Larand Leisurelies, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1976

222 N.L.R.B. 838 (N.L.R.B. 1976)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Larand Leisurelies,- Inc. and Sue Upchurch , Lavon V.
Morrow, Clarie Foster, Clara Sue Stockton, Donna
Shelton and Clyde Denney
Larand Leisurelies , Inc. and International Ladies'
Garment Workers' Union , AFL-CIO, Petitioner.
Cases 9-CA-8239-1 through -6 and 9-RC-9933
February 11, 1976
DECISION, ORDER, AND CERTIFICATION
- OF REPRESENTATIVE
- BY MEMBERS FANNING, JENKINS, AND PENELLO
On May 16, 1975, Administrative Law Judge John
M. Dyer issued the attached Decision in this pro-
ceeding. Thereafter, the Petitioner and Charging Par-
ties filed exceptions and a supporting brief. The Re-
spondent filed cross-exceptions with a brief in
support of cross-exceptions and an answering brief.
Thereafter, counsel for the Petitioner and Charging
Parties filed an answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
On April 5, 1973, an election was held at
Respondent's facility .2 On or about April 26, 1973, a
strike began there- Approximately 155 employees
went on strike, while about 102 employees continued
to work.3 Thereafter, Respondent hired more em-
ployees.
Pursuant to the Regional Director's Direction of
Second Election, a second election was held at
Respondent's facility on January 22, 1974; the eligi-
bility cutoff date was December 15, 1973. The tally
was 118 for and 55 against the Petitioner; there were
171 challenged ballots. The Regional Director ruled
' Inasmuch as the record and briefs adequately present the issues and the
positions of the parties , we hereby deny Petitioner's request for oral argu-
ment
Respondent has requested that the record be reopened so that it might
adduce evidence as to the return to work of strikers in June 1975. As events
in June 1975 would not be relevant or material to our decision herein, we
hereby deny Respondent 's motion.
2 The Union won the election . However , pursuant to timely objections
filed by Respondent , the Regional Director issued a Second Supplemental
Decision, Order, and Direction of Second Election, setting aside that elec-
tion and directing that a second election be held
3 The Board has previously found that the stake is an unfair labor prac-
tice strike . Larand Leisurehes, Inc., 213 NLRB 197 (1974), enfd . 523 F 2d
814 (C.A 6, 1975)
on numerous challenges and set for hearing the is-
sues raises by other challenges . In his Decision, the
Administrative Law Judge ruled on the challenges
before him.4 Of these, the most significant number
involved the approximately 108 5 votes challenged
by the Union as votes by replacements for unfair
labor practice strikers.
Respondent contends that these 108 employees are
eligible to vote because they are additional employ-
ees rather than strike replacements . Respondent ar-
gues that , but for the strike , its business would have
increased sufficiently, as of the eligibility cutoff date,
to employ a work force including both the striking
employees and those employees hired after the strike
began.
The Administrative Law Judge found, in agree-
ment with Respondent, that those employees hired
after the commencement of the strike should be
treated as additional employees eligible to vote in the
election.
We disagree. The Board has long held that replace-
ments for unfair labor practice strikers are not eligi-
ble to vote in an election.' In assessing the status of
those hired subsequent to the commencement of the
unfair labor practice strike, we shall not resolve is-
sues based on forecasts or speculation as to what
might have occurred had there been no unfair labor
practices and no strike, but, rather, in the light of
what actually happened.
At the commencement of the strike, Respondent's
payroll for the bargaining unit included approxi-
mately 257 employees. About 155 employees went
out on strike, and about 102 employees remained on
the job. Between the onset of the strike and the eligi-
bility date for the second election held January 22,
1974, approximately 108 new employees were hired.
It is clear that the new hires performed the same jobs
with the same equipment as the strikers.
Viewing the issues in light of the events as they
occurred because of Respondent's unfair labor prac-
tices and not as they might have occurred absent
4 Respondent has excepted to the Administrative Law Judge's conclusion
that the challenge to the ballot of employee Burnett should be sustained on
the ground that Burnett is a guard within the meaning of the Act. As to
guard status , the Board considers the nature of the employee's duties to be
controlling over the percent of working time spent on guard duties See, e.g ,
West Virginia Pulp and Paper Company (Horde & Dauch Division, Detroit
Plant), 140 NLRB 1160 (1963), and Broadway Hale Stores, Inc, d/b/a The
Broadway, 215 NLRB No. 2 (1974) In this case , while it was not clear that
Burnett spends more than 50 percent of his time performing guard duties, it
was clear that Burnett was armed , had the power of arrest, and spent a
significant portion of his time in a guard position . Accordingly, we affirm
the Administrative Law Judge 's conclusion that Burnett is a guard within
the meaning of the Act and that the challenge to his ballot should be sus-
tained
5 The Administrative Law Judge referred to the challenges in this catego-
ry as number 114. However , it appears from the Regional Director's second
Supplemental Decision that the correct number is 108
See Tampa Sand & Material Company, 137 NLRB 1549 ( 1962); Lock
Joint Tube Company, 127 NLRB 1146 (1960).
222 NLRB No. 131
LARAND LEISURELIES
Respondent's unfair labor practices, we find that the
108 new hires were strike replacements and ineligible
to vote in the election. Respondent's nonstriking em-
ployee complement, prior to the election eligibility
date of December 15, 1973, never exceeded its pre-
strike employee complement, and apparently the
number of new hires never exceeded the number of
strikers. Under these circumstances, none of the 108
new hires can be deemed "additional employees" eli-
gible to vote in the election. At best, only those new
hires employed after Respondent returned to its pre-
strike employee complement could properly be
found to be additional employees rather than re-
placements. What might have occurred absent the
unfair labor practices and the strike is not relevant or
material to the resolution of the issues in this case.
Accordingly, finding the- 108 employees in question
to be replacements for unfair labor practice strikers,
we shall sustain the challenges to their ballots. Inas-
much as the remaining challenges are insufficient to
affect the results of the election, we shall certify the
Petitioner.'
THE REMEDY
We have affirmed the Administrative Law Judge's
conclusion that employees Upchurch, Foster, Stock-
ton, Morrow, and Shelton were discharged in viola-
tion of Section 8(a)(1) and (3) of the Act. However,
we find, in the record before us, no refusal by Re-
spondent to reinstate these employees. It is the
Board's settled policy that employees who were dis-
charged while on strike must indicate abandonment
of the strike and a willingness to return to work in
order to establish their rights to their jobs and re-
sumption of wages, unless there is a showing that
such application would have been futile. In this case,
and in accord with our decision in Valley Oil Co.,
Inc., 210 NLRB 370 (1974), we shall modify the rem-
edy herein to conform with the Board's established
policy.' We shall order Respondent to notify the dis-
charged strikers immediately that each will be rein-
stated upon making proper application. We shall
modify the recommended Order to provide that
backpay shall commence for each striking employee
commencing 5 days following his unconditional offer
to return to work.
7 Inasmuch as the sustained challenges, including those sustained by the
Regional Director, those sustained by the Administrative Law Judge, and
those 108 sustained by our Decision herein, leave a number of challenges
insufficient to affect the results of the election , we shall certify the Peti-
tioner Further, in light of our Decision herein, we need not reach the issues
raised by the Petitioner's objections
8
Member Fanning, for reasons cited in his dissent in Valley Oil Co,
supra, would find that the five discharged employees are entitled to backpay
from the date of discharge until the date they receive a valid offer of rein-
statement.
ORDER
839
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, La-
rand Leisurelies, Inc., Monticello, Kentucky, its offi-
cers, agents, successors, and assigns , take the action
set forth in the said recommended Order as modified
herein:
1. Cease and desist from:
(a) Discharging employees in order to discourage
these employees and other employees-from being or
becoming union members and from supporting
union activities.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist the International Ladies' Gar-
ment Workers' Union, AFL-CIO, to bargain collec-
tively with representatives of their own choosing, and
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Immediately notify Sue Upchurch, Clara Sue
Stockton, Lavon V. Morrow, Donna Shelton, and
Clarie Foster that it has no objection to their rein-
statement, and thereafter, upon their unconditional
application therefor, offer them reinstatement to
their former jobs or, if such jobs are not available, to
substantially equivalent jobs, and make them whole
for the period commencing 5 days after the date of
any such application for any loss of pay they may
have suffered by reason of discrimination against
them by payment to them of a sum of money equal
to the amount they normally would have earned as
wages, in the manner set forth in the section entitled
the "Remedy."
(b) Upon their unconditional application for rein-
statement, offer the striking employees immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, any replace-
ments, and make them whole for any loss of pay they
may have suffered for the period commencing 5 days
after the date of any such application in the manner
set forth in the section entitled the "Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its Monticello, Kentucky, plant and of-
fice copies of the attached notice marked "Appen-
dix." 9 Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Ladies' Gar-
ment Workers' Union, AFL-CIO, and that, pursuant
to Section 9(a) of the Act, the foregoing labor organi-
zation is the exclusive representative of all the em-
ployees in the following appropriate unit for the pur-
poses of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment:
All of the production and maintenance em-
ployees of the Employer employed at this facili-
ty at Monticello, Kentucky, including all ship-
ping and receiving employees, quality control
employees, cutting department employees, sew-
ing room employees, pattern department em-
ployees, finishing department employees, in-
cluding examiners, maintenance department
employees, plant clerical employees, cutters, and
the head mechanic, but excluding all office cleri-
cal employees, professional employees, guards,
all foremen, floorladies, traffic manager, and all
other supervisors as defined in the Act.
9In the event that this Order is enforced by a Judgment of a United
States Court of Appeals,'the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which the Company, the Union,
and the General Counsel of the National Labor Re-
lations Board participated and offered evidence, the
National Labor Relations Board found that -we vio-
lated the law and ordered us to post this notice and
we intend to carry out the order of the Board and
abide by the following:
WE WILL immediately notify Sue Upchurch,
Clara Sue Stockton, Lavon V. Morrow, Donna
Shelton, and Clarie Foster that we have no ob-
jection to their reinstatement, and upon their
unconditional application for such, offer them
reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
jobs, and WE WILL make them whole by paying
them any wages they may have lost because we
discharged them unlawfully, commencing 5 days
after date of any such application.
WE WILL offer, upon their unconditional ap-
plication, to reinstate the striking employees to
their former jobs or, if those jobs no longer exist,
to substantially equivalent jobs, dismissing, if
necessary, any replacements, and make them
whole for any loss of pay for the period com-
mencing 5 days after the date of any such appli-
cation.
WE WILL NOT discharge, lay off, replace, or re-
fuse to hire or rehire any employee in order to
try to discourage our employees from being or
becoming members of the International Ladies'
Garment Workers' Union, AFL-CIO, from sup-
porting union activities, or from going on strike.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise
of their rights to self-organization, to form labor
organizations, to join or assist the International
Ladies' Garment Workers' Union, AFL-CIO, to
bargain collectively with representatives of their
own choosing, or to engage in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or to refrain
from any or all such activities.
All our employees are free to become or remain
union members.
LARAND LEISURELIES, INC.
LARAND LEISURELIES 841
DECISION
STATEMENT OF THE CASES
JOHN M. DYER, Administrative Law Judge: The individu-
als named in the caption above, herein collectively called
the Charging Parties, filed charges against Larand Leisure-
lies, Inc., herein called Respondent, the Company, or La-
rand, on various dates in January and February 1974, al-
leging that Respondent had violated Section 8(a)(1) and (3)
of the National Labor Relations Act by discharging them
because of their union activity in support of a strike against
the Company. On August 28, 1974, an order consolidating
cases, consolidated complaint, and notice of hearing was
issued by the Regional Director for Region 9, alleging in
addition to the standard service and jurisdictional require-
ments that Respondent had discharged the Charging Par-
ties on various dates in the fall of 1973 because of their
membership in and activities on behalf of the Union. The
hearing was thereafter postponed several times and on Oc-
tober 11, 1974, a third supplemental decision, order direct-
mg hearing, order consolidating cases, order transferring
case to the Board, and notice of hearing was issued by the
said Regional Director consolidating Case 9-RC-9933 for
hearing with the above-styled unfair labor practice cases.
This lengthy October 11, 1974, document deals with chal-
lenged ballots in a second election held on January 22,
1974, and with objections to that election. Certain findings
on some challenged ballots were made by the Regional
Director and other issues were left for my determination in
the consolidated hearing.
In a prior proceeding Administrative Law Judge Paul
Weil found that Respondent had violated the Act by issu-
ing written reprimands to its employees, granting or deny-
ing them benefits in order to interfere with their union ac-
tivity, removing handbills and other paraphernalia from
them, warning them that they could be laid off or punished
for engaging in union activity, and by taking pictures of
employees on the picket line, but did not find that the
strike which began on' April 26, 1973, was an unfair labor
practice strike. The Board's Decision and Order agreed
with the findings of violations of Section 8(a)(1) and (3)
and reversed Administrative Law Judge Weil and found
that the April 26, 1973, strike was caused by the April 13,
1973, discharges of two employees and that the strike was
an unfair labor practice strike. Respondent has petitioned
for review of this decision to the United States Court of
Appeals for the Sixth Circuit.
The Union filed the petition in the above-styled repre-
sentation case and following a March 6, 1973, Decision
and Direction of Election, an election was conducted on
April 5, 1973, which the Union won. Respondent filed ob-
jections to the election and the Regional Director, follow-
ing a hearing and report, on December 20, 1973, issued a
second Supplemental 'Decision, Order, and Direction of
Second Election, setting aside the first election and or-
dering a second election which was conducted on January
22, 1974. Of approximately 390 eligible voters 118 cast
votes for the Union and 55 against, and 171 ballots were
challenged, which amount is sufficient to affect the results
of the election. Following the election the Union filed time-
ly objections to conduct affecting the results of the elec-
tion.
There are several categories of challenged ballots as set
forth in the Regional Director's decision. He made deter-
minations as to the eligiblity of some categories of employ-
ees and those are not now in issue. The Regional Director
referred for hearing the question of the eligibility of the
alleged discriminatees, the eligibility of 3 employees al-
leged to be guards, 1 employee who alleged she was not
called to work, and a group of 114 employees challenged
by the Union as being temporary strike replacements, with
the Union stating that since the Board found the strike to
be an unfair labor practice strike these "replacements"
were not entitled to vote. Respondent maintains that these
114 employees were all hired as permanent employees who
would continue to be employed when the strikers returned
since Respondent says it has sufficient need for all as em-
ployees.
Indicating that there has been a shift in Respondent's
thinking is the seemingly contrary action it took at various
times between May and September 1973 in sending letters
to 36 strikers indicating they had been permanently re-
placed. These actions occurred prior to the Board's or Ad-
ministrative Law Judge Weil's decision and no further such
letters were issued, although the strike was found to be
economic. Of the employees alleged to have replaced the
strikers, there were only 10 still on Respondent's payroll by
the time of the second election, due to turnover, etc.
Union's Objection 1 is that Respondent discharged the
six employees alleged in the complaint because they en-
gaged in activities protected by the Act. Resolution of the
unfair labor practice issues will resolve this objection. The
second objection is that the Employer sent notices to some
employees advising them that they had been permanently
replaced (referred to above). Objection 3 was withdrawn at
the hearing and Objection 4 alleges that the Employer pho-
tographed employees engaged in protected activities in or-
der to discourage them from supporting the Union.
The Union relies mainly on the findings of Administra-
tive Law Judge Weil in the prior case to support this last
objection and Respondent answers that the conduct of tak-
ing pictures immediately after the, strike began in, April
would have had no effect on the election held in the follow-
ing January.
Basically the questions presented in this case are whether
the Charging Parties were guilty of such misconduct at the
picket line as should debar them from their status as em-
ployees of Respondent and whether the group of 114 em-
ployees voting under challenge are strike replacements or,
as Respondent contends, are permanent employees entitled
to vote.
The striking employees have made no offer, insofar as I
know at the present time, to return to work and the strike is
still in progress. If the challenges to the group of 114 em-
ployees are overruled and those ballots opened and count-
ed, the question becomes whether the Union wins the elec-
tion at that point, and if not, then the validity of the
Union's objections would determine whether the second
election is set aside.
The hearing in this matter was held on December 4, 5,
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 6, 1974, and January 13, 14, and 15, 1975. The parties
were afforded full opportunity to appear, to examine and
cross-examine witnesses, and to argue orally. General
Counsel, Respondent, and the Union all filed extensive
briefs which have been carefully considered.
In summary I have found that with the exception of
Clyde Denney the discharged employees should not be de-
barred from their employment with Respondent and
should be reinstated. As to the challenges I have found that
Respondent demonstrated its capability and that it would
have had sufficient need to employ it's in-plant employees
and the 170 or so strikers and therefore that its in-plant
employees are not permanent or temporary strike replace-
ments but are needed employees. I will therefore recom-
mend that the challenges to the ballots of the 114 employ-
ees be overruled and their ballots opened and counted. The
Union's attempt to show that the Employer could not have
had both its in-plant employees and its strikers employed
in December 1973 and January 1974 was narrowly based
and did not consider, all the aspects of future production
available to Respondent. Similarly having taken the posi-
tion that it can employ some 400 employees with its order
potential once the strike is ended and it no longer needs
subcontractors, it may be time to put enmity aside and put
the pudding to the proof.
On the entire record in this case, including both my eval-
uation of the reliability of the witnesses, based on the evi-
dence received, and my observation of their demeanor, and
upon all the evidence received, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a Kentucky corporation engaged in the
manufacture of women's and children's wearing apparel at
its plant located at Monticello, Kentucky. During the past
year Respondent sold and shipped to points directly out-
side the State of Kentucky goods valued in excess of
$50,000.
Respondent admits, and I find, that it is, and has been at
all times material herein, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Respondent admits, and I find, that the International
Ladies' Garment Workers' Union, AFL-CIO, the Union
herein, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Jack Brownstein, president of Respondent, began in
business with his father in Waterbury Garment Company,
herein called Waterbury, a number of years ago in Water-
bury, Connecticut. Waterbury, which started in 1921, did
its own manufacturing and selling but ceased acting as a
manufacturing company on January 1, 1972, when its
manufacturing capabilities were transferred to a new cor-
poration known as Waco Corporation, which acts as a sub-
contractor for other manufacturers but is owned essentially
by the same owners as Waterbury and operates in Water-
bury, Connecticut.
During the years Waterbury was in business it suffered
some reverses and had some upturns and its founder,
Brownstein's father, eventually turned the operation of the
business over to Jack Brownstein. Waterbury had suffered
some difficulties with its labor supply through the years
and in 1967 and 1968 Brownstein, believing the business
should be expanded, began looking for an area with a large
labor supply and for other incentives which would allow
him to establish a large manufacturing plant. In 1969, he
finally settled on Monticello, Kentucky, after receiving cer-
tain promises from the town, including the granting of a
site of some 10 acres in an industrial development area to
locate the plant. Initially the Company started business in
a small building in the center of Monticello with two or
three employees and gradually built up. By the time Re-
spondent had a nucleus of approximately 100 employees, it
was 1971 and Brownstein proceeded with the erection of a
60,000-square foot building in the industrial plant area. By
the time Respondent moved into its new building in Au-
gust 1971 it had approximately 200 employees. Brownstein
planned to use the new Larand plant for all of the manu-
facturing which Waterbury as a sales agent sold, and, as
stated previously, in January 1972 Brownstein stopped
Waterbury's manufacturing operations and turned its man-
ufacturing abilities over to Waco.
Primarily Waterbury sells women's and children's night-
wear to mail order and national syndicate chains, such
as Montgomery Ward, Sears and Roebuck, Gamble Cor-
poration, Spiegel, W. T. Grant Company, and Belk De-
partment Stores. In 1972, Larand produced over 118,000
dozen garments of a total of 130,000 dozen produced for
Waterbury. The balance come from subcontractors and
Waco.
In doing business with these customers who use mail
catalogs, the "season" differs somewhat from the normal
"season" for manufacturers producing this type of goods.
The sales are made several months earlier and deliveries
start earlier so that garments can be on hand when the mail
catalogs go out. As an example, merchandise for fall is
shown and orders are solicited in the previous November
and delivery of the merchandise starts in May and June;
spring goods are shown and orders solicited in May and
June and delivery starts in December for the following
spring line. To make it more concrete, business for the
spring of 1973 was solicited by Brownstein, who acts as the
main salesman for Waterbury, in May and June 1972. Af-
ter getting out the last of the Christmas goods, production
for the spring line would normally start sometime in De-
cember or January. The year 1972 was the biggest sales
year that Waterbury had ever had, and Brownstein was
anticipating the best spring ever. Spring sales for undergar-
ments is usually poor. Brownstein had set a sales goal for
1973 of $5 million and fully anticipated reaching that.
In 1972, the number of employees at Larand reached 340
and although there was a downturn in the first part of
January 1973, the employment figure was back up to 300
by March 5. When the strike took place on April 26, the
number of employees still at work in the plant dropped to
LARAND LEISURELIES 843
102 with approximately 170 employees going out on strike.
Since the strike began, the figure for employees in the plant
has varied and has reached over 200.
The Company's plant is located on a small two-lane
road, called Airport Road which runs off of a main high-
way and deadends at what was the local grass-strip airport.
Coming from the highway the plant is located several hun-
dred yards from the highway on the left and the parking lot
which has an entrance and exit some 30 feet apart is locat-
ed adjacent to the plant closer to the main highway.
In the first days of the strike, a number of strikers gath-
ered near the plant parking lot and, as is detailed in the
prior case, pictures were taken of the strikers by Respon-
dent.
In May 1973, a temporary restraining order was issued
by a local court, allowing only two pickets to patrol at the
entrance and at the exit with the remainder of the strikers
banned from coming any closer to the plant than the open
field area across the road from the plant. The Union set up
a large canopy-type tent across from the plant to serve as a
shelter from the sun. Strikers who were not on picket duty
stayed on the far side of the road from the plant and
parked their cars either parallel to the road or in the field.
The company work shift was from 7 a.m. until 3:30 p.m.
and workers would start arriving around 6:30 a.m. with the
heaviest concentration around 6:45 a.m. The Company
had operated a second shift which it stopped in early April
1973, with the shift employees being allowed to take jobs
on the day shift.
The pickets had shifts to patrol the plant entrance and
exit starting in the morning from 6 to 9, 9 to 12, 12 to 3,
and 3 to 6 and with night shifts running throughout the
night.
Working employees during the strike would drive to
work singly or in car pools and drive down Airport Road
and make a left turn into the parking lot entrance. From
May through October 1973, the entering cars would nor-
mally stop while the two pickets would cross in front of it
and then proceed through. The same procedure was usual
when cars left the parking lot. There was testimony that on
some occasions the pickets would make more than one trip
in front of a car before it could enter the parking lot. In
any event this procedure meant that at times there would
be a line of five or so cars waiting to enter the parking lot
and they would be on the right-hand side of the road next
to the strikers and a short distance from the union tent.
The situation remained this way until October 1973, when
the company sought and obtained a further restraining or-
der which removed the mass of strikers from across the
road and allowed them to congregate near the main high-
way and changed the picketing provision to allow three
pickets at the parking lot entrance and exit.
B. The Discharges
1. On August 22, 1973, John W. Preston , Respondent's
personnel manager, signed and sent a letter to Clyde Den-
ney.[
The letter on Larand stationery is as follows.
Dear Mr. Denney.
Former Personnel Manager Preston testified that Den-
ney was discharged for throwing bottles at a car, after
Respondent's attorney, Terry, and he interviewed Mr.
Keaton at whose car the bottles were thrown and the two
` jamtor-watchmen " who witnessed the events . Preston tes-
tified that they were convinced that Denney had been
throwing bottles at Keaton's car which had just been driv-
en onto the parking lot between 5:30 and 6 a.m. as Keaton
was coming to work, and Preston determined to terminate
Denney.
George Kidd who was a guard at the plant testified that
on the morning of August 13, between 3:30 and 4 a.m., he
saw Denney and three other men arrive at the strikers' area
and remain in the vicinity. Keaton arrives daily before the
other employees to prepare for spreading and cutting the
cloth and about 5:30 a.m. Kidd saw Denney and three
other men throw bottles at Keaton's car as Keaton was
driving into the parking lot. Besides rough language, Kidd
heard one of the four say "Lets get the s.o.b." and saw
three men start towards the parking lot. Kidd who is also a
county patrolman and was armed went out to meet them
and Denney then yelled to Kidd that they would get him
some other time. Kidd testified that he saw some eight or
nine beer bottles thrown with Denney throwing at least
three, and added that he felt Denney did not run away
because Denney was too intoxicated to do so.
Clyde Denney testified that on August 12, 1973, he met a
group of men who were out fox hunting and running their
dogs and stayed with them drinking beer until around 3
a.m., when he suggested they go to the picket line. He
drove his car and three others went with him, and when
they got there they just fooled around. After a while Den-
ney heard some glass break and saw some people go to-
wards the parking lot while Keaton was driving in. Denney
testified that he didn't know what his three friends were
doing but he heard some hollering and heard someone say
lets go get them and his friends went onto the parking lot
and were running around on it. Shortly thereafter the po-
lice came and took him and two others to jail and his wife
paid a fine for public drunkenness and littering the proper-
ty. Denney denied that he had thrown any bottles at Kea-
ton.
Denney was somewhat evasive in his testimony and al-
though originally denying that he had any beer with him
when he got to the picket line, finally said there might have
been some beer in his car. Although Denney denies throw-
ing the bottles at Keaton or Keaton's car, under all the
circumstances I do not credit Denney's denials. I find that
the events took place substantially as George Kidd testi-
fied.
This leaves the question of whether Denney's actions
were so serious as to warrant his termination . It would
seem clear that a driver of a moving car could be startled
Investigation has revealed on or about August 13, 1973 you commit-
ted various acts of misconduct on the picket line near our plant prem-
ises
These acts consisted of throwing bottles onto the parking lot and at
the automobile of an employee who was attempting to come into work.
Acts of this nature , which endanger lives and property of employees
and of this plant cannot and will not be tolerated.
Therefore , as a result of these acts of misconduct , your employment
with Larand Leisurehes has been terminated , effective immediately.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficiently by having beer bottles thrown at his car and
either hitting or dust missing it, that his reactions might
reasonably cause him to have an accident which would
endanger both himself and others . Further, in view of the
statements that people were going to get Keaton and that
people (not pickets except possibly for Denney ) did go on
or towards the parking lot, and that Denney was the insti-
gator of this visit in the middle of the night to the picket
line, I conclude that the object of this visit was to harass
and scare Keaton who habitually came to work around
5:30 a.m. to prepare his work as a cloth spreader and cut-
ter. I therefore conclude and find that under these circum-
stances the discharge of Clyde Denney is justified and I
would dismiss his charge and the complaint allegation con-
cerning him.
2. On October 9, 1973, Respondent sent five letters to
the other five alleged 8(a)(3)'s and discharged them for
"various acts of misconduct on the picket line near our
plant premises ." In each case particular acts alleged to
have been done by the 8(a)(3) were further set forth in the
letter. In regard to Sue Upchurch , Preston stated:
These acts consisted of throwing eggs onto the park-
ing lot and at the automobiles in the parking lot. Acts
of this nature, which endanger lives and property of
employees and of this plant cannot and will not be
tolerated.
The letter went on to notify her that she was terminated
immediately.
In his testimony Preston stated that Sue Upchurch was
discharged for throwing eggs onto the parking lot. He testi-
fied that he saw her lean over the roof of her car which was
parked parallel to the road across from the plant and throw
eggs in the direction of the parking lot. He did not see
where eggs thrown by her landed and did not see them hit
any car in the parking lot, but did later observe broken
eggs on the blacktopped parking lot. She was discharged
solely for throwing eggs in the direction of the parking lot.
The Company produced testimony by employee Eula K.
Cross (which was corroborated to an extent by Robert
Elam's testimony) to the effect that Upchurch and one
other employee threw eggs at her car, but Cross did not
notify the Company of that until after she returned to work
in January 1974. As noted above, such asserted activity
was not the reason or even part of the reason for
Upchurch 's October 1973 discharge . This testimony is
therefore irrelevant to the discharge issue here.
Upchurch testified specifically that she did not throw
eggs or bottles at anyone or at the plant or into the parking
lot. She stated that she saw egg shells and broken glass on
the parking lot but did not know who threw the eggs or the
bottles. Wanda Marcum who was the picket captain at that
time testified that she did not see Sue Upchurch throw
anything.
Considering Preston's testimony as to the reason for
Upchurch 's discharge (and I am not convinced that
Preston's testimony is correct and his identification of Up-
church accurate), I conclude that the act of throwing one
or two eggs in the general vicinity of a parking lot and not
at any moving vehicle, and with the cars being some 50 to
70 feet away from where Preston said he saw Upchurch,
does not properly come within any reasonable definition of
endangering lives and property . Therefore I conclude that
the discharge of Upchurch was-not warranted under the
circumstances and find that such action by Respondent
violated Section 8(a)(1) and (3) of the Act.
3. In regard to Clarie Foster, Personnel Manager
Preston 's letter stated that:
These acts consisted of throwing rocks at the automo-
bile of an employee who was attempting to come into
work. You also opened a car door of an employee who
was attempting to come into work. Acts of this nature,
which endanger lives and property of employees and
of this plant cannot and will not be tolerated.
Personnel Manager Preston testified that after he saw
Foster throw a rock (not rocks as stated in the letter) which
hit Freeman Martin 's car while Martin was on his way into
work , he discussed it with Attorney Terry and decided to
discharge her. In regard to the car-door incident he stated
that he did not witness the event but put it in the discharge
letter. Preston knew of the later trial concerning the car-
door event and that Foster had been found not guilty.
Freeman Martin was not produced nor was there any
testimony as to any damage done to his car or whether it
was moving or standing still, etc.
In regard to the car door incident , employee Mallie Cris-
well testified that as her daughter was driving her and an-
other worker into the plant , they were prohibited from en-
tering by pickets Foster and Belva Longsworth, who
crossed back and forth in front of the car several times,
and that Foster came around and opened the driver's car
door and said don't hit me and that was all that was said.
Criswell later changed her testimony and stated that other
things were said and that her daughter had said that she
wouldn 't dirty her hands with Foster.
Foster testified that as she was crossing in front of the
car the fender or bumper grazed her and she went around
to the side door and may have opened the door and told
the driver not to hit her again, or she would be forced to
pull her out of the car. The driver replied that she wouldn't
dirty her hands with her and then proceeded on into the
plant . Foster was later served with a warrant issued at the
behest of the Criswells and a trial took place in a local
court . All parties including Foster and Longsworth, the
two Criswells , and the other occupant of the car testified.
Foster was found not guilty of making any threat to or
assault upon the Criswells . Belva Longsworth corroborated
the version of the events given by Foster.
In regard to Freeman Martin , Mrs. Foster testified that
on the morning of October 1 a lot of rocks and eggs had
been thrown but denied that she threw anything. She testi-
fied that she was sitting back beside the tent on a stump
playing with Belva Longsworth 's baby. Longsworth testi-
fied that she saw Freeman Martin's car go by while she was
there with Foster and that neither she nor Foster threw
anything or were in a position to do so. Mrs. Longsworth
said she knew Freeman Martin 's car from the fact that it
had out-of-state license plates but did not see anything hit
the vehicle at the time.
In regard to the car-door opening incident , I credit the
version of the event as testified to by Foster and Longs-
LARAND LEISURELIES 845
worth. Foster appeared to make genuine efforts to testify
honestly and clearly, and similarly Longsworth impressed
me as a good witness. The contradictions in Mallie
Criswell's testimony and her bias deprecated her credibili-
ty. In conjunction with the local court, I conclude that no
assault or threat was made by Foster to the Criswells.
In regard to Freeman Martin's car it is possible that Pre-
ston may not have properly identified a rock thrower.
Viewing a person in a crowd across a street behind a line of
parked cars does not give one a very good view of someone
bending down and picking up a rock as Preston claimed to
see. I credit the testimony of Foster and Longsworth that
Foster did not throw anything at Freeman Martin's car on
that day and in fact was not in position to do so when
Martin's car was going past into the parking lot.
I therefore conclude and find that the discharge of Clarie
Foster for the reasons cited by Respondent was improper
and under the circumstances violated Section 8(a)(1) and
(3) of the Act.
4. John Preston testified that Clara Sue Stockton was
discharged for throwing an egg which hit Imogene Burnett
Worley's car. The discharge letter sent to Mrs. Stockton
said:
These acts consisted of throwing eggs onto the parking
lot and hitting automobile of an employee who was
attempting to come into work. Acts of this nature
which endanger fives and property of employees and
of this plant cannot and will not be tolerated.
Preston testified that he was standing at the front door of
the plant around noon when he saw Stockton come run-
ning out from under the union tent with her arm drawn
back and threw an egg which hit Worley's car. He testified
that he saw Stockton's face clearly but did not remember
what she was wearing. He said he saw the egg hit and
splatter on the rear window on the passenger side of the car
even though the car was coming down the road to turn into
the parking lot and was between him and the tent. In re-
gard to the word eggs being used in the letter, Preston
stated that Keaton and Elam saw Stockton throw more
than one egg. Elam corroborated Preston stating that he
saw Stockton run out from under the tent and hit Worley's
car with an egg on the passenger side.
Mrs. Worley, although subpenaed by Respondent, did
not honor the subpena. The only known damage caused
would be the necessity of washing the egg off the window
and car.
Mrs. Stockton testified that she was with Sue Upchurch
and Darlene Ramsey on that day and when she returned to
the plant around noontime she went in the tent and picked
up the movie camera and was using it to shoot pictures of
employees standing outside on the plant premises making
noise and gestures. She denied throwing anything.
Again I have great hesitancy in crediting Preston's iden-
tification of an egg thrower in those circumstances. It
would seem nearly impossible for a person operating a
movie camera to also throw an egg. But even if the event
did occur, I do not consider the throwing of an egg against
the rear passenger side window of a car to be of the catego-
ry of acts encompassed in the phrase "endangering lives
and property." It is true that something thrown against a
car may startle a driver but it was acknowledged that most
of the people driving in this vicinity drove very slowly. A
splattered egg while messy and somewhat annoying to
clean up certainly is not of such a grievous nature as to
warrant Respondent's imposition of the greatest amount of
discipline it could impose; namely, discharge.
I therefore conclude and find the discharge of Clara Sue
Stockton under the circumstances present here is violative
of Section 8(a)(1) and (3) of the Act.
5. In his letter to Donna Shelton, John Preston stated:
These acts consisted of throwing rocks at the automo-
bile of an employee who was attempting to come into
work. Acts of this nature, which endanger lives and
property of employees and of this plant cannot and
will not be tolerated.
Preston testified that he discharged Shelton for throwing
a rock or bottle at Peggy Baker's truck. He stated that he
heard something hit a vehicle but did not see it and he did
not inspect Baker's truck to ascertain any damage.
Peggy Baker appeared rather nervous and somewhat bit-
ter in her testimony. In describing any action or in answer-
ing any question as to what occurred, she used the same
phrases and would go through the whole event so that it
seemed we were listening to something learned by rote. She
was evasive on some questions and definitely was upset.
She testified that while driving down Airport Road on
her way to work that morning, prior to 7 a.m., she saw
Donna Shelton throw a rock which hit the passenger door
side of her truck and then throw up her hands and disap-
pear into the crowd. She stated that at the time Donna's
sister Lavon Morrow (also known as Cricket) was standing
beside Shelton. When this occurred instead of turning left
into the parking lot, she drove straight down Airport Road
and talked to a policeman. Baker backed her truck the
several hundred yards to the main road and testified that
she saw Shelton and Morrow standing in the crowd laugh-
ing when a bottle thrown by an unidentified individual hit
her truck as she was backing up.
Donna Shelton testified that she does not have a driver's
license and on that particular morning was late getting up
and was still at home at 7:30 a.m. when Mary Criswell
came to pick her up to take her to the picket line. On the
way they went by a school and left Criswell's child and
arrived at the picket line about 8 a.m. Criswell corroborat-
ed this testimony.
If Shelton and Criswell are credited, then Shelton would
not have been present when Baker drove in to work that
morning about 6:45 a.m. Shelton signed the union sign-in
book about 8 a.m. that morning. Further she denied being
present or ever throwing anything at Baker or Baker's
truck.
Considering all the testimony I cannot find that Shelton
was present that morning and threw a rock at Baker's
truck. Baker, as noted above, was an evasive, nervous, and
bitter witness. Shelton's testimony which I find no reason
to dispute, as well as Criswell's corroboration, establishes
that Shelton was not present at the picket line at 6:45 a.m.
when Baker states her truck was hit. It appears likely that
Baker, from the corner of her eye, may have seen someone
throw a rock at her truck, and as she was preparing to
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make a left turn identified the person erroneously as Don-
na Shelton.
Under all these circumstances I conclude that Donna
Shelton was not guilty of the incident and therefore her
discharge by Respondent violates Section 8(a)(1) and (3) of
the Act.
6. John Preston's letter to Mrs. Morrow on October 9,
stated:
This act consisted of throwing a bottle and hitting an
employee 's car who was attempting to come into
work. An act of this nature, which endanger lives and
property of employees and of this plant cannot and
will not be tolerated.
Preston testified that he heard an object hit a car but did
not see who threw it and that employee Frieda Matthews
later came to him and said something hit her car and point-
ed out a person in the crowd across the street whom he
identified as Lavon Morrow. He did not remember who
was standing near Morrow at that time , although there was
a large crowd and he did not check the car for damage but
was later told by Mrs. Matthews that the damage amount-
ed to $15. This was the sole item for which Mrs . Morrow
was discharged.
Frieda Matthews testified that Lavon Morrow, - whose
name was not known to her at the time, was walking by the
side of the road with a pop bottle in her hand and when she
came even with Matthews ' car she hit the car door with the
pop bottle and the bottle broke. Matthews stated that Offi-
cer Jones was standing right behind the car and when she
looked "around he acted like nothing had happened. After
she pulled into the parking lot and saw there was a dent in
the door and a piece of paint had chipped off, she went
over to Preston_ and described the person to Preston, who
said that was Morrow . Mrs. Matthews said the person was
short and plump. Lavon Morrow, known as Cricket, is very
small but the description is not that accurate. Mrs. Mat-
thews stated that she was several cars behind Mrs . Baker's
truck as they were in line to enter the parking lot.
Lavon Morrow testified that on that particular morning
she was standing near the lower gate when she saw it was
getting close to 7 a.m. and she walked up the hill to remind
her husband it was time for him to go or he would be late
for work, and he was standing talking to city policeman
Jones. When she got alongside Frieda Matthews' car a bot-
tle came over her shoulder, hit the side of the car above the
window some 2 to 3 feet from her and broke with a piece of
glass hitting her foot and cutting it very slightly. She denied
throwing anything and stated that she did not know the
name of the person ' driving the car until she was later
served with a warrant and further did not see her sister
Donna Shelton at the picket line that morning.
Officer Jones testified that he knows Lavon "Cricket"
Morrow and that she was standing near him when a bottle
bounced off a windshield of Mrs. Baker's truck and it was
not thrown by Morrow. It would appear that Officer Jones
may be mistaken as to whose vehicle was hit at the time
that Lavon Morrow was near him. In any event after secur-
ing the warrant, Matthews' husband Larry stopped Harold
Morrow in downtown Monticello and told him that he
would have to pay for the damages to Matthews' car of
$15. When Morrow stated that he didn't know anything
about it, Matthews who had another man with him said he
would show Morrow what the measure of damages was
and started to reach in and get something out of his own
car. Morrow stating he was afraid that Matthews would
damage the car he was driving, which was his mother's car,
agreed to pay the $ 15 and gave Matthews part of the mon-
ey then. Morrow later went to Matthews' house and paid
the remainder , insisting that his wife denied ever doing any
damage to the Matthews' car.
In addition to the possibility that there is a misidentifica-
tion because Matthews did not know Morrow and Preston
supplied a name , picking one person out of a crowd of 50
or more people, it is also probable that the bottle was
thrown just at the time that Morrow was walking beside
the vehicle. It does not seem plausible that a person would
swing a pop bottle against a solid object , since they would
anticipate that it would most likely shatter and would
probably cut the person's hand.
I find that the damage to Matthews ' car did not occur as
Respondent stated and I therefore conclude that the dis-
charge of Lavon Morrow violated Section 8(a)(1) and (3)
of the Act.
In reaching the conclusions found in the above six in-
stances, I have kept in mind that there were some tensions
and high spirit running through this strike 'situation. From
what Preston testified the Company did not investigate the
countercharges or suits brought against working employees
by strikers who charged that certain workers struck pickets
with their cars or drove recklessly in the area. It does not
appear that the Company stood back and in a dispassion-
ate way tried to assess who was to blame for each and
every occurrence whether asserted by working employees
or strikers but rather took a partisan approach.
Essentially the decision of the U.S. Court of Appeals for
the District of Columbia in the case of Allied Industrial
Workers, AFL-CIO Local Union No. 289 v. N.L.R.B., 476
F.2d 868 (1973), cohesively states the law applicable in this
case and I have attempted to follow it. Respondent relied
heavily on Alkahn Silk Label Company, 193 NLRB 167
(1971), but this case concerns picket line conduct of a
much more egregious nature than the acts involved herein.
There the pickets were threatening people coming through
the picket line with baseball bats and tire irons and egg
throwing was a very minor part of the violent nature of the
events taking place.
III. THE REPRESENTATION CASE
A. The Challenged Ballots
1. The dischargees
Of the six people challenged by the Board agent as not
being on the Excelsior list and who are the subject of the
unfair labor practice case above , I find that the challenge
to Denney should be sustained and the challenges to the
other five overruled and that the ballots of the five should
be opened and counted.
LARAND LEISURELIES
2. Mrs. Phelps
The challenge to the ballot of Janiss Solomon Phelps
should be sustained. Mrs. Phelps was one of a group of
people working on the second shift in April 1973. Her-testi-
mony was rather inconclusive and evasive as to what oc-
curred at a company meeting. She did not remember who
addressed the meeting nor much about the meeting except
her impression that she would be recalled when it was time
for her to go to work.
It seems clear from Respondent's testimony that the sec-
ond-shift employees were all told at that meeting that since
they probably had to make arrangements for baby sitters
etc. in order to move to the first shift, the Company was
giving them 1 week within which to conclude such arrange-
ments and they were then to report for work, 1 week from
the time that the second shift stopped operations. Phelps
never applied or went to the plant or even made a phone
call. While working on the second shift, she had a day job
as a part-time operator in a beauty shop. She admitted she
worked more for the beauty shop after the second shift
terminated.
After more than a week went by without Phelps report-
ing, the Company concluded that she was no longer inter-
ested in employment with them and terminated her some 1
to 2 weeks prior to the strike.
It is apparent that either Phelps did not pay any atten-
tion to the announcement made by Respondent -as to the
provisions for placing second-shift employees on the first
shift and made no further efforts to ascertain those ar-
rangements after a reasonable time passed or she aban-
doned her employment. with Respondent and worked a full
daytime shift as a beauty operator. In either event she
abandoned any idea of further employment with Respon-
dent and the challenge to her ballot should be sustained.
3. The guards
In regard to the three employees challenged as guards, I
find that the challenges to their ballots should be sustained.
Although George Kidd testified that he was originally
hired as a maintenance man, he admitted that he never
worked as a maintenance man but immediately was given
the duties of a guard at which he worked throughout his
employment with Respondent, but did act as a truckdriver
several times a week. He testified that it was company poli-
cy to always have two employees acting as guards at night.
Therefore Denver Burnett and Lonzo Gregory split the
janitorial duties when he was there, and under this policy
they would both have had guard duties when Kidd was
absent as a truckdriver. All three men following some ar-
rangement with- Respondent were sworn in as county pa-
trolmen and they, were all armed when they were on duty
in the' plant.
It is clear that Kidd spent the great majority, of his time
as a security guard except when he was truckdriving and
that Burnett and Gregory both spent more than 50 percent
of their time as security guards and only a minor amount
of time in sweeping up the plant when they were not acting
as guards. I credit Kidd's testimony over the estimates
made by Burnett as Kidd impressed me as a much more
847
reliable witness. Their shift ran from 3:30 p.m. when the
employees were leaving work until 7 a.m. the following
morning when the employees would be in the building.
Since it is clear that Kidd spent nearly all of his time as
a security guard and that Gregory and Burnett spent more
than 50 percent of their time as security guards, I would
exclude them from the unit and would sustain the chal-
lenges to their ballots.
4. Workers challenged as replacements
In this proceeding Respondent has maintained that it
has the facilities and the equipment and the capacity and
capability of returning all of the strikers to its employ as
well as keeping all persons who were on its rolls as employ-
ees. The Union takes the position that all of the persons
who were hired and employed by the Company during the
strike were temporary or permanent strike replacements
and, as such, they should not be allowed to vote in an
election where an unfair labor practice strike is in progress.
In support of its position the Union had its economist,
Dr. Lazare Teper, analyze the market conditions at the
time, the downward trend in the general market, the num-
ber of employees employed by Respondent, and the
amount of business done by Waterbury and Waco as well
as Larand. During the cross-examination,- Dr. Teper said
that his conclusion that the Company could not employ the
nonstriking employees and reemploy the strikers -as well
and give them all full employment during December 1973
and January 1974 was based on his analysis of the data
representing -the business done by Larand and Waterbury
in December 1973 and January 1974. He specifically stated
that it was not based on the physical capacity of the plant,
which he admitted was large enough to accommodate that
number of employees. He did not mention that there was
not enough machinery to accommodate that number of
employees so it must be presumed, since the Union had
asked for data in regard to machinery, that there was suffi-
cient machinery to take care of both groups of workers. As
one of the union exhibits demonstrated, the plant at one
time had 340 workers and apparently could conveniently
take care of more.
Dr. Teper explained that his conclusion was based on
the amount of work available for all the employees. He
determined what work was done during December and
January and concluded that if Respondent had both the
working employees and the strikers employed at that time
the amount of available work would have been reduced to
around 20 hours of work a week if the work were propor-
tionately split among all. Thus he concluded that the strik-
ers could not have been reemployed in their, normal full-
time work conditions if the nonstriking employees and "re-
placements" had been retained. He also considered the
deteriorating condition of the market for general ladies'
and children's nightwear manufacturers as shown by Bu-
reau of the Census Reports and concluded that Respon-
dent would not have much prospect of increasing its pro-
duction, and also concluded that Respondent could not
have used both groups of employees without cutting work
hours for the first quarter of 1974 or longer.
In contravention, Respondent produced testimony that
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
every person who was hired after the strike began, was told
that they would have a permanent job no matter whether
the strikers came back to work or not, since Respondent
had sufficient work to employ all. Each of the persons
whom Preston employed was told that he was a permanent
and full-time employee and was not part-time or tempo-
rary in any sense of the word.
Respondent's basic position that it could have reem-
ployed all of the strikers and kept its complement of work-
ing employees is based primarily on Brownstein's testimo-
ny concerning his sales for 1973 and his anticipated sales
for 1974 and the canceling of orders following the strike
when Respondent was not able to deliver products on
promised delivery dates, and that other orders which would
have been given to it were not as a result of Respondent's
inability to insure prompt delivery of ordered goods. The
testimony was corroborated by cancellation orders and let-
ters stating what orders were placed elsewhere which ordi-
narily would have been given to Waterbury. Respondent
also relied on the extensive experience of Mr. Brownstein
as a salesman of over 20 years in forecasting sales and
anticipating reorders based on original sales and the
knowledge that his business was expanding yearly and that
his business projections and decisions were based on an
anticipated 20-percent increase in business in 1973. These
figures were then arithmetically projected, based on the
amount of products produced by workers at Larand, and
Respondent concluded that it could have used a comple-
ment of over 400 employees throughout the 1973-74 period
to fill its canceled and anticipated orders as well as the
orders which were produced. This would have been an av-
erage figure for the year and would not have been constant
as there are personnel fluctuations throughout the year due
to turnover, etc.
According to President Brownstein, Larand had a big
holiday season in the fall of 1972 and finished up late in
December and started manufacturing for sprang sales in
early December 1972. The sales which he had made for the
spring of 1973 indicated that this would be the biggest
spring season the Company had ever had. At that point he
did not intend to have Waco produce any of that business,
but all the spring production would be completed at La-
rand, and he anticipated reorders of spring merchandise as
far as May 1973.
By the spring of 1973 most of the fall business and the
holiday business for 1973 would have been booked on the
initial orders and the anticipation of subsequent orders as
the goods sold would have been estimated by Brownstein.
Brownstein also testified that somewhat contrary to the
regular market trend of sleepwear for children, Waterbury
had gotten into the field of flame-resistant sleepwear and
was experiencing an uptrend counter to most other manu-
facturers.
In 1972, Waterbury, the sales agent, had total sales of
over $4 million and it was Brownstein's anticipation that
for 1973 their sales would be in excess of $5 million or a
20-percent increase. This forecast was made on the orders
on hand as well as the anticipated reorders including his
expectation of the best spring season ever.
Brownstein detailed the cancellations of orders from the
spring to the fall of 1973 and indicated that from Mont-
gomery Ward, Grant, Alden, Gamble, and others the can-
cellation of actual orders was somewhere in excess of 12,
000 dozen garments. In addition to these direct cancella-
tions there were also orders or reorders they did not receive
because of their inability to produce, which had led to the
canceled orders. For instance Gambles Departments 70
and 75 placed orders for 10,000 dozen garments elsewhere
when they found they could not depend upon Larand to
deliver the garments due to the strike-inhibited production.
The orders received from Grant's Department 8 were, ac-
cording to Brownstein, some 20,200 dozen less than what
he had anticipated based on his many years' experience in
dealing with Grant. Montgomery Ward, which was a fairly
new account in the spring of 1973, on an initial order of
some 7,000 dozen garments canceled over 3,000 dozen and
Brownstein had anticipated reorders which would bring to-
tal sales for that one company to over 10,000 dozen. Grant
told him that in 1974 they would have ordered an addition-
al minimum of 15,000 dozen which they placed with other
sources since Larand could not guarantee delivery. Brown-
stein detailed other cancellations and failures of companies
to order based on the problems experienced with Larand's
strike related poor deliveries. In one instance Larand sent
its garment patterns to the customer so that the customer
could have the garments produced by some other manufac-
turer.
In toto adding the more than 12,000 dozen cancellations
to the loss of anticipated orders and reorders and place-
ment of orders with. other resources, Brownstein, based on
his experience and these facts, estimated that Larand lost
business in 1973 which would have amounted to more than
53,000 dozen garments. Larand actually produced some 75,
000 dozen garments in 1973 and with some 3,000 dozen
being produced by Waco, in addition to Waco's regular
subcontract production for its contractor Tiger Paw, and
over 22,000 dozen garments were produced by other sub-
contractors, totaling over 101,000 dozen garments. In 1974,
over 114,000 dozen garments were produced by Larand or
subcontractors for Waterbury. Brownstein concluded that
on the basis of past sales and anticipated reorders and the
cancellations Larand lost more than 45,000 dozen addi-
tional sales of garments so that Waterbury sales volume
should have been in the neighborhood of 160,000 dozen for
1974.
In his projections Dr. Teper stated that the economy was
on the downtrend and Respondent could not have expect-
ed to sell or produce a large volume of garments. The
Union subpenaed information as to what the sales of Wa-
terbury were for 1973 and 1974. The Union introduced an
exhibit of Waterbury sales figures through April 1974
which tended to demonstrate that sales volume was not
increasing. However the sales figures for the rest of 1974
showed that the Company's volume jumped dramatically
to the highest point in its history and that in 1973 Water-
bury sales were over $4 million and in 1974 over $5 million.
Using the production figures for what was actually pro-
duced plus the figure and estimates of what was canceled
or not placed with Waterbury because of Larand's inability
to insure deliveries, it was estimated that in 1973 Larand
should have produced some 155,000 dozen garments for
Waterbury, and anticipating just a small increase in 1974,
LARAND LEISURELIES 849
Larand should have produced over 160,000 dozen gar-
ments. Using these figures and knowing how many em-
ployees it took to produce the volume actually produced at
Larand, it was projected that Larand would have needed in
excess of an average of 400 employees in 1973 and 1974
throughout-the year to produce the estimated volume. Us-
ing the number of employees that Larand actually had,
Respondent demonstrated that with the addition of the 170
strikers who originally went out and if they all returned, it
could have absorbed all of the strikers and retained all of
the nonstriking employees plus those who were hired after
the strike began to produce the volume it estimated its sales
would have warranted. Noting that Larand had a top of
340 employees during 1972 when it produced 118,000 doz-
en garments, a figure of an average of 400 employees to
produce another 40,000 dozen garments would not appear
to be far off.
Considering the forecasts made by Respondent and Dr.
Teper, and recognizing the bias inherent in the position of
each, I must still conclude that Dr. Teper's forecast does
not accurately demonstrate what the situation was and
what reasonably could have been anticipated by
Respondent's increasing volume of business. Respondent's
business, in dealing with large chains who do catalog sales,
seems to differ from the ordinary retail business in
women 's and children's sleepwear. Weighing the evidence
produced I must conclude that with its planned volume of
business and with what it could anticipate in that business,
Respondent could have absorbed the 170 strikers who orig-
inally went out on strike and retained all of the employees
who were on its payroll at the appropriate time. I therefore
find that the employees who were on the payroll during the
appropriate times in 1973 and 1974 were not replacement
employees for strikers but were additional employees and
as such that these employees are eligible to vote and that
the challenges to their ballots should be overruled.
I consider that Mr. Brownstein having been in this spe-
cialized field for more than 25 years where he must forecast
business and anticipate sales and reorders is an expert in
that area. In testifying Mr. Brownstein was relying on the
normal accounts and records and used the knowledge
gained to make his estimates . I consider him to be as ex-
pertly qualified in this field as Dr. Teper is in his much
wider field of endeavor. The projections of Warren P.
Ernst were only arithmetically based on Mr. Brownstein's
testimony and evidence.
B. The Objections
The Union filed four objections to conduct affecting the
election and during the hearing withdrew Objection 3 con-
cerning raises in pay.
Objection 1 is based on the discharges of the six employ-
ees discussed above in II. The Unfair Labor Practices.
Having found that Respondent discriminatorily discharged
five of the six alleged discriminatees I would sustain this
objection to the election. Objection 2 concerns the notices
which Respondent sent to some 36 employees who were on
strike advising them that they had been permanently re-
placed. Since the Board has determined that the strike was
not economic in nature, but was an unfair labor practice
strike, it would follow that employees who are unfair labor
practice strikers cannot be permanently replaced and such
notification to employees was improper and would be a
valid basis for setting aside an election. I would therefore
sustain Objection 2.
Objection 4 relates to the fact that the Employer pho-
tographed strikers and the Union states that Respondent
did so in order to discourage strikers and employees from
supporting the Union and based this objection principally
on the finding of a violation of the Act in this regard in the
prior unfair labor practice case. That finding was based on
the fact that the Company photographed employees for
several days after the beginning of the strike in April 1973.
Respondent states that it instructed employees to pho-
tograph strikers where there was some confrontation which
could degenerate into violence and that the original pho-
tographing in April 1973 could not have had any effect on
the election held in January 1974. There was testimony
that cameras were used both by people in the plant pho-
tographing pickets and groups of strikers and by the pick-
ets taking pictures of employees going into the plant or
those already in the plant.
The Company testified that photographing the strikers
ceased after issuance of the second restraining order in Oc-
tober 1973 which moved the bulk of the striking employees
away from the plant and allowed only six pickets near the
entrance and exit. However, the Union's witnesses testified
specifically that cameras were still in the hands of the em-
ployees in the plant after this second restraining order and
that apparently pictures were still being taken since camer-
as were held as though pictures were being taken.
Respondent's brief noted a number of cases wherein the
Board found that taking pictures in order to gain evidence
concerning acts of violence on a picket line did not violate
Section 8(a)(1) of the Act. In this instance it is clear that
cameras were being used by both sides during the last half
of 1973. I conclude that the use of cameras in this manner
and after the initial few days of the strike was not a threat
as to who was picketing or who was not picketing but rath-
er was for the purpose of taking pictures of violative acts
on the picket line and possibly of forestalling such violative
acts, because of the knowledge that cameras were there. I
do not find that after the strike had been going on for some
9 months that the use of cameras by personnel in the plant
or outside the plant would affect the election on either side
and I would overrule this objection.
In summary if after the ballots are opened and counted
the Union does not prevail in the election, then it is recom-
mended that the election be set aside on the basis of the
objections found valid and a new election be run at a suita-
ble time.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, have been found to constitute unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act and, oc-
curring in connection with Respondent's business opera-
tions as described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent discriminatorily termi-
nated Sue Upchurch, Clara Sue Stockton, Lavon V. Mor-
row, Donna Shelton and Clarie Foster on October 9, 1973,
because of their union sympathies, activities, and support, I
recommend that Respondent offer them immediate and
full reinstatement to their former position without preju-
dice to any seniority or rights and privileges they may en-
joy. Respondent shall make them whole for any loss of pay
they may have suffered by reason of the discrimination
against them, by payment to them of a sum equal to that
which each would have received as wages from the date of
her discharge until she is fully reinstated, less any net inter-
im earnings.. Backpay is to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest at
the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). I further recommend that Respondent,
upon request, make available to the Board payroll and
other records to facilitate checking the amounts of backpay
and any other rights due Sue Upchurch, Clara Sue Stock-
ton, Lavon V. Morrow, Donna Shelton, and'Clarie Foster.
Respondent during the course of an unfair labor practice
strike issued notices to 36 strikers informing them that they
had been permanently replaced. Respondent shall by regis-
tered letter inform each of those strikers that its prior noti-
fication to them is withdrawn and is null and void and I
further recommend that Respondent be ordered to cease
and desist from violating the Act in the same manner or
any manner similar to these violations.
On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Larand Leisurelies, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminatorily terminating Sue Upchurch, Clara
Sue Stockton, Lavon V. Morrow, Donna Shelton, and
Clarie Foster on October 9, 1973, and not thereafter reins-
tating them to their positions because of their union sym-
pathies, activities, and support, Respondent engaged in
and is engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(3) and (1) and
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]