Pullman Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1967

168 N.L.R.B. 230 (N.L.R.B. 1967)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trailmobile Division , Pullman Incorporated and
International Union , United Automobile,
Aerospace and Agricultural Implement Workers
of America (UAW), AFL-CIO. Case
16-CA-2600
November 15, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On March 22, 1967, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. The Trial Ex-
aminer also found that the Respondent had not en-
gaged in certain other alleged unfair labor practices,
and recommended that the allegations pertaining
thereto be dismissed. Thereafter, the Respondent
and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs.
The Respondent also filed a brief in answer to the
exceptions of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
1. The Trial Examiner found that the principal
cause of the strike which began September 8, 1965,
and ended January 19, 1966, was the Respondent',s
refusal to bargain with the Union; that the Board, in
Case 16-RM-270, had certified the Union, and in
Case 16-CA-2401 had found that the Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to bargain with the certified Union (156 NLRB
483); and that the strike was therefore an unfair
labor practice strike. The Trial Examiner also found
that the Respondent further violated Section 8(a)(5)
by refusing to discuss grievances presented by
Bobby Green, an officer of the Union, and by issu-
ing a disciplinary warning to Green because of his
attempts to present grievances and threatening
further disciplinary action extending to discharge if
he did not desist.
Subsequent to the issuance of the Trial Ex-
aminer's Decision herein, the United States Court
of Appeals for the Fifth Circuit set aside the
Board's Order in Case 16-CA-2401.1 Thereafter,
the Board, on September 26, 1967, issued an Order
Consolidating Cases and Supplemental Decision,
Order, and Direction in which it vacated the certifi-
cation of representatives in Case 16-RM-270, and
dismissed the complaint in Case 16-CA-2401 (167
NLRB 571). In view of these circumstances, the
Respondent's refusal to bargain with the Union was
not unlawful, and the strike in protest thereof was
not an unfair labor practice strike. Moreover,
the Respondent's further refusal to bargain with
the Union by refusing to entertain the grievances
presented by Green as an officer of the Union, did
not constitute a violation of Section 8(a)(5) of the
ACt.2
On the other hand, the Board has held that`the ef-
forts of an employee to present grievances, absent
unusual circumstances not present here, is a con-
certed activity protected by Section 7 of the Act.3
We therefore find that the Respondent, by issuing
a warning to Green threatening him with disciplin-
ary action extending to discharge if he did not desist
from his efforts to present grievances, interfered
with its employees' Section 7 rights, and therefore
violated Section 8(a)(1) of the Act.4
2. The Trial Examiner found, and we agree, that
Plant Superintendent Davis' conversation of March
17, 1966, with J. L. Hill, an employee who par-
ticipated in the strike at the Respondent's plant, as
to why he had joined the Union, and whether his
friends, with whom he desired to be during the
strike, paid his bills for him, was violative of Section
8(a)(1) of the Act. However, we do not agree with
the Trial Examiner's further conclusions that there
was insufficient evidence upon which to find that
Hill was denied reinstatement to his former job
because of his participation in the strike. Prior to
the strike, Hill worked on the first or day shift, in
department 16 as a fitter-electrician. After the
strike was terminated on January 19, 1966, Hill
was returned to his job and department, but was
placed on the second shift. According to Hill's
credited testimony, when he requested, on March
17, 1966, that Plant Superintendent Davis return
him to his old job on the day shift, Davis made the
coercive remarks set forth above and found viola-
tive of Section 8(a)(1). Hill was finally returned to
the first shift the latter part of May, but was as-
signed to tire mounting work, a less desirable job.
There is no contention that Hill had been replaced.
' T,ailmobde Division, Pullman Incorporated, v N.L.R B., 379 F.2d
419 (C.A. 5)
2 Accordingly, we do not adopt the Trial Examiner's Conclusions of
Law3,4,or6.
3 Bowman Transportation, Inc., 134 NLRB 1419; Gibbs Corporation,
124 NLRB 1320, H. Muehlstem & Co, Inc, 118 NLRB 286.
4 See Socony Mobil Oil Company, Inc., 153 NLRB 1244, Top Notch
Manufacturing Company, Inc, 145 NLRB 429, Mushroom Transporta-
tion Co, Inc., 142 NLRB 1150
168 NLRB No. 31
TRAILMOBILE DIVISION, PULLMAN INC. 231
In view of these circumstances, we find that a pre-
ponderance of the evidence establishes that the
Respondent discriminatorily refused to reinstate
Hill to his old job on the day shift because of his
participation in the strike, in violation of Section
8(a)(3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Trailmobile Division, Pullman Incorporated,
Longview, Texas, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees con-
cerning their membership in or activities on behalf
of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, or any other labor or-
ganization; or disciplining or threatening to
discipline employees because they attempt to
present grievances.
(b) Discriminating against employees because of
their activities on behalf of the above-named labor
organization.
(c) In any other manner interfering with,
restraining, or coercing employees in the exercise
of their rights of self-organization; to form labor or-
ganizations; to join or assist the above-named or
any other labor organization; to bargain collectively
through representatives of their own choosing; to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion; or to refrain from any and all such activities.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer to Harold Colley, Ira G. Felts, and
Arthur B. Gray immediate and full reinstatement to
their former or substantially equivalent positions
held immediately prior to September 8, 1965,
without prejudice to their seniority and other rights
and privileges; and make whole Bobby Green,
Harold Colley, Ira G. Felts, and Arthur B. Gray for
any loss of pay they may have suffered by reason of
the discrimination against them, in the manner set
forth in the section of the Trial Examiner's Deci-
sion entitled "the Remedy."
(b) Notify Harold Colley, Ira. G. Felts, and
Arthur B. Gray, if presently serving in the Armed
Forces of the United States of their right to full
reinstatement upon application in accordance with
the Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all ,other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Reinstate J. L. Hammock and J. L. Hill to
the positions they held immediately prior to Sep-
tember 8, 1965, without prejudice to their seniority
and other rights and privileges.
(e) Post at its plant in Longview, Texas, copies
of the attached notice marked "Appendix."5 Copies
of said notice, to be furnished by the Regional
Director for Region 16, after being duly signed by
Respondent's representative, shall be posted im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous 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.
(f) Notify the Regional Director for Region 16,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint, in-
sofar as it alleges unfair labor practices not found
herein, be, and it hereby is, dismissed.
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 "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
This notice is posted by order of the National
Labor Relations Board . After a Trial at which all
sides had the opportunity to give evidence , the Na-
tional Labor Relations Board found that we , Trail-
mobile Division , Pullman Incorporated , violated
the National Labor Relations Act, and ordered us
to post this notice to inform our employees of their
rights
The Act gives all employees these rights:
To organize themselves
To form , join, or help unions
To strike
To bargain as a group through a
representative they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things
The Board has also ordered us to assure our
employees that:
WE WILL NOT do anything that interferes
with these rights.
You are free to join the International
Union, United Automobile, Aerospace
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Agricultural Implement Workers of
America (UAW), AFL-CIO, or any other
union , and, by majority choice, to select
any union to represent you in bargaining
with us.
WE WILL NOT discharge you, or refuse to
give you back your old job and shift, because
you work for a union or because you join a
union or a strike.
WE WILL NOT ask you why you joined a
union.
The National Labor Relations Board found that
we discharged certain employees and punished
others by refusing to give them back their old jobs
or shifts because they were for the Union and took
part in the strike, and gave an employee a warning
notice because he tried to present grievances to us.
The Board found that this violated the Act.
WE WILL therefore give Ira G. Felts, Arthur
B. Gray, and Harold Colley back their old jobs,
with all their seniority, and make up the pay
they lost plus 6 percent interest. We have al-
ready given Bobby Green his job back, and we
will make up the week's pay he lost plus 6 per-
cent interest, and we will take the warning
notice out of his personnel file.
WE WILL give J. L. Hammock and J. L. Hill
the same jobs and shifts they had before the
strike.
TRAILMOBILE DIVISION,
PULLMAN INCOR-
PORATED
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board ' s Regional
Office, 819 Taylor Street , Federal Office Building,
Fort Worth, Texas 76102 , Telephone 334-2921.
TRIAL EXAMINER'S DECISION
United Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO (herein
called UAW or the Union), that it discriminatorily failed
and refused properly to reinstate 40 other employees
there after the termination of a strike , and that it other-
wise interfered with, restrained , and coerced employees
in the exercise of rights guaranteed in the Act. The com-
plaint also alleges that , although the Union is the collec-
tive-bargaining representative of the employees at the
plant involved , Respondent has refused to bargain with it
on matters involving terms and conditions of employment
there.
Respondent answered, denying the commission of any
unfair labor practices , and a hearing on the issues so
raised was held before Trial Examiner Sidney D. Gold-
berg, at Longview , Texas, on July 19, 20, 21, and 22,
1966, at which all parties were represented , afforded an
opportunity to adduce testimony , cross-examine wit-
nesses, and to argue upon the facts and the law. During
the hearing, the General Counsel amended the complaint
to add allegations of interference and unlawful discharge,
and Respondent amended its answer to deny them. Other
allegations * of the complaint were withdrawn. The
General Counsel moved that official notice be taken
herein of two other Board proceedings involving the
parties hereto and the motion was granted , with the
limitations set forth below. Briefs subsequently filed by
the General Counsel and by counsel for Respondent have
been considered.
For the reasons hereinafter set forth in detail, I find
that Respondent 's discharge of employees Ira G. Felts,
Arthur B . Gray, and Harold Colley was discriminatorily
motivated to discourage employees from becoming or
remaining members of the Union and its failure adequate-
ly to reinstate J. L. Hammock was also discriminatory,
but that the discharges of Norman Huffman and Danny
Cargill were for cause , that the discharge of James McEl-
veen was not improper and that Jimmy Brock voluntarily
quit . I also find that Respondent unlawfully refused, and
is refusing, to bargain with the Union , which is the cer-
tified representative of the employees, and that it coer-
cively interrogated J. L. Hill.
Upon the entire record herein,2 and the demeanor of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE EMPLOYER
Respondent is a division of the Pullman Company and
is engaged at several places, including Longview, Texas,
in manufacturing motor-drawn trailers. It admits that it
annually ships finished products valued at more than
$50,000 from this plant to customers located in States
other than the State of Texas. I find that it is engaged in
commerce within the meaning of the Act.
SIDNEY D. GOLDBERG, Trial Examiner: In this
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act), the
complaint' alleges that Trailmobile Division, Pullman In-
corporated (herein called Respondent), discriminatorily
discharged 8 employees at its Longview, Texas, plant to
discourage their membership in International Union,
I Issued April 29, 1966, on charges filed February 18 and March 2, 14,
and 18, 1966
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of the Act.
4 Respondent 's posthearing motion to correct the transcript of
testimony was not opposed by the General Counsel or the Charging Party
and is hereby granted In addition thereto , on p. 896, I 3, the word
"catalectic" is to read "cavalier ," on p 886 , 1 9, the word "none" is cor-
rected to read "one" and on I. 10, the word "principle" is inserted between
"bargaining " and "cases "
TRAILMOBILE DIVISION, PULLMAN INC. 233
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
1. The Union's status
A board-conducted election was held among Respond-
ent's employees on September 3, 1964, which the
Union won by 171 to 168, and a certification of the Union
was issued on June 28, 1965.3 Respondent, contesting
the validity of the certification on the basis of challenges
which the Board sustained to the ballots of 14 individuals,
refused to bargain and, on December 30, 1965, the Board
issued its Decision and Order 4 finding that Respondent
had violated Section 8(a)(5) and (1) of the Act and issuing
an appropriate order. Respondent, however, refused to
comply with the Board's Order and filed a petition, in the
Court of Appeals for the Fifth Circuit, to review it.5
Consistent with its position in the case heretofore de-
cided by the Board, Respondent admit, herein that the
unit set forth in the complaint is an appropriate one and
that, although requested to do so since June 28, 1965, it
has refused to bargain collectively with the Union.
2. Official notice
At the hearing of this proceeding, the General Counsel
requested that official notice be taken of the Board's
proceedings in the refusal-to-bargain case, described
above, and the request was granted . The General Coun-
sel also requested that official notice be taken of the
proceedings in Case 16-CA-2263, in which allegations
of violation of Section 8(a)(3) and (1) by Respondent
were based upon a charge by the Union, arose out of in-
cidents in the plant between August 1964 and February
1965, and in which Trial Examiner Stanley N . Ohlbaum
had issued his Decision finding that Respondent had
committed some of the unfair labor practices alleged.
Since no Board decision had issued in that case at the
time of the hearing herein , the request was denied " except
insofar as the General Counsel could point to relevant
findings by Trial Examiner Ohlbaum to which no excep-
tion had been taken . Subsequent to the hearing in this
proceeding , however , the Board issued its Decision and
Order in that case,7 affirming the findings , conclusions,
and recommendations of the Trial Examiner. Ac-
cordingly, consideration will be given herein to relevant
findings of fact8 in that Decision - but not to the
testimony at the hearing of that proceeding.9
3. Chronology
The events directly involved in this proceeding, other
than the certification, occurred as follows:
After the complaint proceeding before Trial Examiner
Ohlbaum was heard in June and July 1965, bitterness
arose between employees who testified for the General
Counsel and those who testified for Respondent. On Au-
gust 3, the employees on the several shifts held meetings
and requested authorization from the Union to strike.
This authorization was granted. On September 8, Nor-
man Huffman, an employee and a member of the Union's
negotiating committee at Respondent's plant, accused
Jerry Marshburn, another employee, of spreading false
rumors concerning him, Huffman, in connection with his
activities as a member of the committee. After an
exchange of words at Marshburn's work station, Huff-
man slapped Marshburn. Later that day Huffman was
suspended pending an investigation of the incident and
the union members among Respondent's employees went
out on strike. On September 10, Huffman was
discharged.
On November 26, employees Ira Felts, Harold Colley,
A. B. Gray, and Bobby Green, who were also members
of the Union's negotiating committee and on strike, were
at the Horse Shoe Lounge, a beer parlor on the highway
near Longview, when three nonstriking employees,
Travis Higginbotham, D. G. Clark, and Gerald Cox,
came in. An exchange of words, epithets, and then of
blows ensued, beginning inside the place and thereafter
carried outside to the parking area.
On January 19, the Union notified Respondent, on be-
half of the striking employees, that the strike was ter-
minated and, on the following day, most of the striking
employees returned to work but a substantial number of
them were not immediately assigned to the jobs and shifts
which they were on when the strike began. Felts, Colley,
Gray, and Green, however, were instructed to report to
the personnel office, where the personnel director at-
tempted to question them concerning the Horse Shoe
Lounge incident. When they declined to discuss the sub-
ject without a witness present, they were discharged.10
Jimmy Brock, a probationary employee who joined the
Union and went out on strike about October 23, was not
reinstated but received a letter from Respondent stating
that he had been discharged on October 27.
On February 9, 1966, Danny Cargill, another proba-
tionary employee who had been on strike with the others,
was discharged; on February 19, employee McNeil and
Foreman Blaylock exchanged remarks concerning a
union pin McNeil was wearing; and on March 17, J. L.
Hill was questioned by Superintendent Davis concerning
his adherence to the Union.
Several times subsequent to the end of the strike,
Bobby Green, an officer of the Union," attempted to
discuss employee grievances with plant officials. He was
rebuffed each time, warned not to persist and, as a result
of his continued efforts, a disciplinary warning was placed
in his personnel file.
9 Case 16-RM-270
' 156 NLRB 438
5 The case was argued before the Court February 1, 1967
6 West Point Manufacturing Company, Wellington Mill Division, 142
NLRB 1161
I60NLRB 1348
"National Electric Products Corporation, 87 NLRB 1536, Harvey
Aluminum (Incorporated) and General Engineering , Inc et al, 139
NLRB 151, fn 6, set aside and remanded on other grounds 335 F 2d 749
(C.A 9, 1964) At several points in this decision I refer to a lack of
evidence in the record of union animus in connection with certain conduct
of Respondent In so stating I have not disregarded the Board's findings
of union animus in connection with the discharge of Powers but I do not
regard that finding as so pervasive of all of Respondent's labor-manage-
ment relationships as to justify a presumption of union animus in every
managerial decision it made.
" Ward Manufacturing, Inc , 152 NLRB 1270, 1278
'" Green was reinstated the following week.
" In the formal organization of the Union's local at Respondent's plant
late in 1965, Huffman was elected president and Green was elected finan-
cial secretary.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The issues
The General Counsel contends that Respondent's
discharge of Huffman on the basis of the Marshburn in-
cident on September 8 and Respondent's discharge of
Felts, Gray, Colley, and Green on the basis of the brawl
at the Horse Shoe Lounge on September 26 constitute in-
terference with, and discrimination based on, their union
activities and are, therefore, violative of the Act. He also
contends that the discharges of McElveen, Brock, and
Cargill were in retaliation for their participation in the
strike and, therefore, are also in violation of the Act.
The number of employees who, the General Counsel
contends, were improperly denied reinstatement to their
former jobs upon the termination of the strike was
reduced, during the hearing, to 14, and practically all of
these were back at their original jobs at the time of the
hearing. Respondent contends that, although the opera-
tion of the plant precluded instantaneous reinstatement of
all strikers to their former jobs and shifts, it conducted
such reinstatement in good faith, completing it within a
reasonable time and without loss of pay to any of the em-
ployees.
Respondent concedes that its refusal to permit Green
to discuss employee grievances and the disciplinary
warning placed in his file are part of its continuing posi-
tion that the Board's certification is invalid and that the
Union is not the collective-bargaining representative of
its employees. It stipulated that, if the court of appeals
directs enforcement of the Board's bargaining order, it
will expunge the warning from Green's file.
B. Discussion and Findings
1. The discharge of Norman Huffman
The occurrences leading to the discharge of Norman
Huffman are not significantly in dispute.
Shortly after its certification in June 1965, the Union
appointed, as its negotiating committee, Norman
Huffman, Bobby Green, and John Williford, of the
day shift, and Harold Colley, George McNeil, and
Ira Felts, of the night shift. By letter dated July 28 to
H. F. Whitehurst, the manager of operations at the
Longview plant, the Union notified Respondent of
these designations and requested that the committee
members on the night shift be given time off to per-
form these union duties. They were excused as
requested.
During the early part of September there were several
brief work stoppages or "meetings" of the union members
at the plant. These brief stoppages are not directly in-
volved in this proceeding but remarks based on them led
to occurrences that are here involved.
A day or two before September 8, Huffman and Green
heard that Jerry Marshburn, an employee in another part
of the plant, had been telling other employees that they,
ii Huffman was corroborated by Green but Marshburn omitted this
exchange from his account of the conversation. In view of the testimony
of several other witnesses that Marshburn took that position when they
asked him not to spread the story, I credit Huffman on the point.
13 Marshburn testified that he told Huffman he had better not try it and
Huffman and Green testified that Marshburn said "go ahead " several
times, but I find it unnecessary to resolve the conflict
14 Huffman and Green testified that Marshburn kicked Huffman in the
leg before leaving . Marshburn denied this but I find this conflict also un-
Huffman and Green, were paid by the Union for the time
which they lost during the work stoppages - the inference
being that the members of the negotiating committee were
thereby favored over the other union members who
joined in such stoppages but were not so reimbursed.
Early in the morning on September 8, first Green and
then Huffman visited Marshburn at his work station and
asked him not to make such statements because they
were untrue. Marshburn denied having made the state-
ments. Later that morning, after having again heard that
Marshburn was spreading the same story, Huffman
visited Marshburn a second time and again Marshburn
denied it.
At 11:50 that morning, while Huffman and Green were
still on their lunch period, they went to Marshburn's work
station and found him at work. Huffman accused Marsh-
burn of continuing to repeat the statement and Marsh-
burn, according to Huffman, said he would say whatever
he pleased.12 Huffman then said he could slap Marshburn
"up the side of the head." Marshburn said something to
Huffman13 and Huffman slapped Marshburn on the side
of his face. Marshburn bent down, admittedly in search of
a steel bar in his toolbox, but then he turned away, left his
work area14 and went to the desk of his foreman, some
distance away, to report the incident.15 Huffman and
Green returned to their department and went to work.
At 2:30 that afternoon Huffman was summoned to the
personnel office. He asked that he be permitted to bring
Green with him as a witnesses but, when the foreman
telephoned Personnel Director Bellatti and asked
whether he might permit Green to accompany Huffman,
Bellatti told Huffman that he was "in no position to ask
favors" and directed him to come to the office without a
witness.
When Huffman reached the office, Bellatti asked him
for his account of the Marshburn incident. Huffman
declined to talk without a witness present and Bellatti left
the office for a time. When he returned, he told Huffman
that he was going to investigate the matter and that, until
the completion of the investigation, Huffman was
suspended. Huffman was permitted to obtain his personal
belongings. As he did so, he informed Green of his
suspension and then left the plant about 3 p.m.
The following day, Bellatti testified, he interviewed
several employees having knowledge of the Marshburn
incident. On the same day he telegraphed Huffman, invit-
ing him to be at the office the following morning, with a
witness, to "present whatever facts you may wish to
present." Huffman, accompanied by Ben Tyra, Interna-
tional Representative of the Union, conferred the next
morning with several of Respondent's officials and the in-
terview ended without any statement of decision by them.
Later that day, Bellatti sent Huffman a telegram notifying
him that, as a result of the September 8 incident, he was
discharged.
The General Counsel contends that Respondent's
discharge of Huffman was prompted by its desire to rid it-
necessary to determine.
15 He was unable to reach the personnel office by telephone at that time
but told his foreman of the incident shortly thereafter.
16 Respondent 's "Policy Statement ," given to all new employees and
admittedly in effect at this time, provides, under the heading "Problem
Solving".
... Should you so desire, you may have another employee present
while you are discussing your problem with any of the management
representatives.
TRAILMOBILE DIVISION, PULLMAN INC. 235
self of one of the Union's leaders and that the slapping of
Marshburn was merely a pretext to cover its true motive.
In support of this contention, he points to Respondent's
unfair labor practices in refusing to bargain with the
Union (156 NLRB 483) and in its discharge of Powers
(160 NLRB 1348), as well as its failure to discharge par-
ticipants in other fights.
This latter contention - that Huffman was discharged
for a "provoked" incident while participants in other
fights were not disciplined - finds no substantial support
in the record. Granted that Marshburn's union-mongering
was the provocation for Huffman's assault upon him,
there is no evidence that Respondent fostered, or even
knowingly tolerated, Marshburn's conduct. The so-called
"evidence" of other fights, in which the participants were
not discharged, is lacking in substance: (i) the 1959 fight
between "Tee-Hop" and Smith occurred on the em-
ployees' parking lot after their working hours; (ii) the
Rogers-Thompson incident - if it occurred at all (Rogers
and Bill Williford denying it) - never went further than
words; and Whitehurst's characterization of the Akin-
Ward scuffle as friendly "horse-play" was not con-
troverted.
As appears from the foregoing, I can find no valid ex-
cuse for Huffman's assault upon Marshburn -in the plant
and during working time-and there is no evidence that
Huffman was treated discriminatorily as a consequence
of it. It requires no citation of authority to support the
conclusion that such conduct is not protected by the
Act" and I find that Huffman's discharge was for cause.
2. The strike
As Huffman left the plant after his interview with Bel-
latti on September 8, he told Bobby Green that he had
been suspended. The shift change takes place at 3:30 p.m.
and most of the men on the evening shift reported to their
stations on time. Felts and Colley, however, the two
members of that shift on the Union's negotiating commit-
tee, lingered just inside the fence, keeping in contact with
the group of employees on the day shift who, with Huff-
man, Green, and International Representative Tyra, were
holding a meeting across the street. This meeting con-
tinued for some time, the men discussing their grievances
against Respondent and resolving to support any union
man treated discriminatorily by the Company.
About 4 o'clock, while the meeting was still on, Plant
Superintendent Davis (then general foreman of the day
shift) told Felts and Colley that, since they had not re-
ported within a reasonable time after the commencement
of the afternoon shift, they were to leave Respondent's
premises and report the following day. Felts and Colley
thereupon shouted this information to the men across the
street and that group, having voted unanimously to strike,
instructed Felts and Colley to bring the second shift out
of the plant. Despite Davis' order forbidding them from
entering the plant, they went in and brought out a sub-
stantial portion of the men on that shift.
Pickets appeared outside the plant at 7 that evening,
carrying signs which referred to Respondent's refusal to
bargain. The telegram sent by the Union's attorney to the
Respondent on September 10 states that the stake which
began on the 8th was called in protest against Respond-
ent's "unfair labor practices and particularly the refusal
to bargain."
While Respondent, in its brief, heads its final point with
the statement: "The strike of September 8, 1965 was not
an unfair labor practice stake" the body of its argument
on this point states:
The overwhelming preponderance of the evidence
shows that certain of the Respondent's employees
struck on September 8, 1965, to protest the
Respondent's refusal to bargain with the Union.
The General Counsel's characterization of the strike is
basically the same as Respondent's, although he makes
the point that it was "triggered" by the suspension of
Huffman.
There is no doubt, therefore, that the principal basis of
the strike was Respondent's refusal to bargain with the
Union, and I so find. In view of the Board's Decision,
binding on me, that it was obligated to do so, it follows
that the strike was an unfair labor practice strike.
The force of this finding, however, is minimized in this
case by the fact that Respondent, upon being informed by
the Union that the strike was at an end, took immediate
steps to reinstate the striking employees - with the excep-
tion of Felts, Gray, Colley, Green, and Brock-to the
same, or substantially equivalent, positions that they held
prior to the strike. Whether this was adequately accom-
plished is discussed below, but it is clear that no striking
employee was denied reinstatement on the ground that he
had been permanently replaced and no employee, except
possibly the five named, suffered financial loss.
3. The adequacy of Respondent's reinstatement of the
strikers
a. The procedure followed
The complaint names 40 strikers as having been in-
adequately reinstated upon the termination of the strike.
During the hearing , the General Counsel withdrew the al-
legation as to 26 on the list, leaving Green , who was not
initially reinstated , and 13 others to be litigated. Since
Respondent 's initial failure to reinstate Green was based
upon the fight at the Horse Shoe Lounge , his status dur-
ing the first few days will be covered in the consideration
of that incident , but his subsequent reinstatement will be
discussed with these others.
It is important to note , at the outset , that the General
Counsel raises no objection to the procedure followed by
Respondent in reinstating the striking employees and that
this procedure did actually return these men to work
within a very brief time.18
Operations Manager Whitehurst testified, without con-
tradiction , that early in the morning of the day the strike
11 The General Counsel, in citing Kohler Co., 148 NLRB 1434, and
referring to p. 1444-48 in support of his argument on this point , is disin-
genuous . the Board 's discussion of conduct similar to that of Huffman in
this case - physical attack - commences on p. 1449, and the Board found
such conduct unprotected by the Act.
18 The Union's telegram ending the strike was dispatched at 4 47 p in.
on January 19, a Wednesday, stating that the stake was terminated as of
10 a.m. on Thursday, the 20th By Saturday evening all the strikers (ex-
cept the four involved in the Horse Shoe Lounge incident and Brock)
were back at work Operations Manager Whitehurst testified , without
contradiction , that Respondent had hired about 180 employees during the
stake in which about the same number participated , but that none of those
so hired was considered a permanent replacement for any sinker and that
they were all dropped when the 163 striking employees returned . He also
testified that there had been about 560 employees in the plant before the
stake and that there were about 550 after it
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ended, 85 employees reported to the plant and submitted
individual applications for reinstatement. The 85 men,
however, delivered 149 applications and these did not
contain the information needed, so Respondent prepared
another form which listed, in addition to the applicant's
name , address, and phone number, his classification, de-
partment, shift, and foreman. These were used to restore
men to available positions on the basis of seniority. He
also testified that the plant's production schedule had to
be geared to the number of outstanding orders and that it
was necessary to start by assigning men to the building of
subassemblies and then to progress by making assign-
ments to other positions throughout the plant. Whitehurst
further testified that all the returning employees had been
assigned by Saturday afternoon; that he instructed Per-
sonnel Director Bellatti to inform the men that, if their as-
signment was to a shift other than the one they had been
on before the strike, they would be returned to their
former shifts within 30 days; and that, to the best of his
knowledge, they were so returned within that time.
b. The individuals affected
Against the foregoing uncontradicted description of the
procedure followed by Respondent in reinstating the
strikers, we turn to the 14 employees whose reinstate-
ment is characterized by the General Counsel as in-
adequate:
Chester Nix, a forklift operator, was on the first-or
day-shift when he went out on strike. He was reinstated
to the same job on January 20,19 but on the third shift,
where he remained for 2 or 3 weeks before returning to
the day shift. 20
Alfred McCormack, when the strike began, was a
"trailer-fitter" in department 26, on the first shift, welding
and hanging doors on trailers. After the strike, he was as-
signed to the same department, still on the first shift and
as a trailer-fitter, but lining and finishing trailers. He
could not say that his job after reinstatement was any
more difficult than before the strike but testified that he
"had rather be back" where he had been.
Harold McRae, a welder, before the strike, in depart-
ment 26, on the first shift, welding and hanging doors, he
was reinstated as a welder in department 16, on the
second shift, welding "props" on flat-bed trailers. After
2 weeks on the second shift, he was returned to the first
shift but still in department 16. He testified that he was in-
experienced and somewhat slow at the work in depart-
ment 16 and that he had been scolded and "written up"
for being slow. At the time he received the "write-up,"
Bellatti was present and, to McRae's question when he
would get "his job back," Bellatti answered: "Three
weeks or three months or maybe a year, you will work
where we want you." McRae conceded that the welders
held seniority as a group and normally moved from place
to place in the plant. He also testified that his current
work was no more difficult, just "nastier and hotter."
J. L. Hammock, prior to the strike, was in the main-
tenance department on the first shift, repairing pneumatic
and handtools at a workbench. After the strike, he was
returned to the same department and shift, but assigned
to repairing forklift trucks. Most of these trucks were also
brought to him for repair but occasionally they broke
down somewhere in the plant or outside it and he was
required to go where they were. The work also occa-
sionally requires the lifting of heavy parts. He testified
that during the first 6 months of his employ by Respond-
ent, he had worked repairing forklift trucks but that dur-
ing the past 10 years he had been assigned to the repair of
handtools, except for an occasional special forklift job on
a Saturday. He also testified that handtool repairs were
performed, after the strike, by two new men who had not
done that work before the strike, since he had previously
handled it alone. One of these men was trained in the
work by Hammock and the other had been hired as a
helper about the time the strike started. On February 8,
1966, Hammock testified, he asked his foreman, Ernie
Wright, when he would be returned to repairing handtools
and Wright answered that a man who would go out on
strike for 3 months "shouldn't expect ... to get their old
job back. `21
Clarence Young, about 7 or 9 days before the strike,
had been transferred from welder to inspector in depart-
ment 16. When reinstated, he was put to work as an in-
spector, checking incoming freight. After 2 days, Bellatti
informed him that there were too many inspectors and
that, since he was the newest man on that job, he would
go back to welding, which has the same pay rate. He did
so for 2 or 3 weeks and was then redesignated as an in-
spector. He has never complained about his assignments.
Judge W. Pelham, before the strike, was a welder on
the first shift in department 25. He was reinstated as a
welder on the same shift in department 16 but after weld-
ing for a couple of days, he was assigned to help unload
boxcars and, after that, he spent about 5 hours sweeping
up. For a week following this, he was assigned, with some
former strikers and nonstrikers, to shifting lumber. He ad-
mitted that prior to the strike, as a welder, he had been as-
signed to various departments and that he had, on occa-
sion, been required to clean up areas larger than those in
which he worked.
Philip Weldon, before the strike, was a tire mounter in
department 16 on the first shift, where his foreman was
Travis Higginbotham. He was reinstated to the same job
but on the second shift and, after about 3 weeks, he
returned to the first shift. He testified that he had
requested permission to take the welder's test but had not
taken it although several employees had been reclassified
as welders.
George McNeil, before the strike, was an inspector on
the second shift in department 11. When reinstated, he
was an inspector on the first shift in department 16. After
a week he was returned to the second shift, but in depart-
ments 21, 23, and 26, and he has never been returned to
the department in which he worked prior to the strike.
L. A. Turlington, prior to the strike, operated a 1 /4-inch
shearing machine in department I I on the second shift.
Upon reinstatement, he was assigned to operate a 3/8-
inch machine on the third shift. After 30 days on the third
shift, he asked Bellatti when he would be returned to his
former shift. Bellatti told him to see his foreman who then
transferred him to the second shift. He continued, how-
ever, to operate the 3/8-inch machine, which handles
material heavier than that which goes through the 1/4-
inch machine but admitted that, as a fabricator, he had al-
ways operated more than one type of machine.
10 There seems to have been some confusion, immaterial in this case,
between January 19 and 20, but it seems clear that the men returned to
work beginning on the 20th
20 Bellatti testified that Nix went back to the day shift on February 7
21 Wright did not testify
TRAILMOBILE DIVISION, PULLMAN INC. 237
Edrey L. Morris, before the strike, was a welder in de-
partment 16 on the first shift. He was reinstated to the
same job and department, but on the second shift, and
told that he would be returned to the day shift "as soon as
the work force could be straightened out." He remained
on the afternoon shift for 2 or 3 weeks before going back
to his original shift. He testified that, although 4 or 5 wel-
ders in that department who had been hired during the
strike were still on the first shift while he was on the
second, he could not identify the welders and he made no
complaint to his supervisor.
J. L. Hill, before the strike, was a fitter-electrician
working in department 16 on the first shift. When rein-
stated, he was returned to his job and department, but on
the second shift where he remained until the latter part of
May. At that time, by becoming a tire mounter, he was
returned to the first shift. About the middle of March, Hill
testified, he asked his foreman on the second shift, Rex
Beard, when he would be returned to the day shift and
that Beard said he would not; he then talked to the
general superintendent, "Red" Davis. Davis' version of
their conversation differed considerably, in its details,
from Hill's but it seems clear that there was some
reference to the strike or the Union; that Hill suggested
that he was being kept on the late shift because of his par-
ticipation in the strike and that Davis denied it, saying
that it was a matter of pure seniority. Hill testified that
Davis asked him why he had joined the Union in the first
place and, when Hill said he wanted to be with his friends,
Davis asked him whether his friends paid his bills for
him.22
Billy Phillips, became employed by Respondent in May
1965 as a helper and, at the time the strike began, was
working on the second shift in the "foam room," where he
helped spray foam lining into the walls of insulated
trailers. Upon reinstatement, he was assigned to depart-
ment 26, on the second shift, building racks for flat-bed
trailers. After about a week of this work, he was moved
to the area where trailer sides were built and he worked
there for about a month. He was transferred, about the
end of February, to the day shift, where he spent the first
3-1/2 days helping build a railroad spur and was then as-
signed to do undercoating.
Thomas Allums, whose name appears in the complaint
on the list of those inadequately reinstated and does not
appear to have been formally stricken from it, testified on
other matters but was not interrogated concerning his
reinstatement.
Bobby Green, before the strike, worked on the first
shift in department 25, where he did mostly aluminum
welding, which he characterized as "good, clean, work."
When Respondent came to the conclusion, during the
week following the end of the strike, that Green should
not have been discharged on the basis of the Horse Shoe
Lounge incident, he was reinstated to the first shift in de-
partment 16, under the supervision of Foreman Travis
Higginbotham, who had also been involved in that fight.
Under Higginbotham, Green was first given the job of
building racks to hold parts that would ultimately be used
in building trailers. In this work he was required to cut,
weld, and assemble heavy pieces of steel, some of them
salvage, and to bring them in from storage piles outside
the plant. Although he received his instructions concern-
ing the fabrication of the racks from the supervisor in
charge of materials handling, it was Higginbotham who
kept track of his time and his work station was close to
Higginbotham's desk. Higginbotham instructed him that
he was not to leave his work station without permission,
except to get a drink of water or go to the restroom, and
that he was not to talk to anyone on company time.
Green worked at this job until early in March, when he
was transferred, still under Higginbotham, to other heavy
work involving trailer production. On July 14, just prior
to the hearing, he was transferred away from Foreman
Higginbotham to a finishing job where he had a helper
and which he called "a pretty decent job."
c. Conclusions
From the foregoing it can be seen that all of the em-
ployees, with the exception of J. L. Hammock, were
returned to their prestrike shifts, if not to the precise loca-
tion in which they had worked, and, as noted above, none
of them lost any pay.
While it is true that
... the practical problems growing out of replace-
ment of employees hired during the strike, and any
confusion or plant inefficiencies related to the as-
similation of a large number of former employees
after a somewhat extended absence due to the strike
are all a foreseeable "direct by-product" of the em-
loyer's violation of the Act.23
even the Board's Orders directing reinstatement of unfair
labor practice strikers do not require that they be carried
out instanter, but traditionally provide that backpay shall
commence 5 days after application for reinstatement.
This is a rule of reasonableness and, granting the General
Counsel's argument that the shift to which an employee
is assigned is an element in determining whether one job
is substantially equivalent to another, I find that it would
be unreasonable not to afford an employer some flexibili-
ty (if exercised in good faith) in returning reinstated em-
ployees to their original shifts.
Here, reinstatement to employment was accomplished
in less than 3 days and, except for Hammock, most of the
reinstated employees were back on their original shifts -
and in generally similar jobs - within 30 days: Hill was
the only one whose return to his original shift took longer,
and he was back at the end of May. Moreover, again ex-
cept for Hammock, there is no evidence that even these
minor delays in their return to their prestrike work and
shifts were attributable to Respondent's resentment
against them for having engaged in the strike.24
Accordingly, I find that the foregoing employees, except
Hammock, were reinstated to their same or substantially
equivalent jobs, and that Respondent's conduct with
respect to them was not violative of Section 8(a)(3) of the
Act.
Turning, now, to employee Hammock: As noted
22 Davis denied asking Hill why he had joined the Union but his
testimony shows that the balance of the conversation was as Hill testified
and Respondent 's reliance on Hill 's pretrial statement is misplaced. This
conversation is alleged by the complaint to have violated Section 8(a)(1)
of the Act
23 N.L.R.B v. Trinity Valley Iron and Steel Company, 290 F 2d 47,48
(C A. 5), enfg 127 NLRB 417.
24 Although there were references to the Union and to the strike in
Hill's conversation with Davis, there is insufficient evidence upon which
to find that Hill was kept on the second shift because of his participation
in the strike.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, he had been promoted, 10 years earlier, from fork-
lift repair to the comparatively pleasant job of repairing
handtools and pneumatic tools brought to him at a well-
lighted and well-equipped workbench, but after the strike
he was put on the more unpleasant work of forklift repair,
which he had left many years earlier, and his former work
was assigned to men with much less seniority. This clear
discrimination, which his supervisor expressely related to
his participation in the strike, constitutes conduct viola-
tive of Section 8(a)(3) of the Act.
4. The discharge of Green , Felts, Colley, and Gray
a. The Horse Shoe Lounge incident
Despite the great volume of testimony on this matter -
the seven participants having each described it in great
detail - its main outlines, after the first few seconds, are
not seriously in dispute.
The strikers had established picket headquarters across
the road from the gate into Respondent's plant. On
November 26, it was manned by four of the Union's prin-
cipal officials, all members of the negotiating committee:
Bobby Green, secretary, A. B. Gray, vice president, Ira
G. Felts and Harold Colley, both trustees. After spending
a substantial portion of the day at the picket booth, the
four men left around 7 p.m. and went to a beer parlor, the
Pig Trail Inn, where they had a beer or two. They then
went to the Horse Shoe Lounge, reaching there shortly
after 8, parked their car in front of the building and sat
down in the booth nearest the rear entrance, where some
of them had another beer.
About 8:30, when Green and Felts were sitting in the
booth with their backs to the rear door, Colley was seated
in the booth facing the rear door, and Gray was away,
playing the jukebox or dancing, three nonstriking em-
ployees of Respondent entered through the rear door.
These three employees were Gerald Cox, D. G. Clark'25
and Travis Higginbotham, foreman of department 16 on
the day shift. They had also had some beer, at a place
called the Mardi Gras, before reaching the Horse Shoe
Lounge.
The three nonstrikers, Cox, first, Higginbotham,
second, and Clark, third, passed the restrooms next to the
rear door and approached the booth in which Colley,
Green, and Felts were sitting. At this point there was an
exchange of words and a series of events which I find, ac-
cepting the testimony of Green, Felts, and Colley, and re-
jecting that of Higginbotham and Clark, occurred as fol-
lows: the three nonstrikers entered the room and paused
briefly, looking for a table, then moved toward the bar; as
they paused, Colley, who was facing them, said to his
companions: "Here come some of our friends"; Cox
walked past the booth but Higginbotham said something
to the effect that he did not know they permitted "union
men" in the place; Felts answered that they had as much
right to be there "as you scabby sons-of-bitches." At this
Higginbotham turned to face Felts and said: "You don't
mean that: stand up and say it," whereupon Felts stood
up and repeated his statement. Higginbotham then
punched Felts in the mouth, breaking his two front teeth,
and Felts grabbed Higginbotham around the neck with
one arm and punched him in the body several times. At
this point the proprietor arrived and pushed the two of
them out the front door. Green, Colley, Clark, and Cox
followed them out.26
As Felts and Higginbotham went out the door of the
lounge and onto the front parking lot, the others in both
parties followed closely and the fighting became more
general: Green and Felts both testified that Higgin-
botham was standing on the lot some distance from the
door and that, as Felts headed toward him, Clark grabbed
Felts' arm; Felts shook him off and then found Cox in his
way; Felts bent Cox back over a car but let him go
without hitting him, again heading toward Higginbotham;
Green then tried to stop Felts but, when Higginbotham
said "turn the son-of-a-bitch, loose, I can take him"
Green stepped aside and Felts knocked Higginbotham
down twice. Higginbotham then got into his car as Colley
rushed over to hit him but Gray turned Colley aside and
told Higginbotham to get going. Clark testified that Gray
grabbed him by the shirt front and punched him in the
face, kicked him when he was down and, as he arose, he
was hit again, although he was not certain it was Gray
who hit him the second time. Colley testified that Gray
was holding Clark by the shoulder but, when Clark
kicked Gray, he-Colley-hit Clark. Gray also testified
that it was Colley who hit Clark.
Higginbotham testified that he was outside when Felts
came out the door shouting insults; that he offered to beat
Felts again when Green gave him a shove and told him to
go on out of there; that he was doing so when Colley
came out from behind Felts and gave him another shove,
whereupon he got into his car and, as it started, someone
punched him in the jaw through the open window. As he
started away in the car, he testified, he found Clark in the
back seat, his face all bloody, so he took him back to the
Mardi Gras where Clark picked up his own car, while
Higginbotham drove home.
Cox testified that, as he reached the outside, Felts
called him "a goddamned scab" and Green told him to get
out of there, but that nobody hit him.
It is, fortunately, unnecessary that I make detailed
findings concerning this nighttime brawl outside a
25 Clark had been a member of the Union and went out on strike with
the others but resigned from the Union and returned to work on Sep-
tember 19
26 Cox testified that he had passed the booth and did not hear any of the
conversation or see any of the action but that his attention was attracted
by the sounds of a scuffle behind him. Clark's testimony was that, as they
entered the room and without preliminaries , Felts attacked Higginbotham,
calling him "a son-of-a-bitch" as he did so. Higginbotham testified that, as
he entered the room, Felts, Green, and Colley all said "hello, you god-
damed scabs" but he tried to pass it off by saying "hello, men", that Felts
repeated the epithet and he asked Felts what he meant; that thereupon
Felts started to swing at him with both hands, knocked his left arm aside
and hit him in the jaw, whereupon he hit Felts, knocking him backwards
and, when Felts rushed again , he hit him again . Clark, although his
testimony agreed with Higginbotham's that Felts struck the first blow,
also testified that he heard the phrase "scabby sons-of-bitches " Ac-
cordingly, I am convinced that Higginbotham changed the epithet actually
used by Felts to a milder one, more bearable under his code of honor, in
order to support his story that Felts hit him first This untruth, as well as
his demeanor while testifying, and the disappearance of the statements of
Higginbotham, Clark, and Cox given to Respondent and discussed in
detail below, lead me to reject Higginbotham's testimony. Higginbotham's
testimony, that there was a considerable verbal exchange before the
fighting began, discredits Clark's testimony that Felts attacked without
any preliminary exchange of words. Accordingly, I conclude that the
testimony of Green, Felts, and Colley accurately reflects the incident in-
side the Horse Shoe Lounge
TRAILMOBILE DIVISION , PULLMAN INC.
highway beer parlor as it is practically impossible to do
so. However , I can and do find that the insults that were
hurled and the blows, offensive and defensive , that were
struck were clearly a continuation of the fight that started
inside the place over the verbal exchange between Felts
and Higginbotham and Higginbotham 's attack on Felts.
Although Clark claimed to have been severely beaten, he
admitted that he did not require any medical attention, his
wife took his broken dental plate to be repaired and he
lost no time from work . Higginbotham , whether he
downed Felts , as he testified , or Felts downed him, as
Felts and Green testified , also lost no time from work.
After Green, Felts, Colley, and Gray left the Horse
Shoe Lounge , they visited a friend but, since he had com-
pany , they soon left . They stopped , however, at a
package store where Felts bought a half-pint of whiskey
and drank it "at one time " and the others bought a six-
pack of beer . They drove around awhile and then found
it necessary to relieve themselves of some of the liquid
they had accumulated during the evening . They decided
that for this purpose they would drive down a country
road , appropriately named Smelly Road , where Clark
lived. They did so, passing his house and proceeding
some distance further. As they were carrying out the
function that had brought them there , Clark backed his
car out of the driveway and turned it, headlights on,
toward the four men ; when he did so, they got back into
Colley' s car and backed it toward Clark' s; whereupon
Clark drove back into his driveway and they left. Clark
testified that, as they passed , Felts again called him "a
scabby son-of-a-bitch " and said they would be back the
next night.27
The four•men then drove around a bit more , includhing
a brief stop at the Horse Shoe Lounge in an attempt to
find Felts' glasses , and they then returned to the Pig Trail
Inn for a short while : those who had left their cars there
picked them up, and they all went home.
The nonstriking group retired to the Mardi Gras and
then to their homes. There were no criminal charges filed
by members of either group against any of the others. The
following week , however , Higginbotham reported the in-
cident to Personnel Director Bellatti at the plant.
b. Respondent's investigation
When the Union terminated its strike , the striking em-
ployees submitted individual applications for reinstate-
ment . Green , Felts, Colley , and Gray submitted applica-
tions with the others but, instead of being called back to
work, they were notified to appear at the personnel office
on January 21.
Each of the four reported as directed . Personnel
Director Bellatti , with John Rozner , Respondent's vice
president for industrial relations , and a secretary at his
side , asked each of the men for his version of what had
occurred at the Horse Shoe Lounge on November 26.
Each of the men stated that he had come to discuss rein-
statement and Bellatti admitted that each of them
declined to talk about the Horse Shoe Lounge incident
unless permitted to have a witness present in accordance
with the provisions of the policy statement.
Rozner told Green that if he did not "cooperate,"
Respondent would have a "legal reason " to fire him.
239
Green answered that he would consider himself fired
until he heard otherwise and left the plant . On January 26
Green was notified to return to work and he was rein-
stated , as discussed above , as of the 27th.
When Felts reported to Bellatti 's office , he was asked
also about the Horse Shoe Lounge incident . He answered
that he had come about his job and that , without a wit-
ness, he would not talk about the Horse Shoe Lounge
matter . Rozner told him that it did concern his job but
Felts stated that he had been told by his union representa-
tive that he was entitled to have union representation or
a witness with him before he would talk about the in-
cident . Rozner said Felts would have to talk about it if he
wanted to go back to work and Felts answered that he
had 17 witnesses who were at the Horse Shoe Lounge but
that he would not supply the names of those witnesses or
talk about the incident unless he had a witness present.
He then asked Bellatti if that was all he was called in for:
Bellatti said it was and Felts left. On January24 he
received a telegram from Bellatti stating that , as a result
of the investigation , he was discharged.
When Colley reported to Bellatti 's office he found there
only Bellatti and his secretary , who was taking down
everything said . When Bellatti asked what had happened
at the Horse Shoe Lounge , Colley said he had come in
only to see about going back to work . Bellatti answered
that it depended on what he learned of the "assault" at the
Horse Shoe Lounge but Colley replied that he would
make no statement on that subject without "representa-
tion or legal counsel ." Bellatti then exhibited three
typewritten documents which , he said , were the state-
ments of Clark, Cox, and Higginbotham. Bellatti said that
Clark had said , in his statement , that Colley had pulled a
knife on Higginbotham and had cut him. This Colley de-
nied , saying he had not pulled a knife on November 26 or
at any other time . Colley again asked whether he was to
go to work and Bellatti said it depended on what he had to
say about the incident . Colley told Bellatti to get in touch
with Ben Tyra, the union representative , or the Union's
attorneys and he left . He was notified of his discharge by
telegram on the 24th.
Gray was also interviewed by Bellatti and Rozner, with
Bellatti's secretary taking down the conversation. Bellatti
asked him for a statement concerning the incident at the
Horse Shoe Lounge but Gray answered that he had come
about his job and would not make any statement regard-
ing the other matter . Gray was also notified by telegram
of his discharge.
Bellatti testified that his investigation of the Horse
Shoe Lounge incident consisted of his conversations with
Green , Felts, Colley , Gray , Higginbotham , Clark, and
Cox, the latter three having given him statements, and
subsequent consultation with Whitehurst and Rozner. He
gave , as Respondent 's reason for discharging Felts, that
Felts had assaulted a supervisor , Higginbotham; as the
reason for discharging Colley , that he had kicked Clark
when he was down on the parking lot and because he had
followed Clark to his home ; as the reason for discharging
Gray that Gray had struck Clark to make him stop work-
ing behind the picket line.
Bellatti conceded that he did not give any of these four
employees an opportunity to discuss the matter with him
with a witness present as provided in the policy statement
27 Gray and Colley both testified that nothing was said as they drove
away.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but could not give a reason for his action nor could he
distinguish between the Huffman interview, at which he
permitted Tyra to be present, and these four interviews.
He testified that he could not give any more details con-
cerning the investigation without refreshing his recollec-
tion from the statements he took from Higginbotham,
Clark, and Cox but he had given those statements to
Respondent's counsel and counsel, at the hearing, refused
to permit Bellatti to look at them. Higginbotham, Clark,
and Cox each testified that he had been given a copy of
his statement by Bellatti but each of them testified that he
had lost or destroyed his copy.
c. Conclusions
Respondent's position, with respect to the discharge of
Green, Colley, Felts, and Gray, as stated at the hearing,
was that these four men, " union adherents, strikers .. .
attacked Supervisor Higginbotham and employee Clark
in an attempt to force them to quit work and join the
strike." Although Respondent, in its brief, makes several
additional arguments, they are all related to the same
defense. Accordingly, notwithstanding Respondent's
conclusionary statement in its brief that ". . . the strikers
were [not] engaged in any form of protected activity .
... and the General Counsel's statement that the fight
at the Horse Shoe Lounge was "purely and simply a
spontaneous barroom brawl," I concur with Respondent
in its position and I find that the strike was as much the
reason for the fight as if it had occurred at or near the
picket line.28 The first verbal exchange, consisting of Hig-
ginbotham's questioning the right of "union men" to be in
the place and Felts' reply that union men had as much
right to be there as "you scabby sons-of-bitches" fixes the
issue as one involving the right of the union men to be
union men without penalty and the right of the non-
strikers to continue to work without being called offen-
sive names. Even Higginbotham's testimony concerning
the opening exchange of insults, which I have rejected as
formulated to support his version of the ensuing physical
clash, makes it clear that the only conflict between them
was participation or nonparticipation in the strike.29
The escalation of the conflict from words to blows was,
I have found, initiated by Higginbotham when he struck
Felts in the mouth and broke his teeth. The additional
fighting in the parking lot, involving Felts, Colley, and,
possibly, Gray, on the Union side and Higginbotham and
Clark on the nonunion side, was, I find, simply a con-
tinuation of the violence which Higginbotham began in-
side the lounge30 and the injuries to Clark flowed from the
Felts-Higginbotham bout rather than from any separate,
deliberate assault on Clark. It follows from the foregoing,
and I find, that Green, Felts, Colley, and Gray were not
guilty of misconduct in this incident.
The connection between the strike and the altercation
was assumed by Bellatti as the basic reason for Respond-
ent's discharge of the four union men for "trying to
prevent Mr. Clark from pursuing gainful employment,"
whereas no disciplinary action was taken against Daryl
Fife, another striker, growing out of the fight he had with
Steve Whiteside, a nonstriker. When questioned by Bel-
latti, Fife told him that there had been prior personal en-
mity between him and Whiteside and Bellatti testified that
no action was taken against Fife because his investigation
showed that the fight was not "work-related."
Inasmuch as the incident relied on by Respondent as
justification for the discharge of these four men was
known by it to be connected with protected activity -
conduct of the strike - the applicable rule is that set forth
by the Board in Burnup and Sims, Inc. ,81 and Respond-
ent's discharge of employees for alleged misconduct vio-
lates Section 8(a)(1) of the Act if the employees were not,
in fact, guilty of the misconduct. The complaint alleges
that the discharge of these employees was violative of
Section 8(a)(1) of the Act and, since I find that they were
not, in fact, guilty of the misconduct charged against
them,32 Respondent thereby violated Section 8(a)(1) of
the Act.
Even under the former, less stringent rule which
required only a reasonable belief that the discharged em-
ployees were guilty of the alleged misconduct, Respond-
ent could not justify these discharges. For from making
the "painstaking" investigation its counsel claims for it in
his brief, Bellatti's arbitrary refusal to accord the four
men the right to a witness guaranteed them in Respond-
ent's own "Policy Statement" discloses his preference
not to hear their version of the incident, since it became
apparent to him in the first interview that the men would
%" In Burnup and Sims , Inc, 137 NLRB 766, 772, affil 379 U S 21,
the protected activity involved occurred at the home of an employee
29 There is no substantive evidence in the record that there was any
separate enmity involving any of the men which would otherwise account
for the clash Clark did testify that Felts, as he attacked Higginbotham,
said. "You son-of-a-bitch , you are the one I want," but Clark was at first
not certain of the language used and I cannot draw any inference of previ-
ous enmity from these words , even if they were used
30 When Felts went after Higginbotham in the parking lot it was, I find,
his "hot pursuit" of the man who had struck the first blow Moreover,
both Felts and Green testified that when Green sought to restrain Felts,
it was Higginbotham who said "turn the son-of-a-bitch loose, I can take
him " While there might have been several points at which the fighting
could have been stopped , there is no evidence that it was actually stopped
and then renewed . Accordingly I find it to have been a single altercation
for which Higginbotham was responsible.
31 137 NLRB 766, 771-773, approved by the Supreme Court at 379
U S 21 Under the facts of this case, I do not believe that Plastic Applica-
tors, Inc, 150 NNLRB 123, enforcement denied in part 369 F.2d 495
(C A 5), is applicable
31 The final conclusion of the Texas Employment Commission in the
proceeding prosecuted by A B Gray for unemployment benefits, in-
troduced by Respondent, was that there was
not sufficient evidence in the record to warrant a finding that the
claimant was guilty of physically assaulting any of the non-strikers
It did, however, conclude that
the claimant embarked on a course of action, in concert with his
fellow strikers, to threaten and intimidate an employee of the plant
who had declined to join the union in its efforts to shut down the em-
ployer's plant.
My conclusions agree with those of the Commission insofar as they hold
that there is not sufficient evidence that Gray assaulted any of the non-
strikers as I have found that any physical damage suffered by Clark was
the result of Higginbotham's attack on Felts and , as a corollary, that
whoever hit Clark did not do so with the intent of injuring him necessary
to constitute an assault I also agree with the Commission that the incident
had its basis in the strike but I find that the fighting did not arise out of any
effort by the union men to "threaten and intimidate" anyone to join the
strike On the contrary, I find that it arose out of Higginbotham's aggres-
sion, first by words and then by blows, against the union men because of
their union activity
TRAILMOBILE DIVISION, PULLMAN INC. 241
not give their versions of the incident without such
witness.33
In view of Respondent's violation of its own
procedures in its investigation of the fight at the Horse
Shoe Lounge which resulted, as could be easily foreseen,
in the lack of any union man's version of the incident and
in view of Respondent's failure to produce the evidence
upon which it did rely in discharging the four union men34
I conclude that Respondent had, in fact, no justification
for discharging them but used the incident as a pretext to
get rid of three of the most active union adherents and of-
ficials. A clear distinction between Respondent's conduct
here and its treatment of the participants in the Fife-
Whiteside fight at the Shamrock Lounge-also between
a striker and a nonstriker triggered by the epithet "son-of-
a-bitch" applied to the strikers, but in which the striker
held no position in the Union-after which no one was
discharged, supports this conclusion. Accordingly, I find
that Respondent's discharge of Green, Colley, Felts, and
Gray constituted discrimination to discourage their mem-
bership in, and activities on behalf of, the Union and that
it violated Section 8(a)(3) of the Act.
5. Respondent's refusal to reinstate Jimmy Brock
Jimmy Brock entered Respondent's employ during the
last part of August 1965, as an assembly helper. He
testified on direct examination that he joined the Union
on October 25 and, the same day, joined the strike by
calling Bellatti on the telephone, giving his name -and
clock number, and telling him that he was going out on
strike with his friends. Bellatti said "What?" and Brock
hung up.
On cross-examination, however, Brock admitted that
the last day he worked at the plant was Thursday, Oc-
tober 21, on the afternoon shift and that, on the 22nd, he
telephoned in that he was sick and would not report for
work that day. The company records show that Brock
called in at 3:15 p.m. on the 22nd, said he had a cold and
would be in on Monday. Bellatti denied having received
the call from Brock announcing his adherence to the
strike.
When the strike ended, Brock submitted a request for
reinstatement but received, instead of Respondent's rein-
statement form, a letter stating that he had been
discharged on October 27 for an unsatisfactory proba-
tionary period and for having been absent 3 consecutive
days.
The General Counsel concedes that Brock's discharge
"might be valid had not his absence been occasioned by
his participation in an unfair labor practice strike." Since
it cannot be seriously denied that the strike was an unfair
labor practice strike,35 Brock could not lawfully have
been discharged for his absence if such absence had been,
in fact, because of his participation in the strike.
Had Brock ceased working on September 8, with the
others, there would have been a valid presumption that he
had joined in the strike. The unusual series of events sur-
rounding his cessation of work, however, requires analy-
sis to determine whether he did, in fact, join the strike be-
fore he had been absent without explanation for 3 con-
secutive days. If I were to accept Brock's testimony con-
cerning his telephone call to Bellatti on October 25, that
would put an end to my inquiry: but other evidence not in
dispute casts doubt upon its reliability.
Kenneth Downs, who worked with Brock at the plant,
testified without contradiction that early in October, in
the plant, Brock said to him: "Guess what? I got drafted:
it looks like I am going to have to quit to go to the Army."
Downs testified that he thought this occurred on Wed-
nesday and that Brock worked Thursday and Friday,
after which he did not see him at the plant. He also
testified that he saw Brock about 2 weeks later at a road-
side stand and asked him why he had not gone and Brock
answered that his mother "got him off." On cross-ex-
amination by the General Counsel, Downs testified that
Brock did not at that later meeting say that he had quit to
join the Army but neither did the General Counsel or
counsel for the Union ask him whether Brock made any
reference to being on strike.
On November 1, Brock sent a friend, Gary Gibbs, to
pick up his check for accrued wages and gave him a
signed form authorizing Respondent to release the check
to Gibbs. The uncontradicted testimony of Gibbs shows
that, while Brock told him that the reason why he (Brock)
wanted him to pick up the check was to avoid crossing the
picket line, the message Brock asked him to deliver to the
Company was that he (Brock) expected to be drafted and
was "planning to join the service." Gibbs testified that he
delivered that message to Bellatti and Bellatti testified
that he received it and made the notation "military ser-
vice" on the authorization form. Brock was not an official
of the Union and there is nothing in the record to justify
an inference that Bellatti lied or that Respondent tam-
pered with its files to support an otherwise unjustifiable
action against him Accordingly, I find that Brock did not
notify Respondent that he had joined the strike but that,
by sending word that he was about to enter the armed ser-
vices, Brock chose to permit the Company' s normal
process of separation after 3 days ' unexplained absence
to take effect.'t6 To the extent that the complaint alleges
a violation of Section 8(a)(3) and (1) of the Act with
JY In investigating the Huffman-Marshburn incident, Respondent was
careful to arrange an interview at which Huffman might have a witness
present Bellatti testified that the vanation in procedure between per-
mitting Huffman to have a witness and denying the same nght to Green,
Colley, Felts, and Gray "never crossed my mind " This is incredible and
I find that the refusal to permit witnesses was a deliberate determination
not to hear these other versions of the incident The only evidence before
Bellatti and Rozner, therefore, on this matter were the statements of Hig-
ginbotham, Clark, and Cox These statements, however, were never
produced in this case because each of the men, although admitting that he
had been given a copy, did not "know where it is" (Higginbotham and
Clark) or "threw it away" (Cox) and Respondent's copies, although in the
possession of its counsel at the heanng, were refused production upon
request Moreover, even when Bellatti testified that he could not recall
details without looking at the statements which were in counsel's posses-
sion, Respondent's counsel flatly refused to hand over what he called his
"trial file " From this willful withholding of relevant evidence I infer that
the substance thereof would not support but would contradict Respond-
ent's contentions concerning responsibility for the incident
a' The recall and reinstatement of Green 3 days later is also unex-
plained except by Bellatti's conclusionary testimony that Green " didn't
participate in the action "
15 Respondent 's argument in its bnef that the strike was not an unfair
labor practice strike is reduced to an absurdity by its statement that*
The overwhelming preponderance of the evidence shows that certain
of Respondent 's employees struck on September 8, 1965 , to protest
the Respondent 's refusal to bargain with the Union.
since, as stated above, the Board has certified the Union as the collective-
bargaining representative of Respondent's employees
16 In view of this finding, it is unnecessary to discuss Brock's "un-
satisfactory" probationary employment
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to Respondent's discharge of and failure to rein-
state Jimmy Brock, it should be dismissed.
6. The discharge of James McElveen
James McElveen was employed by Respondent in May
1965. He was one of a class of employees designated
"full-time students" who, although they work every day
when employed, are considered temporary employees.
They do not participate in insurance, retirement, holiday,
or vacation benefits and do not acquire any type of
seniority.
Of the 31 students in Respondent's employ at the
beginning of the strike, about 25 worked throughout the
strike period. McElveen was one of the six who struck.
He and two of the other students who went out, applied
for reinstatement and they were reinstated. On January
22, however, when the employees returning from the
strike were assigned to jobs, all 31 student employees
were laid off.Operations Manager Whitehurst testified
that on several occasions in the past, when large orders
were completed, the work force was stripped of all stu-
dent employees. He testified, from company records, that
this had occurred between March 31 and April 15, 1964,
when 9 were let go and between February 15 and March
15, 1963, when 30 were let go. His layoff of the students
on January 22, he testified, was based upon his estimate
of production needs and his desire to keep any regular
employee from being laid off.
Whitehurst's testimony was not contradicted in any
way and the record contains no evidence indicating that
McElveen was treated in a discriminatory manner. Ac-
cordingly, this allegation of the complaint should be
dismissed.
7. The discharge of Danny Cargill
Danny Cargill was graduated from high school in May
1965 and, after a period of time on a construction-demoli-
tion job, he began working for Respondent during the first
part of August. He was classified as an assembly helper
and assigned to department 23, where his foreman was
James A. Pittman.
On September 8, when the strike started, Cargill was
at work and Pittman asked him to work 4 hours overtime
that night. After consenting to do so, Cargill testified, he
learned about the picket line and told Pittman he did not
want to work overtime, whereupon Pittman said he would
talk with Cargill's uncle, Bill Williford, another foreman.
The next day Cargill did not report for work and his un-
cle, Bill Williford, stopped at his home to ask him why he
was not at work. He testified that, when he told his uncle
he was on strike, Williford advised him to go back
because it would not get him anything if he stayed out.
Cargill thanked his uncle for getting him the job but said
he would not go back "until the picket was down."37
When the strike was terminated, Cargill was reinstated
with the others and, for a week, assigned to department
25 under Foreman William D. Chamblee. At the end of
the week he was assigned to department 21, the flooring
department, under Foreman Ocie C. Gunn where he
remained until discharged on February 9.
The General Counsel contends that the poststrike
discharge of Cargill was one of Respondent's "sub-
sequent acts of random discrimination" and that,
although Cargill's three foremen all testified that Cargill
was an unsatisfactory employee, "no valid reason existed
for the discharge of Cargill."
Cargill testified that prior to his discharge no one had
ever expressed dissatisfaction with his work. Foreman
Pittman, however, testified that in August he talked to
Cargill twice about getting on with his work and not wast-
ing his own and other employees' time by talking38 and,
on the third occasion when he found it necessary to talk
to Cargill about his work, he gave him a "verbal warn-
ing," i.e ., a file notation that the employee had been orally
reprimanded.39
Foreman Chamblee, for whom Cargill worked im-
mediately after the end of the strike, testified that he
noted that Cargill worked only when he was being
watched but that he did not talk to Cargill about it
because he knew that he was going to transfer Cargill out
of his shift at the first opportunity, and that he did so.
When Cargill's first rating date came up, 45 days after
hiring, a rating sheet was delivered to Foreman Gunn, in
whose flooring department Cargill was then working,
although on the second shift. Gunn testified that,
although he actively covered the first shift, it was custo-
mary for him to remain on duty for a time at the beginning
of the second shift to see that the men and work there
were properly lined up; that on each of the 9 days that
Cargill worked in his department he stayed to watch his
work. At the end of that period, and after talking with
Pittman and Chamblee, Gunn gave Cargill a rating of
"unsatisfactory" on "quantity of output," "knowledge of
job," "adaptability," and "thoroughness" and a rating of
"needs improvement" on his "care of workspace and
equipment," "quality of output," "willingness to follow
instructions," "cooperation with supervision," "at-
tendance," and "general attitude." Only in his attention
to safety did Cargill meet the minimum requirements.
Gunn certified that Cargill was "not qualified."
On February 9, when Cargill reported for work about
3 p.m., Gunn told him that his work had not been
satisfactory; that he stood around and talked too much;
that he did not seem to be interested in the work or learn-
ing it; and Respondent would have to let him go. Cargill,
according to Gunn, laughed and said he did not care. Car-
gill was not called to rebut any of this testimony.
The record does not support the General Counsel's
contentions of discrimination against Cargill. He was
reinstated with all the other regular employees when the
31 This conversation is alleged in the complaint as a violation of Section
8(a)(I). In view of the relationship of the participants , the place where it
occurred , and the mildness of its content , I cannot find that it transcends
a mere expression of opinion by Williford. Accordingly, it will be recom-
mended that the allegation be dismissed
38 The other employee involved in the second incident was a man
named Bonnette who, according to Pittman, complained that Cargill was
not doing a proper job of "bucking ," i e , backing , while he, Bonnette, was
driving rivets The General Counsel , on rebuttal , called Bonnette, who
could not remember anything about the incident and had no recollection
of Cargill as a person . I do not view Bonnette 's lack of recollection as
vitiating Pittman ' s testimony.
3s This file memo is dated August 26 and states:
VERBAL WARNING-On August 26, 1965, I talked to Mr Cargil
concerning his work , and I told him he would have to make im-
mediate improvement in his workmanship and quantity of work or he
would be discharged
Isl James Pittman,
Supervisor's signature
TRAILMOBILE DIVISION, PULLMAN INC. 243
strike ended and Respondent appears to have followed
normal procedures for determining the desirability of
probationary employees. Moreover, the record does not
support the omnipresent union animus ascribed to
Respondent by the General Counsel. I shall recommend
that this allegation of the complaint be dismissed.
8: Blaylock's attempt to remove a union button
The complaint alleges that on February 21, Foreman
"Red" Blaylock "attempted to forcibly remove a union
pin from the shirt of an employee."
George McNeil, a member of the Union's negotiating
committee and an inspector on the second shift, testified
that about 4:10 p.m. on that date he met Blaylock outside
the department where he was working. Blaylock put his
finger under the UAW pin McNeil was wearing and
flicked it upwards. McNeil asked Blaylock whether he
wanted a union button and Blaylock answered that he did
not need one.
Nothing in the testimony of either McNeil or Blaylock
justifies an inference that this casual gesture could have
had any coercive effect on McNeil. It appears to me to be
de mimmis and I shall recommend that this allegation of
the complaint be dismissed.
10. Coercive interrogation of Hill
The conversation between J. L. Hill and General Su-
perintendent Davis on March 17 when Hill came in to
discuss his return to his prestrike shift has been discussed
above. Although I have held that there is insufficient
evidence to find that Hill was discriminatorily kept on the
second shift because of his participation in the strike,
Davis' statements in this conversation, under the circum-
stances, were, I find, coercive and Respondent thereby
violated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
9. The refusal to bargain
Several times between the end of the strike and July,
Bobby Green spoke with several foremen and with
"Red" Davis, the plant general superintendent, about
various grievances brought to him by men in the plant.
The foremen and Davis refused to discuss the problems
with Green and told him that any employee who had a
problem could come and discuss it with management.
They also told Green that disciplinary problems would be
discussed only with the employees involved and they
warned Green that if he persisted in trying to talk about
other employees' problems he would be disciplined. After
being so warned on July 6, Green called Davis' attention
to the failure to follow the Policy Statement in giving
welder tests. Davis said the matter had been taken care of
and no prompting from Green was required. The follow-
ing day, Davis prepared a "written warning," noting
Green's prior attempts to discuss matters that did not in-
volve him, and threatening further disciplinary action ex-
tending to discharge if he did not desist. A copy of the
warning was given to Green.
Respondent does not dispute that this refusal to discuss
problems with Green was and is an outgrowth of its posi-
tion that the Board's certification of the Union is invalid.
Its counsel stated on the record that if the Board's bar-
gaining order, based upon the certification, should be en-
forced by the court of appeals, it will bargain with the
Union as required by the Act and will expunge the writ-
ten warning from Green's file.
Under these circumstances there is no doubt that
Respondent has refused to bargain with the certified
Union and has thereby violated Section 8(a)(5) of the
Act.40
40 The complaint also alleges that Respondent , by denying Huffman a
witness at the interview of September 8, "unilaterally changed the exist-
ing rules concerning personnel policies " In view of the fact that Huffman
was given another interview on the same matter , with a witness present,
Having found that Respondent has engaged in unfair
labor practices violative of the Act, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action effectuate the policies of the Act.
Having found that Respondent discriminatorily
discharged Bobby Green, Ira G. Felts, Arthur B. Gray,
and Harold Colley and that it subsequently reinstated
Bobby Green, I shall recommend that it offer said Felts,
Gray, and Colley immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and make whole the said Green, Felts, Gray, and Colley
for any loss of pay they may have suffered by reason of
the discrimination against them by payment to each of
them of a sum of money equal to that which he normally
would have earned as wages from the date of his
discharge to the date of reinstatement, less his net
earnings during said period. Such backpay shall be com-
puted on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289,
and with interest thereon at the rate of 6 percent per
annum as prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
Having found that Respondent discriminatorily refused
to reinstate J. L. Hammock to his former position,
although said position continues to exist, I shall recom-
mend that it do so.
Having found that Respondent has failed and refused
to bargain collectively with the Union and has disciplined
Bobby Green, an officer of the Union, by inserting a
warning in his file for having endeavored so to bargain, I
shall recommend that Respondent cease and desist from
refusing to bargain with the Union and that it expunge the
said warning from Green's file.
on September 10, it cannot be said that Respondent "changed" the rules,
although it might have violated them on September 8 and in its handling of
the Horse Shoe Lounge incident
336-845 0 - 70 - 17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of Respondent 's violations of the Act found by
the Board in prior decisions, and the nature of the viola-
tions found herein , which go the heart of the Act, I shall
recommend that Respondent cease and desist from inter-
fering in any manner with employees ' exercise of rights
guaranteed in the Act.
CONCLUSIONS OF LAW
1. Trailmobile Division, Pullman Incorporated, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union , United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The said labor organization has been duly certified
by the Board as the collective -bargaining representative
for the said Employer 's employees in the unit described
as follows:
All production and maintenance employees em-
ployed at its plant in Gregg County, Texas, exclud-
ing office employees, plant clerical employees,
technical employees , timekeepers, guards and
watchmen , office porters, experimental employees,
trainees, superintendents , assistant superintendents,
general foreman , foremen and other supervisory em-
ployees with the authority to hire, promote,
discharge , discipline or otherwise affect changes in
the status of employees or effectively recommend
such action , and all other employees.
4. The said employer has, since June 28, 1965,
refused to bargain with the said labor organization as the
collective-bargaining representative of its employees in
the said certified unit.
5. By discriminatorily discharging Bobby Green, Ira
G. Felts, Arthur B . Gray, and Harold Colley, and by
refusing to reinstate the said Felts , Gray, and Colley, to
their former positions to discourage their membership in
the said labor organization, the said employer has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8 (a)(3) and ( 1) of the Act.
6. The strike conducted by the said labor organization
and some of the employees of the said employer between
September 8, 1965, and January 20, 1966 , was caused
and prolonged by said employer's unfair labor practices.
7. By discriminatorily refusing to reinstate J. L. Ham-
mock to his former position to discourage his membership
in the said labor organization, the said employer has en-
gaged in an unfair labor practice within the meaning of
Section 8 (a)(3) of the Act.
8. By coercively interrogating J . L. Hill concerning his
membership in the said labor organization, and suggesting
that he withdraw from it , the said employer has engaged
in an unfair labor practice within the meaning of Section
8(a)(l) of the Act.
9. By the commission of the aforesaid unfair labor
practices , the said employer has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
[Recommended Order omitted from publication. ]