Plasti-Line, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1959

123 N.L.R.B. 1471 (N.L.R.B. 1959)

PLASTI-LINE INCORPORATED 1471
The question in connection with Crowder 's discharge is not whether Respondent
may discharge employees for sleeping on the job. That it may do so goes without
saying. I find that Crowder was not asleep on the job on June 4 and that Hoffman
did not believe that he had been asleep. I am convinced , on the record herein, that
Crowder's discharge and by Tice's removal to the day shift and particularly by
Zay's and Hoffman 's aforementioned contemporaneous actions, Respondent sought
to thwart the organizational drive among the employees . As Respondent 's asserted
reason for Crowder's discharge is without merit, so is its claimed reason for separat-
ing Tice from midnight shift employees who were most interested in organizing a
union . Upon all the foregoing and the entire record in the case , I find that Respond-
ent discharged Crowder and transferred Tice because of their prominent union role
among the employees . Respondent has thereby violated Section 8(a)(3) and (1)
of the Act.
IV. CONCLUSIONS OF LAW
1. Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor
organization within Section 2(5) of the Act.
2. Respondent has violated Section 8(a) (1) and (3) of the Act and these unfair
labor practices are unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and tenure
of Robert E. Crowder, Jr., I shall recommend that Respondent offer immediate
and full reinstatement to his former or a substantially equivalent position , without
prejudice to his seniority and other rights and privileges , and make him whole for
any loss of pay he may have suffered as a result of the discrimination against him
by payment to him of a sum of money equal to that which he would have earned as
wages from the date of such discrimination to the date of offer of reinstatement,
less his net earnings during such period , the back pay to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company (90
NLRB 289). I shall also recommend that Respondent make whole Jime Tice for
loss of wages in the amount of the shift differential from the date of his discrimina-
tion in May 1958 until his return to the midnight shift on or about June 11, 1958.
It will also be recommended that Respondent preserve and upon reasonable request
make all pertinent wage records available to the Board or its agents. I reject the
General Counsel 's contention that Tice be reimbursed for any loss of earnings from
his teaching position upon his forced transfer to the day shift.
In view of the nature of the unfair labor practices committed , I shall also recom-
mend that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
[Recommendations omitted from publication.]
Plasti-Line Incorporated and Harry W. Brooks, Ralph P. Brooks,
and Bruce M. Edwards , d/b/a Sign Fabricators and Oakie
Triplett, Haskell E. Kelly, Charles Oglesby, Bishop Hatmaker,
Floyd V. Snyder, Archie B . Russell , John C. Cummings
Plasti-Line , Incorporated and Harry W. Brooks, Ralph P . Brooks,
and Bruce M. Edwards , d/b/a Sign Fabricators and Henry C.
Hartgrove . Cases Nos. 10-CA-2969, 10-CA-2969-1 through
10-CA-2969-6, and 10-CA-3012. June 2, 1959
DECISION AND ORDER
On April 15, 1958, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceedings finding that
123 NLRB No 173.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and briefs, and the attorneys for the Charging Parties
filed a brief in support of the Intermediate Report. The Respondent
also requested oral argument. This request is hereby denied because,
in our opinion, the record, exceptions, and brief adequately present
the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Plasti-Line,
Incorporated and Harry W. Brooks, Ralph P. Brooks, and Bruce M.
Edwards, d/b/a Sign Fabricators, their officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees by discharging or refusing to reinstate its employees.
(b) Interfering with, restraining, or coercing its employees in the
exercise of their right to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection by
discharging or refusing to reinstate its employees.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Oakie Triplett, Haskell E. Kelly, Charles Oglesby,
Bishop Hatmaker, Floyd V. Snyder, Archie B. Russell, John C.
Cummings, Henry C. Hartgrove, Allie E. Ensminger, Boyd Dishman,
Donald O. Lucia, Cecil Moody, and Jay Halliburton immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to seniority or other rights and privileges, and
make them whole for any loss of pay suffered, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
I The Respondent has excepted to the credibility findings of the Trial Examiner. The
Board, however , attaches great weight to the findings of a Trial Examiner insofar as they
are based on demeanor , and accordingly , does not overrule a Trial Examiner' s resolutions
of credibility except where the clear preponderance of all the revelevant evidence con-
vinces the Board that his resolutions were incorrect . No such conclusion is warranted
in this case.
PLASTI-LINE INCORPORATED 1473.
(b) Post at its plant at Knoxville, Tennessee, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be,
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by Respondent, be posted by Respondent immedi-
ately upon receipt thereof and maintained by it for a period of 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.
(c) Preserve and make available to the Board or its agents for-
examination and copying, all payroll, social-security, time and per-
sonnel records, and all other records necessary to determine the
amount of back pay due.
(d) Notify the Regional Director for the Tenth Region, in writ--
ing, within 10 days from the date of this Order what steps Respond-
ent has taken to comply therewith.
MEMBER RODGERS, dissenting :
I would dismiss the complaint in this case.
In the first place, the record evidence establishes, and I would find,.
that the strikers here involved were seeking by strike action (1) to^
compel the Respondent to bypass the employees' duly constituted bar-
gaining representative, and to negotiate directly with the strikers:
themselves; and (2) to compel the Respondent to repudiate a griev-
ance settlement previously made with such bargaining representative-
pursuant to the terms of the existing collective-bargaining agreement
which contained a no-strike provision. Had it acceded to the strikers'-
demands, the Respondent would have violated Section 8 (a) (5) of
the Act. It follows, therefore, that the strikers had as their ultimate
purpose an illegal objective-i.e., causing the Respondent to violate
the Act-and were thus engaging in an illegal strike. To such a strike-
the doctrine of condonation has no application. See The Mackay
Radio and Telegraph Company, Inc., 96 NLRB 740; Federal Tele-
graph and Radio Company, 107 NLRB 649, 653; Dazey Corporation,.
106 NLRB 553 at p. 555.
In the second place, even if it is assumed that the strikers' objective.
was not illegal, that they engaged only in an unauthorized and un-
protected strike, and that the condonation doctrine is here applicable,,
the record evidence does not establish that the Respondent in fact
condoned the strikers' action. The evidence shows at the most that
the strikers,3 who had been outside the plant for about an hour,
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
3 There were 13 strikers. The record shows that seven of them returned to the plant
and clocked out; it is silent as to the other six. As to the latter six strikers , there is:
5 0 8 8'8 9-G 0-v o l. 12 3-9 4
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
walked in, did no work, stayed for about 5 minutes, checked out, and
then left. That evening the Respondent prepared, and sent, a notice
summarily discharging the strikers. These facts do not add up to a
showing that the strikers "returned to work," which according to the
Trial Examiner, was the Respondent's condition for forgiving and re-
instating the strikers. As the strikers fell far short of satisfying this
condition-which, from the strikers' viewpoint was the most favor-
able of the versions of the "proposition" they were offered-it cannot
be said under any view that they met the Respondent's terms. That
failing, consideration of condonation is academic.
MEMBER JENKINS, dissenting :
Again the Board has fallen into the same egregious error in its
application of the doctrine of condonation.4
Condonation includes forgiveness and something more. It is for-
giveness plus the restoration of the offending person to the same
status as he or she would have occupied but for the fault committed.
It is not merely a promise to forgive, conditioned upon the erring
person performing some future act, but the complete restoration of
the situation as it existed before the fault was committed.
One very important point in this case is that Respondent stood ab-
solved from any duty to reemploy the offending employees for two
reasons. First, they struck in breach of a no-strike clause. Second,
they struck in derogation of the rights of their duly authorized
collective-bargaining representative, which representative had reached
agreement with the Employer concerning the very subject matter of
the strike.
The Trial Examiner found that supervisory personnel told the
strikers they would be "alright" if they returned to work. Never-
theless, his own findings show that they never did return to work or
communicate to management that they intended to return to work
and abandon their unlawful strike. The strikers merely returned at
3:25 p.m. and talked to "other employes" before clocking out at
3 :30 p.m. They were discharged in the notice sent to them the next
day (a nonworking day) for "insubordination resulting in work stop-
page" and for "unauthorized clocking out." There is no finding that
at any time prior to the discharge the strikers ever communicated to
management that they had abandoned their strike. They never did
return to work. They never did receive from Respondent forgiveness
clearly a failure of proof to show that they even acted upon the Respondent's so-called
"proposition," much less that the Respondent condoned their acts.
A Clearfield Cheese Company, Inc., 106 NLRB 417, enfd . as modified 213 F. 2d 70.
Marshall Car Wheel and Foundry Company of Marshall , Texas , Inc., 105 NLRB 57,
107 NLRB 314 , enforcement denied and remanded 218 F . 2d 409 ( C.A. 5). For a correct
application of the doctrine of condonation see Alabama Marble Co ., 83 NLRB 1047, enfd.
185 F . 2d 1022 (C.A. 5), cert. denied 342 U.S. 823.
PLASTI -LINE INCORPORATED 1475
plus restoration to that status they would have enjoyed but for their
fault.
This was not an attempt on the part of the strikers to present griev-
ances individually, but rather an attempt to utilize economic pressure
in derogation of the action of their collective-bargaining representa-
tive, which representative had reached agreement with the Employer
concerning a grievance 5 and in derogation of the right of said repre-
sentative so to deal. This was a "wild-cat" strike not authorized or
supported by the duly selected collective-bargaining representative.
There is nothing in the statute which makes a "wild-cat" strike con-
certed activity within the meaning of Section 7.6 Section 9(a) of the
statute provides that individuals may present grievances to an em-
ployer directly "as long as the adjustment is not inconsistent with
the terms of a collective-bargaining contract or agreement then in
effect," and providing that "the bargaining representative has been
given opportunity to be present at such adjustment." The contract
in the instant case contained a detailed grievance procedure which
was being observed by both the Union and the Employer. A griev-
ance had been adjusted pursuant to said contract. The strikers were
taking action contrary to the method of adjusting grievances pro-
vided in their collective-bargaining agreement, in derogation of the
authority of the certified bargaining representative, and attempted
by the use of economic pressure to compel the Employer to fail to
deal with the certified representative and honor its agreement with
said representative. This strikes at the very heart of the fundamental
purpose of the Act, i.e., to foster and promote collective bargaining
in order to avoid disruption to the free flow of commerce. Conse-
quently, I cannot find this action to be either that contemplated by
Section 9(a), or the type of activity protected by Section 7.
5 Donald Kirby , a regular employee , who had someone call in to report -him 111, was
discharged for unauthorized absence pursuant to the contract . Thereafter , Kirby pre-
sented the Respondent with a letter from a local doctor stating he had been under the
doctor ' s care and unable to work . The Respondent met with the Union 's executive
committee and its international representative and agreed that the latter was a valid
excuse for absence. Donald Kirby was returned to work with full seniority and pay, the
Respondent admitting that it was in error.
6 See Draper Corporation , 145 F. 2d 199 at p. 203 ; Dazey Corporation , 106 NLRB 553;
American Manufacturing Company of Texas, 203 F. 2d 212 ( C.A. 5) ; and Medo Photo
Supply Corp., 321 U.S. 678 enfg. 43 NLRB 989.
APPENDIX
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 you that:
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in any labor organiza-
tion of our employees by discharging or refusing to reinstate our-
employees.
WE WILL NOT interfere with, restrain, or coerce our employees:
in the exercise of their right to engage in concerted activities for-
the purpose of collective bargaining or other mutual aid or pro-
tection by discharging or refusing to reinstate our employees.
WE WILL offer Oakie Triplett, Haskell E. Kelly, Charles:
Oglesby, Bishop Hatmaker, Floyd V. Snyder, Archie B. Russell,.
John C. Cummings, Henry C. Hartgrove, Allie E. Ensminger,.
Boyd Dishman, Donald O. Lucia, Cecil Moody, and Jay Halli-
burton immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to any seniority-
or other rights and privileges, and make them whole for any loss,
of pay suffered as a result of the discrimination against them.
All our employees are free to form, join, or assist any labor organi-
zation, and to engage in self-organization and other concerted activi-
ties for the purpose of collective 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 in-
conformity with Section 8(a) (3) of the Act.
PLASTI-LINE, INCORPORATED AND
SIGN FABRICATORS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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
STATEMENT OF THE CASE
Upon charges filed by the individuals named in the caption , the General Counsel'
of the National Labor Relations Board, by the Regional Director for the Tenth.
Region, Atlanta, Georgia, issued a complaint in Cases Nos. 10-CA-2969 and
10-CA-3012 against Plasti-Line, Incorporated and Harry W. Brooks, Ralph P.
Brooks , and Bruce M. Edwards , d/b/a Sign Fabricators . The record herein shows,
that subsequent to the issuance of the complaint the foregoing persons doing busi-
ness as Sign Fabricators were succeeded in their business by a corporation named
Sign Fabricators , Inc. Upon motion at the hearing , the pleadings were amended to
reflect this change in name. Plasti-Line , Incorporated and Sign Fabricators , Inc.,.
are hereinafter collectively referred to as the Respondent. The foregoing con-
solidated complaint together with an order consolidating cases and notice of hear-
ing were issued by the Regional Director on November .8, 1957, and copies thereof
together with a notice of hearing were duly served upon all parties. The complaint
alleged that the Respondent had engaged in and was engaging in certain unfair labor
practices affecting commerce within the meaning of the National Labor Relations
Act, 61 Stat. 136, herein called the Act. Specifically the complaint alleges that
certain employees named therein were unlawfully discharged by the Respondent in.
violation of Section 8(a)'(3) and (1) of the Act. The answer filed by the Re-
PLASTI-LINE INCORPORATED 1477
spondent admits that the employees had been discharged but asserts that they were
lawfully discharged for cause.
Pursuant to notice a hearing was held at Knoxville, Tennessee , on December 3
and 4, 1957 , before the Trial Examiner duly designated to conduct the hearing. All
parties appeared through counsel . Full opportunity to be heard , to examine and
cross-examine witnesses , and to produce evidence was afforded all parties. After
the close of the hearing the parties filed briefs with the Trial Examiner which have
been carefully considered . The Respondent 's motion for dismissal of the proceed-
ing as to which ruling was reserved at the hearing is disposed of in accordance
with the findings and conclusions herein.
Upon the entire record in the case, and from observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
Plasti-Line , Incorporated and Sign Fabricators , Inc., are Tennessee corporations
,engaged in Knoxville , Tennessee , in the manufacture of plastic products and elec-
trical signs . The complaint alleges and the Respondent concedes that they are
commonly owned and controlled and are so integrated functionally and administra-
tively that for purposes of this proceeding they may be regarded as a single employer.
The complaint further alleges and the answer admits that during the 12 months
preceding the issuance of the complaint that Plasti -Line, Incorporated , sold and
shipped to points outside the State of Tennessee products valued in excess of
$1,000,000. I find that Plasti-Line, Incorporated and Sign Fabricators , Inc., to-
gether in this proceeding constitute a single employer which is engaged in commerce
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
The Respondent 's employees are represented by the Sheet Metal Workers Inter-
national Association, AFL-CIO. During times relevant to this proceeding there
existed between this labor organization and the Respondent a collective -bargaining
contract which contained a no-strike clause. On March 15, 1957, a group of em-
ployees who were subject to the contract engaged in an unauthorized strike in viola-
tion of the aforesaid no-strike provision . The General Counsel concedes that these
employees could lawfully have been discharged by the Respondent for such conduct,
but contends that when they were induced by the Respondent to abandon their
strike and to return to work with a promise that they would not be discharged,
the Respondent thereby condoned their conduct and waived its right subsequently
to discharge them therefor . The General Counsel asserts that the Respondent
reneged on its promise after the employees had in reliance upon it returned to their
jobs and thereby unlawfully discharged them in violation of Section 8(a) (3) and (1)
of the Act for engaging in a strike. In defense the Respondent denies that it
extended to the strikers a blanket promise to refrain from discharging them if they
returned to work, and that at most it promised them favorable consideration if in
returning they complied with certain conditions which they ignored. The Respond-
ent does not concede that the employees ever returned to work. It also argues that
the Board 's condonation theory is not applicable to the circumstances of this case,
and that the employees were justifiably discharged for cause.
On the day in question approximately 14 or 15 employees from the Respondent's
sheet metal shop, including all those listed in the complaint , stopped work before
their regular quitting time at about 2:40 or 2:45 p.m. Before leaving the plant
they punched their timecards and then proceeded to a point on the road in front of
the Respondent 's premises where they remained expecting other employees to join
them. This expectation failed to materialize . Meanwhile , one of the employees
who had refrained from walking out secured permission from Superintendent Robert
F. Davisson to speak to the strikers to persuade them to return to work. This em-
ployee, Clint M. Haynes, was prompted to undertake his mission because, having
heard Davisson declare that if it were possible he would discharge the strikers, he
desired to bring them back before they were fired. Haynes went to the strikers and
reported what Davisson had said. About then the strikers were approached by
General Foreman Everett Allred and Foreman James S. Hill. According to the
testimony of the General Counsel's witnesses , Allred urged the employees to return
to work with assurance that their complaints would be considered inside the plant.
When asked by one of the strikers what would happen to their jobs , Allred stated
that if they returned , their jobs would be "all right." The employees did not re-
spond immediately to Allred's proposition , but indicated they wished to discuss it
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among themselves . Alfred granted them time for this purpose and departed with
Hill. The strikers then counseled with each other and decided to abandon the strike.
They thereupon returned to the plant . When they entered it was already about
3:25 p.m. The usual quitting time for all employees in the sheet metal shop was
3:30 p.m., and , pursuant to the custom of the shop , the nonstriking employees had
already ceased their labors and were washing themselves preparatory to leaving at
quitting time. Thus when the strikers came into the shop, they did not go to their
machines and actually work. Instead they mingled with the other employees who
spoke with them about the walkout during the few remaining minutes before the:
shop bell rang at 3:30 to signal the quitting time. At this point all of the employees,.
including the strikers , punched out and left the shop.
March 15 , 1957, Friday, was the last day of the workweek. The next day the-
strikers received a notice by mail from the Respondent informing them that they
had been discharged . The notice was signed by Superintendent Davisson who had
prepared it and stated:
You are discharged effective at 3:30 p .m. March 15 , 1957, for your un-
authorized clocking out and insubordination resulting in work stoppage.
Notwithstanding receipt of this notice on March 16, 1957, by most of the discharged
employees they reported for work the ;following Monday, March 18, 1957 , but upon
arrival at the plant found that their timecards had been removed from their
accustomed places and were informed by Allred that they would have to leave.
The Respondent presented evidence to controvert the foregoing account. In par-
ticular, the Respondent sought to show that when Allred spoke to the strikers he
did not make an unqualified promise that the strikers would not be discharged if they
returned to work, and further that he stipulated to them that upon returning to the
plant they must clock in and report to him. Allred testified with corroboration by
Foreman Hill that he had merely told the strikers to "go back to work if they
wanted a chance at their jobs," and that they should "clock back in and sign in
through him ." Allred denied that he had been asked by the strikers what would
happen to their jobs if they returned.
According to Davisson , he had communicated with Mr. M. W. Egerton, Sr., the
Respondent 's attorney, as soon as he learned of the walkout and was advised by
Mr. Egerton to inform the strikers , among other things, that if and when they re-
turned to the plant they should sign in through Allred. The purpose of this instruc-
tion was to permit positive identification of those who returned, and to obviate
reliance for this purpose on timecards which experience showed could be punched
by one employee for others who were not actually present. Davisson claimed he
had accordingly passed this instruction to Allred before sending him to the strikers.
The Respondent also sought to cast doubt on whether the strikers had come back
to the plant at all. Davisson , Allred, and Foreman Jack W. Cardwell of the sheet
metal shop all testified that they did not see the strikers return and enter the plant
and were surprised to discover that their timecards had been punched out at
3:30 p.m. or thereafter . Allred and one of the Respondent 's officials , Harry Brooks,
did see some or all of the employees approaching the plant at about 3:30 p.m., but
did not see them enter . Finally, the Respondent presented testimony to prove that
two of the strikers, Haskell E. Kelly and John C. Cummings, had admitted that they
had failed to comply with Allred's instruction to clock in and report to him upon
returning to the plant. Ralph Brooks , president of Sign Fabricators and vice presi -
dent of Plasti-Line, testified that subsequent to the discharges , he had met with
Kelly on two or three occasions and that Kelly had twice acknowledged to him that
he had been "wrong in not coming back as he had been requested to do and he had
influenced the men to follow his leadership ." Mr. M. W. Egerton , Sr., testified that
Kelly had solicited his help in getting his job back and in their discussion had been
asked by Mr. Egerton "why he didn't return in the way he was told to return," and
he replied , "he was still too mad to do it , that he had told the other folk not to do
it." Reverend Frank Porter testified that Cummings had asked him to intercede with
Harry Brooks , the president of Plasti-Line and vice president of Sign Fabricators,
to secure his reemployment and that Cummings had told him the strikers had been
instructed by the Respondent 's spokesman to report to him.
In support of its version that the striking employees had been discharged for
failing to comply with Allred's instruction, the Respondent further relies upon proof
that these employees were denied unemployment compensation for the first 2 weeks
of unemployment after their discharges pursuant to a determination by the appro-
priate State agency, and that no appeals were taken from such determination; that
the employees did not individually seek reversal of their discharges by invocation
of the grievance procedure contained in the contract between the Respondent and
PLASTI-LINE INCORPORATED 1479
the Sheet Metal Workers; and that their fellow employees at a meeting of the Sheet
Metal Workers held after.the discharges. voted not to enter a grievance with the
Respondent over this action.
I am convinced that when Allred spoke to the strikers as they were congregated
outside the plant he gave them positive assurance in response to their inquiry that
their jobs would be protected if they abandoned the strike and returned to the
plant. I do not believe Allred's testimony nor that of Foreman Hill that the former
merely offered them a "chance" to retain their jobs if they gave up the strike. In
rejecting Allred's version of his alleged noncommittal promise, I have credited the
denials thereof by Haynes and the eight strikers who testified, because I was more
favorably impressed with the forthrightness and sincerity of these witnesses than of
their contradictors. Moreover, if Allred had followed the orders of his superior,
Davisson, he would have told the employees plainly and simply that they would
not be discharged if they returned to work. Davisson admitted that when he sent
Allred to speak to the strikers he had no intention of discharging them and testified
that he instructed Allred "specifically-to go down to the road and talk to those
boys that were down there, telling them to come back into the plant and sign in
through him." He further directed Allred to "tell them that if they came in there
that we would discuss the matter which was in-of importance, which had caused
their walkout." There is nothing in these instructions from Davisson which logically
permitted Allred to promise the strikers a mere "chance" for retention of their jobs
if they returned. I have no doubt that Allred offered the strikers the Respondent's
complete and unqualified forgiveness without reprisal in return for their abandon-
ment of the strike.
I further find that the strikers did abandon the strike and returned to work despite
the testimony of Davisson, Cardwell, and Allred that they did not see them enter
the plant. Of course their failure actually to have seen the strikers is not con-
clusive proof that they did not come back to the plant for it is conceivable that they
did not focus their attention upon the plant door when the men came through and
that they did not single them out in the confusion of the next few minutes when the
whole force of about 100 men was gathered in discussions and preparations for
leaving the plant. I am also satisfied that the strikers returned with the full inten-
tion of abandoning the strike and resuming work even though they did not punch
their timecards upon entering the plant or go to their work benches to perform
duties. They did not punch their cards simply because there was no requirement
that they should and it did not occur to them to do so. They did not resume their
duties because there was insufficient working time left.
I credit the denial by Haynes and the eight strikers that Allred had directed the
returning employees to clock in and report to him. upon entering the plant. Apart
from my conviction that these persons testified truthfully, there are other factors to
support the reliability of their testimony. It is uncontroverted that Haynes was per-
mitted by Davisson to persuade the employees to return and that he was not in-
structed to tell them to clock in or report to anyone, and it appears that Haynes
conferred with Davisson about speaking to the strikers after Davisson had com-
municated with Mr. Egerton and was assertedly advised to have the strikers clock
in and report to a supervisor. If Davisson was constrained to give such directive
to Allred, it is to be expected that he would have given the same directive to Haynes.
Moreover, Allred's actions after he left the strikers was wholly inconsistent with
what he should reasonably have done had he directed them to report to him. By
his own concession he stationed himself in Foreman Cardwell's office which he did
not customarily frequent and where employees ordinarily would not expect to find
him. Had he instructed them to come to him, the likelihood is that he would either
have gone to his own office to await them, or, if he intended that they should report
to him in Cardwell's office that he would have told them to go there. I am con-
vinced that he stationed himself in an unaccustomed place and did not tell the
strikers where to find him because he did not require them to report to him.
I do not believe that the failure of the strikers to report to Allred or to clock in
had anything to do with Davisson's reason for discharging them. First, as I have
found, they were not told to do these things. Next, when Davisson composed the
discharge notice he omitted any reference to such reasons and instead included
language which in my view means only that the employees were being discharged
for striking. To attribute to the word "insubordination" in the notice the meaning
ascribed to it by Davisson at the hearing, namely, that they refused to clock in and
report to Allred, requires a strained construction which ignores the plain meaning
of this word in association with the rest of the notice. The phrase "insubordination
resulting in work stoppage" manifestly imports a walkout in the face of the em-
ployees' duty to remain at their jobs. It does not mean that they were insubordinate
=1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they failed to follow the instructions given them after they had struck. I am
.persuaded that Davisson was truthful in relating that he did not intend to discharge
the employees when they struck and that his prime impulse was to get them back.
I am satisfied that he knew or had good reason to know that they had actually given
up the strike and returned to the plant and that his objective had been accomplished.
The unconvincing accounts by Davisson , Allred, and Cardwell about the manner of
checking the timecards after the men had left the plant, and what Allred and
Cardwell supposedly told Davisson concerning whether the men had returned "as
requested" or not at all,' leave me with the impression that Davisson was attempting
to obscure the fact that he knew or had good reason to believe that the strikers had
returned . It is entirely probable that after Davisson had succeeded in getting the
strikers to abandon the strike without intending to punish them for their conduct,
some new development arose which induced him to discharge them. What caused
him to go back on his word to the strikers not to discharge them is not shown by
the record , and it is needless in this proceeding to speculate thereon. What matters,
as I find , is that Davisson 's real reason for discharging them was that they had
engaged in a strike and not that they had failed to return "as requested."
In making this finding I have considered the denial of unemployment compensa-
tion to the strikers , but without the record of that proceeding before me , I do not
' perceive how the mere determination of the State agency can affect the findings of
fact I have made based upon the record before me . I have also considered the
failure of the employees to invoke grievance procedures contained in the contract
but do not construe their inaction in this respect as requiring alteration of a finding
that they were discharged for engaging in a strike . The fact that the membership
of the Sheet Metal Workers voted not to support the discharged strikers in an effort
to regain their jobs has also been considered and this, too , does not disprove the
merits of the strikers ' rights to their jobs . Such dote could , as much as anything
else, reflect discipline of the strikers by their union for taking matters into their own
hands and striking without union authorization.
As to the alleged admission by Cummings that he had failed to follow Allred's
instructions . I credit Cummings' denial that he had said this to Reverend Porter.
Reverend Porter's unprompted testimony was consistent with such denial. I am
satisfied that his other conflicting testimony in response to leading questions was the
result of mistake and confusion . Whether Kelly had admitted to Mr. Egerton or
to Ralph Brooks that he had not returned to work "in the way that he was told"
.or that he had not "obeyed the foreman 's request ," would not affect my finding that
Allred had not instructed the strikers to clock in and report to him. I do not
necessarily regard the remarks attributed to Kelly as an admission that he had dis-
regarded such instruction or that he had induced the other employees not to comply
therewith , for, in their contexts, these remarks could also reasonably be interpreted
as Kelly's willingness to accept the full blame for taking the men out and for trying
to persuade them not to return . As I have found that they did return , it is im-
material that Kelly may have encouraged them not to abandon the strike . Further-
more, Kelly's remarks , if made as related, do not affect my finding that Allred had
not instructed the employees to clock in and report to him as I have rejected Allred's
i According to Allred , after the employees had clocked out at 3 : 30 p.m., he and Cardwell
checked the timecards and ascertained that all but one of the employees had clocked in or
out at 3 :30 p . m. He then spoke to Davisson and informed him that he had not seen any
of the strikers "clock back in." Cardwell testified that at about 3 :45 p . m. he observed
Allred pulling some of the timecards , but didn't know for what reason . He himself
pulled one or two . No one told him to do this. He had no discussion with Davisson or
anyone else about the strike after 3 : 30 p.m . and left the plant without knowing that
Davisson was going to discharge the strikers . Davisson testified that he spoke to Allred
after 3 : 30 p.m. and was apprised by him that the strikers had not reported . He further
testified that lie had discussed with both Allred and Cardwell whether the strikers had
reported to Allred and then they checked the timecards and observed the clock -out times.
At a later point he reiterated that he had spoken to both Allred and Cardwell about the
return of the strikers and they informed him they had not returned "as requested." He
conceded here that neither Allred nor Cardwell had told him that the strikers had failed
to enter the plant . Questioned subsequently whether it had been his impression then
that the strikers had not come back to the plant at all, he stated that lie had known
"that the men were within the confines of the plant " and thought that Allred had told
him that "he had seen them within the confines of the plant but not within the depart-
ment in which they work." His final word was that he had been told by Allred and
Cardwell that the strikers had "not been back in."
PLASTI-LINE INCORPORATED 1481
testimony that he had delivered these instructions, and have credited the denial of
Haynes and all the strikers that he had said, these. things.
I have found that the Respondent had forgiven the strikers and had literally con-
doned their strike in breach of contract. It follows that application of the Board's
condonation doctrine as viewed by the General Counsel requires a finding that the
Respondent violated the Act when, after the strikers had abandoned the strike in
reliance upon the Respondent's word that they would not be discharged, the Re-
spondent went back on its promise. The Respondent, however, opposes the General
Counsel's construction of the condonation doctrine and insists that it is not a rule
of absolution which prevents an employer from discharging employees for participa-
tion in unprotected activity even when by so doing the employer breaks his word to
them. The Respondent maintains that the doctrine as declared and applied by the
Board is intended only to prevent an employer who has condoned employee mis-
conduct from asserting such misconduct as a defense to their discharges for other
protected activities. The Respondent points to the elemental principle in unfair
labor practice proceedings involving alleged unlawful discharges of employees that
the General Counsel must prove that the employees were discharged because they
had engaged in protected activities, and argues that the General Counsel has failed
to fulfill such burden in this case. Finally, the Respondent argues that the strike
herein was not merely unprotected conduct but was also unlawful ; and that
the Board has declared that its condonation doctrine is not applicable in such
circumstances.
The Respondent's arguments lack merit. The Board's condonation doctrine is not
so limited as the Respondent contends. Acceptance of its construction would re-
duce the doctrine to a meaningless theory adding nothing to the Board's standards
for finding violations of Section 8(a)(3) and (1) of the Act. According to the
Respondent, an employer would merely be prevented by the condonation doctrine
from discharging an employee for his union leadership or activities because the
employer had condoned his participation in an unprotected strike. The fact is that
such discharge by an employer has always constituted an unfair labor practice with-
out reference to condonation. Indeed, even if an employer had not condoned an
employee's unprotected activity, a proven discharge for other union activity would
be a violation of Section 8(a)(3) of the Act? This is the governing law in all
mixed motive cases where a lawful and an unlawful reason simultaneously exist for
the discharge of an employee. Upon a finding that the discharge was motivated by
the unlawful reason, the Board concludes that Section 8(a)(3) of the Act was
thereby violated irrespective of whether the lawful reason involved conduct by the
employee which had been condoned.
I assume that it was the Board's intendment by declaring and continuing its con-
donation doctrine to add a meaningful principle to the body of unfair labor practice
law. From my 'consideration of the Board's reiteration of that doctrine in numerous
cases,3 I take it to mean that when an employee participates in unprotected con-
certed activity he may be discharged for such conduct provided that the employer
does so timely, and affirmatively. Where, however, the- employer by his actions
excuses the conduct by failing to discharge the employee and by retaining him in
his employment, the employer thereby waives his rights subsequently to discharge
the employee for such conduct. The effect of such waiver is to preclude or estop the
employer in an unfair labor practice proceeding from asserting that the concerted
activity was unprotected. In its finality, the doctrine permits the General Counsel
to prove, as in the instant case, that the employee was discharged for engaging in
a strike for mutual aid and protection, and the Respondent is estopped from defend-
ing that the strike was in breach of contract and hence unprotected. The General
Counsel has in the instant proceeding consequently met the burden of proving, as
he must in all cases of alleged unlawful discharges, that the employees were dis-
charged because of their lawful protected activities.
The sense of this doctrine is more amply demonstrated by these additional refer-
ences. Section 13 of the Act provides that nothing therein "shall be construed so
as to either interfere with or impede or diminish in any way the right to strike, or to
affect the limitations or qualifications on that right." The limitation on the right of
employees to strike in breach of their contract forbidding such action thus arises
primarily from their contractual obligation and not from any express provision of
the Act. When the breach occurs the employer is at liberty to treat the striking
employees as having severed their relations with him and to consummate that
2 See Wallick and, Schwalm Company, 95 NLRB 1262, 1264.
3 California Cotton Cooperative Association, Ltd., 110 NLRB 1494, 1500, and Board
and court decisions cited at footnotes 8 and 9.
:1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separation by notice of discharge or replacement by other employees.4 The em-
ployer may, however, as may any contracting party, disregard the breach by the
.other party to the contract and continue the employment relationship as if the
.breach had not occurred. In this circumstance, the employer by his own choice has
waived his rights to discharge the employees for breaching the contract. The em-
ployer having voluntarily made this choice, the Board's policy is to give effect.to it.
The Board has, however, in the Mackay Radio and Telegraph Company, Inc.,
;case, 96 NLRB 740, held that participation by employees in an . unlawful strike
which violates basic public policy considerations is not condonable, and the em-
.ployer may lawfully discharge employees for such conduct even though he per-
mitted them to work for a time after the strike without raising the issue of its
legality. In the Mackay case the strike by employees to compel the employer to
.sign a contract containing an illegal union-security clause would have resulted in
-violation of the Act had the employer capitulated, and the strike to compel such
unlawful action by the employer was in itself a violation of the Act and was re-
garded by the Board as subversive of the Act. But, the Board hastened to empha-
size, such conduct is to be differentiated from "participation in concerted activity
which the Board for policy reasons held to be unprotected," and specifically placed
in this category strikes in breach of contract. In this latter circumstance, the Board
indicated, "it was principally the employer' s interests which were unduly jeopardized
by the employees' unprotected activity. Hence, if the employer was willing to con-
done the employees' conduct, there were no basic public policy considerations
%which precluded the Board from giving effect to such -condonation."
It is apparent from the Board's remarks in the Mackay Radio decision, that unless
the Respondent in the case sub judice has shown the strike to have offended public
policy considerations rather than the Respondent's interests, the Respondent's con-
.donation of the strike must be conclusive as to the result herein. Endeavoring to
show that the strike was unlawful, the Respondent argues that the strikers were
seeking to compel it to violate the Act by abrogating its collective-bargaining agree-
.ment, by repudiating a grievance settlement already made with the exclusive bargain-
ing agent pursuant to the terms of the contract, and by requiring the Respondent to
deal directly with a minority group in derogation of the exclusive bargaining rights
-of the Sheet Metal Workers. The record does not support these charges. The
testimony shows instead that the strikers resorted to a walkout in protest over their
-claim that the Respondent was failing to administer the contract in accordance with
its terms. One complaint involved the alleged failure by the Respondent to pay
the employees the higher rates of other jobs when transferred to them for certain
periods from their regular duties. The other related to the return and restoration
of an employee to his former job and the claim by the strikers that their seniority
rights had been infringed by this action as well as their right under the contract to
bid for this job. It is a fact that this latter complaint had been discussed by the
Respondent with a committee from the Sheet Metal Workers and an agreement had
been reached, and that with respect to the first mentioned complaint one employee
had filed a grievance which was being processed. No demand, however, was made
by the strikers for a settlement in violation of the contract terms. Instead, their
protest was that the contract was not being administered according to its terms.
Nor did the strikers seek to bypass the Sheet Metal Workers in reaching a settle-
ment with the Respondent. In fact, the action of Kelly, the shop steward who led
the strikers, belies such intention , for he had attempted during the day of the walk-
out before it occurred to arrange discussion concerning the employees' grievances
with both the Respondent and the president of the Sheet Metal Workers. Further-
more, the employees, individually or as a group, had a right under the express terms
of the contract to present their grievances directly to the Respondent and to have
them adjusted without the intervention of the Sheet Metal Workers. There is, con-
sequently, no substance to the Respondent's contention that the strike unlawfully
sought to compel the Respondent to violate the Act.
The Respondent further submits that no finding of violation is here permitted
because of lack of proof that the discharges were motivated by union animus or a
desire to discourage union membership. The Board has held that where, as here,
employees are discharged because of their exercise of rights guaranteed by Section 7
of the Act, including the right to strike for mutual aid and protection, it is im-
material whether such discharges were or were not motivated by the above-stated
reasons. Such discharges are clearly violative of Section 8(a)(1) of the Act, and
the Board has also held them to be violative of Section 8(a) (3) because they tend
* N.L.R.B. v . Sands Manufacturing Co., 306 U. S. 332, 344.
PLASTI-LINE INCORPORATED 1483
to discourage membership in a labor organization .5 I find that by discharging its
employees for participating in a strike for their mutual aid and protection , the Re-
spondent violated Section 8(a)(1) and ( 3) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section II, above, occurring in con-
nection with its operations 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 thereof.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
. action designed to effectuate the policies of the Act.
The Trial Examiner has found that the Respondent discriminated against certain
employees whose names appear -below in regard to their hire and tenure of employ-
ment because of their concerted activities thereby interfering with, restraining, and
coercing these employees in the exercise of rights guaranteed them by Section 7 of
the Act and further discouraging membership by them in a labor organization.
This conduct was found to be a violation of both Section 8(a)(1) and ( 3) of the
Act. For purposes of effectuating the policies of the Act , however, the remedy for
an unlawful discharge is the same , whether it is predicated upon a violation of
one section or the other , as here, upon both.6 It will, therefore , be recommended
that Respondent offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
seniority or other rights and privileges . See the Chase National Bank of the City
of New York , San Juan, Puerto Rico, Branch, 65 NLRB 827. It will be further
recommended that the Respondent make the employees named below whole for
any loss of pay suffered by reason of the discrimination against them . Said loss of
pay, based upon earnings which they would normally have earned from March 15,
1957, the date of the discrimination against them, to the date of the offer of re-
instatement , less net earnings , shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289 ; N.L.R.B. v.
Seven-Up Bottling Co ., 344 U.S. 344.
Although the Respondent 's unlawful conduct tends to thwart the fulfillment by
employees of their basic rights guaranteed by the Act to form labor organizations
and to engage in protected concerted activity , I am not convinced that the Respond-
-ent's conduct was a result of its hostility toward the general purposes of the Act,
but believe instead that it was the result of a technical misapprehension of the
Board's interpretation of the Act . I do not anticipate, because of the unlawful
conduct committed herein , a danger that the Respondent will in the future commit
other similar acts or other conduct proscribed by the Act. I shall, therefore , recom-
mend the issuance only of a narrow order limited to curing the effects of the
conduct found unlawful herein.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating with respect to the hire and tenure of employment of Oakie
Triplett, Haskell E. Kelly, Charles Oglesby, Bishop Hatmaker , Floyd V . Snyder,
Archie B. Russell, John C. Cummings , Henry C. Hartgrove , Allie E. Ensminger,
Boyd Dishman, Donald O. Lucia , Cecil Moody , and Jay Halliburton , thereby dis-
couraging membership in a labor organization of its employees, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act , Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
5 Rugcrofters of Puerto Rico , Inc., 107 NLRB 250.
6Gullett Gin Company , Inc. v. N . L.R.B., 179 F. 2d 499 (C . A. 5) ; Rugcrofters of Puerto
Rico, Inc., supra.