conclude that the Respondent did in fact
transfer the 1100 series to Corydon nondiscnminatonly
and that the vast bulk of Snyder s prestrike job of door
paneling was thus a Corydon plant function rather than a
New Salisbury function In so concluding I note particu
larly that although the witnesses (Snyder included) agree
that the 1100 series involved more work than any other
single series the estimates were somewhat off Snyder
herself vacillated between estimating the work to be one
third or more to one quarter or less The uncontroverted
objective evidence discloses that the 1100 series in rela
tion to the subassembly group was 75 percent of the pay
received by subassemblers and constituted 60 percent of
the work load of the subassembly line 27 Assuming ar
guendo my disposition of the strike allegations later in
this decision moot any reference to whether Snyder s
prestrike job was changed in any way either before or
after her separation
The case of Snyder as presented involves employer
motivation in her separation Therefore the Board s cau
sality test of Wright Line28 would apply The General
Counsel must show that Snyder engaged in protected ac
tivity proximate to the Respondent s adverse action that
the Respondent had knowledge of such protected achy'
27 Albeit the representative period for the exhibit was prestrike all
witnesses stated that the work was the same after the strike as it was
before
8 Wright Line 251 NLRB 1083 (1980)
KELLER MFG CO 781
ty that the Respondent displayed animus against unions
or Snyder and that the Respondent s discharge of
Snyder was triggered by her protected activity
The Issue of Snyder s separation is to be decided on
the evidence in the record Either she was discharged
discriminatonly or she was discharged for cause unrelat
ed to her union activity or she was not discharged at
all 29 There is no argument nor is there any evidence to
support a constructive discharge of Snyder The record
does not show any discriminatory motive nor conduct on
the Respondent s part in returning the strikers to work
/Neither does the evidence show that Snyder or anyone
else was placed in more onerous job assignments de
signed to induce separation and thereby accomplish indi
rectly what could not be done directly Accordingly if
argued I would find that Snyder was not constructively
discharged when she separated on either December 20 or
29
The record does not contain any evidence of discnmi
nation directed at Snyder except for that one instance
remote in time alluded to in the General Counsel s brief
There is no 8(a)(1) conduct alleged or proven that is re
lated to Snyder The record also does not contain evi
dence of the Respondent s animus either toward Snyder
other employees or the Union in general The corn
plaints do contain a host of allegations and Snyder was
indeed engaged in union activity admittedly known to
the Respondent but allegations and suspicions are not
evidence Nor can inferences be based thereon to support
the General Counsel s case of discrimination
In addition the General Counsel s evidence that
Snyder was discharged on December 29 rests in the
letter of the same date that the Respondent sent to
Snyder The General Counsel fails to point out what lan
guage constitutes the discharge but rather (apparently)
relies on the nature of the alleged unfair labor practice
strike to induce the discharge through the Respondent s
failure to place Snyder on her exact prestrike job at the
conclusion of the strike 39 Assuming the strike is not an
unfair labor practice strike the record otherwise would
not support the General Counsel s argument that Snyder
was discharged at all The surrounding facts involve
Gettelfinger s placement of Snyder on a job after the
strike and several subsequent phone calls between
Snyder and Stepro Albeit I found Snyder to be basically
truthful while testifying she did exhibit some vagueness
of recall and an attempt to slant her testimony in one im
portant particular The import of her testimony was that
Stepro was always supposed to check with her regarding
her work status Thus she testified that each time Stepro
ended the conversation with the words to the effect I
will call you back Stepro denied that he ever told
Snyder that she was to do nothing except wait for his
" The General Counsel s argument that lost wages and failure to rein
state strikers to their prestrike positions can be resolved in a backpay pro
ceeding and because that is so the necessity to resolve the facts sur
rounding Snyder s separation can also be continued overlooks the com
plaint allegations the thrust of his argument and the next following por
tion of his thought namely the Respondent s alleged discriminatory dis
charge of Snyder
This situation with Snyder s separation is outside the General Coun
sel s allegation that Respondent failed to reinstate the returning strikers to
their former or substantially equivalent positions of employment
call If Stepro had acted as Snyder claims his action
would have been totally inconsistent with the Respond
ent s mode of dealing with other returning striking em
ployees The admitted fact that Snyder walked off the
job after only 2 hours of work shows contempt for what
the Respondent was attempting to do get the returning
strikers back to work on available jobs Such a display
more plausibly supports continuing contempt rather than
victimizing at the hands of the Respondent I credit Ste
pro s denial and discredit Snyder s testimony that implied
she was only doing what Stepro told her to do I con
dude that Snyder was to return calls to Stepro not the
other way around and had an obligation to return to
work or offer some explanation for her refusal to do so
The General Counsel characterizes the letter as a plea to
Snyder I conclude that the letter was importing infor
mation to Snyder that she must do better than her past
silence or suffer the consequences of being considered a
quit Snyder s admitted conduct was to work for 2 hours
on the assigned job and then tell management she was
leaving and not coming back until a particular job was
offered to her Her obvious dislike for the job assigned
was her failure to make incentive I note however that
she had done similar if not identical tasks in the subas
sembly group both before and after the strike In 2 hou-s
one can hardly expect to accurately project what the
week s production will be especially an experienced em
ployee who recalled 2 to 3 weeks to make incentive
when beginning employment I perceive the difficulty
not to be the task or the pay (the pay group was her
original pay group) but the frustration felt seeing some
one else doing her old job in her place She apparently
mustered the only defense she had at the time quitting
the assigned task and walking off the job with a demand
for her prestrike job Snyder testified that all manage
ment knew she did not want to work in Corydon to jus
tify her refusal to accept the prestrike position at the
Corydon plant It appears that such a connection may be
unfounded for the two plants are only 6 to 7 miles apart
and Snyder frequently works in both New Salisbury and
Corydon helping out in family enterprises Also with the
transfer of the 1100 series to Corydon it seems likely
that some if not all of her fellow employees may move
as well Even so whatever her dislike for Corydon may
be founded on it could not apply to her refusal to work
in the New Salisbury plant In my view her refusal can
only be supported by a lack of explanation Snyder had
no reason not to work or report to the Company her rea
sons for not doing so Her own testimony of her physical
infirmity is not sufficient to explain particularly when
such infirmity did not require medical attention For
some reason known only to Snyder she did not want to
work for the Respondent Under such circumstances she
cannot be heard to complain 31 Accordingly I conclude
that the General Counsel has failed to make out a prima
facie case of discriminatory discharge I further conclude
that the record evidence shows not a discharge of
Snyder at all but rather a refusal on her part to work at
3 A cursory reading of the Respondent s December 29 letter to
Snyder with a copy to the Union leaves little doubt of the urgency of
contacting the Company about working
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an assigned task coupled with her walkout on December
20 which resulted in her being dropped from Respond
ent s payroll as a voluntary quit
Accordingly I find that the Respondent has not vio
lated the Act through its conduct with Snyder respecting
her return to work after the strike and her ultimate sepa
ration Therefore I shall recommend that the complaint
allegation be dismissed
c Billy G Patton—alleged discharge on March 23
1979
Patton testified that his prestrike job was 3 belt sander
operator on nights at New Salisbury He participated in
the strike with his wife who also was employed by the
Respondent Patton and his wife had previously signed
union cards and attended several union meetings In late
November Patton received the 5 day return to work
letter sent by the Company to those strikers who had not
returned to the plant on November 27 Patton returned
to the New Salisbury plant and spoke with Gettelfinger
Patton told Gettelfinger that his wife was pregnant and
fearful of being alone at night and he thus preferred a
day shift job Gettelfinger could not promise him any
thing but agreed to check on it and contact Patton later
Two or three days later Gettelfinger called Patton and
offered him a night shift rip saw offbearer position
paying less than his prestrike position Patton inquired if
he had only a night job available why not give him his
old position Gettelfinger told him his 3 belt sander posi
tion was filled The employees working on Patton s pre
strike job were a husband and wife team who had quit
the strike in October and gone back to work Within 2
weeks the rip saw operator job became available and
Patton bid for it and got it He also bid on every day
shift job that was posted but each time was rejected be
cause he had less seniority In February he successfully
bid on a subassembly heavy job on days and was accept
ed by the foreman in subassembly Several days later
Ken Abell told Patton that he had the job although
Abell did not approve of employees bidding down to
jobs paying 40 cents an hour less Patton told Abell it
was just what he wanted After about 3 weeks work
slowed and Patton was being transferred 2 or 3 days a
week to fill in on other departments On March 21 Abell
called for Patton Patton testified that Abell said Well
Bill your old job on the wide belt came open and I
would like for you to start the wide belt tomorrow
night Patton replied Hey there is no way I don t
want the job Abell said Well that is a crucial ma
chine We have got to have that production out Mr and
Mrs Midgett have bid off of that job and I want you to
run it Patton responded Well I am sorry you will
just have to get someone else Abell stated Well I
will tell you we are down to 200 people now People
are quitting every week construction is opened up and
we are losing a lot of people You are the only one that
we have got here out of 200 people that can run the ma
chine and get the production out that we need
Patton offered to train an employee on nights so he
could return to days or work the machine on days and
train someone for the night shift Patton also offered to
switch shifts with the 3 belt operator on days so Patton
could work the machine on days Abell said no to
each suggestion Patton asked if all the returning strikers
had to take their old job back when it did come open
and Abell responded No we have to offer it to them
but in your case you have to take your job back Patton
suggested that several employees on the day shift whose
work is slowed may jump at the chance to get such a
higher paying job Abell said Well we can t take these
guys jobs and put them on the wide belt when it s your
job We have to offer it to you Patton stated that it
was offered and he refused He had bid off the night
shift to get on the day shift Abell suggested that Patton
and his wife discuss it over several days
Patton reported the following day and Abell was in
the office with Joe Curtis superintendent Patton relayed
to them that his wife was opposed to any night work
Abell said Well Bill you have to go home and think
about it and if you are not here tonight at 4 p m we are
going to say you quit Abell admitted to Patton that the
3 belt sander job had been posted but was pulled off the
board after 2 hours Patton left the office As he passed
his foreman he was asked where he was going Patton
told his foreman Frank Brown that he had to go
Patton said Abell told him if he is not here at 4 p m for
the night shift he has lost his job Patton told his fore
man that Abell wants him to run the 3 belt sander on
nights or else Brown asked Patton to wait until he
could find out what s going on Brown returned and told
Patton it would be to his advantage to run the 3 belt
sander Brown also reported that he intended to talk
with Stepro Patton left and later made an appointment
to see Stepro that afternoon about 3 40 p m Stepro told
Patton that he would have to return to work on the 3
belt sander because they could not bend any rules for
anybody 32
Ken Abell personnel manager at New Salisbury testi
fled that he was employed by the Respondent on Janu
ary 15 1979 following Gettelfinger s separation Patton
was rip saw operator on nights when Abell began his
employment A subassembly heavy day job was posted
February 8 1979 and remained posted until February
12 1979 Patton bid on the job and was senior to all
other bidders On February 12 1979 at 3 p m Patton
came by his office and asked if he was successful on the
bid Abell asked him if he had talked to the subassembly
foreman which was required by the bidding process
Patton responded he had not and left the office Later
Abell called Patton to the office and informed him that
the foreman was agreeable to the bid therefore Patton
was acceptable for the job Abell expressed to Patton his
dislike of employees bidding down from a $3 70 per hour
job to a $3 29 per hour job He told Patton it was not
against the rules but he (Abell) did not encourage down
bidding Abell told Patton that he would be making con
siderably less in earnings and sometimes employees did
not realize the difference Patton told Abell that the
money did not matter he wanted the day job Patton
32 Patton testified to further colloquy between him and Abell but It
was not directly related to the assignment issue
KELLER MFG CO 783
began the subassembly job the next day despite the fact
that he had not worked on days before
The plant occasioned slow sales in February and
March and Patton had to be transferred to various other
tasks several times a week to stay busy—sometimes the
sand room other times the cutting lines Foreman Brown
told Abell it was a problem keeping his subassembly
people busy
On March 19 1979 the Midgetts bid off the 3 belt
sander job and moved to the Corydon plant 33 Abell had
the 3 belt jobs posted on March 20 1979 At 11 30 a m
Crosier called from Corydon and informed Abell that
the 3 belt sander jobs on nights belonged to Patton and
Riggs Abell took down the postings and Crosier as
signed Riggs to her prestrike job on nights at New Salm
bury Riggs had been working in the Corydon plant The
following day Abell told Patton to see him after shift
Abell told Patton that he was transferred back to night
shift on the 3 belt sander Patton said he could not work
nights because his wife was pregnant and fearful of stay
ing alone at night Abell stated that under the agreement
with the Union the Company was obligated to move all
strikers to their old Jobs when they became vacant
Patton questioned using someone besides himself and
Abell told him that other employees presently working
nights had prestrike day jobs to go to in the future and
Patton could forestall their movement back to days
Also the subassembly work was slack whereas the 3 belt
sander had plenty of work and he was the most qualified
Abell told Patton that once he was back on the 3 belt
sander he could bid off the night shift to days Patton
said he was not able to work the night shift so he would
have to quit Abell testified that Patton asked to be fired
so he could draw unemployment insurance but Abell de
dined to fire him Abell did tell Patton that he could
stay on subassembly work until Monday March 26
1979 then he would be required to take the 3 belt job on
night shift
Early the next day Patton discussed the same problem
with Abell but with no different result Patton left the
plant
Abell testified that Foreman Heatwale asked why Billy
was leaving the plant I told Heatwale (new foreman of
subassembly) that Billy was being transferred back to the
evening shift on his old job prior to the strike and that I
had told him that he could start that Thursday evening
March 22 or in his case I had told him that it would be
all right if he wanted to wait until March 26 which was
the following Monday
That afternoon Patton returned to the plant to see
Stepro Abell was present when Patton asked why he
was being forced to go back on nights Stepro told
Patton that it was because of the agreement between the
Company and the Union the assembly work was slow
he was the most qualified employee on the 3 belt sander
and the Company could not bend any rules for anyone
Patton told Stepro that his wife was afraid to stay alone
at night Stepro suggested that he get someone to stay
with her while he worked Patton stated that he would
33 The Midgetts bid for rip saw operator and offbearer on days in the
Corydon plant
have to quit because he could not work nights and asked
again to be fired Stepro and Abell declined to fire
Patton so he left the plant 34
Abell further testified that Patton was required to take
his prestrike job on the night shift on March 22 1979
albeit Patton was the only striker who was required to
resume his prestrike job whether he wanted to or not
Abell s insistence that Patton was required to go back to
the night shift on his prestrike job was the result of his
interpretation of the agreement with the Union and not
any management decision relayed to him Abell also
knew that Patton s wife was pregnant when Pattor was a
rip saw operator Abell acknowledged that the 4 day
week instituted on March 22 1979 was intended to take
up the slack on all departments and as attrition or trans
fers left vacancies in several classifications the Company
did not attempt to fill them There had not been any lay
offs in any classifications The subassembly classification
on days had at least one employee less senior than Patton
at the time of his transfer on March 22 1979 Other em
ployees working days were requested to transfer to
nights in an attempt to fill some classifications but none
save Patton were required to transfer Patton was con
sidered a quit on March 26 1979 when he failed to
report on the night shift His record card was marked
transfer 3-22-79 to establish that his quitting took
place in his prestrike job i e 3 belt sander night shift
Patton s night shift vacancy occasioned by his quit was
posted for bids on March 27 1979
Robert Stepro vice president of personnel testified
that Patton had worked his entire employment on the
night shift except for his subassembly job on days in Feb
ruary and March 1979 Stepro recalled that Patton on
March 22 1979 said he could not take his prestnke job
because his wife was afraid to stay at home at night
Stepro suggested a babysitter or someone to stay with
his wife Patton asked why someone else could not be
put on the job and Stepro replied that he could not bend
rules particularly since the Company and the Union had
an agreement to move people back to their prestrike job
Stepro then left to attend to other business
Stepro testified to several instances involving employ
ees being transferred to assigned jobs other than jobs
they were holding Stepro s examples of such employees
resulted from conversations with other supervisors Ste
pro s testimony was not firsthand and lacked specificity
In Patton s case he was compelled to either move from
the first shift to the second shift or give up his employ
ment with the Company because of the November 27
agreement with the Union and the pending charges that
the Company had failed to reinstate returning strikers to
their prestrike positions The only other employee falling
into Patton s category was Barbara Money Stepro stated
that the Company compelled her to change jobs and
shifts However he could not recall when the incident
occurred what job she was working on what shift she
had been working what job she was compelled to take
or what shift she was compelled to take Stepro did
34 Abell testified that Patton had Union Steward Ritchie with him on
one occasion as a witness but no meeting about the transfer took place
due to a plant injury Abell had to attend to at the same time
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recall that Plant Manager Heishman told him Money had
quit when she was confronted with the reassignment
Analysis and Conclusions
The General Counsel alleged that Patton was discn
mmatonly discharged in violation of Section 8(a)(3) and
(1) of the Act In brief the General Counsel argues that
Patton was constructively discharged because he was
forced to work the second shift or quit his employment
The General Counsel contends that the Respondent
forced the night shift on Patton knowing his domestic
circumstances prevented night work and knowing he
would have to quit rather than accept the night shift
The Respondent took such action against Patton because
he had participated in the strike because the Union had
sought a return to prestrike jobs for all strikers and be
cause unfair labor practice charges had been filed against
the Respondent by the Union
The General Counsel s evidence shows that Patton en
gaged in union activity to the extent that he attended
several union meetings signed a union card and engaged
in picketing during the strike There is no evidence that
the Respondent discriminated against Patton because the
Union had sought the return of all strikers to their pres
trike position Indeed the record shows that the the Re
spondent welcomed the return of all strikers and many
were placed in their prestrike positions on their return
Although the Respondent s position throughout has been
that striker replacements will not be moved to accommo
date a returning striker to his prestrike position the Re
spondent has recognized its obligations as a matter of
law to reinstate returning strikers In those circum
stances where a returning striker s position was occupied
the Respondent offered another job to the striker as it
did Patton As vacancies occurred the returning striker
previously assigned to the vacant classification was non
fled and offered to return to his prestrike position I
cannot conclude that the Respondent harbored animus
toward the Union because they sought a return to pres
trike positions for all strikers I can and do conclude that
the Respondent knew what its obligations were and im
plemented the return to work at the end of the strike
pursuant to those obligations in spite of the pending
charges alleging the Respondent s failure to do so Thus
the Respondent s reliance on the pending charges to sup
port its action against Patton although explicitly stated
by Stepro in response to the General Counsel is con
trary to Its conduct and obvious intent The General
Counsel argues that the Respondent s reliance on unfair
labor practice charges having been filed is itself evi
dence of discrimination Under the circumstances of this
case I cannot conclude that such reliance evinces dis
cnmmation particularly as it would relate to Patton s re
assignment to the night shift Thus the General Counsel
is left with basing his case of discrimination against
Patton on union activity and participation in the strike
There is no dispute as to what occurred between
Patton Abell and Stepro which resulted in his cessation
of employment 35 The Respondent s requirements are
clear and Patton s declination is equally clear The deter
mmative difficulty lies in the motivation of the Respond
ent The Respondent argues that Patton s union activity
is minimal and that the General Counsel failed to show
that the Respondent had knowledge of the union activity
in any event Arguably the union activity of one em
ployee as compared with another can differ by degrees
However the Board does not measure the extent of an
employee s union activity insofar as it relates to an em
ployer s motivation It is sufficient that a given employee
was so engaged On the other hand the knowledge of
the Respondent must be shown either by direct evidence
or by circumstantial evidence The Respondent s mainte
nance of its legal position on treatment of returning stnk
ers evinces a policy to treat all employees who did not
work during the stnke as strikers without regard for
actual knowledge that individuals walked picket or in
some way actively participated in the strike Whether the
Respondent had knowledge or not it treated all its em
ployees returning to the plant on November 27 and em
ployees responding to the company letter announcing the
end of the strike as employees engaged in union activity
The strike was voted on by employees in attendance at a
union meeting called specifically to consider the Em
ployer s contract proposal and conducted by the employ
ees negotiating team Therefore the strike was directly
related to collective bargaining and assistance to a labor
organization The Respondent defends its knowledge of
Patton s union activity by showing that Abell was not
hired until long after the strike ended and Stepro did not
know Patton by sight Suffice it to say that the Respond
ent s reinstatement of returning strikers was implemented
with a generic policy applicable to all 36 The Respond
ent s knowledge of Patton s strike activity is binding on
all supervisors and management Abell and Stepro con
fined their personnel practices to this policy including
their dealings with Patton I conclude that Patton was
engaged in union activity and that Stepro and Abell had
knowledge of such activity 37 Whether Patton s union
activity played a part in the Respondent s decision is an
other matter The evidence in the record and the infer
ences arising therefrom convince me that the Respond
ent s motivation in reassigning Patton to his prestrike po
sition in his particular circumstance was his participa
non in the strike The Respondent argues that the Gener
al Counsel cannot prove a constructive discharge of
Patton In support thereof the Respondent cites the
Board s concept of constructive discharge (in part)
Accordingly when it is shown that an employer
imposed onerous working conditions on an employ
ee it knew had engaged in union activity which it
reasonably should have foreseen would induce that
employee to quit a prima facie case of constructive
35 There is a dispute as to the entire substance of conversations be
tween Patton and Abell however a resolution is not required since it
would not bear directly on the issue of discharge
6 Patton s name was among the names of strikers submitted to the
Company on November 22 by the Union
37 NLRB v Link Belt Co 311 US 584 (1941)
, '
KELLER MFG CO 785
discharge is established requiring the employer to
produce evidence of legitimate motivation
The Respondent relies on Patton s work history corn
prised entirely of night shift and the fact that his pres
tnke position actually pays more money to deny a more
onerous assignment or the foundation for inducement to
quit The Respondent overlooks the known facts that
prior to the strike both Patton and his wife worked for
the Respondent Abell knew Mrs Patton became preg
nant dunng the strike and did not return to work which
created her concern for staying home alone at night The
Respondent s knowledge of facts to support a reasonable
ness to foresee is thus established The Respondent s
knowledge is further augmented by Patton s underned
point blank statement that he would have to quit if
forced to return to the night shift Patton s request of
Abell to be fired to enable him to collect unemployment
insurance only adds to the certainty and strength of his
conviction not to work the night shift again Any rea
sonably prudent supervisor who no longer desired Pat
ton s services would have no difficulty recognizing the
proper vehicle to implement his desires with apparent
impunity The Respondent cites two cases to support the
argued failure of the General Counsel s prima facie case
of constructive discharge I find both cases distinguish
able In Dzihngham the constructive discharge was
denied for two employees One because the evidence
showed he applied for and was hired by another employ
er rather than being forced to quit to avoid a transfer
the other employee was shown to have a preference for
day work and complained when transferred to nights
The evidence showed that he had turned down offers of
day jobs before he was transferred to nights making his
preference for day work very shallow 38 In Picadzily the
employee was denied a constructive discharge finding
due to lack of union activity (employee s reference to a
union employer was discredited) and the fact that the
employee s sick leave was of undetermined length and
her job was filled during her absence leaving only one
available position for her to fill upon her unexpected
return 39 In both cases the allegation failed for lack of
proof not because conceptually an employee s prefer
ence cannot support a constructive discharging finding
In my view an employee s known preference can be the
catalyst that causes the employer s reaction of a trans
fer and the employee s preference can define the oner
ous nature of an otherwise burdenless assignment of
work Unlike the cited cases Patton had expressed a
desire to do day work and utilized the Employer s proce
dures to realize his desire
The Respondent s difficulty with recognizing unlawful
discrimination as between strikers notwithstanding I
conclude that its motivation was unlawful for the follow
ing reasons The Respondent contends that if any return
ing striker was allowed to remain on other than their
prestrike job it was because three conditions were met
(a) the employee was needed more on the current assign
ment than he was on his prestrike job (b) the employee
38 Dillingham Marine & Mfg Co 239 NLRB 904 (1978)
39 Picadilly Cafeterias 231 NLRB 1302 (1977)
did not want to return to his prestrike job and (c) the
employee so remaining in a job did not block the return
of another former striker to his or her prestrike job As
to (a) under the facts of this case the Respondent has
not sustained the need for Patton over other employees
The established bidding procedure requires manage
ment s approval for emplcyees to bid off one job on to
another The Midgetts striker replacements were al
lowed to bid off Patton s prestrike job that the Respond
ent claims was so critical The bid by the Midgetts came
at a time when the Respondent had direct knowledge of
Patton s circumstances and his lack of desire to return to
the night shift Obviously the job was not critical when
the Midgett s performed it or they would not have been
allowed to bid off Additionally if the job was critical
then the Midgett s bid should have been nullified as was
Patton s bid to go to the day shift of some 6 weeks pre
vious I also conclude that the so called critical nature of
the 3 belt sander does not support the Respondent s ad
vanced business justification for Patton s reassignment to
the night shift The satisfaction of factor (b) is totally
evidenced from Gettelfinger through Abell and Stepro
The Respondent feigns ignorance of Gettelfinger s
knowledge of Patton s special circumstances in working
the night shift but Patton s repeated bids for days was
well known to the personnel department and first line su
pervision In any event the Respondent admittedly was
fully aware prior to the actual assignment that such
forced assignment to the night shift would cause Patton
to quit Factor (c) in the Respondent s defense is unavail
able as support for reassignment of Patton to the night
shift because the record clearly shows that the day job
of subassembly heavy performed by Patton just prior to
his reassignment to the night shift was posted for bid by
the personnel department Such a bid posting negates
any reference to a returning striker being blocked from
his prestrike position There is no evidence in the record
that the subassembly heavy job was posted in error nor
is there any evidence that any objection was raised by a
returning striker during Patton s peformance of 6 weeks
on the day shift If the Respondent has reference to a re
turning striker working nights and awaiting a transfer to
his prestrike day shift I conclude that the Respondent
has failed to show such circumstances exist I find that
such facts or omission of such facts support an inference
that the Respondent was more occupied with Patton s
situation than that of any other striker Such preoccupa
lion vitiates consideration of other strikers circum
stances no matter how available to the Respondent they
may be becuase the plight of other strikers is an after
thought and not a motivating factor The Respondent of
fered testimony through Stepro that other employees had
been subjected to transfers between job assignments and
work shifts against their will and sometimes resulting in
their voluntary quit Stepro could not be specific in any
one situation nor was any company record made involv
ing any incident The probative value of such testimony
is wanting and I will give it no more attention now than
the Respondent did at the various times of occurrence
The lack of facts surrounding each incident dictates no
further consideration The record evidence does howev
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er show that at least one other returning striker had a
preference for positions other than what the Respondent
offered before her prestrike position opened 40 When her
prestrike position did open albeit in another plant she
expressed a refusal to assume her prestrike position The
Respondent rather than force her to assume the pre
strike position simply offered her other positions to ac
commodate her desires This additional incident with
Snyder involved Gettelfinger as did Patton s expressed
preference for day work Stepro stated that he was fol
lowing up on Gettelfinger s unfinished details when he
attempted to accommodate Snyder I see no reason for
accommodation to Snyder but strict construction of the
so called agreement with the Union in Patton s case In
view of the above I conclude that the Respondent re
fused to allow Patton to stay on the day shift pursuant to
his prior bid for subassembly heavy and insisted that he
assume his prestrike position on the night shift The Re
spondent s insistence was not due to business reasons as
argued but rather was due to Patton s past participation
in the strike I find that but for Patton s strike participa
tion the Respondent would have honored Patton s job
bid as it did that of other employees and would have ac
commodated his preference for day work
Further support for this finding is derived from the
facts that a less senior person was allowed to stay in sub
assembly heavy rather than transfer to the night shift41
and that the Respondent backdated the forced transfer of
Patton to March 22 1979 to support its assertion that
Patton quit employment as a 3 belt sander his prestrike
classification 42
Economic strikers are entitled to reinstatement upon
application and if their prestrike positions are filled at the
time of application they retain the right to their former
position when it becomes vacant The reemployment
rights of economic strikers are set out in Laidlaw Corp
171 NLRB 1366 (1968) as are the correlative duties of
employers It is clear that an employer s duty of reem
ployment may be discharged by an offer of an employ
ment position to the employee It is equally clear that the
employee s right to reemployment includes his right to
refuse and such refusal also discharges an employer s
duty to reemploy This is true whether the employee is
reinstated to his former position or some other position
There is no provision that requires an employee to
accept the employer s offer or which allows the employ
er to insist that the employee accept the offer Accord
ingly I conclude and find that the Respondent violated
the Act by insisting that Patton transfer back to the night
shift and back to his prestrike position In so finding I
reject the Respondent s reliance on the so called return
to work agreement with the Union to support its man
datory reassignment procedure
40 Record stipulations likewise show that strikers expressed a desire
not to return to their prestrike positions and such desires were honored
One of the Respondent s stated justifications for transfers to the
night shift was to balance the numbers of employees on each shift and
ameliorate the lack of work on the day shift
42 I view the transfer record as an attempt to obviate discriminative
circumstances
d Randall Cunningham—discharged on February 9
1979
Cunningham testified that his rehire in August 1977
was the most recent in a series of three He had asked
Chnstley and Hoback for a job and they agreed to help
him When he was hired Chnstley told him to keep his
mouth shut Cunningham asked what Chnstley meant
and Chnstley replied Unionwise The following
month Cunningham signed a Teamsters card and attend
ed union meetings Cunningham also joined the strike
from its inception and walked picket 1 day of every four
at the main gate of the Corydon plant Cunningham
stated that he hollered on the picket line such utterances
as scab don t go to work stay out support us
and would go after their cars coming through the gate
Miller on duty at the gate for the Company would tell
the picket group to get back on the street Cunningham
referred to himself as the spokesman on the gate but
he had no official title or position within the Union or
while on strike
On November 27 Cunningham returned to the plant
and was reinstated to his prestrike position in the lumber
yard His wife also worked for the Company and was re
instated with the other pickets
During his shift on January 30 1979 Cunningham
took a break with the only other employee in the yard
Larry Bryant Break time was around midnight and was
taken in the maintenance break area (also known as the
bedroom break area) Cunningham got a coke and then
put money in the pastry machine but the pastry failed to
release Cunningham asked Bryant if the machine would
shock him and Bryant replied that he did not think so
Cunningham stated he was afraid of electricity and
would unplug it anyway He did so after pulling the ma
chine away from the wall Cunningham testified that he
could see the jammed pastry He reached in through the
door and grabbed his purchase and pulled it out The op
eration took about 5 or 6 seconds In the process of re
moving the pastry two dividers from inside the machine
fell loose and into the bottom tray where the product
usually fell He tried to rehook the dividers in the ma
chine but was unsuccessful At that point Bryant suggest
ed that Cunningham get away from the machine before
he got into trouble Cunningham then went to Bryant s
table and finished his drink' and pastry They talked for
15 minutes then returned to work
Cunningham stated that he had never unplugged a
vending machine before nor had he ever seen any other
employee do so He worked without incident until shift
time on February 9 1979 At that time he was sum
moned to Chnstley s office in the presence of his fore
man Gould and Marvin Miller Miller told Cunningham
to sit down and sit close so he could hear what Miller
had to say Miller told Cunningham that he had some in
formation on vending machines from a policeman Cun
ningham testified
he told me on January the 30th of 1979 I en
tered the break room at 11 55 and hit on the ma
chines and shook the vending machines and Larry
Bryant also did I unplugged the machine and
KELLER MFG CO 787
reached my hand up into it and pulled out a pastry
And two dividers feel out that separates the pas
tries from each other And Larry Bryant stated to
get away from it before I got in trouble And so I
did And Kenny Collard the Maintenance Man he
took a break with us but he was late getting there
And he come back and he saw what happened and
he said I should put it back in So I went over and
tried to hook them back because they had hooks on
them So I couldn t so I just went over got the
pastry and set down
Q Is that what happened?
A Yes—No I went into the break area and I put
31:4 into the machine and I pulled a lever and it did
trip but it didn t come all of the way out so I did I
unplugged the machine I asked Larry Bryant if it
would shock me He said I don t think so I said
well I m scared of electricity So I went in behind
the machine I unplugged it I went around front I
reached my hand into it and I got it and I pulled
on it and the dividers did pull out and I went
around and plugged the machine back in an Larry
said I should get away from it so I got my pastry
and went on over and sit down
Q And then what did you do when you sat
down?
A I went on and ate my pastry
Q Did you explain to Mr Miller what had hap
pened?
A Yes I told Mr Miller that I put the money in
to the machine And he said that you know that
you can turn your money into the office? And I
said No —I said I didn t know it And I said
Joey is never there on our shift to see him In other
words I stated to him that the pastry belonged to
me that I put the money in and I was going to get
what belonged to me He told me that I was de
stroymg Company property—that they decided Just
to discharge me and that would take care of it
Cunningham also stated that he had seen other em
ployees stick their hands up in the machine to retrieve
their purchases that failed to drop all the way He speed
wally named Sandra Powell as one whom he saw re
tneve a bag of potato chips in front of Supervisor
Donald Foreman Cunningham was aware that Joe the
vending machine man stayed at the plant all day and
wears a vending company uniform
Bryant testified that he and Cunningham took a break
on January 30 1979 at 11 or 11 30 p m Both put money
in the machine to get purchases Cunningham was get
ting a pastry as Bryant got a coke Bryant sat down to
drink his coke and Cunningham slapped the machine
then went around and unplugged it without stating to
Bryant why he was unplugging it Cunningham stuck his
arm up into the machine and tinkered with it for 2 or 3
minutes Finally a pastry and a single piece of metal fell
into the bottom tray Cunningham showed the piece of
metal to Bryant and he told Cunningham to get away
from the machine before he gets into trouble Cun
ningham then came to the table and sat down Collard
the maintenance man then joined them at the table Cun
ningham stated that the pastry machine took him again
and he had broken it The three talked for about 15 min
utes and then returned to work Bryant stated that the
Cunningham incident was the only time he saw anyone
pull metal pieces of the machine loose when reaching
inside the machine Bryant also knew to leave a note for
Joe the vending machine man to get a refund whenever
he lost money in a machine The several times he did so
he did get a refund
Rieke Meyer a moonlighting police officer hired to
observe company property for theft testified that Cun
nmgham and Bryant entered the maintenance break area
on January 30 1979 at 11 55 p m As Cunningham
walked by the three vending machines he tnpped the
coin return levers and checked the return slots Cun
ningham did not purchase anything but instead began
shaking and rocking the pastry machine He kneeled in
front of the pastry machine and put his hand up into the
machine He then withdrew his hand and asked Bryant if
the machine could shock him Bryant replied that he did
not know Cunningham pulled the machine away from
the wall and unplugged it causing the light to go out He
then repositioned himself in front and put his hand inside
again Cunningham moved his hand inside the machine
for 3 to 5 minutes As he withdrew his hand Meyer saw
a white metal piece in the corner of the bottom tray
Cunningham then plugged the machine in and pushed it
against the wall After replacing the pastry machine he
purchased a drink and sat at the table with Bryant After
Cunningham sat down a third employee joined them at
the table Meyer stated that Cunningham only put money
into the drink machine and did not remove any pastry
from the pastry machine The three employees left the
break area at 12 15 a m Meyer had observed the break
area unnoticed by Cunningham and Bryant from 7 p m
January 30 until 2 am on January 31 1979 Meyer
made a report to Miller at 4 pm on January 31 1979
including the pastry machine incident involving Cun
ningham
Miller testified that Meyer reported the incident to
him on January 31 1979 Meyer stated to Miller that
Cunningham had attempted to jimmy the pastry machine
and in the process broke a piece of metal loose Miller
decided at that time to discharge Cunningham for mten
tionally destroying the property However Stepro was
unavailable to process the discharge through personnel
and Miller knew that Cunningham was under mvestiga
tion by the local police so Miller decided to contact the
local police in Stepro s absence Miller also checked with
Joe the vending machine man about the condition of
the pastry machine Joe reported that the antitheft device
had been broken out of the machine the night before and
he had a repairman fix it that very morning Miller was
unable to contact the local police until February 5 1979
Miller asked the police to fingerprint the piece of metal
broken in the pastry machine The police did attempt to
lift a print but were unsuccessful Miller asked if the
police wanted him to do anything and they asked him to
wait Miller waited until February 8 1979 then called
the police Miller told the police he had to do something
about the damaged machine and they told him it was not
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a police matter so go ahead. Miller scheduled a meeting
for the following day in Christley's office with Foreman
Gould and Cunningham. At the meeting Miller told Cun-
ningham that the situation was serious and read a pre-
pared statement to him. Miller said he did not vary from
the written statement He did not mention pulling out a
pastry, any communication between Bryant and Cun-
ningham, the presence of Collard or that Cunningham
had attempted to rehook the antitheft device back into
the machine. Cunningham told Miller, "Well, I have lost
a lot of money in those machines." Miller replied,
"Randy, you know we will give you back any money
you lose in the machines. All you have to do is ask us."
Cunningham made no response. Miller then told Cun-
ningham he was discharged for intentionally destroying
property. Cunningham did not voice any denials.
Stepro testified that he was out of town on a college
recruiting trip when the pastry machine incident oc-
curred. On his return, several days before the discharge,
he discussed with Miller the merits of the discipline de-
cided by Miller previously. Stepro concurred and Cun-
ningham was discharged for intentionally destroying
property
Christley denied mentioning union to Cunningham
when he was rehired or at any other time during Cun-
ningham's employment. Christley testified that what he
told Cunningham was, "Just keep your nose clean and
everything will be all right"
The General Counsel presented several employees to
testify that it was common for employees to reach inside
vending machines to retrieve purchases.'" Several of
these employees stated that the known rule for refunds
from vending machines was to leave a note for "Joe" or
turn the amount owed over to the foreman. Additionally,
no witness knew of any instance where employees broke
the machines by attempting to retrieve a trapped pur-
chase.
Bube's testimony of a damaged vending machine inci-
dent was considered in section III(A)(3)(b), supra.
Miller, vice president of engineering, explained the op-
eration of vending machines in the main break area and
the maintenance break area particularly noting the dis-
tinctions between the two pastry machines if purchases
are trapped, having not fallen all the way to the bottom
retrieval tray
Foreman David Foreman testified that he has on sev-
eral occasions shown or helped employees dislodge
trapped purchases from the machines in the main break
area. However, he has only offered help when he knows
the employee put money in the machine or the fallen
purchase is visible. In addition, Foreman has on many
occasions gotten refunds for employees who lost money
in vending machines.
Analysis and Conclusions
The General Counsel alleges that the Respondent dis-
charged Cunningham for discriminatory reasons unrelat-
ed to his admitted damage of the vending machine. Thus,
43 Testimony of Barnum, Bryant, Carver, Thornbull, Mullins, and
Wenning though not exhaustive is representative and almost identical to
each other
the case turns on employer motivation for the discharge.
The causality test applied in Wright Line, 251 NLRB
1083 (1980), is equally applicable here. The determina-
tion is twofold: first, whether protected activities played
a role in the employer's decision (probative of prohibi-
tive motivation) and, second, whether the Respondent's
asserted business reason is sufficiently proven to be the
cause for its action so as to negate the presence of pro-
tected activity in the alleged discriminatee The General
Counsel must first establish a prima facie case of discrim-
ination and he must preponderate on the basis of all the
record evidence to prevail. The burden of proof only
shifts to the Respondent if the General Counsel presents
a prima facie case. As the Board noted in Wright Line,
the requirement that the Respondent come forward with
evidence of its motivation does not undermine the estab-
lished concept that the General Counsel must establish
an unfair labor practice by a preponderance of the evi-
dence
Here, the General Counsel must show that Cun-
ningham engaged in protected activity, that the Re-
spondent had knowledge of his protected activity, the
Respondent displayed animus against unions or Cun-
ningham and that Cunningham's protected activity trig-
gered the Respondent's action
It is undisputed that Cunningham engaged in protected
activity in 1977 by signing a Teamsters card, by joining
the strike in 1978, and that the Respondent had knowl-
edge of Cunningham's picket activity which ceased on
November 27 However, it is disputed that Cunningham
was more vocal than other pickets and singled out by the
Respondent because of his conduct on the picket line
More than a dozen strikers were involved in a lawsuit
based on picket line conduct at both plants, but Cun-
ningham was not among them. Although Cunningham
testified that he was the picket's spokesman at the main
gate, there is no evidence to define the position or any
duties thereof. It appears that the title "spokesman" is
self-styled, unofficial and unrecognized. Cunningham's
entire demeanor on the stand was as shallow as his
"spokesman" title. I was not Impressed by his testimony
nor his manner. In several critical points his testimony
was not corroborated by friendly witnesses; and where
no attempt to corroborate was made, I found his testimo-
ny was less than credible. For instance, when he mini-
mized his encounter with the pastry machine at 5 or 6
seconds, Bryant and Meyer put the time consumed at 3
minutes or more. Cunningham stated that he asked
Bryant about the electric shock, but Bryant was hesitant
to so testify. Additionally, Cunningham stated that the
dividers holding the product were the two broken
pieces, whereas Bryant, Meyers and "Joe" reported only
one piece of metal, the "antitheft" device. Meyer, the
disinterested witness, hired for a specific purpose to
watch the area, testified credibly that Cunningham did
not get a pastry from the machine in question.'" Bryant's
testimony on the pastry, although aligned with Cun-
ningham, was nonspecific and not persuasive. I conclude
4 4 Neither Meyer's presence as an observer nor his purpose is ques-
tioned by the General Counsel
KELLER MFG CO 789
and find that Cunningham was attempting to purloin a
pastry on January 30 1979 and in the process broke the
antitheft device in the machine (Such intent on his part
was not denied by him in the exit interview ) In so con
eluding I considered Bryant s admonishment to Cun
ningham instructive Better get away from the machine
before you get in trouble As Bryant explained I
know what usually happens when you are fooling
around with something like that Such an explanation is
contrary to the General Counsel s evidence that employ
ees always reached inside the machines to retrieve
trapped purchases 46 The distinction lies in purchase
Further support for the conclusion is found in Meyer s
credited testimony that Cunningham did not purchase a
pastry that particular evening
In view of the above I conclude and find that the
General Counsel has not presented a prima facie case of
a discriminatory discharge of Cunningham Assuming
arguendo I further find that the Respondent had good
cause to discharge Cunningham and in the circumstances
of this case would have done so in the absence of pro
tected activity on the part of Cunningham I note par
ticularly that the Respondent was attempting to rectify a
theft situation through outside surveillance of the affect
ed area the tool crib and maintenance break area Cun
ningham s act albeit not actual theft was intentional and
resulted in destruction of an antitheft device I shall rec
ommend that the complaint allegation involving Cun
ningham be dismissed
3 Withheld vacation pay
a 1978 vacation—plantwzde shutdown week
Alberta Rearden testified that beginning in 1977 she
received a 2 week vacation by virtue of her 5 year
tenure Her understanding of the vacation policy was
that all employees must take their 1 week (first week in
the case of employees getting more than 1 week) vaca
tion during the plant shutdown in the spring of each
year Advance notice of additional weeks is required
and in April she asked for the last week in June to take
advantage of the Fourth of July holiday Her foreman
Cline okayed the requested week She anticipated get
ting her second week vacation check in June before
taking her second week which was the practice of the
Company The strike intervened however starting on
May 13 She and the other strikers were not working
when the plant shut down She received her week s va
cation pay for the shutdown but did not receive her
second week s pay During the strike she communicated
with Thelma Crosier who suggested she send a note On
receiving the note from Rearden the Respondent sent a
letter dated August 16 to Rearden which outlined the
pay policy for additional vacation weeks when the time
was not actually taken off Rearden testified that the
letter informed her that she could not be paid until the
end of the vacation year November 28 of each year
5 Witnesses for the General Counsel disclaim any knowledge of em
ployees breaking machines to retrieve purchases with the single exception
of Bube whose knowledge of the breakage was not firsthand and in any
event discredited
Rearden nonetheless did receive her vacation pay for
the second week on September 9
Rearden also testified that the shutdown week always
occurred in June but at no particular time
In lieu of live testimony the parties stipulated
MR PETRISON Your Honor ,,General Counsel
proposes the following stipulation That the follow
mg named employees were hired by the Respondent
on the dates indicated next to their names Rita
Shields 8/9/73 Cassie Barnum 6/20/72 Edith Ad
amson 9/7/71 and D G Cochran 1/12/78
General Counsel further proposes a stipulation
that in the 52 week period preceding the shutdown
week of June 25 1978 each of the following named
employees had worked in the indicated number of
weeks Rita Shields had work and earnings in 17
weeks Cassie Barnum had work and earnings in 20
weeks Edith Adamson had work and earnings in 20
weeks and D G Cochran had work and earnings
in 17 weeks
We would further propose a stipulation to the
effect that each of these four named employees
Rita Shields Cassie Barnum Edith Adamson and
D G Cochran received one 40 hour—received 40
hours of pay for the shutdown week of June 25
1978
MR CUNNINGHAM Respondent would stipulate
to the employees named and their seniority dates
Respondent would stipulate to the number of weeks
worked by the named employees in the eligibility
period and would note that Barnum and Adamson
were reinstated pursuant to an Order of the Nation
al Labor Relations Board in the period immediately
preceding the number of weeks shown in this stipu
lation and Respondent would stipulate that each of
the named employees received 40 hours of pay for
the June 25 1978 vacation period the same repre
senting full vacation pay for said period
JUDGE GRITTA Do you have any dispute with
the modification of the 8(a)(3) s Barnum and Adam
son?
MR PETRISON We do Your Honor we under
stand that it is Respondent s contention that that is
the reason that they were reinstated and I think that
is a matter to be left to argument in briefs but we
certainly do not consider that a significant modifica
tion of our proposal
MR CUNNINGHAM Your Honor I propose to
stipulate to the fact not to our contention simply
the fact of their involvement in the indicated
period
Thelma Crosier testified that Shields Barnum Adam
son and Cochran all participated in the strike 46
Shields testified that she was off work from March to
December 1977 on combined maternity and injury leave
She received vacation pay for the shutdown week of
1977 She returned to work in December 1977 and to her
46 Adamson and Cochran did not testify
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same job She was reinjured in April and was out for 1
week The following month (May) she Injured her back
and went to the hospital She received 13 weeks corn
pensatory pay after which she began picketing At the
end of the strike she returned to work pursuant to re
ceipt of the Company s 5 day letter Shields received va
cation pay for 2 weeks for her 1978 vacation Shields ac
knowledged that the injury compensation checks she re
ceived for 13 weeks were from the Travelers Insurance
Company
Merrill Lillpop a striking employee also testified that
he received his 1978 vacation pay on his request during
the strike
b 1979 vacation
Barnum testified that Stepro held a meeting on March
22 1979 with approximately 150 employees He outlined
the eligibility requirements for receiving shutdown
weeks pay as well as pay for additional weeks of vaca
tion Stepro stated that all employees who had received
pay in 32 pay periods would get a paid vacation All em
ployees employed less than a year who worked a certain
number of pay periods would also receive prorated vaca
tion pay Stepro said these were the rules and they
would be followed There would be no special rules cre
ated Barnum acknowledged that she stated in her affida
vit that Stepro did not say anything about how the
people who had been on strike would be hurt by the va
cation rule he announced On leaving the meeting
Barnum asked her foreman Thevenott if the people on
strike who had been employed more than a year would
they get vacation pay after they had 32 pay periods
Thevenott said he would check with the office and later
told Barnum that unless they had 32 pay periods at the
time of plant shutdown they would not get vacation
pay Thevenott added that anyone with more than 1
year s service did not fall into the prorated category Al
though Stepro allowed time for questions there were no
questions asked
Betty Haub testified that Stepro spoke to her group of
50 employees on March 22 1979 about vacation eligibil
ity She could not recall his exact words but he said the
shutdown week for 1979 would be June 6 or 3 He said
an employee must have 32 weeks work to qualify and
some employees would be eligible for a 4 day or a 3 day
vacation pay Stepro stated that people who had come
back off strike would not be eligible for vacation pay in
shutdown week Stepro maybe said that strikers would
not be eligible for prorated vacations Haub testified that
on April 11 1979 she asked Ken Abell if the striking
employees were going to get a vacation check Abell re
plied that he would find out On April 23 1979 Abell
told Haub that the strikers were not entitled to vacation
pay for 1979
Ken Abell admittedly spoke to Haub about the 1979
vacation Betty asked him whether she would get a vaca
lion Abell told her it depended upon her number of pay
periods recorded Later on April 23 1979 as Abell was
walking through her department Haub spoke to him
asking if he knew about her vacation Abell told her that
according to the pay plan booklet you had to have 32
pay periods prior to being eligible to take a vacation and
that applied to everyone in the New Salisbury plant
Abell denied telling Haub she would not get her 1979
vacation pay and said he did not know how many pay
penods Haub had worked There was no further conver
sation
Stepro testified that he held employee meetings to ex
plain the vacation eligiblity requirements He used charts
to show the two eligibility requirements of continuous
employment for 1 year prior to the annual plant shut
down and that an employee must have received earnings
in at least 32 pay periods in the year pnor to shutdown
Stepro stated there were only two exceptions those em
ployees employed less than a year get a prorated vaca
non pay of 4 days or 3 days depending on the number of
pay periods worked also any employee who had suf
fered a plant injury was allowed to count the time off
due to injury in accumulating the 32 pay periods up to a
maximum of 27 weeks of injury Stepro denied any state
ments of vacation eligibility of strikers as opposed to
nonstrikers or that he stated that striking employees
would not be paid for 1979 vacation He did state that
the vacation week and vacation pay eligibility would be
determined and administered exactly as it had been in the
past He also stated there would not be any changes
made from the past rules nor would any special rules be
created for anyone Stepro then stated that shutdown
week for 1979 would commence on June 3
The Respondent s vacation policy has remained the
same for the last 10 years Its provisions are as follows
(G C Exh 49 p 26)
4 Vacations
Plant wide vacation week will be taken within the
period starting with the last full work week in May
and ending the first full week in July The Compa
ny will notify the Employees at least 30 days prior
to the start of vacation which week within this
period will be taken to least interfere with orderly
operations and regular employment The plant will
be closed during this week and all Employees eligi
ble shall take one week s vacation at this time with
the exception of Maintenance Employees Firemen
Watchmen and other Employees with whom the
Company has arranged to do special work sched
uled for this period who shall take their vacation at
a time arranged between these Employees and the
Company All vacations must be taken during the
pay plan year
5 Eligibility and Pay
All Employees of the Company who have continu
ously been in the service of the Company for a
period of one year prior to the beginning of the va
cation week designated in paragraph 4 and have re
ceived earnings from the Company in at least thirty
two pay periods during such year shall be eligible
for the 1 week s vacation mentioned in paragraph 4
and be paid for forty hours times the average
straight time hourly earnings (as determined in
paragraph nine of the Benefit Plan) with the excep
tion that regular Boiler Room Employees shall be
KELLER MFG CO 791
paid for forty eight hours times the average straight
time hourly earnings
A maximum of 27 weeks in which an Employee re
ceives no earnings from the Company because of a
plant accident shall be counted as pay periods in de
termining such Employee s eligibility The number
of weeks counted because of a plant accident to de
termme eligibility for vacation pay shall apply only
to Employees with one or more continuous years of
service with the Company
All Employees of the Company who have contmu
ously been in the service of the Company for a
period of more than six but less than nine months
prior to the beginning of the vacation week desig
nated in paragraph 4 and who have received earn
ings from the Company in at least 2h3 of the pay
periods during his periods of employment shall be
eligible for the 1 week s vacation mentioned in para
graph 4 and be paid for 24 hours times the average
straight time hourly earnings as determined in para
graph 9
All Employees of the Company who have continu
ously been in the service of the Company for a
period of more than nine but less than twelve
months prior to the beginning of the vacation week
designated in paragraph 4 and who have received
earnings from the Company in at least 2/3 of the
pay periods during his period of employment shall
be eligible for the 1 week s vacation mentioned in
paragraph 4 and be paid for 32 hours times the av
,erage straight time hourly earnings
It is further provided that effective as of June 1
1966 if an Employee who is otherwise eligible
should die not more than thirty (30) days prior to
the beginning of the designated vacation week then
the vacation pay due him will be paid to his desig
nated beneficiary Executor and Administrator
6 Eligibility for Additional Vacation
All employees who have finished their fifth year of
continuous employment within the pay plan year
(or prior thereto) shall receive an additional one
week s vacation and all Employees who have fin
ished their fifteenth year of continuous employment
within the pay plan year (or prior thereto) shall re
ceive a third week of vacation with pay for forty
hours (Regular Boiler Room Employees 48 hours)
times the average straight time hourly earnings pro
viding such Employee has received earnings from
the Company in at least thirty two pay periods
during the year immediately preceding the start of
the second or third week s vacation All vacations
shall be taken during the pay plan year A maxi
mum of 27 weeks in which an Employee receives
no earnings from the Company because of a plant
accident shall be counted as pay periods in deter
mining such Employee s eligibility
Employees eligible for two weeks vacation and Em
ployees eligible for three weeks vacation shall be re
quired to take one week of vacation as provided in
paragraph 4
Employees eligible shall be allotted the second and
third vacation week desired according to senionty
up to a maximum of 10% of the Employees in each
department If more than 10% is requested and the
Company sees fit to do so they may be granted
Employees shall inform their Foreman two weeks
in advance of the start of the week desired
Analysis and Conclusions
,
A 1978 Vacation
The General Counsel s allegation is framed From
about May 13 1978 until about September 9 1978 the
Respondent refused to grant vacation pay due to its em
ployees because they engaged in the strike described
above in paragraph 5(a) The strike is defined as a con
certed cessation of work from May 13 1978 to about
November 28 1979 The General Counsel explained that
the allegation dealt only with the pay for the plant shut
down week i e 1 week s vacation pay
The several witnesses offered to support this allegation
received their 1978 shutdown pay without incident The
witnesses also received their pay for the extra weeks of
vacation to which they were entitled All the pay was
received by the witnesses while they engaged in the
strike In addition to the witnesses a stipulation of
record shows that four employees received 1978 vaca
tion pay albeit they had not received pay in 32 pay pen
ods prior to shutdown All four employees were stnkers
without regard for any other circumstance
The General Counsel s presentation must include evi
dence of discrimination against the striking employees In
the least there must be some evidence to support an in
ference that striking employees did not receive their va
cation pay because they engaged in protected activity
There is no evidence of record showing that any striker
did not receive 1978 vacation pay Rather the evidence
shows that strikers did receive their vacation pay for
1978 in spite of the protected activity i In such circum
stances there is no argument of discriminatory motiva
tion Indeed the General Counsel apparently abandoned
the allegation since his brief contained no argument or
statement of facts on the 1978 vacation pay Neither was
any motion to withdraw or amend out the allegation
contained therein I conclude that the General Counsel s
proof does not show any prima facie discrimination or
disparity between strikers and nonstrikers but rather
shows an accommodation of the strikers by the Respond
ent See NLRB v General Time Corp 249 NLRB 1204
(1980) enf 650 F 2d 812 (7th Cir 1981) Accordingly I
find that the Respondent has not violated Section 8(a)(3)
and (1) in its payment of the 1978 vacation pay to its em
ployees and I shall recommend the allegation be dis
missed
B 1979 Vacation
The General Counsel during the course of the trial
amended his complaint in Case 25-CA-10639 to include
After subparagraph 7(b)(n) add the following as sub
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,
paragraph 7(b)(m) Refusing to grant vacation pay in
1979 to its employees because they engaged in the strike
described above in subparagraph 5(a)
The General Counsel argues that two elements are
clear in the consideration of whether the Respondent re
fused to pay its employees vacation pay in 1979 He
states that every employee who participated in the entire
strike was denied vacation pay in 1979 and that the Re
spondent failed or refused to present any substantial busi
ness justification for its refusal to pay The General
Counsel overlooked the element of discrimination which
he must show directly or indirectly before the Respond
ent has any burden of proof supportive of its conduct
The General Counsel did offer testimony and stipulations
that showed the Respondent has in the past paid vaca
non moneys to employees who have not satisfied the
work requirement of receiving pay in 32 pay periods
prior to shutdown (supra 1978 vacation consideration)
That same evidence showed the recipients to be strikers
The Respondent offered testimony that in the past any
employee who did not receive pay in 32 pay periods
prior to shutdown week did not receive the shutdown
pay These related instances involved employees off
work due to nonwork related injury or sickness thereby
causing the employees to fall short of the required 32
pay periods Crosier s testimony and the General Coun
sel s cross disclosed a unique method of determining
which employees satisfied the work requirement In turn
the testimony showed that errors could be made and em
ployees could receive vacation pay to which they were
not entitled The record also shows that the Respondent
did not attempt to recover the wrongful payment wheth
er the employee was a striker or a nonstnker Although
the General Counsel argues that nonstrikers received
1979 vacation pay while strikers were denied the pay
even though the strikers may have worked more pay pe
nods during the qualifying year than the nonstnker this
is an argument that is unsupported by evidence in the
record 47 Although the assumed 'facts may in all respects
be reasonable I will not assume such critical facts to
support the General Counsel s burden of proving dis
cnmination In addition there is no allegation nor evi
dence proffered to attack the vacation policy and its eh
gibility requirements as applied in 1979 or any preceding
year Further there is no allegation nor proffered evi
dence to attack the selection of June 3 as the start of
shutdown week in 1979 The General Counsel does
argue that the Respondent chose June 3 to systematically
cut out the striking employees from receiving vacation
pay under its established policy The General Counsel
has no support for this argument other than suspicion
Mere suspicion will not carry the day for the General
Counsel 48 The General Counsel would attempt to bol
47 The General Counsel subpoenaed the vacation pay records of the
Respondent and they were produced at the trial Albeit I denied the
General Counsel trial time to pursue the records I did allow both the
General Counsel and the Respondent time until briefs were due to submit
an exhibit disclosing the facts shown in the records No such exhibit was
forthcoming
8 The record evidence including testimony of the General Counsel s
witnesses is all to the contrary Particularly the exhibit which traces the
shutdown week for the previous 18 years The period for shutdown
ster this suspicion with the alleged enormous animus ex
hibited by the Respondent but here again absent remote
references or statements of counsel there is no evidence
in the record to which he points In my view there is
■none
Barnum s testimony implied that the Respondent in its
prevacation meeting informed the strikers that they
would not receive vacation pay for 1979 while informing
replacement employees or employees who had aban
doned the strike that they would receive vacation pay
for 1979 Stepro denied any reference to striking or non
striking employees and their respective receipts of vaca
tion pay He testified that if the requisite pay periods are
satisfied then the employee will receive pay I discredit
Barnum s attributed reference to striking employees by
Stepro and credit Stepro s denial Barnum s demeanor
was not impressive and she appeared surly on cross I
did not feel that she was cooperative or making a genu
me effort to recall facts In addition to her demeanor I
note that in her affidavit she stated specifically that
Stepro did not allude to striking employees but stuck to
the vacation policy as outlined in the Respondent s hand
book I am constrained to conclude that the damaging
reference to Stepro was more imagined (to support the
case) than real otherwise the contrary statement in the
affidavit would not have existed In addition if Stepro
had made such a reference she would have little cause
to ask his subordinate Thevenott if she could expect to
receive vacation pay As further support I credit Stepro
and Thevenott in that regard Both appeared straightfor
ward and made a genuine effort to recall the facts as
they unfolded
Haub s testimony in one respect endorsed a statement
of Stepro to the effect that the people who came back
off strike would not be eligible for vacation pay in shut
down week She went on to say that maybe he said the
strikers would not be eligible for a prorated vacation
Haub stated that she could not recall Stepro s exact
words Her recall is subject to question when she states
Maybe I have difficulty accepting her testimony as
accurate if not truthful simply because of her own ex
pressed uncertainty If a witness admits her testimony is
predicated upon speculation or guess then her testimony
does not constitute substantial evidence and therefore
has no probative value Also Haub after the meeting
sought an explanation from a Stepro subordinate rela
tive to her eligibility for 1979 vacation pay Any refer
ence by Stepro to striking employees if it had occurred
at the meeting would not have called for any further in
quiry by Haub Both Haub and Abell stated that Haub
made the same request of Abell on two separate occa
mons I therefore do not credit Haub s testimony of the
March 22 1979 meeting chaired by Stepro
Ken Abell credibly testified that in response to Haub s
inquiry about her 1979 vacation pay he told her that ac
cording to the plan each employee had to have 32 pay
periods prior to being eligible to take a vacation Wheth
er Abell was avoiding a reference to the striking employ
ranges from May to July In 6 previous years the 3d week of the penod
has been chosen as it was in 1979
KELLER MFG CO

793
ees or not the fact is he did not state that striking em
ployees would not receive vacation pay for 1979
Lastly the General Counsel relies on several Board
cases in which violations were found when strikers did
not receive vacation pay Elmac Corp 225 NLRB 1188
(1976) Knuth Bros 229 NLRB 1204 (1977) Thorwin
Mfg Co 243 NLRB 620 (1979) In my view the cited
cases do not aid the General Counsel s prima facie
burden
In Elmac the Respondent changed its vacation policy
during the strike which supported the inference that the
resultant denial of pay was because of protected activity
The lack of evidence of business justification for the
change in policy established that the denial of pay to the
strikers was motivated by the protected activity and the
Board so found
Here the vacation policy remained as it had been for
10 preceding years with no substantial departures in ap
plication of the policy
In Knuth Bros the Board found no evidence of an
8(a)(3) violation in the employer s application of its es
tablished vacation policy to the replaced strikers (all
strikers had been replaced) although the result was that
no striker received vacation pay There was no evidence
that the refusal of pay was based on their engaging in
protected concerted activities The Board did find that
the terms of the vacation policy gave the employer a
prerogative of replacement by March 1 the cutoff date
for eligibility (particularly when the strike includes
March 1) The Board found that the employer s preroga
tive of replacement coupled with the cutoff provision re
sulted in the threat of an economic loss as a consequence
of employees engaging in activity protected by the stat
ute The employer simply hired a replacement for a stnk
er before the March 1 deadline and the cutoff provision
removed the replaced striker from the active payroll and
any consideration for vacation pay The Board stated
that withholding benefits because the employees were
not on the active payroll is discriminatory because the
loss is a consequence of engaging in protected concerted
activities and violates Section 8(a)(3) The Board noted
particularly that the strikers affected by the cutoff provi
sion had previously accumulated the vacation benefits
during the year prior to the March 1 cutoff date therefore
their loss the accumulated benefits was directly related
to their removal from the active payroll on March 1
Here the strikers were treated no differently than non
strikers and without regard to whether the Respondent
had replaced them during the strike Moreover no bene
fits accrue or accumulate to any employee during the
year prior to shutdown What does accumulate are
weeks actually worked No benefit inures to employees
as a result of employee status absent active work for
wages Therefore the strikers herein have not been sub
jected to a loss of benefits simply because they had not
accrued any benefits prior to their engaging in the strike
I conclude and find Knuth Bros not dispositive of the
1979 vacation pay issue
In Thorwin the strikers had likewise accrued some va
cation benefits before the advent of the strike It was
these previously accrued and unused benefits which the
employer denied to the replaced strikers on the basis that
unused vacation benefits are forfeited when an employee
leaves the company (The employees were not able to
use their accrued benefits within the specified vacation
year because they were on strike ) The Board found that
the employer s required forfeiture of accrued economic
benefits by the replaced strikers was the consequence of
their protected activities and violated Section 8(a)(1)
In the instant case the loss of vacation pay is indirectly
the consequence of engaging in protected concerted ac
twines but I view the Board s reasoning as requiring a
direct consequence of protected activity Here the em
ployees concerted withholding of labor (engaging in a
strike) created a hiatus in their earnings in specific pay
periods That hiatus caused some if not all to fall short
of working in 32 pay periods and thereby lose their va
cation eligibility The same hiatus is caused by any em
ployee missing work for whatever reason excepting only
a work related injury and that has a limit of 27 weeks In
the absence of evidence of disparity of treatment be
tween strikers and nonstrikers with regard to the applica
tion of the established vacation policy and in the mourn
stances which show that no employee whether striker or
nonstnker accrues or accumulates any vacation benefits
I conclude and find that the Respondent has not violated
either Section 8(a)(1) or Section 8(a)(3) by refusing vaca
non pay for the shutdown week of 1979 to employees
who engaged in the strike I shall therefore recommend
that the allegation relating to the 1979 vacation pay be
dismissed
C Alleged 8(a)(5) Refusal to Bargain
Relevant Events
It is undisputed that the parties began negotiations for
a contract on November 1 1977 Each party was repre
sented by a team of negotiators The Respondent used L
B Cross attorney B J Stepro vice president of person
nel Bob Byrd vice president of finance Leo Gettel
finger personnel manager and John Hoback vice presi
dent of manufacturing The Teamsters used Larry
Moxley business representative of Local Union 89 John
Wientjes assistant to the president of Local Union 89
Homer Wiseman employee Hannah Gilliland employee
Merrill Lillpop employee Roger Barnickle employee J
B Ritchie employee Sam Shroud employee Bruce
Davis employee Marilyn McLenore employee Sharon
Snyder employee and Charles Chambers employee 4 9
The following is the substance of negotiation meetings
membership meetings and individual meetings between
the parties and/or their principals as gleaned from the
uncontroverted testimony of several witnesses and the
objective evidence received from both parties Where a
factual issue did exist I have resolved it and indicated
credibility
There were 23 meetings between the parties from No
vember 1 1977 through February 3 1979 with several
4 9 Leo Gettelfinger John Wienties Roger Barnickle J B Ritchie
Sam Shroud and Bruce Davis were not called to testify in this proceed
mg John Hoback Homer Wiseman Hannah Gilliland Merrill Lillpop
Marilyn McLenore Charles Chambers and Bob Byrd although called to
testify were not questioned about the substance of negotiation meetings
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership meetings interspersed during the latter
stages of negotiations From December 21 1977 to the
final meeting the parties utilized the Federal Mediation
and Conciliation Service by mutual consent
1 The first meeting November 1 1977-2 30 to
3 15 p m
The Union presented its initial contract proposal The
parties discussed the proposal at length with the Re
spondent commenting on the absence of a managements
rights clause Moxley the union spokesman stated that
the Company has two basic rights the right to hire and
the right to pay The parties also discussed the role of
stewards as proposed and agreed that no one steward
could call a strike Moxley explained the Union s position
on union security employees and management are hap
pier in the long run with union security operations are
smoother when everyone joins The Union requested
benefit information and the Respondent agreed to furnish
that requested
2 The second meeting November 11 1977-10 30
am to 2 30 p m
The Union submitted several written proposals of arti
cies not contained in its initial proposal Those new pro
posals as well as the initial proposal were discussed in
detail by the parties Cross the company spokesman
stated that the Company has some reservation about
union security but if we are convinced union security
would be acceptable Moxley replied that he thought the
Union could convince the Company that union security
is good The parties explored the possibility of union se
cunty less than what the Union proposed Moxley stated
that maintenance of membership is better than nothing
at all but we would still have to try for full union secu
nty The Union also wanted any union security to in
elude checkoff The Union s proposal did not contain a
no strike proposal and when asked about its absence
Moxley replied We re not opposed to a no strike clause
if union security and checkoff are tied down
3 The third meeting November 15 1977-6 30 to
7 05 p m
The Respondent tendered its initial contract proposal
containing a no strike and a managements rights provi
sion Cross pointed out that the proposal did not contain
union security or checkoff pending convincing negotia
tions between the parties The Respondent contended
that the Company has the right to promulgate and en
force reasonable plant rules and regulations and any ob
jection raised to reasonableness can be grieved The
Union took the position that rules and regulations should
be negotiated and included in the contract Following a
discussion the parties agreed that rules and regulations
would be subject to the grievance procedure The parties
continued the meeting with discussions of the Respond
ent s contract proposal
4 The fourth meeting December 1 1977-2 30 to
5 30 p m
The Union stated that the company proposal was un
acceptable The Union wanted to work from their own
proposal not the Company s The Union also wanted to
negotiate for the company guards and have them includ
ed in the bargaining unit The Company said a UC peti
tion was needed to put the guards in the bargaining unit
Counterproposals were discussed on several items such
as gnevance arbitration seniority overtime promotions
and the number of stewards (the Union proposed one
steward for each department in each plant about 30 and
a chief steward) The Company wanted 18 (something
less than the number of departments involved) The
Union rejected a managements right clause at this time
and suggested that existing plant rules and regulations
should initially be negotiated The Company agreed to
redraft seniority promotion and overtime
5 The fifth meeting December 2 1977-9 30 a m
to 245 p m
The Union rejected the Company s proposal on pro
motions and proposed a standard job bidding procedure
instead The Company withdrew the promotion clause
agreeing to submit a bidding procedure Bargaining unit
work by supervisors was discussed but no agreement
was reached The parties did reach tentative agreement
on overtime workweek notification of Saturday work
premium pay both 1 1/2 and double time mandatory and
voluntary department overtime selection and rest pen
ods Call backpay was discussed but no agreement was
reached The Union proposed that changing scheduling
of hours of work should be within the work rules negoti
ated as part of the contract
6 The sixth meeting December 16 1977-2 to 4 47
pm
The Union said that they must have a union security
clause and they would not agree to a no strike clause
without a union security clause The Company stated
that any language within reason would suffice for a no
strike clause and the Company is not opposed to some
form of union security such as maintenance of member
ship or modified forms of union security with well de
fined and legal escape clauses but cannot at this time
accept full union security The Union made a proposal
on bargaining unit work but the discussion only led to
the Company agreeing to counterpropose Other clauses
union visitation nondiscrimination safety and health and
notices to employees were discussed but no agreements
were reached
7 The seventh meeting December 17 1977-9 a m
to 12 26 pm
The meeting began with a discussion of bargaining
unit work by supervisors Shortly thereafter the Union
suggested discussing union security The Company said
their most recent review did not produce anything new
and noted that it is an extremely important issue The
Company listed unit placement of guards managements
KELLER MFG CO 795
rights grievance and arbitration number of stewards
job bidding overtime pay double time break periods
several work rules call back pay holidays vacations
pensions hospital and insurance wages nondiscnmma
tion no strike complete agreement no waiver provision
and termination clause as the open issues The Company
suggested FMCS may help settle the issues that are con
flicting with failure to agree on union security If the un
related issues could be tied up only union security man
agements rights no strike and economics would be left
The Union agreed to contact FMCS
8 The eighth meeting December 20 1977-10 am
to 3 50 p m
The Union opened the meeting with unit placement of
guards The Company said they would agree to the
NLRB deciding the guard issue in a UC proceeding
When managements rights was raised the Union stated
that managements rights would not be discussed unless
tied to union security The Company offered its new
proposals on overtime and job bidding A caucus did not
produce agreement and the Union suggested discussing
number of stewards arbitration seniority and break pe
nods A lengthy discussion of each ensued but with no
agreement on particular language
9 The ninth meeting December 21 1977
This meeting was conducted by FMCS The number
of stewards was discussed jointly with the Company stat
mg that a new proposal they were working on may be
fruitful The Union was agreeable to combining depart
ments with less than 12 employees under a single stew
ard The Company told the mediator if managements
rights and no strike clauses were nailed down every
thing else may fall into place The mediator separated
the parties at this juncture
10 The 10th meeting January 4
The Company submitted new proposals on job bid
ding grievance and shop stewards The parties were
separated by the mediator The proposals were discussed
but no agreement was reached
11 The 1 1 th meeting January 5
The Company submitted a package proposal including
economics The holiday clause included an additional
holiday The parties were separated After the Union
considered the package proposal they countered with
reject the managements rights standing on union secun
ty and checkoff as proposed November 1 1977 standing
on split cost of arbitration stewards as initially proposed
open job bidding as proposed holidays as proposed va
cations as proposed reject and scrap employer pension
plan and substitute Teamsters plan at new rate to be de
cided with back years for each employee paid into the
plan by the Employer reject and scrap company hospital
insurance plan and substitute Teamsters health with
dental optical and pharmacy nders wage increase of $1
each year for 3 years nondiscrimination clause as pro
posed all plant and safety rules negotiated separately and
in contract termination clause as proposed no subcon
tract clause as proposed and reject company proposal on
no strike clause The meeting closed with no agreements
having been reached
12 The 12th meeting January 6
FMCS conducted this meeting with the parties sepa
rated The Company presented its final offer to the medi
ator with a cost analysis of the Union s economic pro
posals of the preceding day The Union caucused and
discussed the cost analysis The parties were joined by
the mediator and the company proposal was given to the
Union with the addition that wages would be retroactive
if the contract was ratified within 7 days
The Union agreed to present the company proposal at
its membership meeting of January 15 The membership
did vote on the contract proposal on January 15 and re
jected it
13 The 13th meeting February 16
The Company resubmitted its January 6 package pro
posal with some changes and indicating clauses previous
ly agreed to The Union again rejected the company pro
posal The Union made several proposals through the
mediator guards should be in the unit split cost of arbi
tration one steward per shift per department seniority as
originally proposed include down bidding and post all
vacancies not just first two daily overtime after 8 hours
1 1/2 time pay on Saturday double time on Sunday and
triple time pay for work on holidays increase break pen
ods to 20 minutes change shift starting times paid lunch
period three additional holidays vacations as originally
proposed Teamsters pension plan new disability pen
sion Teamsters hospital plan wages plus 80 cents first
year 75 cents second year and 75 cents third year and
retroactive to December 1977 jury duty and funeral
leave as originally proposed maternity leave to be decid
ed by any doctor rules and regulations to be in contract
termination clause as originally proposed union security
and checkoff as prioposed and delete the no strike clause
Neither party was prepared to move on its proposals
The mediator reported to each party that they were
deadlocked at impasse Moxley said if the Union was
forced to strike they would pick their own time
The following week the Company sent a letter to the
Union of its intention to implement the wage increases
and benefits last offered and rejected The Union made
no response The changes became effective February 27
1978
14 The 14th meeting March 14
The mediator suggested to both parties that they pool
no strike/no lockout with union security and checkoff
Cross met individually with Moxley who suggested a
clause as in Hobarts to settle the union security
issue 50 Hobarts contained a maintenance of member
ship clause with several escape periods for the employ
ees Moxley said otherwise a strike was imminent
Moxley stated that the Union could agree to a Hobarts
5 ° Hobarts is a company under contract to the Union
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clause In addition the work rules inclusion of guards in
the unit number of shop stewards job bidding holiday
pay eligibility and additional holidays as proposed by
the Union were discussed
15 The 15th meeting April 17
The Union reviewed several proposals with the Corn
pany including jury duty bargaining unit work funeral
leave reporting pay work rules union security check
off wages holidays insurance and job bidding The
Company asked for a proposal on managements rights
and no strike clause stating that managements rights and
no strike were as important to the Company as union se
cunty and checkoff were to the Union The Company
then stated that no agreement could be reached on union
security and checkoff until agreement on managements
rights and no strike The parties with the mediator s
assent agreed that managements rights and no strike
were tied together as was union security and checkoff
The Union stated that it wanted to avoid a strike
Moxley and Cross met independently and Moxley told
Cross that unless union security was considered there
would be a strike Cross questioned the inclusion of any
escape clause such as previously mentioned by the Union
as contained in Hobarts Later the Union submitted a
proposal on union security and checkoff in writing to the
Company The proposal included a clause giving the
Union and the Company the right at any time to notify
individual employees either orally or in writing of the
provisions of union security The parties then closed the
meeting
16 The 16th meeting April 20
Cross asked Moxley what it would take to avoid a
strike Moxley replied that something would have to be
done about union security The Company counterpro
posed a union security clause with an escape period of 31
days in December of each contract year but with check
off deleted The proposal was added to the Company s
package proposal that was still on the table Moxley
stated that the proposal would settle union security but
questioned the lack of checkoff as well as the wages and
insurance Moxley wanted checkoff 1 percent more on
wages and 5 percent on the company insurance The
Company agreed to include checkoff 1 percent on
wages and 5 percent on insurance Moxley agreed to
recommend the proposal to his members The Company
made a copy of the package proposal which included a
managements rights clause a no strike clause included
the wage increases insurance increase and union secun
ty and checkoff as negotiated on April 20 The revised
package proposal was sent to the Union
On April 23 Moxley phoned Cross at home and in
formed him that the membership had turned down the
Company s proposal
17 The 17th meeting April 27
Moxley opened the meeting by stating a five point
issue existing between the parties holiday pay the
number of days absent before automatic termination the
terminal date of the contract wages and insurance and
full union security with a 15 day escape period before
the terminal date of the contract To support the addi
tonal wage demand the Union presented a survey of av
erage hourly earnings in the Louisville Kentucky area
for the furniture industry No agreements were reached
following discussion and the meeting closed
18 The 18th meeting May 1
The parties met jointly and Respondent asked that the
issues separating the parties be identified The union
committee responded with approximately 30 issues unit
placement of guards but agreeing to join the Company in
a UC petition objection to Company determining stand
ards of production under managements rights as pro
posed response time of 3 days instead of 2 days when
recalled from layoff indecision on whether employees
should be laid off by classification or by department fail
ure of insurance and fringe benefits to continue during
layoff number of paid holidays job bidding should in
elude down bidding all vacancies rather than only first
two should be posted for bid Company s discretion in
determining disqualification during trial period following
a successful bid freezing bidded employees for 6 months
method of computing overtime pay as to average or
straight time earnings premium pay for shift carryover
notice of overtime to employees number and length of
break periods management s right to change shift hours
paid versus unpaid lunch periods hours for reporting
pay eligibility for holiday pay inclusion of holiday paid
hours in computation of overtime pay actual day for ob
servance of holidays method of calculating vacations
Teamsters pension plan inadequacy of the company in
surance programs management s right to change the
piece rates based on technology funeral leave jury duty
safety and health and wages The Union wanted 40
cents per year for 3 years The Company responded that
there was a lot of issues and some were new Where
needed the individual committee members explained the
employees point of view on each of the issues
Moxley stated that he could accept the managements
rights and no strike clauses if the Company could accept
union security with a 15 day escape period and checkoff
The Respondent caucused to consider the issues After
caucus the Respondent stated that some issues can be ac
cepted whereas others cannot The Respondent agreed
to change the vacation calculation to calendar year
change automatic termination upon absences to 3 days
continue insurance coverage for 30 days if laid off
accept down bidding make overtime voluntary if notice
inadequate use average earnings in computing overtime
pay time and a half pay for holiday hours worked and
amend scheduling of shutdowns Moxley said the corn
mittee forgot the language of transfers issue The Com
pany asked what the Union wanted Moxley showed
Cross another company s contract and Cross cut out the
transfer language and pasted it in the Company s propos
al Moxley added that they needed some major medical
and Cross agreed to 5 percent which was acceptable to
the Union Moxley said the Union also wanted a spring
termination date of March 15 The Company agreed to
compromise on the date Cross asked about the manage
KELLER MFG CO 797
ments rights and no strike clauses Moxley replied that
there were only two issues left union security and
money and checkoff and no strike The Company sug
gested meeting again Wednesday May 10 Moxley
opined that he was not sure the people could wait that
long The mediator counseled both parties to make every
effort to settle the issues and adjourned the meeting
19 The 19th meeting May 10
The parties met jointly and the Respondent submitted
its final offer which incorporated the previous conces
sions of May 1 51 The parties went over the Company s
final offer The mediator separated the parties for their
individual consideration The parties rejoined later and
the Company agreed to change the termination date
from January if other issues were resolved The mediator
pointed to two issues money and union security The
Union said 40 cents each of 3 years and the Company
said 6 5 percent each of 3 years with 5 percent for major
medical The Union proposed one 15 day escape period
and the Respondent proposed an annual escape period of
31 days Moxley asked the committee if they could rec
ommend the Company s final offer and they indicated
they could not The mediator adjourned the meeting
On May 12 FMCS phoned Cross and stated that the
Union would accept three escape periods of 15 days in
June of each year With regard to whom supplies forms
to employees pursuant to the union security clause the
Union wanted to supply them rather than the Company
Cross called Marion Winstead and told him the Re
spondent would accept the changes by the Union Win
stead injected one final issue—to make the proposed
wage increases cumulative rather than noncumulative
Cross stated he would get back to him Cross later called
Winstead and told him that cumulative wage increases
were agreeable but Winstead said the package could not
be sold to the membership at this time Cross testified
that Winstead said I thought the package would fly it
won t There s going to be a strike We 11 let them strike
awhile and maybe this package on union security will
look better to them then The timing is not right Cross
replied Well let me know when the timing is right let
me know when that package will fly
The strike began on May 13
20 The 20th meeting June 5
The parties met separately with FMCS The Union in
jected strike settlement issues into the negotiations by
stating that three issues existed full union security status
of replacements and status of litigation No agreements
were reached and the meeting adjourned
On June 21 Cross notified FMCS that the Respondent
intended to withdraw its final offer of May 10 that re
mamed on the table Its stated purpose was because the
Union went on strike anyway and was now increasing its
demands By telegram to the Union on June 23 the Re
spondent did withdraw its final offer of May 10
" In evidence as G C Exh 12
21 The 21st meeting July 114
The mediator asked both parties to review their post
lions The Respondent stated that the Lunaccepted por
lions of its May 10 proposal had been withdrawn but
they are willing to talk about any of them The Union
said the only issue that existed on May 12 is still the only
issue—union security The Union then asked if the Com
pany had any proposal The Company responded not at
this time The Union then submitted a contract proposal
incorporating the previous changes suggested by the
Company and included a 31 day escape period just prior
to termination in the third year of the contract and pur
suant to the National Labor Relations Act In addition
the Union proposed that all striking employees be re
turned to their old job Cross stated that the law allowed
for one union deauthonzation election each year and the
Union s proposal was for less With regard to the re
placement employees Cross stated that the Union wants
the Company to abandon the replacements who have
gone through a lot for the Company The Company cau
cused then rejected the Union s proposals on union secu
nty and returning the strikers to their old jobs The
Company proposed a contract containing a limited
union security clause substantially identical to the clause
contained in the contract between the Union and Air
guard Industries Inc of Louisville Kentucky In con
Junction with the proposal the Respondent stated We
will recall strikers as replacements leave The Union
caucused then proposed going back to the Respondent s
May 10 union security proposal and making several
changes in sections 2(a) (b) and (e) which were orally
proposed by Moxley The Union proposed a maintenance
of membership for employees hired before May 12 and
compulsory membership for employees hired after May
12 The escape clause was modified to allow a 30 day
period beginning on the 90th day prior to termination of
the contract in which employees could withdraw from
the Union The withdrawal procedure was to be that de
signed by the NLRB for union deauthonzation No
agreement was reached and the meeting was adjourned
22 The 22d meeting August 30
The meeting opened with a discussion on the status of
strikers and striker replacements The Union wanted all
replacements to join the Union and all strikers to mime
diately be returned to their jobs at the end of the strike
The Union amended its previous proposal (July 11) to
allow for two escape periods—one early in the contract
and one just prior to contract termination The Respond
ent held to its Airguard proposal of July 11 No agree
ment was reached
23 The 23d meeting Fepruary 3 1979
The parties met again under the auspices of the
FMCS The Union proposed a 30 month contract with
two escape periods one at mid term and one just prior
to contract termination The Union wage proposal was
6 1/2 percent on February 27 1979 and 6 1/2 percent
on February 27 1980 The 'Union proposed modifying
the Respondent s vacation procedure to allow strikers to
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
count strike time as time worked for vacation eligibility
and the striker replacements were to join the Union or
leave the Respondent s employ The Respondent held
fast to its Airguard union security proposal and reject
ed the other union proposals The meeting adjourned
without an agreement
Analysis and Conclusions
The General Counsel alleged in complaints 25-CA-
10106-2 and 25-CA-10106-3 issued September 29 1978
the following violations of Section 8(a)(5)
9 Commencing on or about May 10 1978 and at
all times thereafter the Respondent did refuse and
continues to refuse to bargain collectively with the
Union as ithe exclusive collective bargaining repre
sentative of all the employees in the unit described
above in paragraph 8(a) in that
(a) The Respondent negotiated with the Union in
bad faith and with no intention of entering into
any final or binding collective bargaining agree
ment ,
(b) On or about May 10 1978 and at all times
since the Respondent has
(i) insisted on the right to solicit employees to
resign their membership from the Union (a non
mandetory (sic) subject of bargaining) and
(n) maintained a fixed and inflexible position
during negotiations by insisting upon the inclu
sion of an escape clause in any collective bar
gaining agreement reached by the parties
(c) The Respondent has engaged in the conduct
described above in sub paragraphs 9(a) and (b)
for the purpose of undermining the Union and
rdestroying its majority status
The General Counsel to prove his refusal to bargain
case relies substantially on objective evidence exchanged
between the parties during negotiations and subjective
evidence of the Respondent s conduct much prior to the
events present in this case The General Counsel argued
that the subjective evidence was proper background and
should be admitted making offers of proof The General
Counsel contended that he is privileged to use pre 10(b)
presettlement conduct of the Respondent as background
citing Electrical Workers Local 613 227 NLRB 1954
(1977) The evidence was not admitted During the
course of the trial the General Counsel appealed the
ruling rejecting the offers of proof on the subjective evi
dence of the Respondent s prior conduct The Board or
dered the evidence to be heard and it was done Now I
must consider the evidence in light of the substance of
the General Counsel s appeal the Board order sustaining
the appeal the allegations in the complaint the uncon
troverted facts in the record and the argument of the
General Counsel
First the substance of the appeal as explication of the
purpose relevancy and materiality of the proffered evi
dence The General Counsel represented that the com
plaint alleged Respondent insisted to impasse and there
after in a fixed and inflexible manner on an escape
period clause in any union security clause The una
mended complaint allegation (see above) relates to the
right to solicit employees to resign The General Coun
sel then defines his purpose Specifically Counsel for
the General Counsel sought to show that under guise of
implementing such clause Respondent instructed its su
pervisors to engage and through said supervisors did
engage in a systematic illegal campaign to solicit with
draw als [Emphasis added ] The clause referred to by
the General Counsel is contained in the contract between
the Respondent and the Carpenters (not a party to the
instant case) during the years 1973 1974 and 1975 The
instructions referred to occurred in the years 1973 1974
and 1975 and involved only the Carpenters The sys
tematic illegal campaign to solicit withdrawals is pure
speculation and could not be found to be otherwise due
to Section 10(b) of the Act The General Counsel s sup
plemental reference to a past history of such improper
solicitation is likewise speculative and not admitting of a
finding of illegality
The General Counsel explains the relevancy as to
show bad faith in making and insisting on such proposal
show that Respondent s proposal was predictably unac
ceptable to the Teamsters and could only have been of
fered to frustrate negotiations (In this regard evidence
has been proffered as to such illegal actions directed at a
member of the Teamsters current bargaining commit
tee ) Such relevancy to facts in the record or proof of
relevant facts necessary to the case is negative rather
than positive The uncontroverted facts show that the
making of such proposal which by definition would
relate to its genesis and more particularly when one s
faith in the making is questioned originated in the Team
sters proposal of March 14 1978 at the 14th meeting
between the parties under the auspices of the FMCS
The insistence on such proposal as shown by the record
was at most times bilateral in an effort to reach agree
ment The parenthetical reference to evidence offered
which was directed at a member of the Teamsters bar
gaining committee is not in the record
The General Counsel also represented that the identity
of the prior union (Carpenters) is irrelevant due to the
hostility the Respondent exhibited toward the Teamsters
as found by the Board in a prior case involving the same
two parties (Respondent and Teamsters) I fail to see
what influence the Respondent s stated hostility has to a
determination of relevancy or materiality of conduct in
volving an alien to the case
In brief the General Counsel renewed his offer of
General Counsel Exhibit 50 (a prior contract between
the Respondent and the Carpenters) In my view the
Carpenters contract is not included in the Board s order
to take certain evidence of the General Counsel with re
spect to paragraph 9 of the complaint This view is in
part based upon the lack of any specific reference to the
contract (a rejected exhibit) in the General Counsel s
appeal
The complaint allegations on their face may appear re
lated to the substance of the background evidence in
volving the Carpenters but the relation stops there The
KELLER MFG CO 799
allegations stand alone with no substantive evidence in
the record to support them There is no evidence that
the Respondent insisted on a right to solicit employees to
resign their membership from the Teamsters The evi
dence in the record does show that the Teamsters at the
15th meeting on April 17 1978 proposed a union secun
ty clause which incorporated language allowing either
party to notify employees of the operation of the mem
bership sections of the union security clause The Re
spondent proposed adding to the clause a section defin
ing escape periods as previously proposed by the
Teamsters (see reference to Hobarts supra) The par
ties bargained without reaching agreement on the Ian
guage of an escape clause Subsequently the Teamsters
reverted to a full union security proposal then proposed
a maintenance of membership for the employees on the
payroll before the strike and compulsory membership for
all employees hired after the strike and incorporating a
30 day escape period The escape period was later
amended by the Teamsters to allow two escape penods
during the contract The Respondent dunng this time
frame withdrew its proposal for escape periods in the
union security clause and substituted therefor the identi
cal clause in the Airguard contract 52
With respect to a fixed and inflexible position during
negotiations by insisting upon the inclusion of an escape
clause the record shows the advent of an escape
clause attributable to the Teamsters in their proposal of
March 14 1978 by the reference to Hobarts Subse
quent negotiations disclosed several escape proposals
from both parties evincing flexibility rather than inflexi
Wit), In short the record evidence does not sustain the
allegations as to nature of position or insistence of mclu
sion Arguably a seed for escape periods was planted
by the Respondent in the parties sixth meeting on De
cember 16 1977 but the Teamsters cultivation of that
seed was the basis for the proposals between the parties
Thus no proven acts of the Respondent that are substan
tial enough to be found unfair labor practices exist Even
assuming which I do not that bare allegations of certain
conduct standing alone are sufficient to provide the basis
for considering background evidence to supply intent
and motivation the existence of the intended and moti
vated acts themselves must be proven independently
This the General Counsel has failed to do In my view a
causal relationship must exist between the suggested
background evidence and the acts subject to invalidity
no acts no background 53
The General Counsel has argued the admission and
consideration of the proffered background evidence in
terms of Board practice and policy citing several Board
cases and making particular reference to the prior Board
case involving these same parties
The General Counsel admits to little or no animus
within the 10(b) period but argues that the events in the
pnor Keller case must be considered in assessing the
8(a)(5) violation Particular reference is made to the
2 As noted earlier the Teamsters represent the employees at Airguard
Industries Inc of Louisville Kentucky
33 Several facts recited by the General Counsel do not exist in this
case even to the extent of being in dispute
threat to close the plant rather than submit to a union
shop provision The actual utterance was closed shop
and found by the administrative law judge to support
statements made by supervisors to employees in violation
of Section 8(a)(I) The General Counsel relates the sub
stance of the proffered background evidence to the
Board s use of the April 4 1977 summary memorandum
in the prior Keller case The General Counsel states that
the Board found the later actions of the Respondent to
be true (presumably that the Respondent intended to so
licit employees to withdraw from the Teamsters as evi
denced by the Apnl 4 1977 exhibit) In fact the Board
found the subject summary supportive of its inference
that the disciplinary procedures were discriminatorily en
forced 54 The General Counsel argues that it has never
been shown that the Respondent abandoned its avowed
intention In my view it is most critical that it has not
been shown that such an avowed intention if any con
tinued or is present in the instant case The General
Counsel has the burden of proof to show that such intent
carried into the 1978 negotiations to support his bad faith
allegations No such proof is in this record Although the
General Counsel correctly states that findings in the
prior Keller case are not subject to dispute such prior
findings are not automatically admissible for any use in
subsequent proceedings There must be some link The
Board s finding that the Carpenters strength dissipated
and they no longer attempted to represent the employees
is one thing but to speculate that something caused the
Carpenters to lose its membership and then attempt to
supply that something as background in the instant case is
impermissible Such a procedure would require that the
background evidence in this case supply the retrospec
tive intent and motivation for an act found in the prior
Keller case and extend that same intent and motivation
(through the prior finding) to the instant case That is
not only pyramiding presumptions but cases and their
findings as well The fact that the proffered background
conduct was alleged to be an unfair labor practice in
1975 is unavailing to the General Counsel simply because
the case was settled by the General Counsel with satis
factory compliance by the Respondent Therefore no
unfair labor practice was found nor remedied The
record herein discloses that the Regional Director in
framing the compliance required did not remove the
escape period from the Carpenters contract but
rather changed the escape month from May to March
leaving intact the clause allowing notification to employ
ees of withdrawal of membership means Additionally
no attempt was made by the General Counsel to set the
prior settlement aside for lack of compliance and litigate
the conduct on its merits (in spite of the General Coun
sel s reference to a possible failure of compliance in the
text of his appeal to the Board) Albeit the General
Counsel contends that the proffered background conduct
was illegal no such finding was made when timely
The General Counsel is confusing the use of back
ground evidence with the Board s practice of alluding to
prior unfair labor practice findings to supply motivation
34 Keller Mfg Co Inc 237 NLRB 712 fn 11 (1978)
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and intent for subsequent acts charged as unfair labor
practices Contrary to the General Counsel s argument
the Board does not receive and consider all background
evidence Nor is the Board s consideration the same
when references to a prior unfair labor practice finding
or to background evidence are made In an unfair labor
practice instance neither the merits nor credibility of the
prior finding is in issue The Board does stress in its deci
mons and its practice the need for all the evidence avail
able so the search for truth can approach completeness
With this in mind the Board does allude to prior unfair
labor practice findings to supply intent motivation and
animus The Queen Mary case55 cited by the General
Counsel in my opinion does not stand for the proposi
tion that any anterior event may be considered when de
termining conduct timely under scrutiny The Queen
Mary case does show that it is within the province of the
Board to determine what effect if any prior unfair labor
practices may or may not nave on subsequent conduct of
the parties In such 5a determination the Board considers
the relationship between the anterior acts and the current
acts In Queen Mary the Board was considering surface
bargaining thus the threat that it would be 5 years
before the company would agree to a contract was relat
ed Likewise the attempted coverup by interfering with
witnesses called to testify evinces an attitude not to
accept its statutory obligations However that failure of
attitude is not present in this case 56 1 do not find the
General Counsel s reference to the sophistication of the
Respondent s principal bargaining agent helpful or pro
bative of bargaining attitude The General Counsel s
burden must be supported by facts not opinions
The General Counsel further argues that a respond
ent s approach to bargaining can only be determined by
viewing the totality of circumstances and equates the
Board s language in Chevron Oil with acceptance of any
and all background evidence 57 The record in Chevron
showed that the company had an unmistakable aversion
to union representation before the election Also the
company delayed bargaining by engaging in several evatsive tactics The Board found that the delaying tactics
were affirmative evidence to evince that the company s
hostility toward the union survived the election and thus
supported its finding that the company was unwilling to
accept and deal with the union in good faith The prior
and current events were directly related to the bargain
ing obligation and were strengthened by substantial vio
lative acts of the company at the bargaining table More
over the company s actions were continuous with little
or no relief from the demonstrated attitude toward the
bargaining concept
The Supreme Court in Bryan Mfg Co supra has de
lineated the proper focus where background evidence is
under consideration by defining the standards to apply
before consideration of the evidence The Board follows
the Court s direction when evidence outside Section
10(b) is offered To do less would contravene the man
55 Queen Mary Restaurants Corp 219 NLRB 776 (1975)
6 Indeed even the Board split in Queen Mary on the Issue of surface
bargaining
57 Chevron Oil Co 182 NLRB 445 (1970)
date of Bryan Mfg Co Accordingly I conclude that the
evidence offered by the General Counsel as background
cannot properly be considered and moreover if it were
considered it would find no substantial support within
the 10(b) limits in this record
The General Counsel s orally argued authority for ad
mitting presettlement conduct Electrical Workers Local
613 supra) in my view settles the issue completely The
Board in Electrical Workers Local 613 affirmed the admis
sion of presettlement conduct where the settlement
agreement had not been set aside by the Regional Direc
tor thereby modifying the rule of Larrance Tank Corp
94 NLRB 352 (1932) with the Joseph s Landscaping Serv
ice rule 58 In Joseph s the Board permitted the introduc
tion of presettlement conduct as background evidence to
establish the motive or object of respondent in its post
settlement activities The crucial element in all these
cases is the identity of the parties t6 the settlement agree
ment and the identity of the parties to the postsettlement
litigation They are the same parties There is no substi
tution of parties between the settlement agreement and
the litigation Indeed if there were substitutions the in
tended use of evidence to establish motive or object
would fail from lack of continuity and logic
The General Counsel argues alternatively that the
Respondent has violated Section 8(a)(5) by its prolonged
refusal to offer any form of union security clause during
negotiations and renews his motion to amend the com
plaint 59 The argument cites Roanoke Iron & Bridge
Works 160 NLRB 175 (1966) stating
It is certainly noteworthy therein that the decision
that the respondent violated Section 8(a)(5) of the
Act was based in part on a checkoff provision
which had been granted the company union ap
proximately three to four years before the bargain
ing events which were found to constitute a viola
lion of Section 8(a)(5) of the Act
The Board in the Roanoke case found that respond
ent s failure to grant checkoff to the incumbent union
was a device to frustrate bargaining The Board did not
consider the lapse of time between the presence of the
unions but rather considered the respondent s defense of
its failure to grant checkoff in light of the fact that
checkoff had been granted previously to an independent
union The respondent s argument was unsupported by
the facts i e the respondent treated the two unions dif
ferently when considering a checkoff provision If the
Roanoke case has any application to the facts of this case
it is that the Respondent has not acted inconsistently
with two unions and therefore has not violated the Act
by its refusal to offer a union security proposal Consid
ering the proven fact that the Respondent did not until
later in bargaining propose or counterpropose some
form of union security I conclude and find that the Re
spondent s refusal to offer a union security proposal to
the Union (whether prolonged or not) does not consti
58 Laborers (Joseph s Landscaping) 154 NLRB 1384 (1965)
59 I reaffirm my denial of the General Counsel s motion to amend the
complaint
KELLER MFG CO 801
tute bad faith bargaining Frick Co 161 NLRB 1089
(1966) The Board acts to oversee and referee the con
duct of the parties engaged in collective bargaining but
leaves the results of the efforts to the relative bargaining
strengths of the parties Particularly the Board leaves
the existence or nonexistence of specific proposals to the
parties themselves for the value of a contract (good or
bad) cannot be dictated by the Board
Accordingly I find that the Respondent has not vio
lated Section 8(a)(5) as alleged and will recommend dis
missal of the complaint
D The Strike Events
1 Economic or unfair labor practice strike
Cassie Barnum a discrimmatee from the prior case
testified that she attended the April 23 1978 meeting
Moxley went over parts of the contract that had been
offered We voted on it and rejected it then we had a
vote for a strike we took a vote and that was to get per
mission from the International Union to go on strike if
we decided to Barnum although a discnminatee in the
prior Keller case had been reinstated prior to the advent
of the strike and was currently an employee at the time
that the union meetings were held and negotiations were
in progress She joined in the strike with the other em
ployees and walked picket Later in the strike she
became a picket captain The membership at the April
meeting voted to seek authorization from the Internation
al Union to go on strike and also voted to reject the Re
spondent s latest contract offer
Barnum also attended the May 13 1978 membership
meeting She stated that Moxley read the entire contract
proposal word for word and then the membership voted
on whether to accept the proposal or not Barnum stated
that everyone in attendance at the meeting knew that the
employees would be on strike if the Company s proposal
was rejected
The strike began with picket signs supplied by the
Local Union with the legend Local 89 On Strike
Later in the strike sometime in September 1978 an addi
tional sign was added to the picket line although it did
not replace the Local 89 On Strike signs Barnum did
not know how many of either signs were on the picket
line at any given time Barnum testified that the two pre
viously mentioned signs were the picket signs carried by
the pickets throughout the strike until November 20
1978 At that time all signs were taken down and re
placed with signs reading Lockout The Lockout
signs were the only picket signs until November 27 when
the strike ended
Betty Haub a discnminatee from the prior Keller case
testified that she attended both the April 23 and May 13
union membership meetings However she could not re
member anything that happened at either of the meet
ings Approximately 3 weeks after the strike started
Larry Moxley told Haub that anyone could walk picket
but she as a discriminatee and not an employee of Keller
could not receive any strikers pay In spite of that she
did join the strike after she received her letter of rein
statement from the Company approximately August 30
Haub testified that of the 19 discriminatees in the prior
Keller case she and 2 others actually joined the strike
and walked picket She did not name the other two dis
cnminatees
Haub also testified that even though she was in attend
ance at the April 23 and May 13 meetings she did not
have any voting rights either to accept or reject the
Company s proposal or to go on strike The reason she
could not vote is she was not considered an employee of
the Company by the Local Union
Hannah Gilliland testified that she attended the mem
bership meeting of April 23 The members in attendance
at the meeting were very much interested in the contract
proposal They would ask questions and they mostly
talked about the union security clause and that is what
they were really disturbed about and that s why they
really wanted to go on strike was because of union secu
nty Moxley told the people that this was a strike vote if
they wanted to have a strike they would vote yes and if
they did not want the strike they could vote no but they
have the privilege to vote either way they wanted to
vote Gilliland also attended the May 13 meeting held
on Saturday At the meeting Moxley read the entire pro
posal of the Company clear through Bonny Watkins
one of the members in attendance who appeared to be
drunk kept shouting from the floor Let s get down to
the nitty gritty Betty Draper another employee in at
tendance stated It appears it would be just like the
Carpenters and no good Following the reading of the
proposal the membership took a vote The members
voted to reject the contract proposal and to begin the
strike Gilliland joined the strike and walked picket just
like the other employees She recalled that the picket
sign at the beginning of the strike was Teamsters On
Strike Local 89 She also recalled that sometime during
the course of the strike unfair labor practice signs went
up but she did not know when After the meeting with
the Company on November 20 the pickets took down
the signs they had been carrying that is Teamsters On
Strike Local 89 and the unfair labor practice signs
and replaced both with the Lockout signs During the
strike week of November 20 to November 27 the only
signs on the picket line were the Lockout signs Gilli
land recalled that the meeting was called by a sign
posted on the board at work which read Union meet
ing at school house Gilliland stated that there was no
discussion of picket signs or the legends on the picket
signs at any time either at union meetings or while the
pickets were walking the picket line
Sharon Snyder the recording secretary of the Team
sters testified that she kept minutes of the union meet
ings particularly the Apnl 23 and May 13 meetings
Snyder stated that the April meeting was held on
Sunday beginning at approximately 2 p m and attended
by 330 people Moxley chaired the meeting and read the
company proposal to the members After the reading of
the proposal there was some discussion on various
clauses in the proposal and then the membership was
asked to vote on acceptance or rejection The bargaining
committee in attendance at the meeting stated to the
membership that they could not recommend acceptance
but that each member had to vote his own way on
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether he accepted or rejected the company proposal
In addition to voting on acceptance or rejection of the
Company s proposal the membership was also asked to
vote on receiving strike authority from the International
Moxley explained to the membership that these ballots
were the authority to call a strike if we had turned
down a proposal or whether we should go back in nego
nations it would be up to the membership He made it
clear to the members assembled that he did not call a
strike that it would be up to us The first ballot was
strike authority from the International The second ballot
was acceptance or rejection of the company offer The
first ballot for strike authority resulted in a majority
wanting to seek authority from the International The
second ballot was a rejection of the Company s proposal
with 306 no votes and 24 yes votes After the balloting
on the rejection of the proposal Moxley stated to the
members that the committee would go back and try to
do better
The second membership meeting was held Saturday
May 13 at approximately 8 a m Moxley again chaired
the meeting and introduced Norman Hug the treasurer
of the Teamsters Local Union Moxley again read the
entire proposal word for word to the employees assem
bled Hug discussed the terms of the offer by the Compa
ny with particular reference to the wages and the eco
nomic package included therein Moxley then recom
mended to the membership that they turn down the offer
because the union security and other clauses in the con
tract were not acceptable to the Local Union Both Hug
and Moxley explained to the membership that if they
turned down this contract offer it was the authority for
a strike Hug stated to the membership that the Interna
tonal would pay strike benefits if they voted to reject
the offer and to go on strike The question put to the
membership was Do you accept this last offer yes or
no9 The tally was 210 for rejection and 34 for accept
ance Moxley stated to the membership as soon as the
tally was made that as of that time there was a strike at
the Keller plants at Corydon and New Salisbury John
Weintjes a union organizer brought in the strike signs
that the Local had previously contracted to be painted
At that point the members dispersed to Corydon and
New Salisbury to establish the pickets Snyder began
picketing but within a month was put in charge of strike
headquarters working 10 hours a day 6 days a week
The first picket signs used read On Strike Teamsters
Local 89 Against Keller Mfg Later in the strike
unfair labor practice signs were added to the picket
line Snyder stated that the unfair labor practice signs
appeared on the picket line in conjunction with the
Teamsters Local 89 signs sometime after the October
15 membership meeting When the unfair labor prac
nee signs were added to the picket line no other signs
were removed There had been no discussion among the
pickets or the union membership at any of the meetings
relative to the addition of the unfair labor practice
signs to the strike Moxley did tell the members assem
bled at the October 15 meeting that the strike was now
an unfair labor practice strike
Sara Sizemore a discnminatee from the prior Keller
case testified that she attended the May 13 meeting at
which approximately 250 employees were present The
union committee present at the meeting gave their views
of the Company s offer Moxley told the members of the
changes in the proposal from prior proposals and told
the members they would be voting whether to accept
the changes or not The membership present knew the
vote was to accept the proposal or strike Sizemore
knew there would have to be a two thirds majority not
to accept the proposal before there could be a strike At
the final tally there was more than a two thirds majority
rejecting the proposal and thereby voting to strike Size
more although in attendance at the meeting did not
speak to the group Sizemore picketed at the New Sails
bury plant where the picket signs read Local 89 On
Strike Sizemore recalled that maybe sometime in
August additional signs were added to the picket line
reading Keller s Guilty of Unfair Labor Practices
Moxley testified that the crux of the April 23 meeting
was to have two ballots The first ballot was to be the
authority to the International to call a strike if the mem
bership turned down the Company s proposals The
second ballot would be membership voting on accept
ance or rejection of the Company s final offer At that
meeting the membership voted to seek the International s
authority to call a strike and thereby be sanctioned by
the International and on the second ballot rejected the
Company s offer After the tally was finalized Moxley
told the membership in attendance that we would go
back and resume negotiations and try to do better
Larry Moxley the union representative testified that
he chaired the membership meeting held on Saturday
May 13 1979 beginning at approximately 8 a m and
ending approximately 10 15 am and held in the high
school building The membership had been advised of
the meeting by notices posted in the plants on Thursday
May 11 Between 240 and 250 employees attended the
meeting Moxley began the meeting by reading the entire
company proposal which took approximately one and a
half hours After reading the proposal individual mem
bers from the floor had questions on the clauses In each
instance Moxley and the committee attempted to explain
their understanding and what the clause would mean to a
contract Moxley testified The membership was inter
ested in more money more vacation but they were pn
manly interested in how they were going to be treated
there on the job and the union security clause Moxley
further testified
Q Do you recall anything other than what was
in the contract being discussed at that time9
A There was somebody on the floor asked about
the employees that had been terminated or unfair
labor practice charges in the past you know back
in the other cases I can t recall right now who it
was
Q Do you recall anymore about that9
A I think Betty Haub was there at that meeting
It could very well have been her that asked that
question
Q As to what?
A As to what about those people that were ter
minated prior or during the campaign
KELLER MFG CO 803
I

Q And after that time did the Union take any
action insofar as a vote was concerned?
A Yes we took a vote that particular day to
reject or accept the Company s offer
Moxley stated that he reminded the membership of the
International Union s constitutional requirement that con
tract offers are to be read in their entirety to the mem
bership and if the membership rejects the company offer
then the employees are on strike Moxley when asked
what his recommendation or statement to the member
ship prior to the voting on acceptance or rejection was
testified The one issue was the union security and
the people were asked to strike on the language and
wording of that clause alone Moxley stated that after
the tally of ballots was complete he told the membership
that then and there they were on strike at Keller Mfg
Company
Alice Myers a discriminatee from the prior Keller
case testified that she did not attend the April 23 or
May 13 meetings However she did at some point in
September join the strike and walked picket with the em
ployees She noticed the addition of the unfair labor
practice signs on the picket line about the third week in
September She did not know of any employee meetings
to discuss the Board s decision (issued in August) nor
was she aware of who if anyone made the decision to
add the unfair labor practice signs to the picket line
Myers walked picket at the Corydon plant on November
27 and stated the picket captain told the pickets that the
signs were to stay up until 4 p m after which there
would be no strike
Analysis and Conclusions
The General Counsel alleged that the strike which
began on May 13 and ceased on November 27 was
caused and prolonged by the unfair labor practices found
in the prior Keller case and the unfair labor practices al
leged in the instant complaints
The dichotomy of the General Counsel s argument dis
closes that his theory includes prolongation and
cause based on the unfair labor practices (particularly
the discharges) alleged prior to the strike and the Board s
findings of discriminatory discharges in August during
the strike Additional prolongation is argued based on
the allegations in the various instant complaints
The General Counsel argues inter aim It need only be
shown that the employees were prompted or motivated
to engage in the strike because of unfair labor prac
tices 60 it must be reasonably concluded that at least
those named individuals (Haub Sizemore Myers and
Barnum) participated in the strike because of the Re
spondent s previous uncured unfair labor practices Betty
Haub walked picket before getting her recall letter and
therefore one can conclude she had no reason to strike
aside from a motive against the unfair labor practices
the unfair labor practices in this case are so broad in
SS At the tnal the General Counsel made several offers of proof on
testimony of discrumnatees in the prior Keller case The offers were re
jected The General Counsel in brief (fn 24) objects further to the rul
ings I reaffirm my rejection of the offers of proof
scope so egregious in character it is obvious they affect
ed virtually every employee and it must be presumed the
employees struck because of the unfair labor practices
and if Section 8(a)(5) violations occurred during bargain
ing then the strike is by absolute necessity an unfair
labor practice strike
The General Counsel cites several cases in support of
his arguments all of which I view as not supportive of
his case Not because I think he has overstated the law
but because the necessary factual foundation for applying
the law of each of the cases is not present in this case
To state it another way when the Board makes a find
ing it must be based on proven facts in the record and
presumptions in support of the findings must likewise be
based on proven facts in the record As the Board stated
in one case cited by the General Counsel 61
The principle is well established that employees
may be entitled to the special reinstatement rights
provided unfair labor practice strikers even though
the strike activity may have been motivated by con
cerns which went beyond their employer s commis
sion of unfair labor practices so long as it can be
determined from the record as a whole that the
unfair labor practices contributed in part to the em
ployees decision to strike
The Board continues referring to its footnote 4 of
Larand Leasurehes 213 NLRB 197 (1974) and quoting
Even assuming arguendo that the Administrative
Law Judge was correct in asserting that the dis
charge of Bell and Brown [not alleged to be unlaw
full was a primary cause of the strike such a find
ing would not warrant a conclusion that the strike
was an economic strike in view of the convincing
record evidence that the employees decision to
strike was also occasioned by the Employer s nu
merous unlawful acts Thus as we have elsewhere
pointed out when it is reasonable to infer from the
record as a whole that an employer s unlawful con
duct played a part in the decision of employees to
strike the strike is an unfair labor practice strike
The Board found in Colonial that the strike was an
unfair labor practice strike stating
it is clear from the facts found by the Adminis
trative Law Judge and detailed above that Re
spondent s unfair labor practices clearly contributed
to their desire to take the concerted action of en
gaging in a strike
Conceptually the Board requires that the cause of the
strike or the objectives of the strike be connected to the
unfair labor practices Additionally the Board requires
the subject unfair labor practices to be close in time with
the strike and has specifically found remote unfair labor
practices not to be provocation for later strike activity
Where no causal connection exists there can be no
unfair labor practice strike
Si Colonial Haven Nursing Home 218 NLRB 1007 1009 (1975)
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This record both in part and the sum of its parts
evinces a single cause for the strike beginning May 13
and ending November 27 That cause is the Respondent s
contract proposal albeit the employees were faced with
two such contract proposals One on April 23 when as
a body they sought International Teamsters approval if
and when they went on strike and rejected the contract
proposal before them two on May 13 when the single
question of accepting or rejecting Respondent s latest
contract proposal was put to a vote Moxley s statement
to the assembled employees on April 23 after the propos
al was rejected to wit We will go back and try to do
better is instructive to my determination 62 The Team
sters positioned themselves at that time to strike if con
cessions on wages and union security were not met by
the Respondent The General Counsel in brief admits
that the Respondent anticipated a strike on April 23 due
to the issue of union security as it existed between the
parties Albeit there is a scintilla of evidence that a single
reference was made at one meeting (May 13) to the prior
alleged discriminatees the reference is vague 63 and only
counts for 1 of the 19 alleged discharges (The General
Counsel argued in brief that one or more employees
asked about the discnminatees in the prior case ) More
over of the 19 only 3 participated in the strike and 2 of
those waited until the strike was half over before joining
Barnum the fourth prior discnminatee had been rein
stated before the strike began therefore she was on the
payroll at the time of the strike In any event she was
mute on any reference to her personal unfair labor prac
tee charge Unfair labor practices as provocation for
strike activity must be more than a source of dissatisfac
non They must be one of the assigned reasons for stnk
ing
Even assuming arguendo that some reader of this
record could find factual support for a refusal to bargain
violation based on the Respondent s conduct in bargain
ing there would not be a causal relationship as a matter
of law between the refusal to bargain and the strike 64
The Respondent s argument that the strike for all pur
poses was unprotected because the Union was seeking an
illegal union security clause from the Respondent is
wholly without foundation and rejected The strike from
its inception was based on the Respondent s proposals
and does not lose the protection of the Act because the
Union s position in bargaining may be subject to criticism
other than causation of the strike
In view of the above and based on the record as a
whole I conclude and find that the strike which began
on May 13 and ended on November 27 was not an unfair
labor practice strike but rather was an economic strike
O I am mindful of cases where the union s frustration at the bargaining
table can be viewed as cause for a strike but those cases involve surface
bargaining which is not in issue in this case nor does the record evidence
show surface bargaining on the part of the Respondent
53 See John Cuneo Inc 253 NLRB 1025 (1981) wherein the Board
citing Typoserwce Corp 203 NLRB 1180 (1973) stated
Board law holds that an unfair labor practice strike does not result
merely because unfair labor practices precede the strike Rather
there must be a causal connection between the two events which
demonstrates that the strike is the direct outcome of the unfair labor
practices
6 Capital Rubber Co 198 NLRB 260 fn 1(1972)
caused solely by the employees dissatisfaction with the
Respondent s contract proposals Accordingly I shall
dismiss the unfair labor practice strike allegation con
tamed in the several complaints
Further I conclude and find that the record is void of
any causation for prolongation of the strike either subse
quent to the time any alleged unfair labor practice in the
instant case occurred or subsequent to the Board s find
ings of unfair labor practices in the prior Keller case I
reject Union Representative Moxley s statement at the
October 15 membership meeting to wit The strike is
now an unfair labor practice strike as evidence that the
strike was converted to an unfair labor practice strike In
my view more is needed to convert such a strike There
fore I shall dismiss the unfair labor practice strike allega
tion based on prolongation of an otherwise economic
strike In so finding the above I specifically conclude
and find that the strike ran its natural course with no in
fluenced deviation from May 13 until November 27
2 Offer to return
The record evidence supporting this issue consists of
several employee meetings during the course of the
strike and several letters issued both by the Company
and the Union The substance of the meetings were testi
fled to by employees and Union Representative Moxley
and is not placed in dispute by Respondent The several
letters were received as the General Counsel s and the
Respondent s exhibits without objection and therefore
exist as objective evidence Where a factual issue does
exist e g in the two confrontations between strikers and
the Company on November 20 and 27 I have resolved
that either by credibility resolution or inference as to the
most plausible circumstances
During the course of the strike the striking employees
met with Union Representative Moxley on November
19 Moxley told the people at that meeting that everyone
there and all the others should go to the Respondent s
Corydon plant the following morning November 20 at
6 a m for the purpose of making an unconditional offer
to return to work
Cassie Barnum a striking employee testified
Larry Moxley said that at this time he thought it
would be best if we made an unconditional offer to
return to work the people were not happy they
felt that we had been on strike for nothing and we
were going back for nothing and they just weren t
happy at all but they would do it
Alice Myers a striking employee recalled that Moxley
suggested that some employees may not want to return
to work Those who did not want to return that was
their business The ones who did want to return were to
meet him and Wientjes at the Corydon plant at 6 a m to
make an unconditional offer to return There was little or
no discussion among the employees present at the meet
ing about the decision to return to work There was no
question placed before the members present nor was a
ballot taken
KELLER MFG CO 805
As Moxley testified I told the employees we should
try to go back to work and settle things by working and
negotiating at the same time
The following morning November 20 at 6 a m ap
proximately 200 to 250 striking employees accompanied
by Moxley and Wientjes approached the Respondent s
north gate The group included several discrimmatees
from the prior Keller case At this time the picket signs
came down and picketing ceased Moxley and the em
ployees were met at the gate by Bob Stepro and Marvin
Miller A colloquy ensued in which Moxley told Stepro
that he was offering the return of all the strikers plus the
19 unfair labor practice discnminatees Stepro at one
point in the conversation asked if Moxley had a list of all
the people or could he give the Company the names of
the people who were returning Moxley simply repeated
all the people who were on strike as of May 13 and the
19 discnminatees from the prior unfair labor practice
cases Moxley and the General Counsel s witnesses testi
fled that Moxley specifically stated unconditional offer
to return The Respondent s witnesses Stepro and
Miller specifically deny that Moxley used the word un
conditional Stepro told Moxley that he and the group
of employees had taken the Company by surprise and
they were not prepared It would be better if the em
ployees reported back on November 27 at 4 p m Moxley
then turned to the group and told them that the Employ
er was locking them out He said You have been
locked out At this point the employees turned and left
the plant and when they reached the point of the picket
line once again they began picketing The Local 89
picket signs and the unfair labor practice signs were not
reinstated but signs claiming Teamster Lockout were
supplied and placed on the picket line
That same day the Company prepared a letter to the
Union which stated in part that all employees would be
allowed to return as soon as the Employer could get
production facilities ready The present week of Novem
ber 20 being a holiday week was little time in which to
prepare the employees return and the fact that no prior
notice had been given aggravated the shortness of time
The Company stated in the letter that the earliest time in
which the employees could be processed would be No
vember 27 and particularly if the Union would attempt
to identify the employees by name to facilitate the place
ment of employees in job classifications
On November 22 the Union sent a letter to the Com
pany stating in part that the Union was offering all em
ployees who had been on strike including the prior dis
crimmatees in the unfair labor practice cases recently de
cided to return to work It was the Union s desire to ne
gotiate after the employees were returned to work and
the Union was submitting a list of all employees in
volved It is uncontroverted that the list supplied by the
Union was employee names with social security numbers
containing several employees who had quit prior to the
strike who had been terminated prior to the strike who
had retired or were in the immediate process of retiring
and some employees who were deceased
The list showed that 565 employees on strike offered
to return Of this number 7 were discnminatees from the
prior Keller case out of a total of 19
The Respondent offered evidence that the list of stnk
ers offering to return included 103 employees who had
quit prior to May 12 1 employee terminated before May
12 2 employees who retired before the offer was made
2 employees who died during the strike 58 employees
Who had abandoned the strike and returned to work
before the offer was made 4 people unknown to the Re
spondent and therefore not employees 4 duplications of
names and 10 employees who quit during the strike
These irregularities reduce the list of actual strikers to
381 The Respondent s evidence also showed that the
seven discnminatees from the prior Keller case which
were included in the list of striking employees offering to
return had been previously offered reinstatement by the
Respondent in partial compliance with the Board find
ings 65
Approximately 200 to 250 employees appeared at the
Respondent s Corydon plant on November 27 at 4 p m
including several discnminatees from the prior Keller
case Moxley and Wientjes were present as spokesmen
for the striking employees and the Company was repre
sented by Leland Cross attorney Bob Stepro and
Marvin Miller among others Although there is some
dispute as to what was actually said between Moxley and
Cross prior to the employees returning to work Moxley
in his testimony as well as several of the General Coun
sel s witnesses agrees that the Respondent and the Union
endeavored; to get everyone back to their original shifts
that is their prestrike classification The General Coun
sel s witnesses testified that the Respondent represented
that all striking employees would be back to work back
on their original shift and back on their original classifi
cation within 5 to 10 days The Respondent s witnesses
deny that any time limit of any kind particularly 5 to 10
days was part of the discussion much less any part of an
agreement by which the returning striking employees
would be put back on the job When the discussion be
tween Moxley and Attorney Cross ended the Respond
ent passed out little slips of white paper to each of the
striking employees on which they were to list their
name their home address and their prestrike job or clas
sification After the papers were filled out the Respond
ent announced that the employees would be divided into
two groups by their respective plants One group of em
ployees went to one section of the Corydon plant and
the other group of employees went to another section of
the Corydon plant The Respondent proceeded to proc
ess the returning employees and did so until approxi
mately 9 p m At 9 p m there were 40 some odd employ
ees who had not been placed on the job and the Re
spondent announced to those employees that they should
go on home and they would be contacted by the Em
ployer as soon as a vacancy could be located to put them
in With the exception of several employees who were
out of town or who had not actively engaged in the
strike the last few days all the employees who were re
turning and abandoning the strike had been processed by
the Employer to some point on November 27 The Re
65 The prior chscriminatees had declined reinstatement at the time of
the company offer choosing Instead to assume the status of a striker
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent and the Union agreed to send a letter to those
employees who had not presented themselves and placed
a limit of 5 days upon reply The letter was a joint yen
ture in terms of substance and was mailed by the ,Compa
ny to the employees at their last known address
The Company sent the 5 day letter on November 28 to
all employees who had been employed prior to May 13
and who had not applied for reinstatement after the end
of the strike The letter stated in part that the strike had
ended and most employees had returned and if the ad
dressed employee was desirous of returning to work in
his old job he should do so within 5 days
The final piece of evidence dealing with the offer and
return of the employees is a company letter dated De
cember 8 1978 and addressed to the Union The sub
stance of the letter in part states that one of the employ
ees who had been mailed the 5 day letter had not re
ceived it since it had been returned by the post office
The Respondent assumed that the mailing address was in
error and asked the Union for a more current address if
possible The letter further stated that even though it
was past the 5 days the Union was aware that the Re
spondent was not enforcing the 5 day period in which
any striking employee must report to be able to return to
work
The uncontroverted evidence and the business records
show that 195 employees returned to work as directed
on November 27 An additional five employees reported
to return to work on November 28 and 29 The Re
spondent s processing of the employees on November 27
resulted in 125 employees being placed back on jobs on
that day Tuesday November 28 an additional 45 em
ployees were placed on jobs And on the following day
Wednesday an additional 23 employees were placed on
jobs In addition any employee who presented himself to
the Respondent subsequent to November 29 and offered
to return to work was in fact put to work As Marvin
Miller had stated at the November 20 meeting We
have jobs for all of you and as Attorney Cross had
stated on November 27 All employees who want to
work will have jobs
Analysis and Conclusion
The General Counsel alleged in Case 25-CA-10436
paragraph 7(a)
On or about November 20 1978 and November 27
1978 the employees employed by the Respondent
at the facilities who had engaged in the strike re
ferred to above in paragraph 5 made unconditional
offers to return to their former or substantially
equivalent positions of employment
The General Counsel in brief argues simply that there
was a clear unconditional offer to return to work and the
Respondent s obligations began at the moment such offer
was made
Although not controlling it is a factor to be consid
ered that the General Counsel stated at the hearing that
the majority of the returning employees had been rein
stated to their former jobs The record evidence is void
of any employees who presented themselves for work
subsequent to November 27 and were denied reinstate
ment for any reason To put it another way the Re
spondent has accepted any offer from any employee or
group of employees at any time since November 27 to
return to work and has in fact placed the employees in a
work status
The Respondent argues that there is no unconditional
offer since Moxley conditioned the offer to return on
behalf of the striking employees on the inclusion of the
19 prior discnminatees in the previous Keller case The
Respondent is apparently basing this argument on the
fact that only some of the alleged discrimmatees in the
prior Keller case were found by the Board in other in
stances their discharges were upheld by the Board The
record evidence discloses that several of the discnmina
tees in the prior Keller case were offered reinstatement
by the respondent when the administrative law judge
issued his decision and several others were offered rein
statement when the Board order issued A total of 13 dis
cnminatees out of 19 were offered such reinstatement by
the Respondent The record also discloses that several of
the discrimmatees found by the Board are still being op
posed by the Respondent in the Circuit Court In any
event the original allegations in the prior Keller case
listed 22 discriminatees Between the administrative law
judge and the Board there were 19 discnminatees found
Moxley in his stated offer to the Respondent on Novem
ber 20 specifically said 19 unfair labor practices obvious
ly making reference to the discnminatees found by the
Board during the course of the strike
I conclude that it would be unconscionable if the
Board were to consider an offer for striking employees
to return to work which included discriminatees previ
ously found by the Board to be fatal because of their in
elusion Additionally I rely on the fact that the Re
spondent had previously offered reinstatement to 13 of
the 19 to assess the Respondent s argument that the offer
was conditional due to their inclusion The Respondent s
alternative argument that no offer was made but rather a
return to work agreement was made between the parties
is wholly without substance and finds no probative sup
port in the record I find therefore that the offer by in
cluding the 19 discrimmatees as found by the Board pre
viously cannot and does not void the offer to return
made by Moxley on behalf of the striking employees as
sembled at the plant 66
The Board requirement that an unconditional offer to
return at the end of a strike be made before any obliga
tions or liability on the part of respondent attaches is not
based on semantics The Board only requires that the
offer be expressed and be intelligible to the respondent
In any case such as the case at hand the circumstances
necessarily must influence any determination of whether
a proper offer to return to work was made by the strik
ers or on behalf of the strikers I conclude in the cir
cumstances of this case particularly due to the number
of strikers involved the preliminary basis such as the
meeting on November 19 at which the decision to return
66 Several of the prior discnminatees were in fact strikers or had as
sumed the status of a striker prior to the application to return to work
KELLER MFG. CO . 807
to work was made, the mobility of the strikers in terms
of changing their address and thereby not being readily
available to the Union, that Moxley's offer to return was
as express as it could be. Many offers to return are deter-
mined to be unconditional offers to return based on the
circumstances of what takes place when the employees
are presented for reinstatement. There is no magic in the
use of the word "unconditional"; no more than there is
magic in the use of the word "conditional." The nature
of the offer depends on its acceptance and implementa-
tion. There are some cases where the respondent's under-
standing of the offer made on behalf of the striking em-
ployees has some influence on the ultimate determina-
tion If that be the case, then the offer here was certainly
unconditional. The Respondent's underned response,
indeed the admitted response, was that "we have jobs for
all employees who wish to return," and going even
beyond that statement the Employer did in fact honor
any offer to return by any employee made subsequent to
the end of the strike. I, therefore, conclude and find that
the offer made by Moxley on behalf of the striking em-
ployees on November 20 was, in Board parlance, an un-
conditional offer to return and created obligations and li-
abilities on the part of the Respondent to reinstate those
striking employees. Further, I conclude that the Re-
spondent's obligations thereunder must be attenuated by
the circumstances prevailing at the time of the offer. In
excess of half of the Respondent's work force was out on
strike and numerous employees had been hired during
the strike to replace some of the striking employees.
What had been a 2-shift operation before the strike,
during the strike was a 1-shift operation, so that replace-
ment employees were hired to fill positions mostly on
the day shift. Although the Respondent's operation was
not producing at 100-percent capacity of the prestrike
day shift, it was producing with most classifications
filled. Some 60-odd employees had abandoned the strike
during the course of the strike and returned to work
both to their former positions or other positions which
they wished to have. The Teamsters, by failing to give
any prior notification to the Respondent at the end of
the strike, placed the Respondent in an untenable posi-
tion. The Respondent was, during the strike, concentrat-
ing on day production, and the presentation of the em-
ployees, unannounced, at 6 a.m. on November 20,
Monday of the week in which Thanksgiving fell on
Thursday, administratively created a nightmare for the
Respondent. The Respondent's response at the time the
offer was made on November 20, I conclude, was both
reasonable and fair under the circumstances The striking
employees were told at the time to return on November
27 at 4 p.m. and the Respondent would place the em-
ployees back to work. It is apparent from the Teamsters'
action on November 22 in sending a letter specifically
stating the unconditional nature of the offer and attach-
ing a list of employees covered within that offer that the
presentation on November 20 lacked some substance.
Additionally, the presentation of November 20 was
shown to be in substantial error. I do not conclude that
striking employees who make an offer to return to work
must have a complete list of the names of all employees
included in the offer, but I am concluding that in a pro-
duction atmosphere where many classifications are in-
volved, before the employer can intelligently sustain his
obligation to reemploy the employees, he must have
some advanced notice of what work classifications the
employees are returning to in order to fulfill his legal ob-
ligation. Accordingly, I conclude that the Respondent
had, based on the several offers, an obligation to rein-
state, that is, return to work, all the striking employees
who presented themselves on November 27, and thereaf-
ter, including the 19 discriminatees previously found by
the Board.
3. Reinstatement issue
The General Counsel alleged in Case 25-CA-10436,
paragraphs 7(b) and (d), the denial of reinstatement to
striking employees offering to return to work, as follows:
(b) On or about November 27, 1978, and at all times
since, the Respondent has failed and refused, and
continued to fail and refuse, to reinstate the employ-
ees referred to above in subparagraph 7(a), to their
former or substantially equivalent positions of em-
ployment
(d) The Respondent did fail and refuse, and contin-
ues to fail and refuse, to reinstate the employees re-
ferred to above in subparagraph 7(a), and 7(b) for
the reason that said employees had joined or assist-
ed the Union, or engaged in other concerted activi-
ties for the purpose of collective bargaining or
mutual aid or protection and/or had participated in
the strike described above in paragraph 5.
Facts, Conclusions, and Findings
The Teamsters, as previously noted, offered some 565
employees back to work. The Respondent's rework of
the striker list supplied by the Teamsters and, according
to the Respondent's records, reduced that number to 381
Uncontroverted evidence of the Respondent places the
total complement of both plants at 515. The record testi-
mony of the General Counsel's witnesses estimates that
200 to 250 striking employees actually appeared at the
plant for reinstatement following the end of the strike.
The Respondent's testimony shows that 195 employees
were present for reinstatement on November 27, and 5
additional employees presented themselves for reinstate-
ment on November 28 and 29 The actual reinstatement
of 125 employees took place on November 27 On No-
vember 28, 45 more employees were reinstated; and on
November 29, an additional 23 employees were reinstat-
ed. Although the number of employees and returning
strikers estimated by the General Counsel's witnesses is
greater than the Respondent's records show, there was
no real factual dispute. The General Counsel, in addition,
conceded that the majority of the strikers offering to
return were reinstated to their former positions. More-
over, there was no allegation that the Respondent actual-
ly refused to reinstate any striking employee offering
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
himself or herself for reinstatement 67 The stipulations in
the record support the evidence of reinstatement both in
numbers and purpose For example the parties stipulated
that those employees hired during the strike were perma
nent replacements for striking employees The objective
evidence in the record shows that a total of 335 replace
ment employees were hired during the stnke
Albeit several employees testified to their individual
reinstatement there was no testimony which tended to
show anything other than a lawful reinstatement of a re
turning striker Of the striking employees who did testi
fy there was none who in the absence of being reinstat
ed to their former classification was not reinstated to a
substantially equivalent position In addition there was
no evidence of any actual loss of wages except for that
occasioned by unfamiliarity with the machine or the job
assignment causing a time lag before an incentive rate
could be realized In no event was such a time lag shown
to be any more than that occasioned when any employee
begins employment on a task for the first time
The General Counsel s presentation of the reinstate
ment issue was only viable if the strike were found to be
an unfair labor practice strike Notwithstanding he did
argue in brief that any unresolved reinstatement issue
could be a matter left to backpay proceedings citing
Automatic Plastic Molding Co 234 NLRB 681 (1978)
Even if the bypassing of an issue was acceptable the
Automatic case is unapplicable to such a prayer In the
Automatic case the obligation of reinstatement had not at
tached to respondent since the union s offer was condi
tional and the number of strikers had not been litigated
,That is not the situation in the instant case
The Respondent s argument that it had no duty to re
instate and therefore there could be no unlawful refusal
to reinstate is apparently based on what it terms a
return to work agreement and/or its position that the
strikers have no reinstatement rights because the strike is
unprotected fThe General Counsel specifically disavows
existence of a return to work agreement particularly
the failure Of specific performance thereunder Even if
the evidence of the confrontation preceding reinstate
ment on November 27 was not in dispute which is not
the case I would place no more emphasis on the so
called agreement than the General Counsel does 68 The
strikers ceased picketing were offered by their represent
ative to return and the Respondent reinstated all strikers
making application The regularity of the reinstatement
including the time consumed is controlled as a matter of
law not by agreement between the parties My previous
finding that the strike was economic and thereby con
certed activity protected by the Act makes the Re
spondent s alternative argument that the strikers have no
67 The General Counsel represented at the trial of this case that the
allegations on reinstatement were based on a respondent s obligations fol
lowing an unfair labor practice strike If the stnke is economic there has
been no unlawful refusal on the part of the Respondent to reinstate re
turning striking employees Also the record shows that any prior discn
minatees who offered themselves for reinstatement were put to work as
returning strikers
68 The record discloses not only ambiguities but variances rendenng
the agreement unenforceable if it was to be considered
reinstatement rights because the strike is unprotected un
availing
I conclude and find that the Respondent has in ac
cordance with the prevailing case law reinstated all
strikers making an unconditional application to return to
work In so doing the Respondent has returned all stnk
ers to their former position or a substantially equivalent
position In those instances where a replacement occu
pied the striker s former position I conclude and find
that the position was filled by a permanent replacement
and the Respondent has not unlawfully denied any re
turning striker reinstatement to such a position 69 Ac
cordingly I find that the General Counsel has not sus
tamed his burden of proof on the reinstatement allegation
and further that the Respondent has not violated the Act
by its reinstatement of returning strikers
CONCLUSIONS OF LAW
1 The Teamsters is and has been at all material times
herein the exclusive majority representative of all em
ployees of the Respondent for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act
in the following bargaining unit
All production and maintenance employees of the
Respondent employed at its Corydon Indiana and
New Salisbury Indiana facilities exclusive of office
clerical employees all salesmen all professional em
ployees guards and all supervisors as defined in the
Act
2 On March 21 1979 the Respondent did construe
lively discharge employee Billy G Patton and has failed
to reinstate said employee since his discharge to his
former position or a substantially equivalent position be
cause he engaged in protected concerted activity thereby
violating Section 8(a)(1) and (3) of the Act
3 The strike which began on May 13 and lasted until
November 27 was an economic strike and was protected
concerted activity
4 The striking employees through their union repre
sentative Moxley made an unconditional application to
return to work on November 27 and were reinstated by
the Respondent to their former position or a substantially
equivalent position of employment
5 The Respondent has a continuing obligation to bar
gain collectively with the chosen representative of its
employees pursuant to Section 8(d) of the Act
6 The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec
non 2(6) and (7) of the Act
7 The General Counsel has failed to prove by a pre
ponderance of the evidence the allegations in the several
complaints alleging interrogations threats of discharge
reprisals for strike activity discriminatory discipline dis
criminatory discharges discriminatory withholding of
vacation pay discriminatory refusal to reinstate striking
employees and refusal to bargain in good faith
69 Latdlaw Corp supra
KELLER MFG CO 809
REMEDY
Having found that the Respondent has engaged in cer
tam unfair labor practices I find it necessary to order the
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poll
cies of the Act
The Respondent having constructively discharged
Billy G Patton for discriminatory reasons I find it nec
essary to order it to offer him full reinstatement to his
immediately former position or if that position no longer
exists to a substantially equivalent position with back
pay computed on a quarterly basis and interest thereon
to be computed in the manner prescribed in F W Wool
worth Co 90 NLRB 289 (1950) and Florida Steel Corpo
ration 231 NLRB 651 (1977) 70 from March 21 1979
the date of his constructive discharge to the date of
proper offer of reinstatement
[Recommended Order omitted from publication ]
7 ° See generally Isis Plumbing Co 138 NLRB 716 (1962)
(