Masdon Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1974

212 N.L.R.B. 505 (N.L.R.B. 1974)

MASDON INDUSTRIES , INC. 505
Masdon Industries , Inc. and Aluminum Workers Inter-
national Union , AFL-CIO. Case 10-CA-10316
July 23, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On December 28, 1973, Administrative Law Judge
Lowell Goerlich 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, as
modified herein.
The facts show that due to employee dissatisfaction
with existing, wages and working conditions and
Respondent's failure to act on these complaints, cer-
tain of Respondent's employees commenced a strike
and picketing on May 17, 1973.2 At the time,
Respondent's employees were unrepresented; howev-
er, by the second day of the strike, the Union had been
contacted and on the morning of May 19, Union Rep-
resentative Rutledge was on the picket line soliciting
union authorizations from the strikers. Also on May
19, Respondent's president, Robert Masdon, met with
the striking employees to discuss the problems and
demands which gave rise to the strike. The allegations
presented in this case revolve around remarks made
by Masdon at the May 19 meeting and on their im-
pact on the strike and strikers.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act by Masdon's
threats to close down and move the plant before he
would recognize the Union. He further found that,
although the strike was economic in character at its
inception, it was prolonged by reason of this threat of
plant closure and thereby was converted to an unfair
labor practice strike. We agree with these findings for
the reasons expressed by the Administrative Law
Judge. We disagree, however, with the Administrative
Law Judge's further findings that Respondent violat-
ed Section 8(a)(1) by also interrogating employees at
the May 19 meeting, and by causing the constructive
discharge of the striking employees.
With respect to alleged interrogation of employees
on May 19, the credited testimony shows that Masdon
invited the striking employees to discuss the problems
and demands which gave rise to the strike begun on
May 17. The employees told Masdon they wanted a
20-cents-an-hour increase and complained about cer-
tain working conditions. Masdon told the employees
he could not grant a wage increase at that time. Dur-
ing the discussion an employee also told Masdon that
the employees were going to try to organize a union.
Masdon replied by asking what benefit a union would
be to the employees and what a union could give them
that he could not. The record further shows that these
questions were directed at the employees in general
and not at any individual. Inasmuch as Masdon's
remarks were not other than a normal response to a
discussion the employees themselves had initiated, we
are not persuaded that the remarks interfered with,
restrained, or coerced the employees herein,' Accord-
ingly, we do not adopt the Administrative Law
Judge's findings that Masdon's remarks constituted
unlawful interrrogation violative of Section 8(a)(1).
At the same May 19 meeting, the credited testimo-
ny further shows that Masdon responded to an
employee's question related to the recognition of, the
Union by saying he would close the plant and move
it to another town before he would recognize the
Union. As mentioned above, we agree with the Ad-
ministrative Law Judge's finding that Masdon's threat
to close and move the plant violated Section 8(a)(1) of
the Act. We disagree, however, with the Administra-
tive Law Judge's further finding that this remark was
tantamount to, and formed the basis for, a finding
that the striking employees were thereby constructive-
ly discharged.
A constructive discharge can occur where contin-
ued employment is conditioned upon employee aban-
donment of rights guaranteed them under the Act.
For example, the Board has found that employees
have been constructively discharged'in violation of
the Act where continued employment has been condi-
tioned upon giving up union membership'4 an illegal
condition of employment has been imposed," or work-
ing conditions have been changed in a manner which
t The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C-A. 3). We have carefully examined the record and find
no basis for reversing his findings
2 All dates are 1973
3 Phillips- Van Houscn Corp, 165 NLRB 1 (1967)
4 John E Holkko d/b/a Lifetime Shingle Company, 203 NLRB 688 (1973);
American Enterprises, Inc, 191 NLRB 866 (1971)
5 Orr Iron, Inc., 207 NLRB 863 (1973); Block-Southland Sportswear, Inc.,
Southland Manufacturing Company, Inc, 170 NLRB 936 (1968) (the Hobson's
choice presented to the employees was to sign by 2 p in warning slips which
had been discriminatonly issued, or be discharged)
212 NLRB No. 75
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has the effect of forcing the employee to quit because
the employee engaged in union or protected concert-
ed activity.' While it is not inconceivable that there
are circumstances in which a threat to close the plant
might also be found to condition continued employ-
ment and provide the basis for finding a constructive
discharge, we are unable to find, on the basis of the
record before us, that Masdon's threat to close the
plant forced employees to abandon their concerted
activities as the price for continued employment.
Masdon did not in fact discharge or threaten to dis-
charge the strikers. Nor were his remarks so interpret-
ed by the striking employees. Thus, in this latter
connection, the credited evidence shows that Union
Representative Rutledge told employees at a meeting
on May 20 that they had alternative courses of action
available to them including returning to work on the
next workday and filing an election petition. Rutledge
further advised the employees that a continued strike
would be an unfair labor practice strike and that dur-
ing an unfair labor practice strike an employee could
not be permanently replaced but could return to work
even if the strike were lost. The employees voted to
continue the strike. The record further shows that
some 15 of the strikers did in fact return to work
within a short period thereafter. Under these circum-
stances, we are unable to find that Respondent's re-
marks had the effect of conditioning continued
employment upon the abandonment by employees of
rights guaranteed them by the Act. Accordingly we do
not adopt the finding by the Administrative Law
Judge that the strikers were constructively discharged
on May 19.7
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening to close and move its plant before
it would recognize the Union, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The strike which commenced on May 17, 1973,
was converted into an unfair labor practice strike on
6 Untied Service Corporation d/h/a Forest Park Ambulance Service, 206
NLRB 550 (1973) (the constructive discharge of Michael F Roncalli), Du-
mas Brothers Manufacturing Company, inc, 205 NLRB 919 (1973) (the con-
structive discharge of Wesley McClain)
7 Respondent further contends that a constructive discharge of the strikers
was neither alleged in the complaint nor litigated at the hearing and that due
process considerations require reversal of the Administrative Law Judge's
finding In view of our finding herein, we find it unnecessary to pass on that
contention
May 19, 1973, and prolonged by reason of
Respondent's unfair labor practices.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act
6. Respondent has not engaged in other unfair la-
bor practices alleged in the complaint.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act, Respondent shall cease and desist therefrom
and take affirmative action designed to effectuate the
policies of the Act.
Having found that the economic strike was pro-
longed by the unlawful threat to close and move the
plant and thereby converted into an unfair labor prac-
tice strike, the order will provide the conventional
requirements8 that Respondent shall, upon uncondi-
tional application, offer strikers not heretofore rein-
stated immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismiss-
ing, if necessary, any employees hired since May 19,
1973.9 As to those strikers who have already made
themselves available for work on an unconditional
basis but were refused reinstatement, Respondent
shall make them whole for any loss of pay they may
have suffered or may suffer as a result of its failure or
refusal to reinstate them to suchjobs from 5 days after
the date of their unconditional application therefor to
the date of their reinstatement. Backpay shall be com-
puted in the manner prescribed in F. W Woolworth
Company, 90 NLRB 289, and Isis Plumbing and Heat-
ing Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Mas-
don Industries, Inc., Brilliant, Alabama, its officers,
agents, successors, and assigns shall:
1. Cease and desist from:
(a) Unlawfully threatening that it will close and
move its plant before it will recognize the Union.
(b) In any like or related manner interfering with,
See Bender Ship Repair Company, Inc, et a! , 188 NLRB 615. and cases
cited in fn 58 at 632
9 The record evidence does not show that the strike had ended nor that the
striking employees had made an unconditional offer to return to work at the
time of the hearing herein We note, with approval, that the Administrative
Law Judge reserved for the compliance proceeding the question of whether
or not any of these employees have engaged in any misconduct which would
bar them from reinstatement
MASDON INDUSTRIES, INC. 507
restraining, or coercing its employees in the exercise
of the rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon unconditional application, offer immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, to all strikers heretofore not restored there-
to, and make whole for any loss of earnings strikers
who have made themselves available for employment
on an unconditional basis but who were refused rein-
statement, in the manner set forth in "The Remedy."
(b) 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.
(c) Post at its plant at Brilliant, Alabama, copies of
the attached notice marked "Appendix." 10 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 10, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or'covered by any
other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with:
10 In 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 "
organization; to form, join, or help unions; and to
bargain collectively through a representative of your
own choosing. Accordingly, we give you these assur-
ances:
WE WILL NOT threaten to close and move our
plant before we will recognize a union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL, upon unconditional application, rein-
state to their old jobs, or, if such jobs no longer
exist, to substantially equivalent jobs, all unfair
labor practice strikers who have not already been
reinstated to such jobs.
WE WILL pay all strikers who have made uncon-
ditional offers for reinstatement, but who were
refused such reinstatement, for any wage losses
they suffered because of our refusal to reinstate
them.
MASDON INDUSTRIES, INC
(Employer)
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street NE, Atlanta, Georgia 30308, Tele-
phone 404-526-5760.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Masdon Indus-
tries, Inc., have violated the National Labor Relations
Act, and we have been ordered to post this notice.
The National Labor Relations Act gives you, as
employees, certain rights, including the right to self-
DECISION
STATEMENT OF THE CASE
LOWELL GOERLicI-i, Administrative Law Judge: The charge
filed by Aluminum Workers International Union, AFL-
CIO, herein called the Union on August 7, 1973, was served
by registered mail on Masdon'Industries, the Respondent
herein, on the same date. A copy of the amended charge,
filed on September 7, 1973, was served by registered mail on
the Respondent on the same date. A complaint and notice
of hearing was issued on September 12, 1973, and on the
same date was served by registered mail on the Respondent.
The complaint charged that the Respondent unlawfully in-
terrogated its employees, threatened its employees that it
would move its plant before it would recognize the Union,
and prolonged a strike, which commenced on May 16, 1973,
by its unfair labor practices, and thereby violated Section
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) of the National Labor Relations Act, as amended,
herein referred to as the Act.
The Respondent filed a timely answer denying that it had
engaged in or was engaging in any of the unfair labor prac-
tices alleged.
The case came on for trial at Winfield, Alabama, on
October 23, 1973. Each party was afforded a full opportuni-
ty to be heard, to call, examine, and cross-examine witness-
es, to argue orally on the record, to submit proposed find-
ings of fact and conclusions, and to file briefs. All briefs
have been carefully considered.
FINDINGS OF FACT 1 CONCLUSIONS , AND REASONS THEREFOR
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
an Alabama corporation, with an office and place of busi-
ness located at Brilliant, Alabama, where it is engaged in
the manufacture and sale of mobile homes.
Respondent, during the past calendar year, which period
is representative of all times material herein, sold and
shipped finished products valued in excess of $50,000 di-
rectly to customers located outside the State of Alabama.
Respondent is, and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Union is now , and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Pertinent Facts
At the time of the trial, the Respondent had been in
business for about a year and was headed by 28-year-old
Robert L. Masdon, whose experience in the field of labor
relations was derived during his tour as president of the
Respondent. His prior experience had been generally in
sales.
Prior to May 17, 1973, dissatisfaction with working condi-
tions developed among the Respondent's production em-
ployees. On May 17, 1973, the employees informed James
David Logan, plant superintendent, that they wanted a 20-
cent-an-hour raise and the Employer to "quit hollering" at
them. Logan "went upstairs"; when he returned, he said, "I
just can't give you no conclusion on it. . . . either go back
to work or go home." Sixty-three employees out of a com-
plement of about 120 went home
Thereafter a strike continued and picketing commenced.
In the meantime, the strikers received word that Masdon
would speak with them on Saturday morning, May 19, 1973.
On Friday afternoon, May 18, 1973, the Union received
a phone call informing it that the Masdon employees "were
out on strike, and needed someone to represent them." On
Saturday morning about 6:30 a.m., William S. Rutledge,
union regional director for region 2, appeared at the picket
line and commenced soliciting union authorizations. Ellis
Smith, president of Local 295, also solicited cards on behalf
of the Union. Rutledge recognized Respondent's supervi-
sor, Joe Franks, a former union member. Franks reported
the presence of "union people" at the gate to Plant Superin-
tendent Logan. Later in the morning, around 9 a.m., Mas-
don met with the employees at the truck dock inside the
fence .2 According to Masdon, he had invited the employees
"to discuss whatever-what the problem was, what they
wanted." Logan, Franks, and other supervisors attended the
meeting. The union representatives waited on the picket
line.
In response to Masdon's inquiry at the meeting, the em-
ployees advised him that they wanted a 20-cent-an-hour
increase and better working conditions; "that they thought
they had been worked too hard, and pushed too hard." 3
Masdon told the employees that he would not grant them
a wage increase.
During the meeting, Masdon asked "what the benefit of
an organized Union was"; why the employees "needed" a
union; and "what good a Union would do" the employees.
The employees answered, " (I]ob security and better working
conditions." According to Logan, Masdon asked, "what
can the Union give you that I can't give you?"
In response to a question as to whether he would recog-
nize the Union, Masdon answered that "he would close the
plant down and move it to another town before he would
accept a Union, before he would recognize a Union. And
said he had had two or three more offers from various towns
that wanted him to locate with them." °
The employees reported Masdon's statement to Rutledge.
On Sunday afternoon, May 20, 1973, about 70 of the
Respondent's employees met in the union hall at Russel-
ville, Alabama, for the purpose of determining a course of
action. Rutledge explained the alternatives. He pointed out
to the employees that they could "go back to work Monday
morning and forget the whole thing" and he would return
their authorization cards; that the employees could go back
to work Monday morning and that he would keep the cards
'The facts found herein are based on the record as a whole and the
observations of the witnesses
The credibility resolutions herein have been derived from a review of the
entire testimonial record and exhibits, with due regard for the logic of proba-
bility, the demeanor of the witnesses, and the teachings of N L R B v Walton
Manufacturing Company & Loganville Pants Co, 369 U S 404, 408 (1962) As
to those witnesses testifying in contradiction to the findings herein, their
testimony has been discredited, either as having been in conflict with the
testimony of credible witnesses or because it is in and of itself incredulous
and unworthy of belief All testimony has been reviewed and weighed in the
light of the entire record
2 About 50 to 60 employees had been picketing outside the fence. These
employees attended the meeting at the truck dock
Logan testified that he told the employees at the meeting that "if [he] had
ever hollered or mistreated anybody [he] was sorry of it."
The credited testimony of employee Steven Ricky Rogers Employee
Nathan Kimbrell remembered Masdon's words on this subject as follows
"No, I will not recognize a Union I will move the company, I'll shut it down
and move it before I will recognize it I've got three more towns that
are wanting me "
Logan, who is apparently hard of hearing, testified that he did not hear
the foregoing statement Masdon denied making the statement. Where
Masdon's testimony conflicts with other credible witnesses, it is discredited
MASDON INDUSTRIES, INC. 509
and file a petition for an election ;5 or that the employees
could remain on strike until the Respondent recognized the
Union. In connection with the last alternative , Rutledge
explained that there were two kinds of strikes , economic and
unfair labor practice strikes, and that during an unfair labor
practice strike an employee could not be permanently re-
placed but could return to work in event the strike were lost.
Rutledge also advised the employees that a continued strike
would be an unfair labor practice strike because "the Labor
Board would undoubtedly find that Mr. Masdon had com-
mitted an unfair labor practice in telling them that he would
shut the plant down ." The employees voted to continue the
strike.
Rutledge prepared picket signs for the strikers which ex-
hibited the language "A.W.I.U. on Strike-company un-
fair" and "A.W.I.U. on Strike-recognition , raise,
contract ." These were carried by pickets on Monday morn-
ing, May 21, 1973, and thereafter.
On Monday morning, May 21, 1973, as Masdon was
entering the plant , Rutledge asked Masdon whether he had
threatened to move the plant rather than recognize the
Union when he met with the employees on Saturday. Mas-
don answered that it was none of Rutledge 's business. Again
addressing Masdon, Rutledge said , "I didn't think you had
the guts to tell me what you told them ." Masdon shouted,
"Hell, yes, I said it, and I'll move it.,, 7
B. Conclusions and Reasons Therefor
Masdon's threat to close the plant and move to another
town before he would recognize the Union clearly was a
violation of Section 8(a)(1) of the Act. "Threats, such as to
move the plant. . . . or close it if the union won . . . in the
course of an organizational compaign constitute interfer-
ence and restraint within the scope of Section 8(a)(1)."
Marshfield Steel Company v. N.L.R.B., 324 F.2d 333, 336
(C.A. 8, 1963); Holly Hill Lumber Co. v. N.L.R.B., 380 F.2d
838, 841 (C.A. 4, 1967); N.L.R.B. v. Finesilver Manufactur-
ing Company, 400 F.2d 644 (C.A. 5, 1968). In the context of
the foregoing threats, Masdon's interrogations of employees
above noted were also unlawful and in violation of Section
8(a)(1) of the Act.
Masdon's unlawful threat to close and move the plant
levied against the striking employees was tantamount to the
conditioning of their continued employment upon the aban-
donment of their statutory right to work under conditions
5 Rutledge recommended this alternative
6 Rutledge testified
And the question was asked me over and over again that if they stayed
out could he replace them And I explained it. I explained at least a half
a dozen times that in my opinion the Board would make him take them
back if they wanted to give it up because he had violated the law in
threatening them
7 Rutledge immediately committed the conversation to writing. Employees
Kimbrell and Rogers corroborated Rutledge's testimony. Logan testified that
Masdon answered, "I can if I want to." Masdon said that he answered, "Well,
I could if I wanted to, that decision would be up to me, and to me alone,
nobody else."
Having considered the demeanor of the witnesses, Masdon's lack of indus-
trial relations experience and the attendant probabilities, I am convinced that
Masdon uttered the threat at the Saturday meeting and reiterated it on
Monday morning.
which would have permitted them to have kept their jobs
and at the same time to have been represented by a union
of their choice. Thus, the employees' jobs were conditioned
upon the surrender of their Section 7 rights which guarantee
employees the right to choose a collective-bargaining agent
to represent them in conformity with the Act. "[T]o condi-
tion employment upon the abandonment by employees of
the rights guaranteed them by the Act is equivalent to dis-
charging them outright for union activity." Black-Southland
Sportswear, Inc., Southland Manufacturing Company, Inc.,
170 NLRB 936, 938, enfd. sub nom Amalgamated Clothing
Workers of America v. N.L.R.B., 420 F.2d 1296, 1301 (C.A.
D.C., 1969); N.L.R.B. v. Ra-Rich Manufacturing Corp., 276
F.2d 451 (C.A. 2, 1960).
In the latter case , it was said at454, "Whether, the respon-
dent explicitly discharged Baker for his union activity or
only conditioned his retention on disavowel of the union,
the conduct was unlawful. Imposing such a condition on
continued employment discourages union membership al-
most as effectively as actual discharge."
In Atlas Mills, Inc., 3 NLRB 10 (cited in Block-Southland
Sportswear, Inc., supra), the employer addressed assembled
employees who had threatened to strike as follows: "Those
who want to stay with us without any outsider, all right, the
others leave, go and get your pay." Of the employer's re-
marks, the Board said at page 17: "The real alternative,
inherent in the situation itself,. was clear; either give up
connection with Local 2269 and abandon their legitimate
weapon, the strike, or leave the Respondent's employ." In
the instant case, the alternative was comparable.
Masdon's conditions of employment were clear, viz.,
either the employees must give up the Union or the plant
would be closed and moved and their employment would
cease.
The choice foisted upon the employees by Masdon was
equivalent to discharging the employees for union activities.
Indeed Masdon's threats smacked of conditions compara-
ble to those imposed by the outlawed yellow-dog contract.
Under these circumstances, the strikers became construc-
tive dischargees. For the employees to refuse to work with
these conditions hanging over their heads was to stand upon
their rights guaranteed by the Act, and their refusal to cot-
ton to Masdon 's terms placed them in the same position as
employees unlawfully discharged under the Act.
Masdon's threat was never withdrawn. It was reiterated
to Rutledge within the hearing of strikers. Moveover, the
threat figured in the employees' determination to continue
the strike and was the persuasive factor in causing the con-
tinuation of the strike. Thus, the strike was prolonged by
Masdon's threat.8
When the Respondent posed its threat and caused the
constructive discharge of the strikers, it converted the eco-
nomic strike into an unfair labor practice strike. Thus, as of
Saturday, May 19, 1973, the strike continued as an unfair
labor practice strike. Not only did the strikers become un-
fair labor practice strikers, but, by reason of their construc-
tive discharges, the strikers became unlawful discharges.
The Respondent, by its unlawful threats thereby render-
The employees' choice to return to work under Masdon 's conditions was
a choice to forgo union affection Inherently, such an alternative would
contribute to the prolongation of the strike.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing working conditions intolerable , prolonged the converted
unfair labor practice strike. Cf . N L R. B v. Tennessee Pack-
ers, Inc., Frosty Morn Division , 339 F.2d 203 (C.A. 6, 1964);
Avondale Shipyards, Inc v N L. R B., 391 F 2d 203, 204-206
(C.A. 5, 1968).
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act forjurisdiction to be exercised
herein.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed them by Section 7
of the Act, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
4. The strike which commenced on May 17, 1973, was
converted into an unfair labor practice strike on May 19,
1973, and prolonged by reason of the Respondent's unfair
labor practices
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
signed to effectuate the policies of the Act.
The Board has ordered reinstatement and backpay as
remedy for 8(a)(l) violations Plastic Applicators, Inc, 150
NLRB 123. The instant case warrants such a remedy By its
misconduct, the Respondent (as noted above) discharged as
a matter of law all the strikers on May 19, 1973. Had the
Employer refrained from its unlawful threats, it is highly
likely that the employees would have returned to employ-
ment and followed the election route as recommended by
Union Representative Rutledge.9 Under these circum-
stances, a recommendation will only fully effectuate the
purposes of the Act if the status quo ante is restored. Unfor-
tunately, the status quo ante is not often attainable. Howev-
er, in this case, a movement may be made in that direction
by requiring the Respondent to offer reinstatement to each
striker with backpay accruing from May 19, 1973, until an
unconditional offer of reinstatement is made Such is hereby
recommended Each employee's backpay less net earnings
shall be computed on a quarterly basis in the manner estab-
lished by the Board in F W Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent
per annum in the manner set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716
[Recommended Order omitted from publication.]
THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take affirmative action de-
9 The same persuasions are present here which caused the Board to opine
in the case of Winn Dixie Stores, Inc, 206 NLRB No 125, "the entire
duration of the strike is includible in the backpay award period because the
employer's own discrimination against the claimant makes it impossible to
ascertain whether such claimant would have gone out on strike in the absence
of the discrimination and the resulting uncertainty must be resolved against
the employer "