Leon Ferenbach, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1974

212 N.L.R.B. 896 (N.L.R.B. 1974)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leon Ferenbach , Inc. and United Textile Workers of
America, AFL-CIO. Cases 10-CA-10412 and 10-
CA-10436
August 16, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 29, 1974, Administrative Law Judge Rob-
ert E. Mullin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Leon Ferenbach, Inc., John-
son City, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
a complaint issued on November 14, 1974. The complaint
presents questions as to whether the Respondent violated
Section 8(a)(I) and (3) of the National Labor Relations Act,
as amended (herein called Act). In its answer, duly filed, the
Respondent conceded certain facts with respect to its busi-
ness operations, but it denied all allegations that it had
committed any unfair labor practices.
At the trial all parties were represented by counsel and
were given full opportunity to examine and cross-examine
witnesses and to file briefs. The parties waived oral argu-
ment. On March 14, 1974, the Charging Party submitted a
memorandum of law. Neither the General Counsel nor the
Respondent filed a memorandum or brief on the issues here
involved.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Tennessee corporation , with an of-
fice and manufacturing facilities in Johnson City, Tennes-
see, where it is engaged in the processing and sale of
texturized yarn. During the calendar year prior to issuance
of the complaint , a representative period , the Respondent
sold and shipped finished products valued in excess of
$50,000 directly to customers located outside the State of
Tennessee . Upon the foregoing facts, the Respondent con-
cedes, and it is found , that Leon Ferenbach , Inc., is engaged
in commerce within the meaning of the Act.
11 THE LABOR ORGANIZATION INVOLVED
Union Textile Workers of America, AFL-CIO (herein
Union or Textile Workers), is a labor organization within
the meaning of the Act.
i Neither the General Counsel nor the Charging Party filed exceptions to
any aspect of the Administrative Law Judge's Decision
Members Kennedy and Penello find it unnecessary to adopt the Adminis-
trative Law Judge 's conclusion that, in view of the high rate of employee
turnover , Job openings would have occurred in the department in which the
employees who had been discriminatorily denied reinstatement had worked
They consider that conclusion unnecessary because the rate of turnover in
the plant , particularly when coupled with the Respondent's radio advertise-
ments for new employees to fill permanent positions without any requirement
for previous experience , yields the ready inference that there were jobs avail-
able which these employees could have filled whether or not they were in the
same department
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on January 28, 29, and 30, 1974, in Jonesboro,
Tennessee, pursuant to charges duly filed and served,' and
i The charge in Case 10-CA-10412 was filed on October 4, and the charge
in Case 10-CA-10436 was filed on October 23, 1974
Iii THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent has two plants, referred to hereinafter as
Plant I and Plant 2 , located a short distance apart on the
outskirts of Johnson City. During the period in question it
had about 1,350 employees Nevil Penn Lewis was the vice
president and general manager as well as being on the cor-
porate board of directors.
In June 1973 the Union won a representation election.
After the Union was certified by the Board the parties began
collective bargaining late in July . On or about September
18,2 the union members voted to strike. The strike began on
the evening of September 23. Many charges and counter-
charges in connection with the activities of both company
and employee representatives on that night , and later , figure
in this case.
Since the beginning of the Textile Workers campaign at
the Respondent 's plants, both sides have filed unfair labor
2 All dates that appear hereinafter are for the year 1973 unless specifically
noted otherwise
212 NLRB No. 136
11
LEON FERENBACH, INC. ' 897
practice charges with the Board. In Case 10-CB-2298 the
International Union entered into a formal settlement which
was approved by the Board on December 7, 1973, and on
December 11, 1973, the Court of Appeals for the Sixth
Circuit enforced the Board's Order. On December 11, 1973,
Local 532 of the Textile Workers entered into a settlement
of Case 10-CB-2311. Another case involving secondary
boycott charges against the Union was settled informally. A
series of charges against the Respondent in Cases 10-
CA-10181, 10209, 10209-2, and 10209-6, resulted in an
extended trial before Administrative Law Judge Thomas A.
Ricci in October 1973. In his Decision, issued on February
19, 1974, Administrative Law Judge Ricci found that the
Respondent had engaged in an extensive series of viola-
tions of Section 8(a)(1) and (3) of the Act. This matter is
now pending before the Board on exceptions filed by the
Respondent.
The Respondent's parent company is Chromalloy Ameri-
can (herein Chromalloy). General Manager Lewis testified
that the parent corporation has had collective-bargaining
relations with many different labor organizations over a
long period of time and that it is presently a party to 34
collective-bargaining agreements.
The General Counsel alleges that the Respondent dis-
criminatorily terminated seven employees on August 31 and
that it engaged in various other acts of interference, re-
straint, and coercion, principally during the period immedi-
ately after the outset of the strike late in September and
early in October. All of these allegations are denied by the
Respondent. To the facts in connection with these allega-
tions we will now turn.
B. The Terminations of August 31; Findings and Conclu-
sions in Connection therewith
The incident out of which these terminations arose oc-
curred during the evening shift on August 30 in Department
555. The Respondent had 12 Leesona texturizing machines
in this department. According to General Manager Lewis,
these; machines cost about $100,000 each and were operat-
ing on a continuous basis round the clock, 7 days week.
There were about 15 employees working in the department
at the time in question. In addition to the operators, there
were several trainees and a mechanic. Lewis testified that
earlier in the summer, Department 555 was "in real bad
shape" as to productivity, but that in August and "at this
particular time this department was running real fine." He
further testified that the training period for employees com-
ing into this department was about 6 weeks, a somewhat
longer period than was required for other sections. He ex-
plained that this was due to the fact that operation of the
Leesona machines required more dexterity than was neces-
sary in other departments.
In mid-August the Respondent posted on the plant bulle-
tin boards an announcement which was signed by General
Manager Lewis and which dealt with prohibitions on leav-
ing the plant during worktime without permission, smoking
while on duty, and eating anywhere except in canteen areas.
Lewis testified that this announcement was merely a reitera-
tion of existing rules. However, in view of the fact that the
bulletin contained an opening paragraph which had the
phrase "The rules shown below are being implemented im-
mediately" and in listing the rules there also appeared an-
other prefactory term which read "Effective immediately"
it is evident that at least some of the rules defined in the
bulletin were new.
At or about 7 p.m., on the evening of August 30, Bobby
Hyduk, foreman in Department 555, called all the employ-
ees to his office for the purpose of telling them about the
rules on smoking, eating at work, and use of breaktime.
Among those employees was Larry Church, the mechanic
in the department and a member of the Union's negotiating
committee. Present also were the operators and the trainees.
Five of the operators present 3 testified as to what was said
at the meeting. The Respondent did not call Hyduk as a
witness.
From 15 to 30 minutes were spent discussing the rules.
Although the ban on eating anywhere other than the can-
teen was mentioned, the most controversial subject was a
limitation on breaktime. Thus, according to the credible,
undenied testimony of Beverly Ramey, Peggy McConnell,
and Gertrude Morgan, Hyduk told them they were to have
two 10-minute breaks and one 15-minute break and that
thereafter if any employee went to the restroom other than
during a designated breaktime the time spent at the rest-
room would be deducted from the employee's breaktime,
and that if an employee smoked a cigarette during work-
time, even though her machine was working properly, that
time was also to be deducted from the employee's break
period. Gertrude Morgan credibly testified that although
the new rules (referred to earlier) had been posted on the
bulletin boards for several days, or weeks, Hyduk's an-
nouncement was the first that any of them heard of a limita-
tion on their breaktime in connection with smoking and use
of the restrooms.4
The employees left the office and returned to their ma-
chines, but about 9 a.m., approximately 15 of them returned
to Hyduk's desk and asked that they be permitted to talk
with someone from the personnel office to secure an expla-
nation as to why the new rules, as he had described them,
were being enforced in their department, but not, so far as
they knew, in other departments at the plant. Hyduk prom-
ised that he would endeavor to meet their request and about
9:45 p.m. he announced that General Manager Lewis, ac-
companied by James Seahorn, manager of the apparel divi-
sion, and Dan Ward, a superintendent under Seahorn, had
arrived and would talk to them individually. When the em-
ployees protested that they would not go into Hyduk's of-
fice individually, but only as a group, the foreman permitted
them to do so.
Once inside the office, however, Seahorn told the employ-
3 Louise Jenkins, Effie Joines, Peggy McConnell, Gertrude Morgan, and
Beverly Ramey.
4 The Respondent endeavored to establish through the testimony of Lewis
that there had been no change in the plant rules and that any discussion of
limits on breaktime could only have resulted from misleading statements
made by employee Church The testimony of the employees recited above,
however, which attributed the statements on breaktime to Foreman Hyduk
was credible. As noted earlier, the Respondent did not call Hyduk to the
stand and offered no explanation for his nonappearance as a witness . Conse-
quently, the testimony of the employees, as set forth above, concerning
Hyduk's comments at this meeting, is found to be a credible account of what
transpired.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees that by insisting on a group discussion they had made
it impossible for the plant officials to talk with them as
Individuals and they would have to return to their machines.
After Seahorn's declaration, some of the trainees left, but
about nine operators and Church remained. Seahorn or
Lewis then repeated the admonition that the employees
return to their machines and another one or two left the
room. When about seven employees still remained in the
office, Seahorn and Lewis told those present that if they
would not talk with the management as individuals they
were to clock out and leave the premises within 10 minutes.
Employee Effie Joines credibly testified that Seahorn also
told them that if they did not go back to their machines "we
would not have no jobs" because "our jobs would be re-
filled " Employee Louise Jenkins and Joines credibly testi-
fied that Seahorn told them all that they were to report to
the personnel office at 10 a.m. the next day to find out
whether they had been replaced.
At this point all the employees then left in the office
departed and seven of them, all of whom are named as
complainants in this case,5 went to their lockers and thereaf-
ter to the timeclock There, in the presence of Superinten-
dent Ward and Foreman Hyduk, they clocked out,
whereupon Ward took their timecards and they left the
premises.
Both Lewis and Seahorn testified as to what they said to
the group in Hyduk's office. Their testimony did not differ
in any material respect from that of the employees and, in
large measure, it substantially corroborated the testimony
of the employees recited above. Both stated that whereas
they were willing to talk with the employees as individuals
they did not want to waste company time talking with them
as a group. This position, of course, was in marked contrast
with Hyduk's behavior only a few hours earlier when the
latter called the whole department to his office as a group
and spent considerable time discussing the rules in question.
The Respondent did not contend that Hyduk had acted
beyond the scope of his authority, and, apparently, ratified
his action. Nevertheless, Seahorn asserted that in the dispo-
sition of any complaints the Company would meet only with
individual employees. Thus, he testified:
... My division handles . . . grievances on an individ-
ual basis. If a person has a grievance they bring it to
whomever they desire in management and it is settled
on a one [to] one basis.
At 10 a.m. the next day employees Ferrell, Jenkins,
Joines, McConnell, and Morgan arrived at the personnel
office where they were met by Glenn Smith, an assistant
personnel officer. Although they arrived together, they did
not ask to speak to Smith only as a group.6 Smith met with
5 Viz, Larry Church, Vickie Ferrell, Louise Jenkins, Effie Jomes, Peggy
McConnell, Gertrude Morgan, and Beverly Ramey
6 The following exchange took place when Respondent's counsel was
cross-examining Effie Joines
Q You were not going to come back and abide by these rules as Mr
Hyduk had explained them to you, were you?
A I was not asked to come back
Q So that never came up9
the five employees and told each one that herjob had been
filled and that she was no longer employed.? Beverly Ramey
did not get to the plant until 1 p.m. that afternoon, because
she was dependent on her husband for transportation.
When she reported to the personnel office she also was told
that she had been replaced and that she no longer had ajob.
Larry Church did not appear at the hearing. Gertrude
Morgan testified that Church had been to the personnel
office on August 31 at some time earlier than she and the
other four who accompanied her. However, it was not clear
from her testimony whether she had seen Church on that
occasion or whether she was reporting only hearsay. At the
trial, the Respondent contended that Church quit work on
the evening of August 30. There is some evidence to support
this contention. General Manager Lewis testified that at the
conclusion of the brief meeting the management had with
the employees on that night, Church declared, before he
left, "I'm going to get my tools, I'm leaving," and that
Church thereafter went to the toolroom where Superinten-
dent Ward checked over the employee's tools and gave him
a gate pass, whereupon Church left the premises. Church
had been a mechanic with the Respondent for some while.
Lewis and Seahorn testified that, on the basis of their expe-
rience, a mechanic never takes his own tools home for the
night and when he announces that he is "taking his tools
and leaving" he means that he is quitting the job. Seahorn
further testified that about 3 weeks later Church telephoned
him at his home and told him that he had a permanent job
at another plant in the area and that he planned to stay with
his new employer. The testimony of both Lewis and Sea-
horn as to Church's parting comments, set forth above, was
not denied or contradicted by any other witness. As noted
above, Church himself never took the stand. On the basis
of the present record I conclude that this last named em-
ployee must be deemed to have quit on August 30.
Everett Dean, an official of the International Union, a
director of the organizing campaign and the chairman of the
Union's bargaining committee, testified that he telephoned
the plant on the morning of August 31 and talked with
Lewis. According to Dean, he asked Lewis whether, in view
of the bargaining negotiations that were then in progress,
the Respondent would let the employees who had walked
out the night before go back to work, and, as he put it, "just
forget about the matter." Dean testified that Lewis replied
that all of the employees had been replaced, so that they
could not be taken back at that time, but that, after the
Company and the Union arrived at a contract, "he might
consider taking them back as new employees." 8 Lewis' tes-
timony substantially corroborated Dean. According to the
Respondent's general manager, he told Dean that later on
he would consider rehiring these employees but only on the
basis of individual merit.
Lewis also testified that during this conversation Dean
did not state that all of the employees in question were ready
A. No
7 Employee Morgan credibly testified "Mr Smith told us that our positions
had been filled and that he was sorry that this sort of thing had happened,
that we were no longer employed "
8 The quotation is from Dean's credible testimony
LEON FERENBACH, INC.
to come back to work. From Dean's testimony, however, it
is evident that he asked Lewis if the Respondent would let
these employees return to their jobs and, as he characterized
the proposal, "just forget about" the walkout. Lewis, on the
other hand, declared that the employees had already been
replaced and, stated in substance, that there was nothing
available for them. Although Lewis agreed that later he
might consider them on an individual basis this would only
be for hire as new employees.
From the testimony of the employees themselves, it is
evident that when they reported to the Respondent's per-
sonnel office at 10 o'clock on the morning of August 31, and
in Ramey's case at 1 p.m., they were seeking to return to
work. They had been told to report at that time to find out
whether they still had jobs. When they did so, they were told
that they had been replaced. During the cross-examination
of Beverly Ramey, Respondent's counsel` asked whether she
had ever asked for her old job. She replied in the affirmative
and stated that she had done so on August 31. When coun-
sel then asked her whether she had asked again at any time
thereafter she answered: "No_ Because [on August 31] I was
told I no longer had a job there." It may be assumed that
Ramey's attitude was shared by her coworkers who came to
the plant on August 31 and were told that they had been
replaced.
The Respondent contends that, notwithstanding the ex-
traordinarily brief period between about 10:30 p.m., when
the employees left the plant on August 30, and 10 o'clock
the next morning, all of them had been replaced before they
sought reinstatement.9 When General Manager Lewis first
took the stand, he asserted that the Respondent had a great
aversion to terminating these employees. He testified that
the employees in Department 555 required a higher degree
of training than those anywhere else in the plant and that
it took fully 6 weeks and sometimes longer to train a re-
placement. According to Lewis, "I did not want to lose
those people. We could not afford to." In the following
testimony Lewis described the near chaos which prevailed
in Department 555 after the walkout:
We had to make do as best we could with what we had.
Some of the machines had to be shut down . . . and
then we had to [work] the following day with inexperi-
enced help and we had to have trained operators dou-
ble over, to work overtime. So consequently we lost
production and we lost quality."
Notwithstanding Lewis' reference to the necessity of
shutting down some of the machines that night and having
to use inexperienced help and requiring trained operators to
work overtime "the following day," later in his testimony
Lewis stated that at 8 o'clock the next morning Seahorn told
him that replacements had been secured for all those who
had walked out. When Seahorn came to the stand he assert-
ed that all the jobs were filled with replacements before the
night was over. At one point he attempted to name the
9 Of course, as found above, Ramey did not return until I p in., on August
31. Further, as to employee Church, the mechanic, Lewis testified that he was
immediately replaced by a trainee mechanic named Robert Salter. This
testimony as to Church's replacement was not contradicted
u
899
replacements for the six female complainants. Seahorn,
however, could only recall the names of five individuals who
he asserted had filled the jobs of those who had left the plant
the night before. The Respondent never proffered a sixth
name.
Respondent's Johnson City complex had over 1,300 em-
ployees. Normally, a substantial number of records are kept
as to personnel procedures and actions connected with ter-
minations and replacements in such a large facility. These
records customarily establish the precise time when the re-
placement was hired, when the replacement reported to
duty, whether the replacement was a transferee from some-
where else in the plant or a new hire, and whether the
replacement was given the job on a probationary basis or
otherwise. The Respondent here, however, offered no such
evidence to corroborate the testimony of Lewis and Seahorn
to the effect that by 10 o'clock on August 31 the jobs of all
the complainants had been filled with replacements. Under
these circumstances, the failure to produce such documen-
tation, or ever advert to its existence, would tend to indicate
that the personnel records which were available would not
support the Respondent's position.
Equally damaging to the Respondent's contention is the
fact that both before and after August 31 the Company had
a local radio station broadcast help wanted advertisements
daily. Thus, Arthur Kelsey, general manager for WATV, a
radio and television station in Johnson City, testified that,
everyday from August 31 to September 16,10 Station WATV
carried the following radio advertisement for the Respon-
dent:
Leon Ferenbach, the oldest continuous employer in the
textile industry is looking for full time permanent em-
ployees, 18 years of age or older. . . . When you are
looking for employment join the team. No prior experi-
ence necessary. They'll train you. Call them at 926-
1931 or stop by 250 West Market Street.
General Manager Lewis testified that in the period prior to
the strike, which occurred in September, the Respondent
had an annual turnover rate of about 200 percent, which
meant that it was hiring over 2,0bO people a year.
The assertions of Lewis and Seahorn that replacements
for all the female complainants had been secured before the
women returned to the plant on August 31 were not corrob-
orated by the testimony of any personnel officer and were
totally without the support of any evidentiary documenta-
tion. In view of the foregoing and in the light of earlier
testimony as to the Company's need for experienced hands
such as the alleged discrimmatees, Lewis' testimony that
replacements needed a 6-week training period and the fact
that at this very time the Respondent was broadcasting
help-wanted advertisements daily, it is my conclusion that
neither Lewis nor Seahorn was credible in his testimony that
the jobs in question had been filled before the six employees
in question returned to the plant on August 31. Moreover,
in view of Lewis's earlier testimony "we had to [work] the
following day with inexperienced help and we had to have
trained operators double over, to work overtime," it appears
10 As well as on numerous other dates in August and September.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at most the Respondent filled the vacancies created
when the six employees walked out merely by readjusting
the work schedule of existing employees rather than by
securing permanent replacements.
On the night of August 30, the employees sought to dis-
cuss with the Respondent's management what they under-
stood to be the new plant rules. Their effort to do so was
concerted activity and, under the Act, it was protected. The
Respondent was not free to ignore their request and contin-
ue to insist, as Seahorn would require, that they meet with
the supervision individually and "on a one [to] one basis."
Under the Act they were protected in pooling their
strength. N.L.R.B. v. Washington Aluminum Company, Inc.,
370 U.S. 9, 17 (1962); N.L.R.B. v. Kennametal, Inc., 182
F.2d 817, 818 (C.A. 3, 1950); N. L. R. B. v. Peter C. K. Swiss
Chocolate Co., 130 F.2d 503, 505-506 (C.A. 2, 1942); The
Masonic and Eastern Star Home of the District of Columbia,
206 NLRB 789 (1973). They could not, of course, remain in
the plant and continue to draw their pay. The Respondent
could, as it did, insist that they clock out and leave the
plant. When they did so they became economic strikers. As
such they were not entitled to reinstatement if, before their
return, their former positions and all equivalent positions
had been filled by permanent replacements. N.L.R.B. v.
MacKay Radio & Telegraph Co, 304 U.S. 333, 345-56
(1938). But when they returned the next morning they were
entitled to immediate reinstatement if their former jobs
were still unfilled. Even if their old jobs had been filled,
they were entitled to reinstatement as positions for which
they were qualified became available. Moreover, in the lat-
ter event, the burden was on the Respondent to show that
its refusal to reinstate rested upon "legitimate and substan-
tial business justifications." N.L.R.B. v. Great Dane Trail-
ers, Inc., 388 U.S. 26, 34 (1967); N.L.R B. v. Fleetwood
Trailer Co., Inc., 389 U.S. 375, 378-379 (1967); American
Machinery Corporation v. N.L.R.B, 424 F.2d 1321, 1326
(C.A. 5, 1970); The Laidlaw Corporation, 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397
U.S. 920 (1970)."
When the six complainants appeared at the plant on Au-
gust 31 they were seeking reinstatement. Their action in
reporting to the personnel office was obviously for that
purpose. There was nothing about their conduct that would
suggest that their application to return was being made
conditionally. Their appearance at the plant that day to
solicit an answer from the Respondent as to whether they
still had their jobs was tantamount to an unconditional offer
to return to work and it is now found to have been that for
the purposes of the Act. H. & F. Binch Co., 188 NLRB 720,
724 (1971), enfd. as to this point 456 F.2d 357, 361-362
(C.A. 2, 1972).12 Nevertheless, when they arrived, each, in
turn, was told by the Respondent's agent in the personnel
office that she had been replaced and had no job. That same
morning, Union Representative Dean also made known the
11 In Laidlaw the Board stated "As economic strikers . . they remained
employees who had offered to abandon the strike and who were available to
fill openings as such arose As Respondent brought forward no evidence of
business justification for refusing to reinstate these experienced employees
while continuing to advertise for and hire new unskilled employees , we find
such conduct was inherently destructive of employee rights." Id., at 1369.
i2 The Respondent did not contend that these employees were denied
reinstatement because their offer was conditional in nature
employees' desire for reinstatement when he telephoned
General Manager Lewis to request that they be returned to
work and he, too, was given a similarly negative response
just as had the employees themselves when they went to the
personnel office.
The Respondent offered no convincing evidence that the
jobs of the six female complainants had been filled by per-
manent replacements when they reported to the plant on
August 31. Furthermore, in view of the constant help-want-
ed advertisements which the Respondent was then having
broadcast on a daily basis, it is my conclusion that theirjobs
were still unfilled by permanent replacements when they
came to the personnel office on the above date. Consequent-
ly, in failing to reinstate them at that time the Respondent
violated Section 8(a)(3) and (1) of the Act. Finally, and in
any event, in the light of General Manager Lewis' testimony
that the Respondent was then experiencing an annual turn-
over rate of approximately 200 percent, it is evident that,
even if some of the strikers had been replaced by August 31,
with the passage of a relatively short period of time some
of their replacements would have quit. When that occurred
the Respondent was under an obligation to seek out the
discriminatees and offer them reinstatement. Laidlaw and
cases cited supra. The Respondent made no effort to meet
"the burden of justification" for failing to have done so.
American Machinery Corp. v. N L.R.B., supra, 1327. Accord-
ingly, it is now found that by such conduct the Respondent
further violated Section 8(a)(3) and (1).
C. Alleged Violations of Section 8(a)(1) During the Strike;
Findings and Conclusions With Respect Thereto
After polling its members, the Union called a strike that
began on the evening of September 23. Most of the incidents
in question occurred on the first night of the strike. It was
undenied that there were large crowds of strikers and pick-
ets about the plant entrances that evening.
The General Counsel alleged that the Respondent,
through its agents, urged nonstriking employees to drive
through the picket lines with reckless abandon and that the
Respondent's supervisors that night and thereafter engaged
in many acts of interference, restraint, and coercion. All of
these charges were denied by the Respondent.
There was a vast amount of testimony offered as to the
numerous incidents on which these allegations of the Gen-
eral Counsel are based. This testimony will now be consid-
ered.
1. In paragraph 11 of the complaint, the General Counsel
alleged that, on the night of September 23, General Manag-
er N. P. Lewis, Assistant Superintendent Ray Burchfield,
and Supervisor Joe Larimer threatened and assaulted the
Union's pickets in the vicinity of the main gate by ordering
the nonstriking employees who were in automobiles to drive
through the picket line and run over any pickets in their
path. This was denied by the Respondent.
Union Representative Dean testified that on the evening
the strike began at the main, or what was also known as the
upper, entrance to Plant 2 there were from 75 to 100 strikers
present, with from 25 to 30 pickets in front of the gate.
Employee Gertrude Morgan testified that about 10 o'clock
that night, and for some time thereafter, General Manager
11
LEON FERENBACH , INC. 901
Lewis was at this entrance and, when the cars of the non-
strikers reporting for the late night shift arrived , Lewis told
the drivers "to run us [the pickets] down" or "to go through
no matter what if [the driver] had to run us down ." Employ-
ee Barbara Estep testified that she heard Lewis tell one
driver "Give it the gas and go on through" and that she
heard him tell another driver "Put it in low gear and give
it the gas and go on through ." Dean testified that he heard
Lewis urge drivers to "give it the gas, go on in, run over
them," and that he heard Larimer tell the nonstrikers "Go
ahead , run over them [the pickets], give it the gas." Employ-
ee Patricia Morton testified that she heard Lewis say to
some of the drivers "go on through and run over [the pick-
ets]," but that she only heard Larimer tell the nonstrikers "to
come on through ..." Employee Estep testified that Super-
intendent Burchfield was present , but no one testified as to
his having said anything.
The foregoing testimony by the General Counsel was
denied by Lewis and Larimer and by some eight employee
witnesses called by the Respondent . General Manager Lew-
is testified that about 65 percent of the work force reported
for duty on the evening of September 23, although the pick-
ets formed an almost solid wall at the plant entrances to bar
entry by the nonstrikers . According to Lewis, in addition to
the mass of pickets that blocked entry through the plant
gates, many of those who sought to report for duty had their
cars surrounded and then rocked or stoned . He testified that
the cars of many nonstrikers had windshields or windows
broken and radio antennae torn off, and that their automo-
biles were subjected to various other body damage as the
cars were pounded by the pickets with clubs and pipes.
According to Lewis, he was at the main plant entrance for
over an hour from about 10 p.m., on September 23. He
testified that, with the arrival of the first car of a nonstriker
reporting for work on the late shift , 30 to 40 pickets stopped
marching ,and formed a solid wall at the gate . Thereafter,
many of the automobiles which approached the entrance
were surrounded by from 20 to 30 pickets who rocked the
cars both fore and aft as the drivers sought to inch forward
through the mass of strikers . According to Lewis, one of the
pickets most active in breaking windshields was Charles
Morton , husband of Patricia Morton . A photograph de-
picting Morton among the pickets and carrying a club was
received in evidence.
Lewis denied that he told any driver to "step on the gas"
or "run over" anyone . According to Lewis, he and other
supervisors approached many of the drivers who were sur-
rounded by the pickets and sought to reassure them that if
they moved forward slowly and carefully the pickets eventu-
ally would let them through , He testified that he told all the
drivers with whom he spoke "keep calm . . . put [the] car
in low gear and gradually inch . . . through ." He emphati-
cally denied having told any drivers to run over anyone.
Larimer gave testimony similar to Lewis. He also specifi-
cally denied having told any nonstriker to run over or risk
injuring any of the pickets.
The Respondent called many nonstrikers as witnesses to
testify as to their experience when seeking to report for work
on the late night shift on September 23. Employee Eva
Winters testified as follows : On arriving by automobile at
the main gate she found herself in the midst of about 100
strikers and pickets . Supervisor Larimer came to the Win-
dow on the driver's side and told her "take it on through."
She did not see or hear any other supervisors during the time
that she was seeking to cross the picket line. As Winters
endeavored to go forward , her car was surrounded by from
25 to 30 people who proceeded to lift it up and rock it back
and forth . As this procedure continued , Winters kept mov-
ing forward slowly. At one point , however, a number of
strikers lifted the rear end of her car so that the wheels were
off the ground . When they let go , the car lurched forward
and through the gate.13
Dayton Thomason testified that he took his wife , Bessie
Thomason , to work on the night of September 23, that when
he arrived at the plant entrance Lewis approached his vehi-
cle and told him "roll up your windows and ease on through
the line...." According to Thomason and his wife, as he
moved towards the gate many strikers surrounded the vehi-
cle (a pickup truck) and one of them tore off the antenna.
Employee Karen Dize testified that, when she arrived at
the entrance, Larimer suggested "put it in low gear and
drive slowly forward ." She testified that as she moved to-
ward the entrance , her car was scratched , the radio aerial
was torn off, and a brick was thrown at , her. Employee
Charles Jones testified that, when he reached the gate, from
75 to 100 pickets were blocking the entrance ,,and that Lewis
came toward his car and advised him to "roll . . . [the]
window up . . . lock my door and go on through." Accord-
ing to Jones, as he proceeded forward, pickets used clubs to
beat the car, the antenna was ripped off, and the car exterior
was scratched . Employee Arthur Osborne testified that
when he arrived at the gate about 11:30 that night , strikers
were lined up across the entrance and had it completely
blocked . According to Osborne, Supervisor Larimer ad-
vised him "just ease right on through" and when he did this,
he managed to enter the gate with the strikers having dam-
aged his car with only a few scratches . Employee Juanita
Buck testified that, as she was going through the massed
pickets, Barbara Estep , who was among the strikers, threw
a brick and hit her car.
The Respondent offered many photographs taken during
the course of the first night of the strike. Most of them were
offered while Lewis was on the stand. They were received
in evidence and tended to corroborate the testimony of
Lewis, Larimer , and the nonstrikers whose testimony has
been related above. This testimony was more credible than
that offered by the General Counsel. I specifically find that
Lewis, Larimer, and Burchfield did not engage in the unlaw-
ful conduct alleged in paragraph 11 of the complaint. Ac-
cordingly , it will be recommended that this allegation be
dismissed.
2. In paragraph 12 of the complaint the General Counsel
alleged that on or about September 23 the Respondent, by
its agent , busdriver Woodby, threatened and assaulted its
striking employees by driving a company bus in a reckless
manner through the picket line. This was denied by the
Respondent.
The first night of the strike and for a short time thereafter
13 At some point during this period one Jack McNabb, a stnker, was
struck . Lewis testified that McNabb filed cnminal charges against Winters,
but that , in a preliminary hearing, the charges were dismissed.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent used a bus to move nonstriking employees
from one plant to another. Picket Sam Jones testified that
about midnight on September 23 he was walking the picket
line at the entrance to Plant I when the bus drove up to the
gate at a speed of about 20 miles per hour According to
Jones, he escaped being hit by jumping out of the way, but
that Carol Hall, another picket, was struck. Jones acknowl-
edged that he did not actually see Hall at the moment the
bus struck her. He further testified that the bus did not stop
until it reached company property. However, this involved
a movement of only a few feet through the gate and from
the point of the accident. When the bus did come to rest
only the front end was on company property and the rest
of it protruded on the street. Patricia Morton estimated that
the bus was traveling at a speed of 25 miles per hour when
it approached the picket line. Everett Dean gave similar
testimony.
The Respondent called several witnesses who were at the
scene on the company side of the fence C. R. Blevins, a
mechanic, testified that as the bus approached the entrance
it slowed to about 5 miles per hour and that he heard the
strikers allege that the bus had run over a woman's foot. He
denied, however, having seen the bus strike Carol Hall or
anyone else. Jack Riley, another employee near Blevins at
the time, corroborated the latter as to the speed at which the
bus was traveling and testified that as the bus approached
the entrance there were numerous pickets directly in front
of it and standing in the driveway. Tony Brown, an office
clerk, was near Riley when the bus arrived. According to
Bowman, the bus was moving slowly, with the lights on and
with a rather noisy motor. Bowman did not see the bus
strike anyone.
The Respondent established beyond question that C. L.
Woodby was not the driver of the bus on this particular
night. Woodby himself credibly testified that he did not
drive the bus at any time during the strike and that through-
out the night of September 23 he was on security duty in the
boilerroom of Plant 2. His testimony in this connection was
corroborated by Opie Cunningham and Leroy Brown, two
fellow employees. They, also, were credible witnesses.14
Carol Hall was not called as a witness for the General
Counsel. On this record and without her testimony it is my
conclusion that the General Counsel has failed to prove the
allegation in paragraph 12 of the complaint by a preponder-
ance of the testimony. It would seem that any other issues
involved here are best left for resolution in a personal injury
action by the injured party.15
3. In paragraphs 13 and 15 of the complaint, the General
Counsel alleged that on or about September 25 four of the
Respondent's foremen, Dale Garland, Buck Garland, Don
Butler, and Freddie Carmichael, threatened the striking em-
ployees and pickets at Plant 2 by driving an automobile at
a high rate of speed through the picket line and that on that
same date they discharged a firearm at a striking employee
14 Criminal charges which alleged that Woodby had been involved in a
hit-and -run accident at the plant gate on September 23 and that he had failed
to report an accident were dismissed by the General Sessions Court in John-
son City on November 6, 1973
15 Such a suit is in progress Attorney Richard Johnson, counsel for Carol
Hall, entered a special appearance at the hearing and remained for such part
of the trial as was relevant to his client's interest
in the vicinity of the picket line. This was dented by the
Respondent.
Early on the morning of September 24, the Respondent
secured a state court injunction which allowed no more than
four pickets at each plant gate and which required all other
pickets to remain at least 500 yards away from the entranc-
es.16
Brenda Sue Holdren, one of the strikers, testified that on
the evening of September 25 she witnessed Buck and Dale
Garland, Don Butler, and a fourth individual driving reck-
lessly in and out of the upper entrance to Plant 2. At the
time, however, Holdren was not a picket at that gate, but far
removed from that point since she was with strikers who
were stationed some 1,500 feet from the entrance itself
Holdren also testified that later, as Butler and the other
foreman were driving along the road to the plant and as Carl
Hamm and Elsie Paine, two of the pickets, were walking
along the road, a shot was fired from the car. According to
Holdren, she was only 20 feet away from the car when the
alleged shooting occurred. However, she did not seem to
have any accurate sense of distance and her testimony as to
the space between her and the automobile in question was
most unconvincing. Additionally, she conceded that the in-
cident occurred about 9 p.m., and at a time when darkness
had fallen.
Carl Hamm testified that on the evening here involved he
was on the picket line, that he saw the four above-named
foremen drive through the upper entrance to Plant 2 several
times, and that on two occasions their car almost hit the
pickets, one of whom was named Peggy Tester. Tester was
not called as a witness. According to Hamm, after 8 p.m.,
he left the picket line and started walking toward the union
hall. Hamm testified that after he had gone about 350 feet
the four foremen drove toward him and, when they were
only a few feet away, he heard a shot and saw a flash of light
appear on the right hand side of the car. According to
Hamm, however, it was so dark at the time he could not tell
whether the burst of light which he saw came from a door,
a window, or some other point on the automobile that ap-
proached him.
Although Hamm had named Dale Garland as one of the
four persons in the car, he conceded that he did not know
Garland personally. When Dale Garland was called to the
stand he credibly testified that on the night in question he
was not at work, but at his home, since he was on the day
shift during that period. Carmichael, Butler, and Buck Gar-
land acknowledged that on the evening of September 25
they were in Butler's car and that they had gone through the
plant entrance several times. All of them testified that
Garland's automobile had been having ignition trouble and
that it stalled on several occasions and backfired, thereby
making a sound that closely resembled gunfire. All of them
denied having any guns on their person, or in the car, on the
evening of September 25.
The testimony of both Holdren and Hamm as to the
fashion with which the foreman drove through the plant
entrance, their estimates as to the speed the car was travel-
ing and their conclusions as to the alleged recklessness of
16 The injunctive degree was served on the union representative at 4 30
a in., on September 24
11
LEON FERENBACH, INC. 903
the driver were not persuasive. In addition. Peggy Tester,
the picket who, allegedly, narrowly escaped injury, did not
testify. Neither Holdren nor Hamm was a convincing wit-
ness as to the alleged gunfire. Holdren's testimony was obvi-
ously exaggerated. Hamm's was more credible, but even so
his conclusion that a gun had been fired from the car was
far from persuasive. He acknowledged that the darkness
seriously impaired his visibility and prevented his having
any clear view of -where in, or from, the car the alleged
weapon had been fired. In view of these findings and the
apparent credibility of the denials offered by the foremen,
I conclude that the General Counsel has not sustained his
burden of proving the allegations in paragraphs 13 and 15
of the complaint.
4. In paragraph 14 of the complaint the General Counsel
alleged that on or about September 25 the Respondent, by
its supervisor and agent, Foreman Bob Linton, threatened
striking employees with bodily harm. This was denied by
the Respondent.
Employee Carl Hamm testified that on or about Septem-
ber 25, and while he was on picket duty at the entrance to
Plant 2, Linton drove through the gate and about an hour
later he heard Linton declare ". . . Hamm, I'll get you after
this is over with.... " Hamm was unsure as to Linton's
supervisory status and was unable to describe it other than
that Linton "is high up" and works "in the front office" at
the plant."
When called to the stand by the Respondent, Linton
credibly testified that he has no supervisory responsibilities
and that he is a technical service representative . According
to Linton, in this latter capacity, he spends from 50 to 60
percent of his time away from the mill working with custom-
ers and while at the plant he works on manufacturing and
marketing problems. He also denied that he had made the
remark attributed to him by Hamm.
In view of the failure of the General Counsel to establish
that Linton had a supervisory status or was acting in some
other way as an agent of the Respondent, paragraph 14 of
the complaint must be dismissed.
5. In paragraphs 16 and 17 of the complaint the General
Counsel alleged that, on or about September 27, Foreman
Ted Jilton, Sr., threatened striking employees that they
would be run over by Foreman James Campbell when
Campbell drove through the picket line and that, on other
occasions between September 24 and October 4, Foreman
Campbell made similar threats. These allegations were de-
nied by the Respondent.
Employee Gertrude Morgan testified that several days
after the strike began Foreman Jilton 18 told a truckdnver
from the Overnite Transportation Company to "run over us
and come through" but that the driver declined to move his
truck through the picket line.' Employee Brenda Sue Hol-
dren, who was another picket at the scene, testified that,
when the Overnite truck stopped at the gate and the pickets
would not let him through Foreman Jilton asked James
17 The quotations in this paragraph are from Hamm's testimony
18 In the transcript of Morgan's testimony the reference is to "Foreman
Ted Linton, Sr." This, however, is an obvious stenographic error, because the
rest of the testimony indicates that the witness was referring to Foreman Ted
Jilton, Sr
Campbell, another foreman, to use his (Campbell's) private
camper truck to make a path through the pickets so that the
Overnite truck could follow immediately behind Campbell's
truck as it entered the plant yard. According to Holdren,
Jilton told the pickets ". . . girls, if you don't move you'll
be dead men [sic]." Patricia Morton, who was also a picket
at that gate, testified that Campbell told them "if we did not
move we would get run over." The latter testimony was
denied by Campbell and Jilton denied ever making any
statements to the pickets to the effect that they would be run
over or killed.
Jilton, who was the traffic manager for the Respondent,
testified that on several occasions, between the beginning of
the strike and October 5, Morton and Morgan were in-
volved in similar incidents during which they and other
female pickets refused to move from in front of a tractor
and trailer that was standing at the entrance. If the driver
pressed forward they would keep backing up very slowly
until, when at last they were on company property, they
would get out of the way. Campbell credibly testified that
on one of these occasions Morgan told him "Jim Campbell,
you'll get it, we'll get you if it is the last thing we do. We'll
either kill you, you'll step outside your trailer and well kill
you, [or] we'll run over you in the road. We'll get you before
it is over." According to Campbell, when Jilton appeared on
the scene, Morgan told him "... that goes for you too... .
We'll kill you if it is the last thing we do." Jilton testified that
on this occasion Morton, Morgan, and Holdren called him
and Campbell "scurvy sons-of-bitches" and that Morton
told him (Jilton), "If you step out of [your] ,house tonight
you will be a dead son-of-a-bitch." Neither Morgan nor
Morton denied having made, the comments attributed to
them by Campbell and Tilton. The latter were credible in
their testimony as to these incidents and it is found that
Morgan and Morton made the remarks substantially as
related above.
As found earlier, a restraining order, which the Respon-
dent obtained on the early morning of September 24, en-
joined the Union from having more than four pickets at any
entrance to the mill. Thereafter, Morgan, Holdren, and
Morton developed a practice of moving slowly back and
forth across the trucker's path so that the driver could not
go forward without incurring the risk of injuring the pickets.
If the driver chose to continue -his forward movement he
had to inch ahead as the pickets kept up their very slow
march back and forth across his path. Only after the front
wheels of the vehicle touched on company property would
they step aside. Thus, with reference to the incident on
September 27, Holdren was asked the following questions
and gave the answers which appear below:
Q. And when that truck stopped, Mr. Alton asked
yau'll to get out of the way, didn't he?
A. Yes sir.
Q. You'll did not get out of the way, did you?
A. No sir.
Q. You did not let that truck in, did you?
A. No sir.
Q. And that lasted for a number of minutes where
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you had that truck blocked?
A. Yes sir.
Q. What did you say to Mr. Jilton when he asked
you to move out of the way?
A. We told him it was our right to picket that gate.
Q. And did you tell him you were not going to move
out of the way?
A. Yes sir.
On this particular occasion, after about 30 minutes the Ov-
ernite driver discontinued his efforts to enter the plant and
drove away.
There was much other testimony on the picketing tech-
nique which Morton, Morgan, Holdren, and some of the
other women developed. The Respondent also showed sev-
eral films that were taken of these women while they were
picketing on or about October 4 and 5. 19 It is evident from
the pictures, as well as the testimony such as that of Holdren
which appears above, that any truckdriver who elected to
cross the picket line which these women had established had
to have an extremely strong will and even stronger nerves.
If he proceeded to move forward as they deliberately set
about to block his entrance, the driver had to maintain
extraordinary control over his large vehicle as it inched
ahead or risk crushing the pickets as they persisted in block-
ing his path.
Insofar as the pickets were peacefully picketing they were
exercising their statutorily guaranteed right to engage in
protected concerted activities. That involved their move-
ment back and forth across the entrance in such a fashion
as to inform the public of their appeal for support, but not
in such a manner as to block access to the plant. At the point
where the pickets set about to close the roadway for incom-
ing vehicles and sought to bar such ingress they were not
engaged in protected concerted activities. Mass picketing,
where a large number of pickets form a solid wall across the
factory entrance to prevent everyone from entering, has
long been illegal and unprotected. Similarly, here the tactic
pursued by Morton, Holdren, and Morgan closed the en-
trance as effectively as if a gate had been swung across the
roadway. When they chose to adopt this course they could
not expect that the Act would provide them with any protec-
tion. Consequently , it is my conclusion that, even if, as they
testified, on various occasions between September 27 and
October 5 Jilton and Campbell warned them that if they did
not move from the path of the tractors and trailers they
might be run over or killed, such remarks, under the circum-
stances present here and as described above, did not consti-
tute interference, restraint, or coercion on the part of the
Respondent.
6. In paragraph 18 of the complaint the General Counsel
alleged that on or about October I an agent of the Respon-
dent discharged a firearm from the roof of Plant I at the
striking employees and pickets in that vicinity. This was
denied by the Respondent.
19 At p 651,115 and 6 of the transcript, there is a passage which might seem
to indicate that the films were not shown while the hearing was on the record
In fact , however, the films were shown in the courtroom , on the record, with
The General Counsel called employee Brenda Sue Hol-
dren as its only witness in connection with this allegation.
Holdren testified that on a Friday night about 2 weeks after
the strike began 20 she saw someone fire a shot from the roof
of Plant 1. She further testified that the sound was like that
of a shotgun. In rebuttal, the Respondent called Cecil F.
Haines, Jr., an assistant superintendent who was the senior
management official responsible for Plant 1 during the time
in question . Haines testified that during this period he had
given instructions to all supervisors that any unusual inci-
dents be reported to him, and that at no time was there any
report that a shot had been fired from the roof. According
to Haines, he was the only official empowered to authorize
anyone to go on the roof. He testified that the only person-
nel whom he permitted on the roof during the early part of
October were professional photographers whom the Re-
spondent hired to photograph any incidents that might oc-
cur. He further testified that access to the roof was kept
under lock and key, that no more than two photographers
were on the roof at any one time, and that they carried no
weapons of any kind.
Haines was a credible witness. Holdren, on the other
hand, was a young lady who appeared on the stand as a very
belligerent individual whose credibility was not impressive.
As set forth above, the General Counsel called no witness
other than Holdren on this issue. The General Counsel also
filed no brief wherein he might have pointed to other testi-
mony on which he relied. In view of the lack of credence in
Holdren's testimony, it is now found that the General Coun-
sel has failed to establish that the Respondent engaged in
the conduct alleged in paragraph 18. Consequently, it will
be recommended that the allegation contained therein be
dismissed.
7. In paragraph 19 of the complaint, the General Counsel
alleged that on or about October 8 Foreman James Camp-
bell, and others, threatened the striking employees and pick-
ets with metal pipes. This was denied by the Respondent.
This was another allegation, the proof for which relies
solely on the testimony of Employee Brenda Sue Holdren.
According to the latter, on or about October 8 she, Gertrude
Morgan, one Louie Baldwin , and a fourth unnamed indi-
vidual were picketing at the upper gate to Plant 2. When a
customer's truck arrived and the driver declined to take it
across the picket line, Campbell entered the cab and drove
it through the gate. According to Holdren, as the truck went
through the line, two windows in the truck were broken.
Holdren testified that as soon as Campbell reached compa-
ny property he stopped the truck, jumped out, and called to
a group of 10 to 15 employees at a nearby loading dock
whom he urged to attack the pickets with the words "let's
get them boys." According to Holdren, the group of non-
strikers then started after the pickets with pipes and clubs,
but stopped as the pickets ran out on the street and the local
police arrived.
Campbell, who was the supervisor of shipping and receiv-
ing for Plant 2, testified that, after the driver declined to
cross the picket line, he himself drove the truck up the
loading dock. According to Campbell, just as he started
the reporter present and available to record all interrogation or colloquy that 20 This would have been on or about October 5. 1973, rather than October
took place while the viewing of the film was in progress 1, as alleged by the General Counsel
11
LEON FERENBACH, INC. 905
across the picket line, one of the pickets, who was standing
next to Morgan at that moment,2 threw a rock at the truck
which hit the window on the driver's side and went out the
window on the other side of the cab. According to Camp-
bell, as the rock passed through the cab he was showered
with glass splinters and received cuts on both arms. Camp-
bell testified that after he'entered upon plant property and
stepped out of the truck the picket who had thrown the rock
appeared at the gate with a 4-foot long pipe. According to
Campbell, at this point the same picket began calling out
that Campbell was a "scabby SOB," and defying the super-
visor to come back to the gate. Campbell testified that at this
point he called to the nonstrikers on the dock to ask if they
could identify this picket (who at that time he did not
know), but he denied that he sought to organize the dock-
workers into a group that would assault the strikers.
Holdren conceded on cross-examination that the dock-
workers whom she alleged had come at the pickets with
pipes and clubs did not go through the gate and off compa-
ny property to attack the pickets. Moreover, from her own
testimony, it would appear that at the time the pickets were
over the boundary and on the Respondent's property. Hol-
dren was an opinionated witness who displayed little con-
cern for'accuracy or candor. Since, here again, it is she upon
whom the General Counsel is relying to support this allega-
tion in his complaint, and since Campbell who was testify-
ing for the Respondent was the more credible witness, it is
my conclusion that paragraph 19 of the complaint must fail
for lack of persuasive evidentiary support.
D. Eligibility of the Economic Strikers for Reinstatement
All of the six employees who were discriminatorily re-
fused reinstatement on August 31, 1973,22 are entitled to
their former jobs, or substantially equivalent positions, un-
less by subsequent misconduct they forfeited that right.
Morgan was the only one as to whom the Respondent was
able to adduce any significant evidence as to allegedly vio-
lent or unlawful conduct.
General Manager Lewis testified that on the first night of
the strike Morgan was one of the strikers who engaged in
physical destruction. A photograph was presented in which
Morgan, while with a group of strikers appeared alongside
a car with a twisted radio antenna. According to Lewis, the
photo depicted Morgan holding the antenna and about to
break it off. Lewis' testimony, however, was based more on
the picture than his own recollection of Morgan at that
specific moment. Similarly, Supervisor Larimer testified
that Morgan broke a radio aerial off one car that night, but
when questioned further Latimer acknowledged that, apart
from the photograph in question he had no independent
recollection of having seen Morgan do anything of that
kind. Morgan denied having broken any car aerials. The
picture on which the Respondent so heavily relies is far from
21 Holdren named this person as Louie Baldwin, whereas Campbell re-
ferred to him as Lewis Bowman.
22 As found earlier, Church is not being treated as an economic striker who
was denied reinstatement because it was found that he quit his employment
on the evening of August 30, 1973. Further, there was no evidence that he
sought reemployment
conclusive evidence. In this exhibit, Morgan has her back
to the camera, near an automobile and its antenna. At the
same time there are many people beside her and a picket
sign that can be seen over her left shoulder appears to be
held by someone who is closer to the antenna than she. In
view of this ambiguity in the documentary exhibit, as well
as Morgan's denial, which was credible, I conclude that the
Respondent did not establish that Morgan engaged in any
destruction of property on the night of September 23.
The Respondent alleged that in another picket line epi-
sode Morgan lay down in front of a truck to prevent passage
of the vehicle. This incident occurred on or about October
4 at the upper gate to Plant 2. David Johnson, a materials
manager for the Respondent, testified that when a truck at
the Overnite Transportation Company arrived at the en-
trance Morgan lay down in the path and compelled the
driver to stop his vehicle. Johnson testified that Morgan was
on the asphalt for only a few seconds when she stood up and
thereafter the driver turned around without making any
further attempt to enter the plant.
Morgan acknowledged that she had, indeed, lain down in
the path of the Overnite truck and that she did so after
having had a conversation with the driver. According to
Morgan, a few minutes before the incident she asked that
he refrain from going through the picket line and that he
promised that he would if only she would lie down in front
of his truck. In carrying out this scene, Mrs. Morgan, who
was young and attractive, may have prevailed upon the
truckdriver more through the exercise of her feminine wiles
than by an appeal to his reason, but, in so doing, it can
hardly be said that she engaged in violence.
On the other hand, earlier herein it was found that on
other occasions Morgan and pickets such as Morton and
Holdren blocked the entrances where they were picketing.
It was also found that in a number of incidents involving
management representatives Campbell and Jilton, Morgan,
among others, had voiced threats to Campbell in which she
told him "We'll either kill you, you'll step outside your
trailer and we'll kill you, we'll run over you in the road, we'll
get you before it is over" and that she told Jilton "We'll kill
you if it is the last thing we do." The picketing which
blocked plant entrances was unprotected and so, too, were
the oral threats made to Campbell and Jilton. More than
that, it must be held that this conduct was of such a charac-
ter as to justify denial of reinstatement rights to Morgan.
The Firestone Tire & Rubber Company v. N.L.R.B., 449 F.2d
511, 512-513 (C.A. 5, 1971) (Whitehead); Kohler Co. 148
NLRB 1434, 1452 (1964), enfd. 345 F.2d 748 (C.A.D.C.,
1965), cert. denied 382 U.S. 836 (1965).
CONCLUSIONS OF LAw
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By refusing to reinstate strikers Vickie Ferrell, Louise
Jenkins, Effie Joines, Peggy McConnell, Gertrude Morgan,
and Beverly Ramey on August 31, 1973, when they uncon-
ditionally offered to return to work and had not been per-
manently replaced, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1)
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act.
3 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
4. By certain unprotected activity in which she engaged
during the course of the strike, and thereafter, Gertrude
Morgan forfeited her right to reinstatement.
5. The General Counsel has not proved by a preponder-
ance of the evidence that the Respondent interfered with,
restrained, and coerced its employees in the exercise of the
rights safeguarded by the Act, except by the specific acts
and conduct found herein to have been violative.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it will be recommended that the Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatorily re-
fused to reinstate Vickie Ferrell, Louise Jenkins, Effie
Joines, Peggy McConnell, and Beverly Ramey on August
31, 1973, it is recommended that the Respondent be ordered
to offer them 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, and make them whole for any loss of
earnings they may have suffered from August 31, 1973, to
the date of the Respondent's offer of reinstatement.23 The
backpay for the foregoing employees shall be computed in
accordance with the formula approved in F W. Woolworth
Company, 90 NLRB 289 (1950), with interest computed in
the manner and amount proscribed in Isis Plumbing & Heat-
ing Co, 138 NLRB 716, 717-721 (1962). It will also be
recommended that the Respondent be required to preserve
and, upon request, make available to the Board or its agents
payroll and other records to facilitate the computation of
backpay due
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employee
rights safeguarded by the Act, it will be recommended that
the said Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. N.L.R B. v. Entwistle Mfg. Co, 120
F.2d 532, 536 (C.A. 4, 1941).
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
23 At the hearing the Respondent asserted that Vickie Ferrell had been
reemployed. Ferrell never testified, and no evidence was ever offered, as to
the terms and conditions under which she was reemployed . In view of this
lack of information and the fact that General Manager Lewis testified at the
hearing that the Respondent would reemploy the discriminatees only on an
individual basis and as new employees , it is found that to effectuate the
purposes of the Act, an offer of reinstatement must be made to Ferrell at the
same time and on the same terms that it is being made to the other discrimi-
natees
ORDER 24
Respondent Leon Ferenbach, Inc , its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to reinstate economic strikers who uncondi-
tionally offer to return to work and have not been perma-
nently replaced.
(b) Refusing to offer to reinstate employees who have
been replaced while engaged in an economic strike when
jobs become available for them after they have made an
unconditional offer to return to work, in the absence of
legitimate and substantial business justifications for so re-
fusing.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, or engage in concerted activities for the purpose
of collective bargaining or other mutual aid, or to refrain
from any or all such activities.
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Vickie Ferrell, Louise Jenkins, Effie Joines,
Peggy McConnell, and Beverly Ramey immediate and full
reinstatement to their former jobs or, if those jobs no longer
exist , to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges previ-
ously enjoyed, and make them whole for any loss of
earnings they may have suffered as a result of the discrimi-
nation against them in the manner set forth above in the
section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its plant in Johnson City, Tennessee, copies of
the attached notice marked "Appendix." 25 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of the receipt of this
$4 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
25 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
LEON FERENBACH, INC. 907
Decision, what steps the Respondent has taken to comply
herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Vickie Ferrel Peggy McConnell
Louise Jenkins Beverly Ramey
Effie Jomes
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their right
to self-organization, to form, join , or assist the United
Textile Workers of America , AFL-CIO, or any other
labor organization , to bargain collectively through rep-
resentatives of their own choosing , and to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain
from any or all such activities.
WE WILL NOT refuse to reinstate economic strikers
who unconditionally offer to return to work before
they have been permanently replaced.
WE WILL offer to the following employees who par-
ticipated in a strike on August 30, 1973, immediate and
full reinstatement to their former positions or if these
positions no longer exist, to' substantially equivalent
positions, if they have not already been reinstated or
offered reinstatement, without prejudice to their se-
niority and other rights and privileges previously en-
joyed, an&make them whole for any loss of 'earnings
they may have suffered as a result of our discrimination
against them with interest at 6 percent per annum:
Dated By
LEON FERENBACH, INC
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 730 Peachtree Street, NE., Peach-
tree Building, Room 710, Atlanta, Georgia 30308,
Telephone 404-526-5760.