Nashville Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1951

94 N.L.R.B. 1567 (N.L.R.B. 1951)

NASHVILLE CORPORATION 1567
of the State of Florida, that decision precludes the assertion of juris-
diction in this case. In the Hollow Tree case, however, the Board an-
nounced, as one of the alternative standards of jurisdiction, that if the
enterprises supplied were "performing services outside the State, in
the value of $25,000 per annum or more" (emphasis added) jurisdic-
tion would be assumed over a supplier of goods or services valued at
$50,000. Here, the Employer does furnish the requisite amount of
materials to construction concerns which concededly hold construction
contracts totaling more than $1,000,000 with customers in States other
than those in which they maintain their principal places of business.
We conclude, therefore, under all the circumstances, that a disruption
in the orderly labor relations between the present Employer and its
employees would impede the flow of commerce, caused by the contrac-
tors' construction projects in various States, sufficiently to warrant
the invocation of Board procedure. Accordingly, we find that the
Employer's operations affect commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction
in this case.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. We find that all regular production and maintenance employees
employed at the Employer's plant in Tampa, Florida, including mixer
drivers and truck drivers, but excluding all office clerical employ-
ees, casual employees, salesmen, guards, night watchmen, professional
employees, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
-volume.]
CHAIRMAN HERZOG and MEMBER HOUSTON took no part in the con-
sideration of the above Decision and Direction of Election.
NASHVILLE CORPORATION AND AVCO MANUFA=RING CORPORATION and
JEROME A. COOPER. Case No. 10-CA-223. June 27, 1951
Decision and Order
On December 19, 1950, Trial Examiner Robert E. Mullin issued,
his Intermediate Report in the above-entitled proceeding, finding
94 NLRB No. 233.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Nashville Corporation and Avco Manufacturing Corporation,
herein called the Respondents, had engaged in and were engaging in
certain unfair labor practices by refusing to reinstate certain strikers
in violation of Section 8 (a) (3) of the Act, and recommending that
they cease therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondents had not violated the Act
by refusing to reinstate two other strikers, and recommended that the
complaint be dismissed as to them. Thereafter, the-Respondents and
the General Counsel filed exceptions to the Intermediate Report and
supporting briefs. The request of the Respondents for oral argument
is hereby denied as the record, including the exceptions and briefs,
adequately present the issues and positions of the parties.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and
Reynolds].
The Board has reviewed the rulings made by the Trial Examiner at-
the hearing and thereafter, and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the exceptions and
modifications noted below :
1. The General Counsel has excepted to the Trial Examiner's
recommendation that that part of the complaint alleging the discrimi-
natory discharge of Emmett E. Cooper be dismissed. In substance,
the grounds for the exceptions are that the Trial Examiner erred in re-
ceiving into, evidence the records of a proceeding before the Chancery
Court of Davidson County, Tennessee , and by relying for his find-
ings, as to Cooper, on the court's conclusions based on that record.
The transcript of the State court proceeding was offered in evidence
by the Respondents at the hearing but was first rejected. Upon fur-
ther consideration of this ruling after the close of the hearing, the
Trial Examiner received the transcript into evidence . It was the
judgment of the chancellor in the State court proceeding that five of
the complainant parties were guilty of violating an injunction issued
by the court which prohibited certain forms of picketing, and, as to
Cooper, that he was guilty of accosting and attempting to strike an
employee of the Respondents. We affirm the Trial Examiner's rul-
ing that the transcript of the State court proceeding was admissible
in evidence. The Board does not thereby hold that either the judg-
ment or the findings of fact on which the judgment is based are
binding upon it, but does hold that it was relevant and competent
NASHVILLE CORPORATION 1569
evidence which the Trial Examiner justifiably considered to be of
probative value.
The rules of evidence for the district courts of the United States
which the Board is required to follow under Section 10 (b) of the Act,
are broadly stated in Rule 43 (a) of the Federal Rules of Civil
Procedure.' It is clear that this rule establishes no substantive tests
for the competence of evidence, referring such a determination to other
sources. of the law of evidence. Admissibility of foreign judicial pro-
ceedings is provided for by 28 USC Sec. 1738,2 and we are satisfied that
under this section the record of the State court proceeding was ad-
missible, and could have been judicially noted by the Board even if it
had been rejected by the Trial Examiner. With competent and mate-
rial evidence before him as to Cooper's misconduct, the Trial Examiner
could properly find that Cooper's testimony at the hearing was not
credible and should be disregarded. His recommendation for the dis-
missal of the complaint as to Cooper is therefore adopted.
2. The Respondents would have us hold, not merely that the judg-
ment of the State court was admissible, but that its finding that some
of the complainant parties 3 violated its injunction is conclusive proof
of their misconduct, and consequently that the RespOridents were
justified in refusing to place them on the preferential hiring list estab-
lished for the other strikers. We have held, and have been uniformly
sustained by the. courts, that the seriousness of the conduct alleged as
the ground for refusal to reinstate strikers is initially for the Board
to determine, and that a State court conviction, or a finding that a
State court injunction has been violated is not diapositive of whether
' Rule 43 (a) reads in part as follows :
(a) Form and Admissibility . . . All evidence shall be admitted which is admissible
under the Statutes of the United States or under the rules of evidence heretofore
applied in ffie=courts of the United States on the hearing of suits in equity, or under
the rules of evidence applied in the courts of general jurisdiction of the state in which
the United States court is held. In any case , the statute or rule which favors the
reception of the evidence governs and the evidence shall be presented according to
the most convenient method prescribed in any of the statutes or rules to which
reference is herein made.
' The section reads in part as follows :
. . . such Acts, records and judicial, proceedings [of any court of a State, Territory
or Possession ] or copies thereof, so authenticated, shall have the same full faith
and credit in every court within the United States and Its Territories and Possessions
as they have by law or usage in the courts of such State. Territory or Possession from
which they are taken.
See also Atlantic Fruit Co. v. Red Cross Line, 5 F. 2d 218 (C. A. 1924), in which the
court said :
That we may take cognizance without plea or proof of the judicial opinions of
any state in the Union is undoubted . . . and a fortiori is this true of the opinions
of United States courts. How far this notice of opinion permits the investigation of
the record that produced the opinion is a subject not free from doubt . . . We
think it clear, however, that it is permissible to examine the record resulting in an
opinion, to ascertain the grounds upon which the opinion is based.. This does n 't
imply acceptance as proven facts, of.what the Court writing the opinion so regarded.
6 A. F. Bambrough, Sue Anne Baucon, Sadie D. Guthrie, C. A. Rollins, and E. T.
Whittenherg.
953841-52-vol. 94-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer is obliged to reinstate such strikers.4 The Board affirms
the Trial Examiner's finding that the violation, nonviolent in char-
acter, of the State court injunction against picketing within 100 yards
of the plant gates was not so serious as to warrant the Respondents'
discrimination against them.
We do not, however, agree with the Trial Examiner that the proper
remedy for the discrimination is an immediate offer of reinstatement
and the payment of back pay from the dates on which the complainants
applied for reinstatement. Our belief as to the rights of the com-
plainant parties is set out in the section entitled "The Remedy"
which appears below.
3. We do not adopt the Trial Examiner's finding that Winroe and
Cannon, who engaged in drunken misconduct while on a bus trip to
the plant for service on the picket line, were nevertheless then engaged
in protected concerted activity, and that the Respondent therefore,
was not justified in treating them differently from other returning
strikers. The incident in which Winroe and Cannon were involved
.did not occur on the picket line, but on a public conveyance at some
distance from the plant. It consisted of an attempt, while intoxi-
cated, to provoke an altercation with persons on the bus who were on
their way to work. This resulted in their conviction on drunkenness
charges in the local courts. The Respondent placed a memorandum
concerning these events in their personnel files.
We do not believe that the mere fact that these striking employees
were then proceeding to the plant for the purpose of participating in
picketing is in itself sufficient to cloak their conduct with protection.
As the disparate treatment accorded them by the Respondent was not
.attributable to their activity on the picket line, but was because of their
misconduct while traveling on a public bus, we find that the Respond-
ent did not thereby discriminate against them within the meaning of
Section 8 (a) (3) of the Act. We shall therefore dismiss the complaint
insofar as it alleges that the Respondent discriminated by refusing to
reinstate Ephraim Winroe and Truman Cannon.
4. No exception has been taken to the recommendation of the Trial
Examiner that the complaint, insofar as it alleges the discriminatory
discharge of Charles E. Cone, be dismissed. We shall adopt the
recommendation.
The Remedy
The proper remedy for discriminatory treatment is, so far as pos-
.sible, restoration of the complainant parties to the positions and bene-
4 Standard Oil Company of California, 91 NLRB 783; Kansas Milling Company v.
.N. L. R. B., 185 F. 2d 413 (C. A. 10) remanding, on other grounds, 86 NLRB 925;
N. L. R. B. v. Kelco Corporation, 178 F. 2d 578 (C. A. 4) ; Republic Steel Corporation,
107 F. 2d 472 (C. A. 3) ; N. L. R. B. v. Elkland Leather Co. Inc., 114 F. 2d 221 (C. A. 3).
NASHVILLE CORPORATION 1571
fits they would have enjoyed if it had not been for the employers'
discrimination. In this case, when the strike ended late in February
1948, only a small number of positions formerly held by the strikers
had not yet been filled, and those strikers whose jobs were still avail-
able were immediately reinstated. If the Respondents had done
nothing further, they would have been under no statutory obligation
to the remaining strikers, except to treat them in a nondiscriminatory
fashion if they applied for work as new employees. The Respondents,
however, undertook to treat the returning strikers as if they were
laid-off employees, and therefore entitled, under the seniority provi-
sions of their bargaining contract, to recall on a preferential basis.
Once having established this procedure for recalling the strikers, they
could not disregard the right of the complainants to receive the same
treatment accorded all those who had not been immediately reinstated.
Accordingly, we shall order the Respondents to offer reinstatement to
Bambrough, Baucom, Guthrie, Rollins, and Whittenberg, to any va-
-cant or new position that he or she would have been eligible to fill, in
the same manner as if he had been properly placed on the preferential
hiring list and had retained that preferential status for as long as the
list was maintained.5
If it is found that operation of the preferential hiring list in a non-
-discriminatory manner would have resulted in offers of reinstatement
to.any of these five complainant parties, then a sufficient number of
persons hired after February 26, 1948, shall be dismissed, if necessary,
to provide employment for those entitled to reinstatement. The Re-
spondents shall also make each of them whole for any loss of pay
suffered between the date on which he should have received an offer
of reinstatement and the date on which such an offer was actually
made. Any offer of reinstatement shall be without prejudice to the
-seniority and other rights or privileges formerly enjoyed by these
complainants.
Consistent with the Board's usual practice, and in accord with the
remedy proposed by the Trial Examiner, any loss of pay suffered by
the complainants shall be computed on the basis of separate calendar
quarters.a
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Other strikers could retain their preferential status for a year by registering with the
Respondents as to their availability for work every 3 months. The five complainants
discussed here were discharged outright and had no opportunity to be considered as
available for any period following the strike . rt would, therefore, be inequitable to limit
their rights to reinstatement to any period shorter than that during which the preferential
hiring list was maintained.
6 F. W. Woolworth Company, 90 NLRB 289.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the Respondent Nashville Corporation, and
its successor the Respondent Avco Manufacturing Corporation, jointly
and severally, and their officers, agents, successors, and assigns shall:
1. Cease ,and desist from :
(a) Discouraging membership in any labor organization of their
employees by discharging or refusing to reinstate any of their em-
ployees, or by discriminating in any other manner in regard to their
.hire and tenure of -employment, or any term or condition of
employment.
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to-
form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted-
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all. such activity, except to.
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as,
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to A. F. Bambrough, Sue Anne Baucom, Sadie D. Guthrie,.
C. A. Rollins, and E. T. Whittenberg, immediate and full reinstate=
ment to their former or substantially equivalent positions, without.
prejudice to their seniority and privileges, in the manner set forth in-
the section entitled "The Remedy" but subject to the qualifications set
out therein, and make them whole for any loss of pay they may have-
suffered by reason of the Respondents' discrimination against them-
(b) Upon request, make available to the Board or its agents for-
examination and copying, its preferential hiring lists, payroll records,.
social security payment records, time cards, personnel records and re-
ports, and all other records necessary to determine the rights of rein-
statement and the amounts of back pay due under the terms of this;
Order.
. (c) Post at the plant of the Avco Manufacturing Corporation in.
Nashville, Tennessee, copies of the notice attached hereto as Appendix--
A .7 Copies of said notice, to be furnished by the Regional Director for
the Tenth Region, shall, after being duly signed by representatives:
of the Respondents, be posted by them immediately upon receipt
thereof and maintained by them for at least sixty (60) consecutive days,.
thereafter, in conspicuous places, including all places where notices to,
employees are customarily posted. Reasonable steps shall be taken by
° In the event this Order is enforced by a decree of a United States Court of Appeals,.
there shall he inserted before the words, "A Decision and Order," the words, "A Decree•
of the United States Court of Appeals Enforcing."
NASHVILLE CORPORATION 1573
the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that the Respondents discriminatorily
refused to reinstate Ephraim Winroe, Truman Cannon, Emmett E.
Cooper, and Charles E. Cone.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership by our employees in any
labor organization by discharging .or refusing to reinstate any of
our employees, or by discriminating in any other manner in regard
to their hire and tenure of employment or any term or condition
of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist any labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE WILL restore the following named employees to their posi-
tions on the preferential hiring list which was established in Feb-
ruary 1948, and will, if they should properly have been reinstated
to their former or to another position, now offer them immediate
and full reinstatement to such position or to a substantially equiva-
lent position without prejudice to any seniority and other rights
and privileges previously enjoyed. We shall, if they are entitled
to reinstatement, make them whole for any loss of pay suffered
as a result of the discrimination against them :
A. F. Bambrough Sadie D. Guthrie
Sue Anne Baucom C. A. Rollins
E. T. Whittenberg
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain: or refrain from beconi.
ing members of any labor organization, except to the extent that the
right to refrain may be affected by a lawful agreement requiring mem-
bership in a labor organization as a condition of employment . We will
not discriminate against any employee in regard to the hire or tenure
of his employment or any term or condition of his employment because
of membership in or activity on behalf of a labor organization.
NASHVILLE CORPORATION,
Employer.
By ------------------------------------
(Representative ) ( Title)
Avco MANUFACTURING COMPANY,
Successor to Employer.
By ------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof and
must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Mr. William M. Pate, for the General Counsel.
Armistead, Waller, Davis 4 Lansden, by Messrs. William Waller and Hunter
Armistead, of Nashville, Tenn., and Mr. J. J. Grealis, of Chicago, Ill, for the
Respondents.
Mr. Jerome A. Cooper, of Birmingham, Ala., for the Charging Party.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Jerome A. Cooper, an individual, herein
called the Charging Party, the General Counsel of the National Labor Relations
Board,' by the Regional Director for the Tenth Region (Atlanta, Georgia), issued
his complaint, dated May 18, 1950, against Nashville Corporation and Avco
Manufacturing Corporation (herein called Nashville and Avco, respectively, and
sometimes jointly called the Respondent), alleging that the Respondent had en-
gaged in and was engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1). and (3) and Section.2 (6) and (7) of the Labor Management
Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint
and of the amended charge, accompanied by notice of hearing thereon, were
duly served upon the Respondent and the Charging Party.
With respect to the unfair labor practices, the complaint alleged in sub-
stance : That on about November 10, 1947, -the employees of the Respondent
}vent on strike ; that on about February 24, 1948, A. F. Bambrough, Sue Anne
Baucom, Sadie D. Guthrie, C. A. Rollins, E. T. Whittenberg, Emmett E. Cooper,.
Charles E. Cone, Truman Cannon, and Ephraim Winroe , all of whom were strik-
ing employees, applied, for reinstatement to their former positions; and that
at that time the Respondent refused to reinstate, discharged, and.refused to
hire and reemploy the said striking employees because of their membership in
the United Steelworkers of America, C. I. 0. (herein called Steelworkers). In
3 The General Counsel and the attorney representing him at the hearing are referred
to herein as the General Counsel ; the National Labor Relations Board as the Board. •
NASHVILLE CORPORATION 1575
its answer the Respondent admitted certain facts with respect to its business
operations , and that it had terminated the employment of the employees named
in the complaint on or about the dates stated therein , but denied that it had
committed any unfair labor practices.
Pursuant to notice , a hearing was held on May 31 and June 1, 1950 , at Nash-
ville, Tennessee , before the undersigned Trial Examiner duly designated by
the Chief Trial Examiner . The General Counsel, the Respondent , . and the
Charging Party were represented by counsel . All parties were afforded oppor-
tunity to be heard, to examine and cross-examine witnesses , and to introduce
evidence bearing on the issues.
At the outset of the hearing the Respondent moved to dismiss the complaint,
and in the alternative for a bill of particulars . The undersigned denied the
motion to dismiss 2 as well as the request for a more definite statement. With
respect to the latter , however , the undersigned advised counsel for the Respond-
ent that he would entertain a motion for a continuance at the conclusion of the
General Counsel 's case in the event further time was needed to prepare their
case. Counsel , however , made no subsequent request for such a continuance.
At the close of the hearing the undersigned granted a motion made jointly
by the General Counsel and the Respondent to conform the pleadings to the
proof with respect to minor matters such as names and dates. Counsel for
the Respondent then moved that the complaint be dismissed for lack of proof.
Ruling on this motion was taken under advisement . It is disposed of in this
Report as will appear hereinafter . Opportunity was afforded all parties to argue
orally at the close of the hearing . Argument was had by both the General
Counsel and the Respondent . All parties were likewise advised that they might
file briefs with the Trial Examiner. Subsequent to the hearing a brief was re-
ceived from the Respondent which has been carefully considered by the under-
signed!
2 By this motion, subsequently renewed during the hearing, the Respondent urged that
the complaint be dismissed because : (1) It was not signed by the Regional :Director ;
(2) there had been a delay of 26 months between the filing of the charges and the issuance
of the complaint; (3) the complaint purports to be based on an amended charge although
the Act makes no provision for the latter ; and (4) certain allegations in the complaint
are not supported by an original charge filed within the 6-month period prior to issuance
of the complaint. In the opinion of the undersigned none of these grounds has merit.
(1) It appears that the notice of hearing, the complaint, and a copy of the amended
charge were served on the Respondent together and as one document. Thus, no place
for a signature element appears at the bottom of the complaint but the notice of hearing,
which is signed by the Regional Director, refers to "the complaint attached hereto" and
"the charge upon which the complaint is based." It seems clear, therefore, that even
if the complaint Is considered separately it is incorporated by reference in the notice
of hearing and that it was sufficient that only the latter be signed. (2) The courts of
appeals and the Board have, on several occasions, rejected the argument that delay in
the prosecution of a complaint constitutes a valid defense. N. L. It. B. v. Andrew Jergen8
Co., 175 F. 2d 130, 134 (C. A. 9) ; N. L. R. B. v. Stone, 125 F. 2d 752, 756-757 (C. A. 7),
cert. den. 317.U. S. 649; Vulcan Forging Company, 85 NLRB 621; Quarles Manufacturing
Co, 83 NLRB 697, 698. (3) Early in the history of the original Act the Board rejected
as groundless the contention that it is neither empowered by the statute nor authorized
by its Rules and Regulations to issue complaints based upon an amended charge. L. C.
Smith. & Corona Typewriters, Inc., et al., 11 NLRB 1382, 1384; see also Consumers Power
Co. v. N. L. It. B., 113 F. 2d 38, 42-44 (C. A. 6). (4) The Board has held on several
occasions that it is unnecessary that every allegation in the complaint be grounded on
an original charge or charges filed within the 6-month period immediately prior to the
issuance of the complaint. Stokely Foods, Inc., 91 NLRB 1267; Meier & Frank Company,
Inc., 89 NLRB 1016; Lily-Tulip Cup Corporation, 88 NLRB 892.
3 During the hearing, the Respondent offered in evidence a transcript of record in a
Tennessee State court proceeding in which six of the alleged discriminatees named in the
complaint were found in contempt of an injunction issued by the Chancery Court of
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF NASHVILLE AND AVCO
Until April 1949, the Respondent, Nashville Corporation, incorporated under
the laws of the State of Delaware, and a wholly owned subsidiary of Consoli-
-dated Vultee Aircraft Corporation (herein called Consolidated), maintained
its principal office and only manufacturing plant at Nashville, Tennessee (herein
-called the Nashville plant), where it was engaged in the manufacture, sale,
and distribution of city transit busses, electric and gas ranges, and cold storage
food cabinets. On November 6, 1947, pursuant to a contract of sale, the Re-
spondent, Avco Manufacturing Corporation, a Delaware corporation, purchased
and received from Consolidated over 99 percent of all stock of Respondent
Nashville. In April 1949, Respondent Nashville was dissolved and Respondent
Avco assumed complete ownership of the Nashville plant. At that time Avco
assumed all orders, contracts, and liabilities of Nashville and continued with-
out interruption the operation of the plant with the personnel theretofore em-
ployed by Respondent Nashville.
Since that time Avco has continued the operation of the business. without
material change. There was likewise no change in the principal corporate
personnel. W. R. Lawrence, general manager of Nashville, has continued in
the same position for, Avco; Victor Emanuel, formerly president of Nashville,
is now chairman of the board of directors of Avco ; and G. S. Hastings, director
of industrial relations for Nashville throughout its corporate existence, con-
tinued in the same capacity for Avco at all times material herein. The Re-
spondents concede in their answer that since the dissolution of Nashville, Avco
has been its successor.
During 1948, Nashville purchased aluminum, steel, and related materials
valued in excess of. $500,000, approximately 50 percent of which originated out-
side the State of Tennessee ; during the same period Nashville sold and shipped
to customers outside the State of Tennessee approximately 90 percent of its
finished products, valued in excess of $500,000. In the year following the dis-
solution of Nashville, Avco's out-of-State purchases of raw materials and sales
of finished products were approximately the same as those for its predecessor
Davidson County, Tennessee , at the time of the strike involved in this case . An objection
by the General Counsel to its admission was sustained by the Trial Examiner.. An
appropriate rejected exhibit number was reserved for this exhibit, however , and when
a certified copy of this transcript was received it was marked with this number . Subse-
quent to the hearing and upon reconsideration of his ruling rejecting this exhibit, the
undersigned issued and caused to be served upon the parties an order to show cause
wherein. he received this exhibit in evidence and ordered that any party who felt prejudiced
by this reversal of the Trial Examiner 's original ruling should show cause on or before
July 31, 1950 , why the hearing should be reopened for the purpose of taking further
testimony . This order was issued on July 17 , 1950, and served upon counsel for all the
parties . Since that date, however , no request to adduce additional testimony has ever
been received by the undersigned . The original copy of this order to show cause and
the affidavit of service have been marked by the undersigned as Trial Examiner 's Exhibits
1-A and 1-B, respectively, and are . hereby received in evidence as part of the record
in this case.
Likewise , subsequent to the close of the hearing , the Respondent and the General Counsel
subnritted to the undersigned a stipulation to correct the record . This stipulation and
the order of the undersigned correcting the transcript in accordance therewith have been
designated as Trial Examiner ' s Exhibit 2-A and 2-B, respectively , and are hereby received
in evidence as part of the record.
NASHVILLE CORPORATION 1577
Nashville. Upon the foregoing facts the undersigned finds that at all times
material herein Nashville was, and Avco has been and is, engaged in interstate
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, C. I. 0., herein called the Steelworkers, is a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
For several years prior to 1947, Consolidated and the International Associa-
tion of Machinists (herein called I. A. M.), subsequent to Board elections in
1940 and 1945 in which the I. A. M. was designated as the majority representa-
tive, maintained a collective bargaining relationship covering the employees
at the Nashville plant. On February 11, 1947, these parties executed a new
contract for a period of 1 year.
On August 20, 1947, pursuant to the Board's Decision and Direction of Elec-
tion in Consolidated Vultee Aircraft Corporation, Nashville Division, 74 NLRB
967, an employee election was held at the Nashville plant with the Steelworkers
and the I. A. M. appearing on the ballot. Out of approximately 1,950 eligible
voters, the Steelworkers received 903 votes, the I. A. M. received 464, and 27 bal-
lots were marked for "neither." On about August 23, the I. A. M. filed objections
to the election. The Board never ruled on these objections because of the non-
compliance of the Steelworkers with Section 9 (f), (g), and (h) of the Act and
in November 1947 it. dismissed the representation petition in that case.4
On September 19, 1947, the Steelworkers, by letter, requested that the Re-
spondent repudiate its then current contract with the I. A. M. and recognize the
Steelworkers. On September 24, in response to this letter, G. S. Hastings,
director of industrial relations, stated that the Respondent did not believe it
had a right to recognize the Steelworkers until the Board had disposed of the
objections to election filed by the I. A. M. and had certified the Steelworkers.
The request of the latter union was renewed by the Steelworkers in another
letter on October 7. On Friday, November 7, Arnold F. Campo, a representa-
tive of the Steelworkers, called on Hastings to reiterate the demands made by
his union on September 19 and October 7. When Hastings rejected them again
for the same reasons he had given when they were made originally, Campo
told him that unless the Company complied with the union's request a strike
would ensue.
The following Monday, November 10, the Steelworkers struck the Nashville
plant. Out of some 1,300 employees it appears that all except about 57 stayed
off work on the day the strike began. On the second day of the strike approxi-
mately 300 employees came to work. As the strike continued the Respondent
hired many new employees to take the place of those who remained on strike
and by February 1, 1948, production in the plant was back to its prestrike level.
The Steelworkers maintained pickets at the plant daily until February 22, 1948,
• On about February 10, 1948, as the contract executed the preceding February reached
its terminal date, Nashville and the I. A. M. agreed that they would not execute a new
contract unless. and until the I. A.. M. was designated again as bargaining representative
in a Board election. On May 14, 1948, the I. A. X. was certified, subsequent to' an
election directed by the Board in The Nashville Corporation, 77 NLRB 145. On June 1,
1948, Nashville and the I. A. M. executed a new contract.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when the union called off the strike and discontinued the picketing. On this
- latter date approximately 450 employees were still on strike.
On February 24, the first day the plant was open following the cessation of
the strike, and on February 25 and 26, approximately 300 former strikers re-
ported at the plant. Jobs were open for only about 10 of these and they were
hired. With the exception of about 15, 9 of whom will be discussed below, the
remainder were treated by the Respondent as laid-off employees, being given
separation notices stating that they were laid off for the lack of work and
then listed in the Respondent's seniority book as "laid-off" employees under
their respective occupation numbers. Those so listed were carried in the
Respondent's seniority book for 3 months. At the end of that time the names
of those still not hired were removed from the book unless they had reported
either in person or by mail during the 3-month period. Those who continued
to report in this fashion once in every 3-month period, were able to maintain
their employee status for a period of 1 year after their layoffs. After the passage
of 1 year the employment of those still not recalled was considered terminated.
The complaint alleges that the Respondent discriminated against nine em-
ployees at the end of the strike. Of this group, A. F. Bambrough, Sue Anne
Baucom, Sadie D. Guthrie, C. A. Rollins, E. T. Whittenberg, and Emmett E.
Cooper were informed by the Respondent upon their return to the plant that
they were discharged for having violated a Tennessee State court injunction
during the strike; Charles E. Cone was told that he was discharged for having
engaged in violence on the picket line ; and Truman Cannon and Ephraim
Winroe, although among those given the status of laid-off employees upon the
termination of the strike, were never reemployed.
At the outset of the hearing before the undersigned the General Counsel
conceded that the strike which began on November 10, 1947, w as neither caused
nor prolonged by unfair labor practices on the part of either Nashville or Avco.
B. The discharges
1. The issues with respect to the discharge of the strikers found in contempt
of the State court injunction.
Upon the termination of the strike, the Respondent informed six of the al-
leged discriminatees, A. F. Bambrough, Sue Anne Baucom, Sadie D. Guthrie,
C. A. Rollins, E. T. Whittenberg, and Emmett E. Cooper, that they had been
discharged for having violated an injunction against certain strike activities
which- had been issued by a Tennessee State court. These six were among a
group of nine employees who had been given sentences of from 10 days in jail
to fines of $50 each on being found in contempt of the aforesaid injunction.
When they returned to the plant at the end of the strike, everyone in the group
was told that he had been discharged. Only six members of this group were
named in the complaint and only four out of the six appeared and testified at
the hearing before the undersigned. Three, Baucom, Guthrie, .and Cooper,
testified that on returning to the plant at the conclusion of the strike they were
told that they had been terminated on January 14, 1948, the day on which the
State court found them in contempt of its injunction.
On November 10, 1947, the Chancery Court for Davidson County, Tennessee,
issued an injunction enjoining the Steelworkers , their officers , and members
"from in any manner interfering with or attempting to interfere with or molest
employees or prospective employees of [the Respondent], or members of their
families, by the use of threats, personal violence, assault, battery or intimidation,
or by any means of like character, calculated or intended to deter or prevent the
NASHVILLE CORPORATION ,1579
'employees of [the Respondent] from carrying out their duties as such employees
or to prevent prospective employees from accepting employment." The injunc-
tion permitted peaceful picketing but limited the number of pickets and desig-
nated certain areas wherein they could picket. On December 4, 1947, the court
.amended.the restraining order so as to enjoin the Steelworkers, their officers, and
-members "from congregating or loitering within a distance of 100 yards of any
outside boundary of [the Respondent's] plant or premises for the purpose of
aiding or abetting the strike." The court further decreed that none of those
named in the order should be permitted to act as pickets "within 100 yards of
any outside boundary of [the . Respondent's] premises, except as herein ex-
pressly provided, and that picketing as herein used, includes but is not limited
to, the hailing or accosting of employees or other persons, whether in automo-
biles or other vehicles or on foot, on their way to or from [the Respondent's]
plant or any public or private road, railroad track or other avenue of approach."
On December 30, 1947, Nashville filed in the chancery court a petition for an
attachment for contempt against certain named individuals (including six of
those named in the complaint as discriminatees in the instant proceeding) alleg-
ing violation of the injunction. Early in January 1948, that court held an ex-
tended hearing on the petition. The hearing closed on January 14, and at that
time the chancellor rendered an oral opinion in which he found that Bambrough,
Baucom, Guthrie, Rollins, Whittenberg, Cooper, and three others were guilty of
violating the injunction. The chancellor imposed a fine of $50 on each of the
defendants. In addition to the fines, Cooper was sentenced to serve 10 days in
jail. On the following day the chancellor entered his decree adjudging the
defendants in contempt.
On appeal from the judgment of the chancery court, the Supreme Court of
Tennessee held that the injunction as issued did not violate the constitutional
rights of the appellants, that the petition for contempt fully apprised them of
their alleged acts in violation of the injunction, that the findings of the chan-
cellor were supported by the record, and that his judgment should be affirmed
in all particulars. N'asliville Corporation v. United Steelworkers of America.
C. I. 0., et al., 187 Tenn. 444, 215 S. W. (2d) 818.
It is the Respondent's contention that since the six employees named above
were convicted of unlawful conduct in a State court and this conviction was
affirmed on appeal, the Respondent was free to discharge them for the conduct
that had resulted in the State court convictions. The General Counsel, on the
other hand, contends that the Respondent may not rely solely on the fact of
the State court convictions of these six employees to justify their discharge for
conduct connected with the strike but that it must prove that during the strike
they engaged in such unprotected concerted activity as 'would justify the
Respondent in terminating their employment.
Respondent's position appears to find support in Precision Castings Co., Inc.,
48 NLRB 870, 883-884, where the Board stated:'
During the strike, the respondent applied for, and on July 1,. 1940, obtained
from the Court of Common Pleas for Cuyahoga County, Ohio, a temporary
restraining order apparently directed against certain activities of the strikers
although the grounds of the application and the provisions of the order
The restraining order, as amended, was issued by the chancery court upon an original
bill, an amended bill, and a large number of affidavits filed by the Respondent. In these
it was averred that the Steelworkers , their agents, and members had engaged In mass
picketing, greased the railway tracks into the . Respondent 's plant, spread nails across the
roads leading into the Respondent 's property , and engaged in nunTerous other acts of
violence and Intimidation.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are not disclosed in the record. On July 13, 1940, the Court adjudged the
following 11 of the respondent's employees in contempt of its order : John
Biss, John Bosko, William Heeder, Cecil S. Dotson, Richard Gallagher, Jr.,
Richard Gallagher, Sr., Herbert Mantell, Scott Dotson, Ben Biss, John Mul-
queen, and Harry Selavko. In its minutes the Court stated that these em-
ployees had committed acts in violation of its order, such as stoning auto-
mobiles and non-striking employees, picketing the homes of non-striking
employees, threatening non-striking employees and their families, 'and
mass picketing. The penalties imposed by the Court varied from a maxi-
mum of 10 days in jail and $500 fine to a minimum in the case of 2 of the
contemnors, of payment of costs.
None of the 11 contemnors except Selavko, who was rehired on January
13, 1941, has been reemployed by the respondent. The respondent contends,
and Superintendent Weigolt's testimony indicates, that it refused to rein-
state these employees because of their conviction of contempt and because of
the acts which the Ohio Court found that they had committed during the
strike and not because of their union membership or their participation in
the strike. We find, therefore, that the respondent did not discriminatorily
refuse to reinstate John Biss, John Bosko, William Heeder, Cecil. S. Dotson,
Richard Gallagher, Jr., Richard Gallagher, Sr., Herbert Mantell, Scott Dot-
son, Ben Biss and John Mulqueen.
The Board does not condone misconduct of employees during the course of a
strike. Hence, where there is a discharge allegedly for this reason the Board,
after a determination of the facts as to the alleged misconduct, must decide
whether such conduct was unprotected concerted activity which would justify the
employer's refusal to take back the employees upon termination of the strike.
In finding the facts with respect to the conduct in question the Board will con-
sider a conviction of the employee in a State court for breaches of the peace
which he committed during the course of the strike as well as the character of
the crime and the extent of the sentence. Republic Steel Corp., 9 NLRB 219,
enforced 107 F. 2d 472 (C. A. 3), cert. den. on this point, 309 U. S. 684. But
the fact of conviction in a local court for violation of a city ordinance or State
statute, standing by itself, is not dispositive of the question as to whether the
conduct of the employee in question was unprotected concerted activity under
the Act.' This, of course, is because the Board is not bound by determinations of
a State court in a proceeding to which the Board is not-a party. The Act vests
in the Board and in the Federal courts the power of preventing unfair labor
practices affecting commerce and specifically provides that "This power shall
not be affected by any other means of adjustment or prevention that has been
or may be established by agreement, law, or otherwise."' Cf. Standard Oil
Company of California, 91 NLRB 783. Furthermore, once it appears that an
employee has been discharged for concerted activity arising out of a strike, the
Board has held that this in itself is a violation of the Act "unless it is affirm-
atively proved, not that the employer in good faith believed that the strikers
engaged in [unprotected concerted activity], but that they had in fact done so."
Ohio Associated Telephone Company, 91 NLRB 932. Consequently, it appears
that the undersigned must reject the Respondent's argument that conviction of
'The Court of Appeals for the Fourth Circuit has stated "It is not the fact that
employees have been convicted of crime that renders them ineligible for reintatement,
but the fact that they have been guilty of unlawful -conduct which 'would .mkke-theh-
presence undesirable because of the disruptive effect which it would have upon the
employer' s business .4' N. L. R. B. v. Kelco Corporation, 178 F. 2d 578, 580 (C. A. 4).
7 Section 10 (a) of the Act.
NASHVILLE CORPORATION 1581
the employees found in. violation of the State court injunction was alone a
sufficient basis for their discharge, and that instead he must decide on the
record before him whether the conduct for which the Respondent discharged
the six employees and which the State court held contemptuous was likewise
unprotected concerted activity.
a. Conclusions with respect to the discharge of Barubroudh, Baucom,
Guthrie, Rollins, and Whittenberg
Insofar as the record indicates, the only specific findings made by the Ten-
nessee court with respect to the conduct of the five above-named employees
appears in the decree adjudging them in contempt. The relevant portion of
that decree reads as follows :
. . . the Court finds that the defendants, Sue Ann Baucom, A. F.
Bambrough, . . . Sadie Guthrie, . . . E. T. Whittenberg, C. A. Rollins,
E. E. Cooper . . . had actual knowledge of the injunction referred to in
the petition and that they and each of them were guilty of violating the
injunction, in that on various dates between December 4th and December
30th, 1947, with the exception of Saturdays, Sundays, and holidays, they
and each of them had congregated and loitered within a distance of less than
100. yards of the northern boundary of petitioner's premises and there
engaged in picketing for the purpose, of aiding and abetting the strike
referred to in the petition. Said defendants stationed themselves in front
of Kaufman's Restaurant, a place of business located within less than 100
yards of petitioner's premises, and there accosted and hailed employees
and other persons on their way to and from 'petitioner's plant. Said area
was not a part of the strike headquarters where defendants were permitted
to congregate and loiter.
Baucom, Guthrie, and Rollins appeared at the hearing before the undersigned.
Only Baucom was asked any specific questions as to conduct allegedly violative
of the injunction. She denied that while on the picket line she had engaged in
certain name-calling of the nonstrikers which had figured in the contempt case.
An examination of the transcript of testimony in the State court proceedings dis-
closes some conflict between Baucom's testimony there and her testimony at the
hearing before the undersigned. However, the undersigned does not deem this
fact material for the only testimony offered as to Baucom at the hearing on the
citation for contempt related to the question as to whether she had, while picket-
ing, described various nonstrikers as "scabs." The same is true with respect to
all of the testimony introduced in the chancery court as to Guthrie, Rollins,
Whittenberg, and Bambrough who on different occasions allegedly engaged in
similar name-calling or in peaceful picketing within less than 100 yards of the
Respondent 's plant.
It appears that none of these employees engaged in the type of violence involved
in the Precision Castings case quoted above and upon which the Respondent
relies. Here there was no stoning of nonstrikers , threats to employees still at
work, and mass picketing such as the Board found in that case. fin the contrary,
from a review of the findings of the chancery court set out above, the voluminous
record of the proceedings in that court, and the testimony of Baucom, Guthrie,
and Rollins at the hearing before the Trial Examiner, the undersigned concludes
and finds that the most that may be :said of the activity of the five employees
here in question is that on several occasions during the strike, they characterized
nonstrikers entering the plant as "scabs" and that at times they did this within
less than 100 yards of the Respondent's property. Further, it does not appear
that their picketing at anytime barred any of the nonstrikers from either enter-
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing or leaving the plant. Although this conduct was in violation of the terms of
the State court injunction, as the chancellor found, the issue now before the-
undersigned is whether such conduct was also unprotected concerted activity
under the Act. The undersigned is convinced that it was not. The Act does not:
prescribe the use of such terms as "scab" and other appellations customarily
applied by pickets to all who seek to work at a strike-bound plant, Neither does it
limit'peaceful picketing at the site of the primary employer in a case such as the
present where the picketing does not bar the ingress or egress of those employees.
still at work. Cf. Perry Norvell Company, 80 NLRB 225, 242; Sunset Line and
Twine Company, 79 NLRB 1487, 1505. Moreover, insofar as the Act is concerned,.
such conduct is legitimate concerted activity. From the record it appears that
Bambrough, Baucom, Guthrie, Rollins, and Whittenberg' engaged in nothing:
more than this. Since any discharge for protected concerted activity falls within
the prohibitions of the Act (see Massey Gin and Machine Works, Inc., 78 NLRB.
189, 191, 199-202), it is the conclusion of the undersigned that the Respondent
was not free to discharge these five employees for such conduct.' In the event
their jobs were filled when they returned to the plant following the strike the
Respondent was bound to accord them the same treatment as the other returning-
strikers whom it placed on what was, in effect, a preferential hiring list. Since the
Respondent did not. do this but discharged them instead, it thereby violated
Section 8 (a) (3) and (1) of the Act"
b. Conclusions with respect to the discharge of Cooper
Cooper's case differs from that of the five employees discussed above in that:
the chancery court specifically found that he had assaulted one of the non-
8 The Respondent has raised one other issue with respect to the alleged discrimination
against Whittenberg which merits discussion . On February 27, 1948, Whittenberg and:
several other strikers filed a charge against the Respondent in Case No . 10-CA-210,
alleging that it had discriminatorily refused to reinstate them following the strike. On.
March 17 , 1948, Jerome A. Cooper filed the original charges in Case No . 10-CA-223,
alleging that subsequent to the strike the Respondent discriminatorily refused to reinstate-
the nine employees involved in the present proceeding ( including Whittenberg ) and many
others. The complaint in the instant case was issued on May 18, 1950 , upon Cooper's.
original charge and an amended charge. In a forms letter dated May 24, 1950, the-
Regional Director notified ' Whittenberg that no complaint would he issued in Case No.
10-CA-210 because " there is insufficient evidence of violations ." Since the charge in
Case No . 10-CA- 210 alleged substantially the same set of facts as the charge in Case
No. 10-CA-223, the Respondent now urges that if there was insufficient evidence of
violations of the Act in Case No . 10-CA-210 then there can be no merit to similar charges
in Case No. 10-CA-223 , upon which the complaint is based. The Respondent ' s argument
must be rejected . The action of the Regional Director in sending out the letter of May 24,
1.950 , referred to above, was not an adjudication -of any issue by the Board . It was, in.
fact , no more than notice of the Regional Director ' s administrative determination to.,-
take no further action in Case No. 10-CA-210 . Such a determination on his part in
the latter case would not estop him from proceeding with the prosecution of the complaint'
issued on the charges filed in Case No. 10-CA-223. N. L. R. B. v. Baltimore Transit Co.,
140 F . 2d 51, 54-55 (C. A. 4), cert. den. 321 U . S. 795.
9 This conclusion is unaffected by, as appears from the record here, the lack of an.
antiunion motivation on the Respondent's part in effecting the discharges . The Board
declared in a recent decision that "once it is otherwise established that an employee's
statutorily protected rights have been trenched upon by his discharge , it is inrmaterial to-
a finding that the law has been violated that the discharge was not motivated by union.
hostility or ill intentions ." Cyril de Cordova J- Bro., 91 NLRB 1121 ( citing N. L. R. B,
v. Le Tonrneau Compan y, 324 U. S. 793, 797 ; Republic Aviation Cori) . v. N. L. R. B.,.
142 F . 2i1 193 ( C. A. 2), affil . 324 U . S. 793 ; N. L. R. B. v. Gluck Brewing Co., 144 F. 2d
847, 853-854 (C. A. 8) ; Home Beneficial Life Ins. Co. v. N. L. R. B., 159 F. 2d 280,.
285 (C. A. 4).
10 Since the discharge of these employees was discriminatory, the Respondent cannot
rely upon their replacement during the strike as a ground for not reinstating them.
Massey Gin and Mach ine Works, Inc., 78 NLRB 189, 190, 202.
NASHVILLE CORPORATION 1 543
striking employees named Adcox while on the picket line. As a- result, the,
chancellor not only fined Cooper $50 but also sentenced him to serve 10 days in
jail. Cooper was present at the trial in that court but did not testify ; he did,
.however, testify at the hearing before the undersigned. According to Cooper,
during the encounter with Adcox it was the latter who was the aggressor and
that, in addition, Adcox was armed with a blackjack. The Respondent did not..
offer any witnesses at the hearing before the undersigned to refute Cooper's
version of this incident, apparently relying on the strength of -its previously stated
position that the Respondent was entitled to rely on the finding of misconduct
previously reached by the chancery court, as well as on the record of that
proceeding which it offered as an exhibit.
The Chancellor, in an opinion given at the conclusion of the contempt pro-
ceeding on January 14, 1948, stated :
In regard to . . . E. E. Cooper, this is the third time he has been . . .
cited for violation of the Court's orders. The uncontradicted testimony in
this cause is that when Adcox got in the vicinity of where Cooper was stand-
ing out in front of Kaufman's that Cooper took off his coat and invited him
to fight.
In the decree, entered on January 15, 1948, the chancellor found that "E. E.
Cooper, on December 9, 1947, while loitering and picketing in front of Kaufman's
.Restaurant, in violation of the injunction, accosted and attempted to strike W. P.
Adcox, an employee of petitioner." Later these findings of the chancery court
were specifically discussed and affirmed by the Supreme Court of Tennessee.
Nashville Corporation v. United Steelworkers of America, C. T. 0., at al., 187
Tenn. 444, 215 S. W. 2d 918. The Board has held that an acquittal in an assault
case has evidentiary value, although not "a conclusive determination of the
assault question" Montgomery TT'ard d Co., Inc., 90 NLRB 1244, footnote 5. Like-
wise, the record of a conviction for such an offense is accorded evidentiary
weight. Republic Steel Corp. v. N. L. R. B., 107 F. 2d 472, 479-480 (C. A. 3), cert.
den. on this point, 309 U. S. 684. Cooper, when testifying at the hearing before
the undersigned, did not appear to be either a frank or credible witness. In.view
of this and the spcific findings previously made by the State court with respect to
the same incident, the undersigned will accept the findings of the chancellor that
Cooper, while picketing, threatened to strike Adcox. The Board has held similar
conduct on the part of an employee during the course of concerted action to be
unprotected activity and sufficient to justify the disciplinary action of discharge.
Intertown Corporation (Michigan), 90 NLRB 1145; Bradley Washfountain Co.,
89 NLRB 1662; Porto Rico Container Corp., 89 NLRB 1570; cf. N. L. R. B. v. Mt.
Clemens Pottery Company, 147 F. 2d 262, 268 (C. A. 6). Accordingly, the under-
signed concludes and finds that it was not a violation of the Act for the Respond.
ent to discharge Cooper for the conduct described above."
2. The alleged discriminatory discharge of Charles E. Cone; conclusions with
respect thereto
Charles E. Cone, one of the striking employees, reported for work at the
plant on March 2, 1948. He was interviewed by John H. Judd, one of the
"In arriving at this finding, the undersigned has given no consideration to any
testimony with respect to Cooper's indictment for another alleged offense charged to him
during the course of the strike. Testimony as to this indictment was given by the witness
Harry C. Nichol, assistant district attorney for Davidson County. At the hearing, counsel
for the Charging Party moved that it be stricken. Although denied at the time by the
undersigned, this motion should have been, and it hereby is, granted.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel officials, who told Cone that he had been discharged for violence
during the strike in an affray with an individual named Beard.
This incident took place on December 11, 1947. Elmer E. Beard had been
employed at the Nashville plant for a short while prior to the strike. While
the strike was in progress he returned to the plant to be interviewed for a
job. On arriving in the area, Beard parked his car across the street from the
plant and only a short distance from a tent which the strikers were using as
a headquarters for the pickets then on duty. Sometime later, as Beard was
leaving the plant, he was accosted by Cone, who came toward him from across
the road. Cone asked Beard if he had tried to get a job. When Beard gave
a somewhat noncommittal response, Cone cursed him, told Beard he would
kill him, and struck at him with his fist. When Beard returned the blow, Cone
slipped and fell to the ground. Beard then ran to the nearest plant guard,
Zinnie P. Burrus, who called the county police. When the latter arrived at
the scene they accompanied Beard to his car and he then started on the return
trip to his,home, located some distance from Nashville. Shortly after leaving
the plant area, Beard noticed that he was being followed closely by another
car. The driver of this vehicle, after one unsuccessful attempt eventually suc-
ceeded in forcing Beard off the highway and Beard's car came to a stop in a
roadside ditch. A moment later Cone stepped out of the pursuing car and
came toward Beard, who by this time had left his own automobile. After an
exchange of blows between the two, Cone and his companions left the scene.
Beard. later swore out a warrant for the arrest of Cone on assault and battery
charges, but it appears from the record that these charges were subsequently
dismissed for want of prosecution.12
From his observation of the witnesses and upon all the testimony in the
record with respect to this incident the undersigned is convinced and finds
that on December 11, Cone assaulted Beard when the latter was crossing the
road to his car and later, after Beard had been escorted back to his automobile
by the county police, Cone and several others pursued him into the country
where, after forcing Beard off the road and compelling him to stop, Cone again
assaulted and. struck him. In doing so, Cone was not engaging in protected
concerted activity and the Respondent, therefore, committed no unfair labor
practice in discharging him for this conduct. Porto Rico Container Corporation,
89 NLRB 1570; N. L. R. B. v. Ohio Calcium Co., 133 F. 2d 721, 726-728 (C. A. (3).
c. The issues with respect to the Respondent's failure to reemploy Winroe and
Cannon subsequent to the strike; conclusions with respect thereto
Prior to the strike, Ephraim Winroe and Truman Cannon were employed by
the Respondent as laborers, Wiuroe in the receiving department and Cannon in
'= The findings in connection with this incident are based on the credited testimony of
Beard who impressed the undersigned as an honest and truthful witness. Beard's
testimony was corroborated by Zinnie P. Burrus, who knew Cone and who witnessed his
attack on Beard from a guard post at the plant gate. Burrus likewise impressed the
undersigned as a credible witness. Cone testified with respect to the incident before the
plant gate : that on the day in question, a man whom he did not know approached him
as he stood before the strike headquarters; that when Cone asked this person if he was
seeking a job at the plant he replied to Cone with an epithet ; that this person then drew
his right hand back as if to hit Cone whereupon Cone grabbed this individual 's coat ;
and that, as he fell in the mud and slipped to the ground his assailant ran 'across the
street to the plant guardhouse. Cone denied that he ever saw this individual thereafter
or that he followed him in a car later that day. The undersigned, however, found Cone,
by his demeanor on the stand and the manner in which he testified, to be a most unper-
suasive witness. He is convinced that Beard and Burrus gave the more credible version
of this incident and that Cone's denial that he participated in the pursuit and attack on
Beard outside Nashville the same day is unworthy of belief.
NASHVILLE CORPORATION 1585
the enameling room.13 Both participated in picketing during the strike. When
they returned to the plant at the conclusion of the strike, their former jobs were
no longer open. They were, however, given separation notices stating that they
had been laid off for lack of work and their names were placed on the plant
seniority roster as laid-off employees.
At the outset of the hearing, the Respondent and the General Counsel stipu-
lated that at all times material herein it was the practice of the Respondent to
fill any opening which arose with a laid-off -employee in the same department
and occupation, if one was available. If no such laid-off employee was available,
then laid-off employees within the same occupation in other departments would
be considered for the opening, along with new applicants and, other things being
equal, the laid-off employee would normally be given preference over new appli-
cants for the opening. However, because of an incident that occurred on a
public bus on January 24, 1948, in which both Winroe and Cannon were involved,
the Respondent treated them differently from the other laid-off employees in that
it limited its consideration of them to job openings in the specific occupation and
department in which they had worked before the strike instead of considering
them for openings in laborer's jobs which arose in other departments. During
the 3-month period immediately following the termination of the strike, the
Respondent hired nine laborers, eight being hired for the maintenance depart-
ment and one for the pressroom" At the end of that period the names of Winroe
and Cannon were removed from the plant seniority book because neither had
reported in person or by mail to the personnel office to ask that he be kept on
the roster for an additional 3 months.
The General Counsel contends that at the time of the bus incident Winroe and
Cannon were on their way to the plant to serve on the picket line and were en-
gaged in protected concerted activity ; that upon the termination of the strike,
without proving that they were involved in serious misconduct, the Respondent
was not free to treat them differently from the other returning strikers whom it
classified as laid-off employees ; that the Respondent should have considered them
for the nine laborer vacancies which arose in the 3 months following the strike ;
and that by not doing so it discriminated against Winroe and Cannon. The Re-
spondent contends that although the jobs of Winroe and Cannon were not open
when the strike terminated, it gave them a preferred status in treating them as
laid-off employees, which status they failed to preserve by not reporting within
3 months; that although both could have applied for jobs in other departments
at any time had they been interested, or for a transfer to another department,
neither of them did so ; and that since it is not contended that any job opened
up in their occupation and department, the Respondent cannot be held to have
discriminated against them. In its brief, counsel for the Respondent urges
further that even if they had applied for other jobs it would have been justified
in rejecting their applications on the basis of its good faith belief that while on
a public bus they had insulted and annoyed employees of the Respondent who
were on their way to work.
The record contains little direct testimony as to the bus incident other than
that it arose on January 24, 1948, while Winroe and Cannon were traveling to
the plant to serve as pickets and became involved in a verbal exchange with
certain nonstrikers who were going to work. On February 3, as a result of
charges arising out of this incident, Winroe was found guilty in a local court
in Nashville of both public profanity and drunkenness. On the same day, the
Respondent made an entry in his personnel record showing that he was dis-
13 During the strike Cannon's job was transferred to the maintenance department.
14 At some date in May 1948 the laborer who had been hired for the pressroom was
transferred to the maintenance departntent.
953841-52-vol. 94-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged. This fact, however, was not communicated to Winroe. On February
18, Cannon was tried on similar charges arising out of the bus incident. He was
found guilty of drunkenness and fined $2 and costs ; a public profanity charge
against him was dismissed for want of prosecution. On February 25 Winroe
appealed his case to the criminal court. This court dismissed the public pro-
fanity charge but affirmed the finding of drunkenness and fined him $10 and
costs." On the same date the Respondent made another entry in Winroe's_
personnel file showing that his status was changed to that of a Plaid-off employee.
At the. hearing, it was stipulated by counsel that on February 17, 1948, the
Respondent placed a memorandum in the personnel file of both Winroe and
Cannon, which read, in part, as follows :
On 1-24-48, three maintenance employees, J. H. Barry, W. E. Myers, and
A. F. Cantrell, boarded the bus for the plant at about midnight in down-
town Nashville. When the bus reached the colored housing section six
Negroes boarded the bus and as they walked past these employees they
called them scabs. As the bus proceeded on toward the plant, the Negroes
talked considerably about these employees calling them "yellow bellied
scabs" and also used considerable profane language. They made certain
statements about taking care of these employees when they got off the bus,
and a statement was made by one of the colored men, E. Winrow, Jr., to
the effect that he would cut Mr. Cantrell with his razor. It was obvious
that these Negroes were intoxicated. These three employees came in the
West Gate guardhouse and reported the matter to the two Deputy Sheriffs
who happened to be there. The Deputies went to Kaufman's Restaurant
and found four colored men that were obviously intoxicated and arrested
them on a public drunk charge. When these Negroes were brought to the
police car which was parked near the guardhouse, the three Maintenance
employees identified them as being four of the six that. were on the bus.
These three Maintenance employees went to the courthouse after they
got off work at the end of the third shift and swore out warrants against
the four Negroes charging public profanity, and Mr. Cantrell had E. Winroe
placed under peace bond. The trial of Winroe came up in General Sessions
Court on 2-3-48 and he was found guilty and fined fifteen dollars and costs
on the public drunk charge. The peace bond case is still pending against
him.
From the record it appears that the Respondent would have reemployed Winroe
and Cannon in the 3-month period following the strike if it had not, because of
the above incident, placed them in a special category so that they would not be
considered for any vacancies except those arising in the specific occupation and
the specific departments in which they had worked immediately prior to the
strike. Before the strike both Winroe and Cannon were employed as laborers.
Winroe then worked in the receiving department and Cannon in the enameling
room but during the strike the latter's job was transferred to the maintenance
department. In the period from March through May 1948, nine laborer vacancies
arose, eight in the maintenance department and one in the pressroom. All were
filled with new employees. The Respondent conceded that, customarily, laid-
off employees in one department were considered for openings which arose in
other departments and that when a laid-off employee from another department
18 At the hearing before the undersigned Winroe impressed the undersigned as a credible
witness except for that portion of his testimony in which he denied that he had been
drinking at the time of the incident on the bus or that he had said anything to the other
passengers . His denials in connection with this phase of his testimony were not
persuasive . Cannon did not testify.
NASHVILLE CORPORATION 1587
was considered for an opening along with new applicants, the laid-off employee
would normally be given preference over the new applicants. There is nothing
in the record to indicate that the vacancies filled by the nine newly hired laborers
required any special skills or qualifications. The Respondent made no attempt
to prove that Winroe and Cannon were in any manner unqualified for any of
these nine openings. Nor did it seek to prove that their previous work had
been unsatisfactory. Judd, the personnel official who hired several of the nine
new employees,16 testified that he had not sought out Winroe and Cannon to>
offer them jobs as laborers because it was a matter of his judgment as to the
best man available. Judd offered no testimony, however, as to why he con-
sidered those he hired superior in any way to either Winroe or Cannon. In,
addition, with respect to Cannon, since his job was transferred to the maintenance
department during the strike, it seems clear that under normal circumstances
the Respondent would have considered him for at least one of the eight openings
which subsequently arose there. In view of these facts, and in the absence of
any explanation as to why Winroe and Cannon would not have been hired to fill
two of the nine vacancies in question if the Respondent had followed its normal
practice of giving precedence to laid-off employees, the undersigned concludes
and finds that the Respondent would have rehired them during the 3-month
period they were carried on the plant rolls as laid-off employees if it had not, one
account of the bus incident, afforded them only a very limited opportunity for
recall.
Although the Respondent was under no obligation to find work for those.
strikers who had been replaced during the course of the strike (N. L. R. B. v. Mac-
kay Radio & Telegraph Co., 304 U. S. 333, 345-346), it was under an obligation,
to consider the returning strikers on a nondiscriminatory basis for newly created.
jobs or vacancies thereafter existing. American Bread Company, 51 NLRB 1302,.
1303, 1310; Republic Steel Corp., 62 NLRB 1008, 1028-1029; Fafnir Bearing Co.,
73 NLRB 1008, 1014-1015. Upon the termination of the strike and because
Winroe and Cannon were involved in the bus incident on January 24, the Re-
spondent place them in a category apart from the other returning strikers, as a
result of which they were not rehired. Since at the time of the incident in,
January, Winroe and Cannon were on the way to the plant for service on the
Steelworkers' picket line they were engaged in what would normally be consid-
ered protected concerted activity. Moreover, unless on this occasion they so mis-
conducted themselves as to lose the protection of the Act, the Respondent was not
free to treat them differently from the other strikers. In connection with their
activities on this night it appears that Winroe and Cannon were tried for drunk-
enness, assessed costs, and fined $10 and $2, respectively. Without more to sup-
port an allegation of misconduct on their part, and nothing more appears in the-
record,17 it seems clear to the undersigned that the Respondent was not free to,
limit their reemployment opportunities by placing them in a special category for
recall because of their activities in connection with the strike. The Respondent
urges in its brief, however, that it would have been justified in not considering:
Winroe and Cannon for any of the openings which arose outside the departments
in which they had worked prior to the strike on the basis of its good-faith belief:
16 Judd quit the employ of the Respondent sometime in April 1948, the exact date does-
not appear in the record . Insofar as the record indicates , five of the new employees:
were hired prior to April 21, 1948.
17 The memorandum as to this incident which the Respondent kept in its personnel file,,
an excerpt from which appears at page 1586, above, being an unsworn statement,
made outside the hearing , can have no probative weight as evidence . Ohio Associated
Telephone Company, 91 NLRB 932.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that on January 24, 1948, they had insulted and annoyed employees of the Re-
rpondent on a public bus. The Board, however, has consistently rejected the
defense that a good faith belief that a particular employee misconducted himself
while on strike, standing alone, is sufficient to justify either his discharge or a
Tefusal to reinstate him. Ohio Associated Telephone Company, 91 NLRB 932;
;Standard Oil Company of California, 91 NLRB 783; Porto Rico Container Cor-
poration, 89 NLRB 1570; Mid-Continent Petroleum Corp., 54 NLRB 912, 933-934.
Consequently, it is the conclusion of the undersigned that by narrowly limiting
the reemployment opportunities of Winroe and Cannon because of a minor inci-
dent that arose while they were engaged in concerted activity, the Respondent
discriminated in regard to the hire and tenure of their employment in violation
of Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act 18
The undersigned has found that the Respondent discriminatorily, discharged
A. F. Bambrough, Sue Anne Baucom, Sadie D. Guthrie, C. A. Rollins, and E. T.
Whittenberg, and discriminatorily refused to reemploy Ephraim Winroe and
Truman Cannon, thereby discouraging membership in the Steelworkers. There-
fore, it will be recommended that the Respondent offer to each of the above-
named employees, without prejudice to his seniority or other rights and
privileges, reinstatement to his former or to a substantially equivalent position. 19
It is further recommended that the Respondent make the above-named em-
ployees whole for any loss of pay suffered as a result of its discrimination by
payment to each of them of a sum of money equal to that which he would nor-
mally have earned as wages from the date of his request for reinstatement, to
the date of the Respondent's offer of reinstatement less his net earnings during
that period.20 Normally, discriminatorily discharged employees are entitled to
back pay from the date of their discharge. Here, however, Bambrough Baucom,
is In the joint answer filed by Nashville and Avco, Respondent Avco denied that its
assumption of Nashville's liabilities contemplated or included the assumption of unfair
labor practice charges or liabilities ensuing therefrom. However, the originq.l charges
in this proceeding were filed against Nashville prior to the time Avco effected Nashville's
dissolution and assumed its liabilities. In view of this fact, as well as those set forth in
Section I, above, it is apparent that Avco acquired Nashville with knowledge of the
outstanding unfair labor practice charges against Nashville and that Avco is responsible,
jointly and severally, with Nashville for taking the remedial action recommended herein.
Auto part Manufacturing Company, 91 NLRB 80; The Alexander Milburn Company,
78 NLRB 747.
19 The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch,
65 NLRB 827.
20 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
NASHVILLE CORPORATION 1589
Guthrie, Rollins , and Whittenberg were discharged while they were on strike"
and until they had abandoned the strike by indicating their desire to return to
work on the terms existing when their dispute with the Respondent arose, it
cannot be said that any loss of wages was caused by the Respondent 's action.
Therefore , it is found that Baucom, Guthrie , Rollins, and Whittenberg, are
entitled to back pay from February 24, 1948, and that Bambrough is entitled to
back pay from February 25, 1948, the respective dates on which they indicated
that they had abandoned their strike and unconditionally requested reinstate-
ment from the Respondent . Porto Rice Container Corporation, 89 NLRB 1570.
As to Winroe and Cannon it is impossible on the record to determine either
which of the nine vacancies as laborer which arose within the 3 months follow-
ing February 24, 1948, absent unlawful discrimination against Winroe and
Cannon, these two would have been called to fill or in what order they would have
been reemployed . Accordingly , it will be recommended that the Respondent's
back-pay liability as to Winroe and Cannon extend retroactively from the date
of its offer of reinstatement to the date or dates on which, absent discrimination
against them , they would have been reemployed had the Respondent filled the
nine vacancies that arose within the 3 months subsequent to February 24, 1948,
in accordance with and following such system of seniority or other procedure as
had theretofore been applied to the conduct of the Respondent 's business.
Further , in accordance with the rule in F. W. Woolworth Company, 90 NLRB
289, the loss of pay for each of the discriminatorily discharged employees is
to be computed on the basis of each separate calendar quarter or portion thereof
during the period from the Respondent 's discriminatory action to the date of a
proper offer of reinstatement . The quarterly periods, hereinafter called "quar-
ters" shall begin with the first day of January , April, July, and October. Loss
of pay shall be determined by deducting from a sum equal to that which the
foregoing named employees would normally have earned for each quarter or
portion thereof, their net earnings, if any, from other employment during that
period . Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other quarter.
It is also recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of
back pay due. F. W . Woolworth Company, supra.
Since a discriminatory discharge "goes to the very heart of the Act"
(N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C. A. 4) ), the undersigned
will recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon the rights of employees as guaranteed by Section 7 of
the Act. See May Department Stores, v. N. L. R. B., 326 U. S. 376, 386-392.
It is further recommended that the complaint be dismissed insofar as it al-
leges that the Respondent has discriminated with respect to the hire and tenure
of employment of Emmett E. Cooper and Charles E. Cone.
CoNCLUsIoNs AT LAW
1. Avco Manufacturing Company is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act; Nashville Corporation, prior to its dissolu-
tion, was likewise engaged in commerce within the meaning of the Act.
21 Although from the transcript it is clear only that Baucom and Guthrie were discharged
on January 14, 1948, there is implicit in the record a plain inference that Bambrough,
Rollins, and Whittenberg were likewise discharged on the same day. In accord with the
rule enunciated in Kallaher and Mea, Inc., 87 NLRB 410, these discharges were effective
on January 14, 1948, rather than .at the later dates on which the strikers received notices
of discharge.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Avco Manufacturing Company is a successor to the Nashville Corporation
and, as such , responsible for remedying its unfair labor practices.
3. United Steelworkers of America , C. I. 0., is a labor organization within
the meaning of Section 2 (5) of the Act.
4. By discriminating with regard to the hire and tenure of employment of
A. F. Bambrough , Sue Anne Baucom , Sadie D. Guthrie , C. A. Rollins , E. T. Whit-
tenberg, Ephraim Winroe, and Truman Cannon , thereby discouraging member-
ship in a labor organization , and interfering with, restraining , and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) and (1) of the Act.
5. The foregoing unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
6. The Respondents have not discriminated with respect to the hire and tenure
of employment of Emmett E. Cooper and Charles E. Cone.
[Recommended Order omitted from publication in this volume.]
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS,
WELDERS AND HELPERS OF AMERICA, LOCAL #6, AFL, AND EDGAR
RAINBOW, PRESIDENT OF LOCAL #6 and Ross E. DULINSKY CON-
SOLIDATED WESTERN STEEL CORPORATION and Ross E. DULINSKY.
Cases Nos. 00-CB-91 and 2O-CA-334. June 27, 1951
Decision and Order
On November 29, 1950, Trial Examiner Frederic B. Parkes 2nd is-
sued his Intermediate Report in the above-titled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Respond-
ents filed exceptions to the Intermediate Report and supporting
briefs.
The Board z has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
% The Respondent Coniipany's request for oral argument is hereby denied because the
exceptions, briefs, and record, in our opinion, adequately present the issues and the
positions of the parties.
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Reynolds].
94 NLRB No. 212.