Plastic Applicators, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1964

150 N.L.R.B. 123 (N.L.R.B. 1964)

PLASTIC APPLICATORS, INC. 123
WE WILL reimburse Harvey Sides, Ichabud Goff, and Grant Powers for any
loss of pay they may have suffered by reason of the discrimination against them.
HIGGINS INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330,
if they have any question concerning this notice or compliance with its provisions.
Plastic Applicators , Inc. and Carpenters District Council of
New Orleans and Vicinity, Local 2258 , AFL-CIO. Case No.
15-CA-2408. December 15, 1964
DECISION AND ORDER
On September 15, 1964, Trial Examiner Thomas N. Kessel issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices in violation of the National Labor Relations Act,
as amended, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief.
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 McCulloch and Members Leedom and
Brown].
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
Trial Examiner's Decision, the Respondent's exceptions and brief,
and the entire record in this case, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, with the following addition :
150 NLRB No. 16.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order and reletter paragraphs 2(c) and 2(d) as 2(d)
and 2(e) :
"Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and ' Service Act of 1948, as
amended, after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed December 13, 1963, and an amended charge filed March 18,
1964, by Carpenters District Council of New Orleans and Vicinity, Local 2258,
AFL-CIO, herein called the Union, against Plastic Applicators, Inc., herein called
the Respondent , the General Counsel of the National Labor Relations Board , herein
called the Board, by the Regional Director for Region 15, issued his complaint dated
March 23, 1964, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a)(3)
and (1 ) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat.
136, herein called the Act. The Respondent 's answer denies the allegations of statu-
tory violation therein . Copies of the complaint , the charges , and a notice of hearing
were duly served upon the parties . Pursuant to said notice a hearing was held before
Trial Examiner Thomas N. Kessel at Morgan City, Louisiana , on April 28 and 29
and June 4, 1964. All parties were represented at the hearing by counsel. Full
opportunity to be heard , to examine and cross -examine witnesses , and to introduce
evidence was afforded all the parties . After the close of the hearing the General
Counsel and the Respondent filed briefs which have been duly considered. Upon
the entire record in the case , I make the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The Respondent is a Texas corporation which maintains a plant at Morgan City,
Louisiana, for the internal coating of oilfield pipes . During 1963 the Respondent
performed services at its plant in Morgan City valued in excess of $50,000 for cus-
tomers located outside the State of Louisiana. During the same period the Respond-
ent in the course of its operations at Morgan City received materials and supplies
valued in excess of $50,000 which were shipped directly to the plant from points
outside the State of Louisiana . From the foregoing facts, alleged by the complaint
and admitted by the answer, I find that the Respondent is an employer engaged in
interstate commerce within the meaning of the Act, and that the purposes of the
Act will be effectuated by the Board's assertion of jurisdiction in this case over its
operations.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership the Respondent's
employees.
III. THE UNFAIR LABOR PRACTICES
The General Counsel contends that the Respondent in violation of Section 8(a) (3)
and (1 ) of the Act on November 18, 1963, discharged nine employees because they
had on November 16 concertedly engaged in a protected work stoppage and/or
because they had engaged in union activities . The Respondent denies it discharged
these employees and instead insists they had voluntarily quit their jobs. The
Respondent further maintains that should it be found unlawfully to have discharged
them no reinstatement order should be recommended as to four because by their
misconduct they were disqualified for employment.
On November 15, 1963, eight of the nine employees herein involved signed cards
authorizing the Union to represent them in collective bargaining . The ninth employee
had signed a card on the preceding day. In the evening of November 15 the Union
held its first organizational meeting which was attended by most of these employees.
PLASTIC APPLICATORS, INC. 125
On November 17 the Union sent a telegraphic night letter to the Respondent assert-
ing its claim as representative of a majority of the Respondent's employees and
requesting contract negotiations. According to uncontradicted and credited testi-
mony of the Respondent's clerk, Lana Chauvin, the telegraph company read the
contents of the foregoing message to her by telephone on November 18 at 9:15 a.m.
This was the first knowledge by the Respondent of the Union's message.
On November 16, 1963, employees Buirden Jupiter and Frank Gray reported for
work a few minutes after the 7 a.m. starting time and were immediately discharged
for not being on time. News of this action and of the discharge on the preceding
night of employee Lawless Gibson reached the other employees who thereupon
stopped work and walked off the job to protest the discharges. Among those who
then engaged in the work stoppage were employees Thomas Johnson, Willie Bray,
John Matthews, Jr., Joseph Matthews, Monroe McKay, Alvin Stephens, and Lawrence
Given's. Employee Roland Owens who was scheduled to start work at 3 p.m. on
November 16 failed to report because he learned from the foregoing employees
about the discharges and joined the protest. Employee McKinley Smith started
work on November 16 at 3 p.m. When he learned about the discharges at 7 p.m.,
he also walked off the job to protest.
Eight of the employees who had engaged in the November 16 work stoppage,
accompanied by the three discharged employees, were assembled in the morning of
November 18 in the office of the Respondent's Plant Manager Robert P. Boyer.
There is substantial conflict over the circumstances which occurred that morning
immediately before the gathering of this group in Boyer's office. The General
Counsel's witnesses testified they had abandoned their work stoppage and had
reported to the plant at their normal 7 a.m. starting time ready to begin work but
had been prevented by their foreman, acting on Boyer's instruction, from doing so.
The Respondent's witnesses deny that the employees had come to the plant at their
starting time but had reported later and had then engaged in conduct consistent
with the Respondent's view that they had not come to the plant with the intention
of resuming work. In any event, there is no question about their assemblage at or
about 8 a.m. in Boyer's office. Here again, however, there are differing versions of
what transpired. The substance of the testimony related by the General Counsel's
witnesses is that Boyer concluded his criticism of their walkout by discharging them.
The Respondent' s witnesses conceded only that Boyer upbraided them for their
November 16 conduct, warned them not to repeat certain of their activities, and
then, without discharging them, told them merely to leave the premises.
Subsequent to November 18, 1963, some of the foregoing nine employees resumed
work for the Respondent at their former or equivalent jobs. John Matthews, Jr., went
back in April 1964, Ronald Owens on March 26, 1964, and Lawrence Givens on
March 21, 1964. McKinley Smith went back on March 30, 1964, but the parties
differ as to whether he was given a job equivalent to that held by him on Novem-
ber 16. The General Counsel says he was not because he had formerly worked as a
blast machine operator and came back as a mere helper. The Respondent main-
tains he had not been classified as an operator previously, that his status as a helper
is the same as that which he had formerly occupied and that this is evidenced by the
fact that there has been no change in his hourly rate of pay. Willie Bray was
recalled by the Respondent on Good Friday which fell on March 27, 1964. Bray
was then regularly on the day shift. In the following week he was directed to work
the night shift in place of an employee who was disabled because his teeth had been
extracted. When Bray refused on the ground that it was the plant's policy for shift
exchanges to be made voluntarily between employees and not by order of manage-
ment, he was told to leave and not to return until called. Not having been recalled
he was in effect discharged. The General Counsel argues that Bray may not in
these circumstances be regarded as having been reinstated to his former or equivalent
position.
Concerning employees Monroe McKay, Thomas Johnson, Alvin Stephens, and
Joseph Matthews, the Respondent defends its refusal-to reinstate them on and after
November 18, 1963, on the ground that on November 16 they had engaged in a
violent assault upon a nonstriking employee to prevent him from going to work that
day and were thereby disqualified for future employment. The evidence concerning
the alleged assault is seriously disputed. The Respondent's version is that the vic-
timized employee was severely attacked and beaten by the four employees named
above. Only McKay conceded any involvement in the fight, and he claimed that his
actions were defensive.
Regarding the alternative allegation that the Respondent discharged the nine
employees who engaged in the November 16 walkout because of their union activi-
ties , the General Counsel, to prove the Respondent's knowledge of such activities,
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relies on the circumstances that the Respondent's plant is a small one in which it
was bound to learn of these activities before the discharges occurred. The Respond-
ent denies any knowledge of these activities before it received notice of the Union's
night letter at 9:15 a.m. on November 18. To show motivation for the discharges
the General Counsel presented evidence that in October 1961, during a pending
representation election among its employees to select a collective-bargaining repre-
sentative, the Respondent's present plant manager, Boyer, had interrogated employee
John Matthews about a report that he had been holding union meetings in his home
and had informed him the Respondent did not want a union in its plant. Along
the same lines, there is testimony that former Plant Manager Donnelly and another
of, , Respondent's representatives named Barnes had visited employee Joseph Mat-
thews at his home in August 1961 where he was asked whether he had money in
the bank and was told that the plant would be closed within a year if it were to be
unionized.
From the foregoing summaries it is evident that a principal issue centers about
the General Counsel's contention that on November 18, 1963, the Respondent dis-
charged the nine employees who had participated in the November 16 walkout for
engaging in this activity and the Respondent's insistence that it had not discharged
them but that they had voluntarily quit in the sense that by leaving the plant on
November 16 they gave up their jobs without intending to return to them. The
record does not support the Respondent's position. None of the employees who
walked out on November 16 said or did anything at the time which could to any
degree have reflected an intention to quit and not return. Those who did state
reasons to the Respondent's representatives expressly said they were stopping work
'to protest the discharges of Jupiter and Gray because of concern for their own jobs.
Thus, Thomas Johnson credibly testified that in response to Plant Manager Boyer's
inquiry he told him as he was leaving the plant, "Well, Mr. Boyer, if those two men
were fired just because they were 5 minutes late then I comes in my car everyday and
I can be 5 minutes late and that means I don't have a job either." 1 Likewise, Willie
Bray credibly testified he explained to Boyer that he was leaving "because Frank
Gray and Buirden Jupiter had been fired and I didn't think being a few minutes
late was sufficient grounds for firing those employees." Lawrence Givens was point-
edly asked by his foreman, Paul Hulin, whether he, like the other employees who
had walked out, was "quitting" and he explicitly denied he was quitting but that he
"was just going with the rest of the boys." This uncontradicted testimony is also
credited. The concerted walkout by the employees directly after the discharges and
the foregoing explanations left the Respondent in no doubt on November 16 that
the employees were stopping work to protest the Respondent's discharge policy and
the action taken pursuant thereto against their fellow employees. The work stop-
page in these circumstances did not denote an abandonment of jobs. It reflected
concerted pressure by the employees to force relinquishment of the Respondent's
policy and restoration of the discharged employees to their jobs.
A more difficult fact issue concerning the claimed unconditional abandonment of
the employees of their work stoppage on November 18 and their subsequent dis-
charge is presented by the sharply conflicting version of what occurred at the plant
that day. Employees Johnson, Bray, John Matthews, Joseph Matthews, McKay,
Smith, Stephens, and Givens testified they had reported to the plant before their
usual 7 a.m. starting time ready to go to work but were prevented from doing so
by Foreman Huhn who told them they were first required to see Plant Manager
Boyer. Boyer acknowledged he had instructed Hulin to send the employees to him
before allowing them to go to work. Hulin flatly denied the employees had come
to the plant on November 18 to resume work at or before 7 a.m., that he had stopped
them from clocking in, or had sent them to Boyer. The Respondent's attorney, Rene
A. Pastorek, who was in the plant between 6:30 and 7 a.m. that morning, Foremen
Liner and Verret and employee Broussard who were also in the plant gave support
to Hulin's denial. The main purport of their testimony is that had the employees
entered the plant and attempted to clock in at 7 a.m. they would have seen them,
and, as they did not observe their presence at that time, the employees necessarily
were not there.
The employees testified that they met with Boyer in his office at about 8 a in. and
that he started the meeting by ordering those employees who had been discharged on
November 15 and 16, Gibson, Jupiter, and Gray, from the room. After asking the
remaining employees whether they had anything to say and receiving no comment,
1 Boyer's version of the conversation was that he had asked "You quitting' You all
are leaving ')" and that Johnson replied "Yes. One of these days I might come in
5 minutes late and I ' d be fired." Boyer claimed he spoke to no other employee as he left.
PLASTIC APPLICATORS, INC. 127
Boyer admonished them for their conduct on November 16. He told them they had
walked out , hurt production , damaged the Respondent 's uniforms by cutting them
with a knife, beaten an employee named Thibeaux , prevented employees from com-
ing to work, and that he had received threatening telephone calls. He informed them
that he would resort to law enforcement procedures against them and concluded by
telling them they were discharged and he would have their checks ready in 24 hours.
He refused to hear Johnson 's explanation that he had not beaten anyone and ordered
the employees to leave the premises . They thereupon left.
Boyer's account of what transpired in his office differs essentially from the employ-
ees' version in his denial that he had told them they were discharged and that he
would have their checks for them in 24 hours. He denied any mention of the checks
as well as any reference to the matter of damage to company uniforms . Foreman
Liner and Office Manager Shibe were present during Boyer's address to the employees
and supported his claim of what he said. Attorney Pastorek had prepared a series
of notes which he left with Boyer upon his departure before the anticipated arrival
of the employees . Pastorek testified he had instructed Boyer , should he speak to
the employees , "to read from this statement or notes" and to "read , to tell the men
what was on the statement." Although Boyer first acknowledged he had "read off
of those notes," he also testified he did not read to the employees everything con-
tained in them. The final sentences of the notes, in evidence , are "Nothing further to
say. Leave premises and pick up checks." The notes contain no reference to dam-
age to company uniforms.
Bearing further on the question whether the employees had actually come to the
plant on November 18 to go to work, there is testimony by the Respondent 's witnesses
that when they saw the employees that day they were not dressed in work uniforms
but in street clothes . This circumstance carries no special significance as I am con-
vinced from the testimony of the employees and of Foreman Liner that the employ-
ees customarily came to work in their street clothes and changed to work uniforms in
the plant dressing room. Furthermore, I credit the testimony of John Matthews that
he had worn his uniform on November 18, of Monroe McKay that he had worn a
uniform shirt, and of Willie Bray that he had worn the uniform trousers.2
On the same point, that is, whether the employees had come to the plant on
November 18 to go to work or by their actions had signified an opposite intention,
there is testimony by Foreman Hulin and employee Broussard that they had seen
certain employees enter the plant dressing room after 8 a.m. and remove personal
belongings from their lockers such as shaving equipment and clothes . This was
uniformly denied by the employees . For reasons hereinafter explicated I do not
credit such testimony by Hulin and Broussard.
To show further that the employees had quit their jobs and had no intention of
returning to work on November 18 the Respondent presented evidence that requests
were.made that day by the employees for withdrawal of their credit union savings
deposited with the Respondent . Office Manager Shibe testified that before the
employees entered Boyer's office employee Alvin Stephens made such request and
that, he, Shibe, called by telephone to the Respondent's Houston office where the
savings records were kept to - secure his funds . This was the only specific request
Shibe could recall although he claimed others also made withdrawal requests which
he transmitted to Houston . He conceded that none of these employees told him his
withdrawal was made because he was quitting. The credit union records for the
employees were presented by the Respondent. They show withdrawals of balances
on November 18 for employees Stephens, Johnson, and John Matthews. Patrick
Donnelly, the Respondent's production manager headquartered at the Respondent's
Houston general offices where the credit union records are maintained , testified he
had obtained these records from their customary file. He conceded they were not
prepared under his supervision. Asked whether an employee whose employment had
been terminated by the Respondent is permitted to keep his funds in the credit
union , he testified he could not answer the question . The documentary evidence
consequently loses its force , for it is as logically inferrable that the closing out of
the accounts on November 18 was the result of the discharges of the employees as it
was the result of their voluntary requests for withdrawal of balances. Shibe's testi-
mony that others besides Stephens had requested withdrawal of their balances on
November 18 impressed me as he gave this testimony as an afterthought to strengthen
the Respondent 's case, particularly as he initially designated only Stephens as the
2 Joseph Matthews also testified he had worn his work uniform . I place no reliance on
his testimony for reasons hereinafter stated.
775-692-65-vol. 150-10
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee who had made such request. When Shibe later expanded his testimony by
claiming others also had requested withdrawals, he inexplicably could not identify
them.
I am satisfied that the employees who had engaged in the November 16 work stop-
page were discharged by Boyer when he addressed them in his office at about 8.30
a.m. on November 18. I credit their testimony to this effect and reject Boyer's
denial and that of Liner and Shibe that he had not done so . The most compelling
factor leading to this conclusion is Boyer's admission in his testimony at a hearing
on March 12 , 1964 , before a referee of the Louisiana Division of Employment Secu-
rity.initiated by the filing of claims by the employees herein for unemployment com-
pensation .3 The employees appear not to have been represented by counsel in that
proceeding. Accordingly, after Boyer had apparently testified in support of the
Respondent's position that the employees had quit their jobs on November 16 and
had not thereafter been discharged he was questioned by them concerning his testi-
mony. It was stipulated in the instant record that the transcript of testimony in the
unemployment compensation proceeding contains the following excerpts:
REFEREE: Remember now, I said that you were to talk about the reason for
your separation from employment . No unemployment compensation or social
security, as you put it, has no bearing on what we are trying to decide today.
Now is there any facts that you want to ask Mr. Boyer to substantiate about
why you were separated from work, then, you can ask him that question.
MCKAY: Well, was it we was separated from the job?
BOYER: Why were you all separated from the job? One of the main reasons
was because there was violence.
OWENS: Yes, I would like to ask one. Mr. Boyer have anything that I said
here, this is any different to your feelings. I mean, do you have any objection
of anything that I have said , that is not true.
BOYER: That has nothing to do with the reason that you were let go.
REFEREE: Now, you heard Mr. Boyer testify this morning. Is there any
question you would like to ask him about his testimony that he gave, what
caused your separation from work?
BRAY: Yes, one clarification I would like to clear up , Mr. Boyer said that we
were-we quit, but he never said that he fired us that Monday morning.
REFEREE: Now, wait, when did he say that you quit?
3 The Respondent contested the claims of the employees for unemployment compensation
benefits on the ground that they had quit their jobs and were therefore disqualified for
benefits The Respondent 's contention that the employees were disqualified was rejected
and decisions favoring their claims were issued by the State agency. Thereafter the
Respondent appealed the agency decisions to the Louisiana Board of Review for the Divi-
sion of Employment Security which on May 6, 1964, issued decisions holding that the
claimants were not disqualified to receive benefits for the reasons asserted by the Re-
spondent In its findings the Board of Review declared that the claimants "did participate
in a walkout on November 16 and 17, 1963. On November 18th, they were denied en-
trance into the plant and terminated ; therefore , it [is] the opinion of the Board that
no strike was in active progress at the plant at the time of the termination of the said
claimants Although the employees involved did absent themselves from work on Novem-
ber 16, 1963 , the evidence indicates that it was not their intention to abandon the em-
ployment , since they did return to employment the following workday, which was Novem-
ber 18, 1963. At that time their services were terminated by the employer." While the
Board; in Cadillac Marine & Boat Company, 115 NLRB 107 , 108, declared that its Trial
Examiners should receive into evidence in unfair labor practice hearings involving the
alleged unlawful discharges of employees the decisions of State unemployment compensa-
tion tribunals relating to these discharges , the Board gave no indication as to the manner
or extent to which these decisions should be relied upon by the Trial Examiners in render-
. ing their decisions . The Board said merely that these decisions should be received "for
whatever probative value [they ] may have." See also Supreme Dyeing & Finishing Corp ,
etc., 147 NLRB 1094. Without the benefit of the record considered by the State tribunals
in reaching their decisions I am unable to determine their probative value in this case and,
accordingly , I have not relied upon them in making my findings and conclusions herein.
I have, however , relied upon the evidence of testimony by witnesses in the present proceed-
ing given in the State proceeding as a basis for passing on credibility and for findings of
fact where such testimony constitutes admissions against interest.
PLASTIC APPLICATORS, INC . 129
BRAY: When we was in here this morning, in his testimony a while ago, he
said that we walked out that Saturday, but he never said that he had fired us
that Monday morning when we came back there to his office.
REFEREE: Then what you want to ask Mr. Boyer is did he say, as you con-
tend, that you were fired?
BRAY: Yes, sir.
REFEREE: Mr. Boyer, you heard the question. On November 18, 1963 at the
time these men appeared in your office, between the hours apparently of eight-
fifteen and eight-thirty, did you say that they were discharged from your employ-
ment?
Mr. BOYER: Yes, sir, I did.
REFEREE: At this time we are recalling Mr. Boyer as a witness. In the case
of Lawrence Givens, I show you a document, which I will identify for the record
as Form LDES 106, Notice of Renewed Claim Filed, and call your attention to
the reverse side of this small form, and ask you if your name or signature
appears on this document, sir?
Mr. BOYER: Yes, that's my signature.
REFEREE: Did you prepare this form in your own handwriting?
Mr. BOYER: No, sir, I didn't.
REFEREE: Who prepared it?
Mr. BOYER: The office manager.
REFEREE: Was it prepared at your direction?
Mr. BoYER: Yes, sir.
REFEREE: Did you tell him that these men had quit?
Mr. BOYER: Yes, sir.
REFEREE: The statement in the case of Lawrence Givens is "Quit Novem-
ber 16, 1963, without good cause. Involved in labor dispute since November 18,
1963, and has been participating as a picketeer." That is the information you
gave the office manager.
The parties stipulated that forms, identical to that, above, pertaining to Givens,
containing the same information, were sent by the Respondent to the Division of
Employment Security.
Confronted with this record of admissions, Boyer nevertheless continued to insist
that he had not discharged the employees. He was confused, he testified. He meant
only to say that he had discharged Gibson, Jupiter, and Gray. I am unable to accept
his explanation. There was no valid reason for his failure to understand that he was
questioned at the compensation hearing about the termination of all and not just
three of the employees. Moreover, the discussion at the hearing and the remarks of
the referee made it perfectly clear that the issue was whether all the employees had
been discharged. It should be added that while the employees were not represented
by counsel, Boyer had the assistance of Attorney Pastorek who appeared at the hear-
ing for the Respondent. There must not have been any doubt in counsel's mind at
the hearing, as there is none in mine from study of the testimony, that Boyer under-
stood what he was asked and what he was saying. Had there been any belief by
counsel that Boyer's answer showed confusion he would doubtless have straightened
out the record by obtaining other answers from Boyer. I find that Boyer was not
confused when he testified he had discharged the employees who had walked out on
November 16, but that he meant to say exactly what his admitted testimony reveals.
Had Boyer not discharged the employees in his office there would have been no
logical reason for the detailed recital of his numerous complaints against them. His
testimony before me that he had told them all these things "because they had quit"
is implausible and unbelievable. It makes more sense to find, as I have, that this
recital was a prelude to his announcement that he was discharging them for their
derelictions. I add that Boyer himself seemed unimpressed with the foregoing
explanation as evidenced by his hesitant repetition with a nod of the head that he
had enumerated their misdeeds because they had quit.
I do not believe Boyer's denial, or that of his supporting witnesses, that he had
told the employees at the conclusion of his remarks that he would have their checks
ready for them in 24 hours. There is no indication that any employee had seen the
notes to which Boyer had adverted in addressing the group. They had no way of
knowing that these notes contained a reference to the issuance of checks. I cannot,
in this circumstance, find the employees concocted their claim to have heard the
check remark from him knowing there was such reference on the notes. What is
likely is that they so testified because they actually heard this comment from Boyer.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No explanation was offered for his asserted omission of mention about the checks
although he was instructed by Pastorek to read what he had noted and he did cover
everything else that he had written. I infer that Boyer's denial stemmed from his
belief that a concession he had told the employees their checks would be ready the
next day would be tantamount to an admission that he had discharged them. It is not
uncommon for an employer who gets rid of offending employees by discharging them
to tell them in the same breath when he will pay them off. Boyer validly assumed
that proof he had made such comment would strengthen the claim he had discharged
the employees.
I am not persuaded that the employees were discharged by the Respondent because
of their union activities. Even if I were satisfied that the Respondent's union animus
shown to have existed in 1961 persisted thereafter until the events of November
1963, I could not find that this state of mind was the motivating factor for the dis-
charges. The record lacks the essential ingredient of proof of the Respondent's
knowledge that the employees were engaging in union activities. This proof, in my
opinion, is not supplied by the fact that the Respondent's plant is small. There is
no indication that the employees engaged in any activity in the plant which could by
some means such as the rumor mill or the grapevine have come to the Respondent's
attention. In fact the only union activity in which the employees appeared to have
engaged before November 18 was their attendance at the November 15 meeting
where they signed cards. To find that the Respondent had learned of this before it
discharged them in the morning of November 18 would require speculation that it
had received information through an informer. I may not indulge in such specula-
tion to reach a conclusion that the employees were discharged in violation of Section
8(a) (3) of the Act for engaging in union activities.
The discharge of the employees on November 18 was nevertheless unlawful because
it was motivated by the November 16 walkout 4 Boyer's recital to the employees on
November 18 of their various transgressions for which I found he discharged them
makes this clear. As related by the employees, and as Boyer himself acknowledged,
he charged them with hurting production and damaging relations between the
Respondent and its customers. This clearly refers to the fact that by the cessation
of work on November 16 the Respondent's productive operations suffered. This was
obviously one, if not the most compelling, reason for the November 18 discharges
of the employees who had engaged in the work stoppage. Because the employees
had concertedly taken this action in protest over the Respondent's discharge policy,
it was an activity for mutual aid and protection in the exercise of which they were
protected from reprisal by the Respondent by the guarantees of Section 7 of the Act.
The Respondent's violation of this protected right was violative of Section 8(a) (1) of
the Act.
The Respondent argues in its brief that no finding of "discrimination" can be made
as to employee Roland Owens because he had not participated in the November 16
work stoppage and, if he had, the Respondent was unaware of it. As noted above,
Owens had in fact joined the protest of his fellow employees by failing to report for
the 3 p.m. shift on November 16. It is, therefore, immaterial to a finding that his
Section 7 rights were violated that the Respondent did not know he was one of those
engaging in the concerted activities, for Boyer's discharge of the employees on Novem-
ber 18 was intended to frustrate such activities by all employees.5 Actually, the
Respondent was aware that Owens had not reported for work on November 16 and
assumed his absence was because of his participation in the work stoppage. At the
November 18 meeting with the employees Boyer named all those who had been
involved including Owens. I do not credit his denial of the testimony by the employ-
ees who had been present that he mentioned Owens' name together with theirs.
Owens was informed, after the meeting on November 18 by the employees who had
been present, of Boyer's action and reasonably understood he, too, had been dis-
charged. Furthermore, in testifying at the State compensation hearing Boyer acknowl-
edged he had discharged Owens. I perceive no merit in the Respondent's other argu-
4 That Boyer may have discharged some or all of the employees for other reasons not
proscribed by the Act does not validate the discharges, for the action was unlawful so long
as one of the reasons for it was forbidden by the Act. N.L.R.B. v. Jamestown Sterling
Corp, 211 F. 2d 725, 726 (CA. 2). Actually, the telephone threats to Boyer came from
an unidentified 11-year-old child whose conduct was not attributed to any employee, and
the uniforms were cut by an employee named Chapman for whose conduct the employees
were not shown to be responsible. Chapman was not discharged for his conduct.
5Lamar Creamery Company, 148 NLRB 323.
PLASTIC APPLICATORS, INC. 131
ments in its brief that Owens may not be found to have been discharged because he
had not been present at the meeting , or because the Respondent did not directly tell
him he was discharged.
Having found that the Respondent unlawfully discharged its employees for engag-
ing in the November 16 walkout , I revert to the claim of the employees that they
had attempted to resume work- on November 18 but were prevented by the Respond-
ent from doing so and the Respondent 's denial thereof. A finding in accord with
the employees ' testimony is not necessary to support the conclusion that they were
unlawfully discharged by Boyer on November 18, for the record amply establishes
his unlawful action without regard to the evidence of their unsuccessful attempt to
go back to work. Consideration of the evidence , however, is required , for, if the
employees on November 18 had by their effort to return to their jobs unconditionally
abandoned their work stoppage , the Respondent 's refusal on that day to permit their
return would entitle them to a backpay remedy from that date until they were
offered reinstatement by the Respondent . In this connection , consideration must also
be given to the Respondent's justification for its refusal to reinstate certain employees
for their disqualifying conduct during the work stoppage.
I proceed to the conflict posed by the testimony of eight employees that they had
been prevented from starting work at 7 a.m. on November 18 by Foreman Hulin and
the latter 's diametrically opposite insistence he had neither seen them nor spoken to
them at the time. Hulin's denial , as noted, is buttressed by the testimony of Attorney
Pastorek , Foremen Liner and Verret , and by employee Broussard.
Pastorek related he had come to the plant at 6:30 a in. on November 18 because
he had been informed the employees were coming back that day. He intended to be
present upon their arrival . He came to the foreman 's office in the plant about 6:45
a in., where he met Verret . After a brief conversation with him Hulin entered the
office. Pastorek conferred with Hulin about the events of November 16 and made
notes. At about 7 a.m ., after a 10- or 15-minute discussion with Hulin , Pastorek dis-
missed him . He observed that Hulin and Verret left the office together . Pastorek
remained there for another 5 or 10 minutes and then departed . He estimated that
the foreman 's office which he had used was about 35 to 50 feet from the main door
of the plant through which employees enter . He claimed that he did not see any of
the eight employees herein involved enter or seek to enter the plant during the time
he was there and was certain he would have seen them had they done so.
Foreman Liner testified that he had arrived at the plant on November 18 at 6:45
a.m. He had parked his automobile , gone to the main office where he spent approxi-
mately 5 minutes , and then walked to the plant where he met Foreman Verret. The
latter was alone standing outside the door of the foreman 's office in the plant. Liner
spoke for about 3 minutes with Verret and then proceeded with an inspection tour
during which he "roamed throughout the plant constantly " until 8:25 a.m. During
this time he saw none of the employees in the plant who had walked out on Novem-
ber 16.
Foreman Verret testified he had worked the night shift from 11 p.m. November 17
to 7 a.m. November 18. At approximately 6:30 a.m., he saw Pastorek enter the
plant. He spoke to him briefly . Hulin , who was to relieve Verret, arrived at the
plant at 6:45 a.m. Before Hulin took over the shift Pastorek spoke to him in the
foreman's office for 10 to 12 minutes . During this interval Verret stayed outside the
office and occasionally entered . He summed up his activity during the period from
6:45 to 7:15 a.m., when he clocked out and left the plant, by relating he was "most
of the time around the foreman 's office but walking around observing any other parts
of the plant like we normally do." He maintained that during the morning of
November 18 he did not see any of the employees herein involved enter the plant.
Employee Broussard testified that he had started work on November 18 at 7 a.m.
He claimed Hulin talked to him in the custom shop from 7 a.m. for 5 to 25 minutes
and then "walked around the plant and came back by." No one else was with him
during this time. Broussard claimed that had the employees entered the plant at
7 a.m., he would have seen them, but conceded he could have seen them only if he
had stood in front of the door of the custom shop. He made no claim he stood at
the spot but did testify he was standing "in the custom shop." He further testified
that shortly after 8 a.m ., while he was still in the custom shop , he observed five of
the employees who had walked out on November 16 enter the plant. He could iden-
tify only two , Givens and Johnson . He claimed he saw the group go into the dress-
ing room and remove shaving equipment and dress clothes. Huhn , he said , was with
him at this time.
Hulin testified that he had come to the plant on November 18 at 6 : 45 a.m. and
at that moment observed Verret talking to Pastorek . He joined them and entered
the foreman 's office with Pastorek . The office, he related , is "around the comer"
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the timeclock . The clock is not visible from the office , but the door through
which the plant is entered can be seen from the office . Pastorek questioned him
about the November 16 walkout for about 10 minutes . Then Hulin spoke to Verret
as they walked from one section of the plant to another discussing the work of their
shifts. He left the plant and went to the main office at 7:10 a.m., where he again
conferred with Pastorek for about 30 minutes . He then returned to the plant and
resumed his duties . At about 8 a.m., while he was with Broussard in the custom
shop, he saw six of the employees who had walked out on November 16. He recalled
that Givens , Johnson , Joseph Matthews , and Monroe McKay were in the group.
He spoke to none of them but called Boyer to apprise him of what he had seen.
Boyer advised he would immediately come to the plant . When he arrived a few
minutes later the employees were no longer there. Hulin denied that on November 18
he had spoken to any of the employees who had walked out or that he had told
any of them that they could not punch in and would have to see Boyer.
Liner 's testimony contributes little toward resolution of the question whether the
employees came to the plant as they claimed on November 18 for it is readily appar-
ent he left the area where the confrontation between Hulin and the employees
assertedly occurred before 7 a.m., and then roamed about the plant. His ability to
observe whether the employees came into the plant at 7 a.m ., while he was roaming
must be discounted , for, if Hulin's and Broussard 's claims are credited that a group
of five or six employees came to the plant for their personal belongings at 8 a.m.,
Liner's unexplained failure to have seen them at that time, assuming they were there,
indicates that he might well have failed to see them at the earlier time had they then
been present.
Broussard 's testimony raises serious doubts as to its validity . I had the distinct
impression he was deliberately endeavoring to assist the defense by adding what at
the moment seemed helpful. I am satisfied his belated claim not to have seen the
employees enter the plant at 7 a.m. was a spur of the moment addition to his direct
testimony which had been limited only to his account of the visit to the plant at
8 a.m. by the employees to pick up their personal belongings . Moreover, his testi-
mony that he was alone with Hulin from 7 a.m., for 5 to 25 minutes , seriously
conflicts with Hulin's account that he had walked with Verret from one section of the
plant to another from about 6:55 to 7:10 a.m., and then left the plant for the main
office.
Pastorek's confident conclusion that from the foreman 's office which he occupied
he would certainly have seen the employees enter the plant must assume his fairly
constant observation of the plant door from 6:55 or 7 a.m., after he had dismissed
Hulin , until his departure from the plant at 7:05 or 7 : 10 a.m. How he can be so
sure that the employees did not enter the plant he did not explain . He was con-
cerned with an investigation which he was accomplishing within a limited time. By
his own account he was pressed for time. It may reasonably be assumed that he was
concentrating on the completion of his work and could well have been so absorbed in
his activities he might not have noticed the entrance of the employees and- their
departure after a brief discussion with Hulin at the timeclock which was out of his
sight . The occurrence of this short experience is not ruled out by his testimony.
Verret 's account of his actions between 6 : 45 and 7:15 a.m . also includes movements
around "other parts of the plant" which do not eliminate the possibility that for a
brief interval before 7 a.m. he was not in a position to observe the arrival of the
employees , their brief discussion with Hulin , and their departure . His testimony also
does not preclude the possibility that these things happened.
The testimony of the witnesses supporting Hulin's denial does not inevitably lead
to a conclusion that the employees could not have entered the plant to go to work and
been sent to Boyer by Hulin . None of them , except possibly Pastorek , had any reason
to be on the lookout for the employees, and, if they were preoccupied with their
duties, as I assume they were , the chance existed that their attention was not drawn
to a conversation at the timeclock between Hulin and the employees.
Hulin's testimony is weakened by Broussard 's account of his private 5- to 25-minute
conversation with him in the custom shop. Obviously , Hulin could not have been with
Broussard if he were walking about the plant with Verret from 6:55 to 7:10 a.m., as
he related . I have also noted Boyer 's admission that he had instructed his foremen,
and this doubtless also meant Hulin , that they were not to let the employees go to
work if they came to the plant and to tell them they had to see him. This raises the
question why, if Hulin saw employees enter the dressing room at about 8 a.m., he did
not follow Boyer's orders and did not convey to them his instructions but instead,
without speaking to the employees at all, called Boyer by telephone to inform him of
the activities of the employees . I am left with a feeling of uncertainty about Hulin's
testimony which does not permit me to credit his denial of the claim by eight employ-
PLASTIC APPLICATORS, INC. 133
ees that they had come to the plant to go to work and were sent by him to Boyer just
as Boyer had told him to do. I find that the employees did enter the plant to resume
work on November 18 and were told by Hulin not to clock in but to go see Boyer.
The foregoing finding does not depend on the testimony of all the employees. I have
cautiously reviewed the accounts of these witnesses and have misgivings as to some.
Joseph Matthews ' testimony is rejected in its entirety because of his concession before
me that he had falsely testified at the unemployment compensation hearing concern-
ing certain matters lest he hurt his chances of collecting unemployment compensa-
tion. Bray's testimony at that hearing concerning the circumstances of the meeting
with Hulin on November 18 and his confusing attempt to reconcile that testimony
with his account before me renders his recollection of what happened too uncertain
to permit reliance thereon . But the other employees , notably McKinley Smith and
Lawrence Givens, impressed me as they testified that they were truthfully recounting
the incidents of November 18. I have, accordingly , credited their testimony concern-
ing these incidents including their denial that they had come to the plant at about
8*a.m. to pick up their personal belongings . I credit their testimony that they re-
turned to the plant on Thursday , November 21, to pick up their checks and on that
day returned their company uniforms and took with them their personal belongings
from their lockers.
The Respondent points to the fact that when the employees met with Boyer after
8 a.m. on November 18 Gibson , Jupiter, and Gray, whose discharges had provoked
the walkout , were with them. This, argues the Respondent , proves that the employees
had not intended by their return unconditionally to abandon their walkout and to
return to work, for the presence of these three named employees indicates that the
group intended to return to work only if the Respondent were to reinstate the dis-
charged employees . The Respondent 's reasoning is too speculative to accept. Not
one word was said about conditioning return to work on the reinstatement of the dis-
charged employees . John Matthews' testimony at the unemployment compensation
hearing about his desire for "satisfaction" from Boyer meant, as he endeavored to
explain , that he wanted a better "understanding" of what had happened. This
impresses me as meaning that he was concerned with clarification of the Respondent's
action in discharging the employees for coming to work a few minutes late and not
that he was demanding their reinstatement as a condition for his return . He credibly
testified he had come to the plant that morning to go to work . Boyer ordered the
three discharged employees from the room before he spoke to the group . The latter
remained without objection . This implies they had not conditioned their return upon
the Respondent 's capitulation to an unexpressed demand that the three discharged
employees be given back their jobs. In any event , I have found that the employees did
abandon their walkout and attempted unconditionally to return to work at Ta.m., but
were prevented by the Respondent from doing so.
I next proceed to the General Counsel's contentions that employees Willie Bray
and McKinley Smith have since November 18 , 1963, been denied reinstatement by the
Respondent to their former jobs. I need not dwell long on the issue pertaining to
Bray. The record incontestably shows that he went back to work at his former job on
March 27, 1964, and that during the next week's employment he was requested by
Boyer on Wednesday to work during the night shift as a replacement for an employee
scheduled to have a tooth extracted ; that when Bray refused to comply with Boyer's
request he was told to remain at home until called , and that after Boyer consulted
Pastorek the next day he decided to discharge him. This decision had nothing to do
with Bray 's union or other protected activities and in nowise contravened any of the
Act's proscriptions . As I find that Bray had in fact been reinstated to his former job
and was justifiably discharged in the circumstances described , the General Counsel's
contention pertaining to him has not been sustained.
Smith had worked for the Respondent before his discharge on November 18 for
approximately 7 weeks. For the last 10 days of that period he had worked as a blast
machine operator assisted by a helper . When he was reemployed by the Respondent
on March 30, 1964, he was assigned to duty as a helper. He receives the same' $1.25
per hour as a helper which he had formerly been paid . Boyer testified that before
Smith walked out on November 16 he was being trained as a blast machine operator
and was still serving his probationary period during which he received a helper's rate
of $1.25 and not the $1.75 hourly rate for an operator . From Boyer's testimony it is
evident that Smith 's former status has been altered in that he did not resume his train-
ing as an operator. To that extent he has not been reinstated to his former or sub-
stantially equivalent job and an appropriate remedy will accordingly be recommended.
Finally, I reach the Respondent 's justification for its refusal to reinstate employees
McKay, Joseph Matthews , Johnson, and Stephens . These are the employees who the
Respondent says were disqualified for employment with it because of their assult upon
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee Thibeaux on November 16. The latter was scheduled to start work that
day at 11 p.m. That morning, after the walkout, he learned that the employees had
gone to a barroom in Gibson, Louisiana, called the Beverly Hills Club. This estab-
lishment is operated by Emelda Cross, the sister of employee Johnson. Thibeaux
also went to the club and joined the others in conversation. He testified that he sat
awhile as the others drank (beer, it seems), that he left and drove about in his auto-
mobile for a half hour and then returned. Later, at 12:30 or 1 p.m., he started to
take leave whereupon McKay asked whether he was going to work that night. McKay
insisted he would not and Thibeaux replied he would. Thereupon McKay struck him,
he struck back and was grabbed by others and thrown to the floor and "stomped."
Matthews and Johnson, he claims, punched him and Stephens stomped him as he was
on the floor. McKay pulled a knife and was attempting to use it on him while
Matthews and Johnson held him. At this point Buirden Jupiter shouted "Don't kill
that man," pushed him in the back, and helped him into his automobile. Matthews
and Johnson kept hitting at him while trying to pull him out of the vehicle. A deputy
sheriff finally arrived and halted the affray. Thibeaux explained that McKay had
tried to kill him with a knife. The deputy asked for the knife which McKay took
from his pocket and displayed. Thibeaux was asked whether he wanted to prefer
charges but said he did not when the deputy advised this might result in counter-
charges. Thibeaux claims that the deputy asked him to state what happened but that
before he could reply he stopped him and told him to leave. He drove off and pro-
ceeded to the plant where he met Boyer and told him what had happened. He
claimed his side was injured and that his head was bruised. He did not go to a doctor
or receive any medical treatment.
Deputy Sheriff Ernie Bonvillain testified that while patrolling the area of the
Beverly Hills Club he noticed some excitement around an automobile. He drove up
and inquired about the trouble and observed McKay trying to pull Thibeaux out of
the automobile. Bonvillain could identify none of the other persons grouped about
the automobile. Thibeaux accused McKay of pulling a knife. McKay showed the
deputy his pocket knife but denied he had pulled it. The deputy made no arrests and
accepted no charges as they must be made to a judge or justice of the peace.
Foreman Liner saw Thibeaux when he came to the plant after the fracas. He
observed that his shirt was pulled out of his trousers, a sleeve was torn with a button
or two missing. He saw a bruise on Thibeaux's head and a scratch on his face.
Boyer testified that when he saw Thibeaux he was in extreme pain, that he was
holding his kidney and not "standing at attention," that he was "kind of hysterical"
and his shirt was "torn off his back." Thibeaux told him about his experience at the
barroom and the heavy drinking by the employees who had walked out. He related
how he had been attacked by McKay when he announced he was leaving so he could
rest before going to work and how Johnson, Matthews, and Stephens had also assaulted
him. Thibeaux declared he would not work that night and would leave town for fear
of a further attack by "these people." He returned to work in the latter part of the
next week.
McKay testified that while he was at the bar Thibeaux walked up and started speak-
ing. He asked him what he was talking about and Thibeaux replied, "I am going to
work." McKay answered, "I guess all of us is going to work" and, as he turned his
back to speak to Emelda Cross, Thibeaux cursed-him. He cursed back. Thibeaux
struck him. He struck back. Emelda ordered them out of the club. Thibeaux went
out first and McKay followed. The deputy sheriff arrived and Thibeaux told him of
his fight with McKay. The latter had been cut over the eye and was bloodied. The
deputy asked both whether they wanted to prefer charges and each declined. McKay
does not know whether Thibeaux had told the deputy he had a knife, but recalls that
the deputy asked him to show him the one that he had and that he did so.
Johnson testified he drank only one beer during the afternoon of November 16,'
that he was in and out of the club, that he did not see any fight but heard about the
altercation between Thibeaux and McKay, and that he had not in any way been per-
sonally involved. Joseph Matthews denied seeing any fight in the club or that he was
involved. Stephens also denied any part in the fight with Thibeaux. He claimed he
was outdoors lying on the grass under an oak tree when he saw Thibeaux and McKay
emerge from the club, that he saw the crowd that had gathered, noticed that the
deputy sheriff had stopped, but paid no attention to anything else.
Emelda Cross characterized the encounter between Thibeaux and McKay as a
scuffle rather than a fight. She testified that Thibeaux had said something, exactly what
PLASTIC APPLICATORS, INC. 135
she was not sure, about going to work that night . They argued and then Thibeaux hit
McKay and the latter hit back. McKay 's eye was cut . She ordered them out and
they left.
Willie Bray also regarded the incident as a scuffle during which "a couple of licks
passed" before the contestants were ordered out and left. Admitting his memory of
who was present is faulty, he believes that the only employees who were in the barroom
at the time were Frank Gray and Buirden Jupiter and that the latter escorted
Thibeaux from the room.
There is no need to unravel the conflicting testimony of Thibeaux and the other
witnesses as to the participation in the attack on him by employees Johnson, Stephens,
and Joseph Matthews . Even if I were to assume the whole truth of Thibeaux's
account, I could find only that there was a barroom brawl in which these three employ-
ees joined forces with McKay who , from all accounts , quickly had received the worst
of it in the few blows which had been struck . There is no evidence at all to prove that
whatever reason McKay had for striking the first blow , the other employees knew what
that reason was . So far as this record shows they had come to the assistance of a
companion who had been struck a blow from which he was bloodied . As I sized up
McKay and Thibeaux at the hearing , they appear mismatched with the odds favoring
the latter who is a younger , heavier, and more vigorous person than McKay. The
latter is blind in one eye. Accepting Thibeaux 's version , the combined assault upon
him by the employees was for him a harrowing experience but one from which he
escaped with superficial injuries which did not require medical ' attention or disable
him so he could not work. His failure to work for a few days after the incident was
by his admission attributable to fear of further attack and not to physical disability.
The Respondent has advanced no theory to support its position that the four employ-
ees allegedly involved in the fight became by their conduct disqualified for further
employment by it. It has not been argued and I would not find that the conduct has
rendered them unfit for further employment in the sense that their presence in the
Respondent's plant would cause strife , hamper production , or discourage harmonious
labor relations and free collective bargaining . I can only assume that the Respondent
relies on the Board's standards by which it determines that striking employees who
in the course of a strike commit acts of violence "coercive in nature and calculated to
instill fear of physical harm in the non -striker victims" should not be ordered rein-
stated to their jobs for the Act 's policies would not thereby be effectuated .6 Mindful
that it is the Respondent 's obligation to prove the nature and character of the mis-
conduct asserted in defense of its refusal to reinstate , I find the proof insufficient to
sustain a contention that the alleged conduct of Johnson, Stephens , and Matthews is
encompassed by the Board's standard . I have found that so far as these three were
concerned their participation in the fight with Thibeaux amounts to nothing more
than an assault upon their companion 's adversary . There is no showing that they
jumped into the fray with knowledge that Thibeaux was a nonstriker or that his fight
with McKay was in any way related to his refusal to join the work stoppage. It may
not, therefore , be found that by their conduct they intended to coerce or instill fear of
physical harm in nonstriker victims.
I believe Thibeaux 's testimony that McKay had attacked him because he resented
his announcement that he intended to go to work in the face of the work stoppage.
I would not find that his conduct rendered him unfit for continuation of his job with
the Respondent . Nor would I find that he is barred from reinstatement by application
of the Board's standard . I do not regard his attack on Thibeaux as part of a deliberate
plan of violence calculated to coerce employees to join the work stoppage. In the
circumstances , including the fact that his senses and emotions were probably affected
by the drinking in which he and the others had indulged , his attack on Thibeaux
amounted to an impulsive reaction which may best be described as a "moment of
animal exuberance ." 7 It was not even so flagrant as a fist fight upon a picket line
which the Board, with judicial approval , has held does not automatically bar
reinstatement .8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in the
connection with the operations of the Respondent described in section I, above, have
6 H N. Thayer Company, 115 NLRB 1591, 1596.
7 Milk Wagon Drivers Union of Chicago , Local 753, et at. v. Meadoiamoor Dairies, Inc,
312 U.S 287, 293.
9 Kansas Milling Company, 86 NLRB 925, enfd 185 F. 2d 413 , 420 (CA 10).
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the free
flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act. I
shall also recommend that the Respondent be ordered to offer immediate and full
reinstatement to Thomas Johnson, Monroe McKay, Alvin Stephens, and Joseph
Matthews to, their former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges as employees. I shall also recommend
that the Respondent make them whole for any losses they may have suffered because
of their unlawful discharges` on November 18, -1963, by payment to them of such
sums of money as they normally would have earned as wages absent their discharges.
I shall also recommend that the Respondent make whole John Matthews, Lawrence
,Givens, Roland Owens, and Willie Bray, for any losses they may have suffered because
of their discharges on November 18, 1963, by payment to them of such sums of money
as they normally would have earned as wages absent their discharges. Backpay for all
the foregoing employees shall be computed from November 18, -1963, until the dates
of offers of reinstatements to those employees who have not yet received such offers
and in the cases of those employees who have already been reinstated until the dates
when.they were reinstated with deduction of interim earnings on a quarterly basis
in P6 manner provided by the Board in F. W. Woolworth Company, 90 NLRB 289,
to which shall be added interest at the rate of 6 percent per annum. I shall further
recommend-that McKinley Smith be restored to his former status as trainee for the
job of blast machine ' operator and as -part of said training .be assigned duty as an
operator.
Because I am not convinced that the Respondent by its conduct in this case has
,shown a disposition to commit other unfair labor practices, I shall recommend the
issuance only of a narrow order limited to curing the effect 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. Plastic Applicators, Inc., is an employer within the meaning of Section 2(2) of
the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Carpenter's District Council of New Orleans and Vicinity, Local 2258, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By discharging employees because they had concertedly engaged in a work
stoppage for their mutual aid and protection the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. All allegations of the complaint as to which specific findings of violation herein
have not been made have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire' record in this proceeding, I recommend that Plastic Applicators, Inc.,
'Morgan City, Louisiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging' employees for concertedly engaging in a work stoppage for
their mutual aid and protection. '
(b) In like or related manner interfering with, restraining, or coercing its employ-
ees in the exercise of their rights guaranteed by Section 7 of the Act.
, 2. Take the following affirmative, action,which it is found will effectuate the
policies of the Act.
(a) Offer to Thomas Johnson, Monroe McKay, Alvin Stephens, Joseph Matthews,
and McKinley Smith full reinstatement to their former or substantially equivalent
PLASTIC APPLICATORS, INC. 137
positions and make them and John Matthews , Lawrence Givens, Roland Owens, and
Willie Bray whole for any loss of earnings suffered as a result of the discrimination
against them in the manner described in the section above entitled "The Remedy."
(b) Post at its plant in Morgan City, Louisiana , copies of the attached notice
marked "Appendix." 9 Copies of said notice to be furnished by the Regional Director
for Region 15 shall , after being duly signed by an authorized representative of the
Respondent , be posted by it immediately 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 the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(c) Upon request, make available to the Board or its agent for examination or
copying all payroll , social security , timecards , and personnel records necessary to
determine the amount of backpay due.
(d) Notify the Regional Director for Region 15, in writing, within 20 days from
the receipt of this Decision and Recommended Order, what steps it has taken to
comply therewith.1°
BIn the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board 's Order be enforced
by a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
10 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify the Regional Director for Region 15, in writing, within
10 days from the date of receipt of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge our employees because they engage in a work stoppage
for their mutual aid or protection.
WE WILL offer immediate and full reinstatement to Thomas Johnson, Monroe
McKay, Alvin Stephens, Joseph Matthews, and McKinley Smith to their former
or substantially equivalent positions without prejudice to their seniority or other
rights and privileges and make them and John Matthews, Lawrence Givens,
Roland Owens, and Willie Bray whole for any loss of earnings resulting from
their discharge as provided in the Decision issued by the Trial Examiner of the
National Labor Relations Board.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their rights guaranteed by Section 7 of the National Labor Relations Act.
PLASTIC APPLICATORS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola, New Orleans, Louisiana, Telephone No.
529-2411, Extension 6396, if they have any question concerning this notice or com-
pliance with its provisions.