Seeburg Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1971

192 N.L.R.B. 290 (N.L.R.B. 1971)

290 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
Cavalier Division of Seeburg Corporation and Cavalier
Corporation and Allied Industrial Workers,
AFL-CIO, Local Union No. 289. Cases
10-CA-8029, 10-CA-8206, and 10-CA-8305
July 29, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On January 22, 1971, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner further found that the Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint and recommended that the com-
plaint be dismissed with respect to those allegations.
Thereafter, the Respondent filed exceptions and a
supporting brief, and a request for oral argument; the
Charging Party filed cross-exceptions and a brief in
support thereof and in answer to the Respondent's
brief. Subsequently, the Respondent filed an answer-
ing brief to cross-exceptions of the Charging Party. ,
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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 and briefs, and
the entire record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner,2 as modified herein.3
1. We agree with the Trial Examiner that the
Respondent's refusal to pay its employees accrued
vacation pay as required by the contract was violative
of Section 8(a)(3) and (1) of the Act. As found by the
Trial Examiner, this case is distinguishable from the
mere scheduling of vacations in that the contract in
the instant case specifically provided for money to be
paid in lieu of an actual vacation. Accordingly, these
1 We note that the Trial Examiner in one instance misquoted the
contract language "if no vacation is scheduled that year," as "if no vacation
is taken that year"; and erroneously referred to August I I as December I I
in his concluding findings with regard to the vacation pay issue, to
February 10 as February 12 in his concluding findings with regard to the
refusal to furnish information, and to 1969 as 1961 in heading "D."
2 The Respondent excepts to the credibility determinations of the Trial
Examiner . After careful review of the record, we conclude that these
employees were lawfully, entitled to the vacation
money withheld from them by their Employer, solely
on the ground that they were engaged in an economic
strike. With respect to the employer's unlawful
motive, the Supreme Court has specifically held: (1)
Antiunion motivation need not be proved where the
conduct is . "inherently destructive" of important
employee rights; (2),proof of antiunion motivation is
necessary where the discrimination is "comparatively
slight" only " if the employer has come forward with
evidence of legitimate and substantial business
justifications for the conduct." lit L.R.B. v. Great
Dane Trailers,388 U.S. 26. The Respondent advanced
no reason of a business nature to justify withholding
vacation pay during the strike. Respondent simply
refused to pay its employees the money it owed them
until the strike had terminated on the ground that it
was under no "legal obligation to finance the strike."
Carried further, Respondent's theory would provide it
with a defense for withholding during the strike the
employees' salary checks for past services, for this
money would, in the same manner, "help finance the
strike." In our opinion, Respondent has misconceived
its legal obligations. While Respondent need not lend
or give its employees money to "finance" a strike, it
cannot lawfully deprive its employees of a benefit,
including vacation pay, which they have earned until
they terminate their strike. Such strike activity is
protected by Sections 7 and 13 of the Act. Where, as
here, Respondent has come forward with no adequate
business justification for its conduct, specific proof of
its unlawful motive, as indicated above, is not
required.
2. We find, in agreement with the Trial Examiner,
that the misconduct for which strikers Fletcher,
Brewer, and Snyder, as well as Creek and Tarpley,
were discharged after the strike, while not to be
condoned, was not so egregious as to render them
unfit for further employment, and that their discharge
after the strike was therefore violative of Section
8(a)(3) and (1).4 On the other hand we do not agree
that the suspension of Fletcher, Brewer, and Snyder
pending investigation of the incident in which they
were involved was unlawful. Although, as the Trial
Examiner found, the evidence fails to establish that
these three strikers were responsible, the death of
employee Smith at the time of the incident justified
their suspension until an inquiry could be made into
the circumstances.
credibility findings are not contrary to the clear preponderance of all
relevant evidence . Accordingly, we find no basis for disturbing these
findings. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3).
3 The Respondent 's request for oral argument is hereby denied, as, in
our opinion, the record in this case, including the exceptions and briefs,
adequately presents the issues and positions of the parties.
4 Terry Coach Industries, Inc., 166 NLRB 560, 563.
192 NLRB No. 37
CAVALIER DIV. OF SEEBURG CORP. 291
3. The Trial Examiner found that Leonard Rollins
actively participated in a,plan sponsored by a "poor
peoples' coalition" to boycott products of the Coca-
Cola Bottling Company, the- Respondent's only local
customer, and that therefore the Respondent's dis-
charge of Rollins.was for cause. We do not agree.
As the Trial Examiner, found, the record shows that
the Union''s International specifically- ordered the
Union's officers not to, participate in any boycott
activity, that none of-_them `did, and that the Union
itself was not involved in the-so-called boycott.
In all the circumstances, we find that Rollins'
conduct in -this respect, while not to be condoned, was
not so egregious as to render Rollins unfit for further
employment, and that Rollins' discharge for this
reason was in violation of Section 8(a)(3) and (1) of
the Act.5 - -
4. We also agree with the Trial Examiner that the
Respondent refused to bargain with the Union at least
since December 4, 1969, in violation of Section 8(a)(5)
and (1) of the Act. Neither the filing of a decertifica-
tion petitions nor the fact that a substantial number
of employees elected to work during the strike 7 is
sufficient to establish-that the Union had, in f act, lost
its majority.- Moreover, the defense of a good-faith
doubt of the Union's majority is without meritwhere,
as here , an employer has engaged in substantial other
unfair labor practices. As set forth above, we have
found, that Respondent violated Section 8(a)(3) and
(1) of the Act by withholding,vacation pay from the
striking, employees and further violated that section of
the Act '6y the discharges of employees Fletcher,
Brewer, Synder, Creek, Tarply, and Rollins. To
permit this-, - Respondent to avoid its bargaining
obligations by taking advantage of disruptive strike
conditions at a-time when collective bargaining has
broken down does not, in our opinion, further the
statutory objectives y_ or point the way to sound
industrial relations policy.
5. The Trial Examiner found that the strike,
economic in- origin, was prolonged and consequently
converted- to an unfair labor practice strike by the
Respondent's' unlawful refusal to pay accrued vaca-
tion pay at ,the time the vacation period was originally
scheduled. We find, however, that the Respondent's
withholding of vacation pay was insufficient in itself
to prolong the strike. Nevertheless, we agree with the
Trial Examiner's finding that the Respondent's
s Cf. N.L.R-B. v. Local Union No. 1229, International Brotherhood of
Electrical Workers, A.F.L{ (Jefferson Standard Broadcasting Company), 346
US. 464 , and Patterson-Sargent Company, 115 NLRB 1627 , in which the
strikers publicly disparaged their employer's product.
6 Massey-Ferguson, Inc., 184 NLRB No. 69 , and cases cited therein.
7 Coca Cola Bottling Works, Inc., 186 NLRB No. 142.
8 Member Brown agrees with the Trial Examiner that the strike was
converted to an unfair labor practice strike by the unlawful refusal to pay
accrued vacation pay but would find that this refusal occurred on August
unlawful refusal to bargain in December created
serious impediments to the settlement of the strike.
Accordingly, we find that the strike was converted
from an economic to an unfair labor practice strike on
December 4,1969 .8
6. As the strike became an unfair labor practice
strike on December 4,1969, the Respondent's right to
make replacements became vulnerable from -.that
date. Accordingly, under-well-established Board and
court precedent, Respondent was obligated to reins-,
tate strikers as of February 7, 1970, when the Union
made an unconditional application for reinstatement
on behalf of all strikers, displacing, if necessary, all
replacements hired after December 4, 1969.9
Upon the basis of the foregoing findings of fact and
the entire record in this case, we hereby adopt the
recommended Remedy and the sConclusions of Law
of the Trial Examiner, except as modified herein.
CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4:
"By discharging employees Fred Fletcher, Vernon
Brewer, Edward, Snyder, Barbara Tarpley', Lora
Creek, and Leonard Rollins in contravention of their
rights under Section 7, Respondent has violated
Section 8(a)(3) and (1) of the Act." 10
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order, the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Cavalier Division
of Seeburg Corporation and Cavalier .Corporation, its
officers , agents, successors , and assigns , shall take the
action set forth in the Trial Examiner's recommended
Order, as herein modified:
1. Modify paragraph 1(b) by eliminating the
phrase "by suspending." -
2. Modify paragraph 2(b) by including Leonard
Rollins as a discharged employee entitled to reinstate-
ment to the same or to a substantially equivalent
position.
3. Modify ;paragraph 2(b) by changing July 21 to
December 4.
4. Substitute the attached notice for the Trial
Examiner's notice.
11, 1969, when the employees actually requested and were refused their
vacation pay instead of July 29, 1969, as set out by the Trial Examiner.
However, in the absence of agreement to the date of August II by any of.
his colleagues, Member Brown certainly agrees with Member Fanning that
conversion occurred at least by the later date, December 4, 1969.
9 Pecheur Lozenge Co.,, Inc., 98 NLRB 496, enfd. as modified 209,F.2d
393 (CA. 2), cert. denied 347 U.S. 953.
10 The number "(5)" should be deleted from Conclusion of Law 9.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MILLER, dissenting in part:
I agree that the Respondent violated the Act by
discharging strikers. Fletcher, Brewer, Snyder, Creek,
Tarpley, and Rollins after the strike. However, I would
not find the Respondent's deferral of vacation pay
until October 30, 1969, unlawful. There is no
contention, and no evidence, that the Respondent was
discriminatorily motivated in rescheduling vacations
for all its employees because, of-the strike-conduct -
which the - Board - has held is not 'inherently
discriminatory.ll I do not believe the comments of the
Respondent's representatives in denying the Union's
requests for immediate vacation pay, to the effect that
it was under no. legal obligation to help finance the
strike and would not pay until'the"strike was over,
reveal a motive to punish employees for striking or to
break the strike. On the contrary, the-Respondent was
under no obligation,,, based on the contract as I read it,
to pay vacation pay until it was no longer likely that
vacations could ' be' scheduled within the period
contemplated by_ the contract. When that period
passed; payment was made.
I would. also find no 8(a)(5) violation in the
Respondent's withdrawal of recognition of the Union
on December 4, 1969,' and its failure' to- furnish
information requested by the Union on, February 7,
1970. The record facts show that on ecember 4,
1969, a decertification petition was pending; the strike
had continued for more than 4 months; the Respon-
dent had been hiring permanent replacements for the
strikers since the end of October; and 357 employees
were working and only 307 were on the picket line. In
the"absence of any prior unfair labor practices, I
would find that" a" real question of 'representation
existed in the bargaining unit on December 4.
Accordingly, the Respondent was under no obligation
to bargain with the Union or furnish information until
that question was resolved.12 '
Finally, I would find no unreasonable delay in the
Respondent's failure to reemploy all' of the strikers
before March 2, 1970, and no impropriety' in" the
Respondent's request for a list of strikers available for
reinstatement. As in my view the' Respondent had
committed no unfair labor practices prior to the
Union's request for reinstatement of the strikers, they
remained economic strikers throughout the 'strike.
Accordingly, prior to reinstating them, Respondent
was entitled to determine ' whether they had in, the
meantime obtained regular and substantially' equiva-
lent employment ,elsewhere and did not desire
reinstatement; whether they had been permanently
replaced; whether,' 'even though replaced, vacancies
had occurred thereafter`.towhich they were entitled;
and whether misconduct which occurred during the
strike barred their reinstatement.13
Moreover, in its letter to the Union, Respondent
explained its need for the requested information, and
the circumstances indicate that such a list wouldhave
tended to expedite, rather than delay, reinstatement
of strikers entitled thereto. In -addition, the record
shows that the Respondent made a followup effort of
its own to obtain this information from the strikers
themselves. By -letters dated February 18, 1970,
Respondent requested strikers from whom it had
heard nothing to report within 5 days, either in person
or by letter, whether they desired - reinstatement.
Although some of these strikers did not reply,` others
indicated their willingness to return to work and some
of them were reinstated, while others declined job
offers.14
Therefore, in my view, the majority's conclusion
that Respondent's failure to reemploy, all "strikers
before March 2, 1970, was violative of Section 8(a)(3)
and (1) of the Act is not warranted.15
11 Texaco, Inc., 179 NLRB No. 152. Cf. N.L.&B. v. Great Dane Trailers,
Inc., 388 U.S. 26. `
12 See my dissenting opinion in Coca Cola Bottling Works, Inc., 186
NLRB No. 142.
13; Laidlaw Corp. v. N.LRB., 414 F.2d 99 (C.A, 7), cert. denied 397 U.S.
920.
14 Respondent presented in evidence, personnel records showing data
such as , dates of - recall of individual strikers , acceptance or refusal of
reinstatement offer, or failure to report.
15 See my dissenting opinion in Coca Cola, supra
APPENDIX
NOTICE TO EMPLOYEES'
POSTED BY " ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of, the United States Government
WE WILL NOT refuse to pay vacation pay when
due because our employees are on strike. "
WE WILL NOT discharge any of our employees
because they engage in a lawful strike.
W,E WILL NOT refuse to bargain with or give
relevant information to Allied Industrial Workers,
AFL-CIO, Local Union No. 289.,
WE' WILL NOT refuse to reinstate any ,'of our
employees who were on strike as of February .7,
1970, who are entitled to reinstatement, and not
permanently replaced before December 4,1969.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees ; in the
exercise of their,right to form;.join, or assist, or be
represented by, Allied Industrial Workers,
AFL-CIO, Local Union No. 289, or any other
labor organization, to bargain collectively through
representatives of their own choosing, or-engage in
other concerted' activities for, "the purpose, of
collective bargaining or other mutual aid - or
protection or to , refrain from any and - all such
activities.
WE WILL, upon request, bargain collectively
with Allied Industrial Workers, AFL-CIO, Local
CAVALIER DIV. OF SEEBURG CORP.
Union No. 289, as the exclusive bargaining
representative of our employees in the unit found
appropriate with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement:
All production and-maintenance employees
of our Chattanooga, Tennessee, plant, in-,
cluding group leaders, but excluding office
clerical, plant'clerical employees, watchmen,
guards, laboratory technicians, engineers,
draftsmen, research development employees,
assistant foreman, working, foremen, and all
other supervisors as ,defined in -the Act
constitute a unit appropriate for the purposes
of collective bargaining within the meaning
of Section 9(b) of the Act.
WE WILL offer to-Fred Fletcher, Vernon Brewer,
Edward Snyder, Barbara Tarpley, Leonard Rol-
lins, and Lora S. Creek immediate and full
reinstatement to their former jobs or, if those jobs
no longer" exist, to substantially equivalent posi-
tions,, without prejudice to their seniority or other
rights and privileges, and we will make each whole
for any loss of earnings that, each may- have
suffered as a result of our discrimination against
him.
WE WILL also offer to all of our employees who
were on strike up to February 7, 1970, and who
were entitled to reinstatement pursuant to the
request for the same made by Allied Industrial
Workers, AFL-CIO, Local Union, No. 289, who
were not permanently replaced before December
4, 1969, and who have not been reinstated to their
former or equivalent positions reinstatement to
their former or equivalent positions.
WE WILL also pay them backpay for any loss of
earnings which they may have suffered as a result
of our not reinstating them within 5 days of their
unconditional request for reinstatement or if they
have been reinstated but not to the same or
equivalent positions which they held before the
strike.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of
Allied Industrial Workers, AFL-CIO, Local Union
No. 289, or any other labor organization.
CAVALIER DIVISION OF
SEEBURG CORPORATION
AND CAVALIER
CORPORATION
(Employer)
293
Dated - By
(Representative) (Title)
We will notify immediately the above-named
individuals, if presently serving in the Armed
Forces of the United States, of the right to full
reinstatement, upon application after discharge
from the Armed Forces, in accordance with, the
Selective Service Act and the Universal Military
Training and Service Act.
This, is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered;
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Peachtree Building, Room 701, 730 Peachtree
Street, N.E., Atlanta, Georgia 30308, Telephone
404-526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed in Case 10-CA-8029 on November 6, 1969, and a
charge, amended charge, and second '-amended charge in
Case 10-CA-8206, filed on March 4,3 1, and July227, 1970,
respectively, and a charge filed in ' Case ' 10-CA-8305 on
April 28, 1970, by Allied Industrial- Workers, AFL-CIO,
Local Union No. 289, herein called the Union, the Regional
Director for Region 10°of the National Labor Relations
Board, herein called the Board, issued an Order of
Consolidation and Complaint on July 30, 1970, against
Cavalier Division of Seeburg Corporation, which .division,
together with Cavalier Corpdration,l is herein called
jointly the Respondent,'alleging 'violatioiis of Section; 8(a)
(1), (3) and (5) of the National Labor Relations Act,', as
amended (29 U.S.G. Sec. 151, et seq. ), herein called the Act.
,In its ' duly filed answer to the complaint, the Respondent,
while admitting certain allegations of the complaint, denied
the commission of any unfair labor practices.
Pursuant to notice, hearing in ,this case was held before
rite on various dates ` between September 9, 1970, and
'September 18, 1970. All parties were represented and were
afforded full opportunity to be heard, to introduce relevant
evidence,2 to present oral argument , and to file briefs. Oral
argument was waived. Briefs were filed by counsel for the
General Counsel, the Charging Party, and the Respondent.
I By stipulation at the hearing herein, Cavalier Corporation was added
as a party Respondent. As of December 31, 1969, Cavalier-Division of
Seeburg Corporation ceased to exist and Cavalier Corporation, which had
previously been a sales branch , assumed ,the operations _and obligations. In
effect, they are one and the same entity and they are treated herein as a
single Respondent . There is no issue raised as to successorship.
2 Following the close of the hearing , Respondent moved to admit in
evidence decisions of the Tennessee Department of Employment Security,
(Continued)
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the entire record, including the
briefs of the parties, and upon my observation of the
witnesses as they appeared before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, has its principal
office' and place of business located at Chattanooga,
Tennessee, where it is engaged in the manufacture and sale
of soft drink vending machines. During the 12-month
period immediately preceding the issuance of the complaint
herein, a representative period, Respondent sold and
shipped goods of a value in .excess of $50,000 directly to
customers located, outside the State of r Tennessee. It is
admitted, and I find, that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II.' THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction-Issues
As hereinafter related in greater detail, Respondent and
the Union had a bargaining relationship since the Union
was originally certified in 1955. The Union was certified
`again in 1962. A series of successive labor agreements were
entered into, the most recent of "which expired on July 13,
1969. Following the expiration of this contract and a series
,of unfruitful bargaining, sessions,, ;the union membership
voted to strike, which'strike commenced on July 21, ,1969.
Thereafter, the Respondent's supervisory hierarchy and
management representatives appeared, at .or near the union
established _ picket line, with cameras; the Respondent
postponed the payment of vacation.pay'allegedly accrued
under the recently expired contract; the car of a nonstriking
employee was followed by a car of a striking employee and
the nonstriker died. Later there were a series of incident's on
the picket line, some of which ,were violent in nature., In
December 1969 a' decertification petition was filed and
thereafter, alleging a ` belief that a question concerning
representation existed, the Respondent refused to further
bargain with the Union or give the Union requested
information.
'The strike was-finally ended onFebruary 7, 1970, and,
upon the Union's request, the Respondent permitted some
employees to 'return but rejected others and, indeed,
discharged' nine' who allegedly committed acts during the
strike which the Respondent believed disqualified them
from reinstatement.
The General Counsel's complaint alleges, in substance,
that the Respondent's use of cameras constituted unlawful
impression' of 'surveillance of union activities; that the
withholding of vacation,pay constituted unlawfuldiscrimi-
Board of Review finding three of the discharged employees were
discharged for gross misconduct . Over General Counsel's objections, the
motion is granted and the documents are received as Resp . Exh. 25(a), (b),
and (c) on the ground that they are relevant for whatever probative value
nation against the striking employees; that Respondent's
refusal to -bargain with, the Union after, the representation
petition was filed and 'Respondent's refusal to give ,the
Union requested, information was unlawful ; that Respon-
dent has unlawfully discharged and refused reinstatement
to nine named employees and has failed to promptly and
properly reinstate other employees upon their uncondition-
al application.
The Respondent's duly filed answer, denies most of the
foregoing, allegations and, in- the case of the specific nine
employees who were ultimately discharged, alleges that
such discharges were for cause arising out of.-unprotected
conduct of the employees during the strike . Moreover, as to
the refusal'to bargain allegations, Respondent denies the
Union's majority status ,and also alleges a good-faith doubt
as to the Union'smajority.
Thus the issues framed by thepleadings and contentions
of the parties are:
1. Whether the Respondent unlawfully created the
impression of surveillance of its striking employees' union
activities by displaying and appearing: to use cameras to
photograph picketing employees.
2. Whether Respondent discriminatorily refused to pay
its striking employees', accrued vacation pay.
3. If the answer to either or both of the foregoing issues
is in , the affirmative, whether the strike of the Respondent's
employees was converted from' an economic' to' an' unfair
labor practice strike: "
4. Whether the Respondent discriminatorily suspended
- 'three striking employees.
5. Whether the Respondent discriminatorily later
discharged these three employees and six other employees
as well.
6. Whether the Union at all times material was and is
the exclusive majority . representa five of Respondent's
employees.
7. If the answer to issue six is in the affirmative, whether
Respondent refused on certain dates 'and thereafter to
bargain collectively with the Union and furnish it certain
necessary information.,
8. Whether when the strike was over the Union made a
proper unconditional offer to return to work on behalf of its
striking members and whether the Respondent reasonably,
promptly, and' unconditionally, responded to,this offer by
reinstating the striking employees to their former or
equivalent positions.
B. The Camera Incidents
1. The events
As noted above, the most recent bargaining agreement
betweenthe"Respondent andthe Union expired on July 19,
1969. On that day, because the parties had been unable to
reach agreement on a new contract, the union membership
voted to strike. On the same day, the Respondent rented a
still camera and a -movie camera. On July 21, the Union
commenced around-the-clock picketing of the Respon-
dent's plant. From the first day that the pickets appeared,
they may have on the legality of the discharges. See Newport Window
Cleaning Co, Inc., 170 NLRB No. 131, fn. 6
CAVALIER DIV. OF SEEBURG CORP.
various officials of the Respondent appeared at or near the
picket -line with the cameras, and they continued to so
appear with the cameras during the entire period of the
strike which lasted until February 7, 1970.
According to Robert L. Nisewonger, vice president in
charge of manufacturing for the Respondent, and Jack
Henry, the Respondent's personnel manager, they were
given instructions by the Respondent's president, William
Raoul, that the cameras, were to be used only for the
purpose, of photographing illegal activity on the picket line
such as mass picketing or violence. And, according to these
two witnesses and to John True, the Respondent's
president, the only times that the cameras were actually put
into use were at times when unlawful activity did, in fact,
occur at the picket line. Thus, Nisewonger testified that on
the morning of November 3, 1969, as the working
employees came into -the,,plant there were rocks and fire
bombs thrown and Nisewonger tried the best he could to
take pictures of'what was happening on the movie camera.
He also took a picture with, the same camera of one of the
strikers, Arthur Colen, hitting one of the nonstrikers in the
face. He could not identify the date that he took the latter
picture. Other than those two times he never took a picture
of anybody on the picket line nor did he ever point or direct
the camera toward anybody on the picket line.
Henry, personnel manager,' testified that he used the
camera at one time to take a picture of Union President
Fletcher's car following the car of George Carlton Smith,
who later died of a heart attack. Henry also took pictures of
a large quantity of nails thrown in the driveway at the main
entrance to the plant. Then, during October 1969, Henry
noticed that Fred Fletcher was using a camera at the plant
entrance taking ' pictures, and pointing the camera at
workers entering and leaving the plant. The attorneys for
the Resondent told Henry- that he should take pictures of
Fletcher' using his camera. Henry emphatically testified
that other than those pictures he took none whatsoever.
Nor did he ever on any occasion put a camera in such a
position that one could reasonably believe that he was
taking pictures.
President True testified that the only time he took a
picture of anyone during the strike was during the riotous
morning, of November 3, NO. On that morning he took a
picture of a man by the name of Cooper throwing a rock, At
no othei time -did he point the camera toward anyone on
the picket -line.' -
In substance, the General Counsel's witness testified to
the use of -cameras by the various Respondent officials
somewhat as follows. Fletcher testified, that on September
23 he saw Henry using a, camera. But, as shown above, this
was the time - that , Fletcher followed the car of George
Carlton Smith. The details of this incident are hereinafter
set forth in greater detail. Fletcher further testified that he
never saw President True ' with a camera; that he saw
Nisewonger -with one but did not testify that he saw
Nisewonger use 'one;, and that he observed Henry
appealing to take pictures during the month of October
"whenever they started hiring new employees and anybody
made a motion or stopped a car to talk to some of the
3 Since her testimony'is completely unsupported in any other respect, I
find that Tarpley's description of the indiscriminate use of cameras is' not
295
nonstriking employees going in!, Employees Snyder,
Rollins, and Green testified only that -they saw Henry,
Nisewonger, and Musselwhite with cameras. Employee
Brewer testified only that he saw-Henry and Nisewonger
with cameras and saw them -both pointing cameras at the
car in which Brewer, Fletcher, and Snyder were riding on
September 23, again the episode of following-the Smith car.
Employee Barbara Tarpley testified that she-saw Nisewon-
ger, Henry, and Musselwhitewith cameras-and saw them at
unspecified times taking pictures at, the point 'where
automobiles came downto turn into the plant and when the
pickets would stop and ask people.not to cross the picket
line.3
It should be noted that the picture -taking of employees
crossing the picket line to go to work during the month of
October, 1969 by Fred Fletcher, president of the Union,
was the subject of an unfair labor practice case against the
Union in Case No. 10-CB-1851 in which 'case the Trial
Examiner and the Board found that-the picture taking,by
Fletcher was coercive and in violation of Section 8(b)(l)(A)
of the Act.
I find and conclude that the times at which the
Respondent's officials actually used the cameras to take
pictures ` of picket line activities were confined to those
instances where -there was either violence, or a threat of the
same on the picket line, or some incident which in itself
constituted unprotected- activity. Thus, Nisewonger took
pictures of striker Arthur Colen hitting a nonstriker in the
face. Henry, on the other hand, used the camera only three
times, during the September 23 car following' episode, at the
time nails were thrown in the -road at the main plant
entrance and during the times that Fred Fletcher took
pictures in October' of employees coming to and from work.
As noted above, these events, with the exception of the car
following, were those for which the Union was found guilty
of violations of the Act. Moreover, the testimony of Tarpley
and Fletcher, regarding the October instances of Henry's
picture taking, referred to that time when Henry took
pictures of Fletcher taking pictures of the, employees
entering and leaving the plant. Thus, I conclude that at any
time the cameras of the Respondent's officials were used
were at times when other than ordinary lawful picketing
was taking place.
2. Conclusions as to the use of the cameras
It is established by the record that the Respondent's
officers and agents, namely, Henry, Nisewonger, True, and
Musselwhite appeared at or .near the picket line with
cameras from virtually the first day of the strike through
virtually the entire period that the picket line appeared at
the Respondent's premises. And, as related above, attimes
the-cameras were used to actually photograph and to record
incidents that occurred on the picket line. The, General
Counsel contends that this displaying and appearing to use
cameras as noted above created the impression of
surveillance of employees' union activities. Counsel for the
General Counsel also argues that it is apparent from a
cursory view of the evidence that Respondent had no
credible.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"reasonable .basis for anticipating violence" in the instant
case and submits that the appearance of the cameras- and
the use thereof was an attempt to coerce striking employees
by creating the impression of permanently recording for
future reference , acts antithetical to the Respondent's
interests ; that is, engaging in the. protected,, concerted
activity - of; striking and picketing. The Respondent, on the
other, hand, argues that the use of the cameras was limited
to those times when its purpose was to secure evidence of
unlawful strike- activity. There is actually an indication in
the record that, the pictures taken were used to support a
state court injunction, especially after the violence of
November 3, 1969, when rocks and fire bombs were
thrown. While it is true that from the very beginning of the
picketing activity -there was - no reason to anticipate
violence ,- nevertheless the Respondent's precautionary
measures ; proved to be necessary with the development of
the incidents as the picketing progressed and as the strike
became prolonged. As found above, the actual picture
taking was confined to those times when incidents occurred
which could have developed into violence or which, did,
indeed, develop into violence. Thus, the taking of the
picture on September 23 of the far following incident in
which Fletcher and others followed the car of Smith, a
nonstriking employer, was the recording of an incident
which could have developed into a serious one of unlawful
strike activity. Certainly, it cannot be contended that the
taking_of ,a picture bythe Respondent of nails strewn in the
driveway of ,the- plant, entrance was an unnecessary act
performed for the purpose, of coercing striking employees.
Nor can any innocent connotation be applied,to the rioting
on November 23 when the fire bombs and rocks were
thrown at the plant entrance. Additionally,,the activity of
Fletcher taking pictures of persons entering and leaving the
plant which was found to have been an unlawful act by the
Board could not be ,construed as protected picket line
activity.
In sum then, I find and conclude that the purpose of the
picture taking was to, secure evidence of unlawful strike
activity and that there is no basis in the record for finding
,that,the use of the cameras was an attempt to coerce
striking employees by. creating the impression of recalling
for future reference the acts of the picketing employees for
the purposes of future reprisal. And the fact that the
Respondent's officers and agents appeared at or near the
picket line with cameras at other times did not constitute
such surveillance. The Respondent under the circumstances
could reasonably anticipate that such cameras would be
used ' to gather 'necessary documentation for lawful
purposes. Accordingly, I finally conclude that the Respon-
dent did'not coerce its employees and did not create the
impression of surveillance in such a manner as to constitute
coercion, interference , and restraint in violation'of Section
8(a)(1) of the Act. Therefore, I shall order dismissed that
allegation of the complaint which alleges such violations.
C. The Withholding of Vacation Pay by the
Respondent
1. Background and events
All of the successive contracts between the Respondent
and the Union from the contract dated March 20, 1960, to
the most recently expired contract contain the following
clauses with regard to vacations:
ARTICLE 9. PAID VACATIONS
Article 9, Section 1. An employee `will be entitled to -1
week of vacation pay each year upon completion of 1
year of continuous service and 2 weeks of vacation pay
each year upon completion of 5 years -of continuous
service , provided he has worked 1040- hours in the
twelve-month period-prior to the vacation date and is in
the Company's employ at the time the vacation,period
begins.
A first-year employee will receive his vacation pay
upon completion of his 12 months of continuous service
or at the vacation period, whichever comes last, His
vacation pay thereafter will be issued to him at the time
his vacation is taken, or on the first pay period in`:luly if
no vacation is scheduled for that year.
* * * * *
Article A Section 3. The vacation period will be set by
the Company to fall between June .15th and September 1st.
Unless business reasons dictate, a specific period the
preference of the employees will be followed in
choosing the vacation dates.
The vacations were given and the vacation pay was paid
to the employees during,all of the period from 1960 through
1968 with the exception of the year 1962 when a 5-week
strike occurred. At that time the vacation pay and the
vacations were delayed until the end of the strike.
On' May 1,; 1969, the Respondent posted a notice to the
effect that the vacation for the year 1969 would be taken by
all employees during the first 2 full weeks, in the month of
August that year.
During the same period of time that these successive
contracts had been in effect, changes were made in the
corporate structure' of the Respondent which had, as events
developed, a profound effect on the financial condition of
the Respondent. The Respondent was an - independent
Company until December 1963 when the assets were sold to
the Seeburg Corporation of Chicago. ` Until the fall of '1968,
the Respondent had no great financial, problems. During
those years the Respondent was in a pooled banking
arrangement with Seeburg. All of the collections from the
Respondent's customers in Chattanooga were deposited in
the- local bank and then transferred to Seefiurg ',s bank, in
Chicago. The Respondent was then obliged' to call the
Seeburg Corporation to notify it"what` bills were payable
and then the ^ funds would be released from Seeburg to pay
these bills. In this manner the Respondent was 'completely
dependent- on Seeburg's banking: As long as Seeburg wa s
independent the two companies got along fairly well.
However, in the fall of 1968 a west" coast conglomerate
named 'Co'mmonwealth United Corporation bought 96
percent of 'Seeburg's stock. Soon after that it -Became
evident that the financial situation of Seeburg was
deteriorating. Thi's became apparent as early as December
1968. The normal lending institutions - who financed
Seeburg's operations withdrew their ^ line of credit. The
CAVALIER DIV. OF SEEBURG CORP. 297
details are unimportant but it was definite that Seeburg was
left with no commercial bank credit whatsoever. Further-
more, other long-term creditors of Seeburg were closing in
and demanding payment of debts. Beginning in December
1968 and periodically thereafter Seeberg would call and ask
the Respondent to pull down its bank balance at the local
banks to help Seeburg over some temporary obstacle and
Seeburg promised to replace the money of the Respondent.
But Seeburg. never did. In the spring of 1969 the crisis
became worse. Other Seeburg divisions began requesting
the Respondent for money to pay the other divisions' bills.
Finally in May 1969 the top management at Seeburg asked
Respondent to postpone paying any suppliers for 30 days.
Thus it was that in the spring of 1969, at or about the time
that the, contract between the parties was about to expire
and negotiations for a, new contract were about to
commence, The Respondent was financially in difficulty.4
According to Raoul, , he informed the negotiating
committee representing the Union of these matters at the
various meetings that were held prior to the strike.
According to Fletcher, the union president, there were
approximately 10,such meetings. It is apparent that the
reason that the, Respondent and the Union could not come
to agreement on a-new contract was that the Respondent on
the one handwas, having a difficult time financially and the
employees represented by the Union on the other hand
were having a difficult time by reason of the fact that 1969
was an inflation year.
As outlined above, the Respondent, as in prior years,
posted a notice on May 1 stating that the vacation for the
employees would take place the first 2 full weeks of August
that year. However, the strike which began on July 21 was
an intervening event which changed the course of the plans
for the vacation. By letter to the Union dated July 28, 1969,
Respondent President John True notified Union Repre-
sentative William Smith to,the effect that because of
intervening events over which the Respondent had no
control it was necessary for the Respondent to reschedule
the vacations to a later date. The letter stated that the
Union would be notified when the Respondent came to a
decision on a new vacation schedule.
At the next bargaining session of the parties which took
place probably on July31,1969, the matter of the vacations
was discussed. Toward the end of that bargaining session
William Smith, the union representative, asked the
Respondent to pay the vacation pay. Counsel for the
Respondent, in the absence of Raoul, stated that the letter
spoke for itself and that no vacation could be rescheduled
until after the strike, Then Smithasked about vacation pay.
Hutcheson, counsel for the Respondent, replied that that
would have to be decided later on.
The next bargaining session was held on August 5, 1969.
Smith, the usual union representative, was absent and in his
place was D'Ambrosio, another International representa-
tive. D'Ambrosio stated that Respondent had an obligation
to pay the employees for their vacation and Hutcheson
4 All of the foregoing from the credited , uncontroverted testimony of
Raoul, the chairman of the Respondent 's board of directors.
5 From the -credited testimony of True and Henry as supported by a
stipulation received as to what Hutcheson would have testified to had he
testified . Although Smith, Fletcher, and Brewer testified that Hutcheson
stated that the Company would not underwrite the strike in paying
denied that this was so. D'Ambrosio then insisted that the
Company had a legal duty to give the employees their
vacation pay and in response Hutcheson stated "The
Company is not legally obligated to subsidize the strike." 5
In the meantime, as a result of the July 31 refusal to pay
vacation pay, the employees who were on strike held a
meeting on August 2. At that meeting Fletcher, as president
of the Union, told the employees of the refusal of the
Company to pay vacation pay. According to-Fletcher, this
aroused a great deal of anger among the employees present
and many of them stated their desire to take the
Respondent to court over the matter.
In connection with the foregoing, it should be noted that
at no time during any of the bargaining sessions where
vacation pay was discussed did any representative of the
Respondent state that the Respondent was unable to or
could not financially afford to pay the vacation pay.
On about August 11, 1969, Fletcher and -9 or 10 other
employees visited the Respondent's premises to ask for
their vacation pay. They spoke to Personnel Manager
Henry and to President True. Fletcher asked True if the
latter was,going to pay the vacation pay. True answered
that he thought the letter, he had sent explained the whole
matter. When Fletcher pressed the matter-further and said
that the Company was then not'going to pay the vacation
pay True answered, "No, we are not going to pay the
vacation pay until the strike is over." 6 -
Thus matters stood, the strike continuing and other
occurrences taking place as the strike wore-on. However, on
October 30, 1969, True sent a letter to the employees
enclosing their vacation pay. In this letter,-True told each
employee that though the Respondent ,had -hoped to
schedule vacations during- the warm season this was now
impossible and that the time of the year had arrived when
most of the employees would find it difficult or impossible
to actually take a vacation. For this reason the Respondent
had decided to pay all employees the vacation-pay. Each
person had a check enclosed with the letter.
-At the hearing herein Raoul sought to explain the 'reason
why the vacation pay was not paid at the time in August
when the vacations of the employees would normally have
occurred had it not been for the strike.-He explained, in
substance, that there were -two problems. The first was the
Respondent always had strong feelings that -vacations
should be taken whenever possible but that they had no
knowledge at the time of when .the strike might end, that it
was, the wish of the Respondent to have, a vacation period if
possible when the strike did end. Secondly, he -explained
that he had the further problem of Seeburg's cash situation.
He went on to explain the seriousness of that situation as
outlined heretofore. Raoul said that for that reason he
consulted his counsel who gave him legal-advice but left the
decision up to him. He said a decision was made because he
tried to do as nearly as possible what would have been
required under the most recently expired contract. Raoul
further stated that with respect to the scheduling of
vacation pay, I find that the recollection of the Respondent's witnesses was
more accurate in this respect and that Hutcheson made his statement to the
effect that the Company was under no legal obligation to subsidize the
strike only at the August 5 meeting.
6 From the credited testimony of Fletcher which went undenied in the
testimony of Henry and True.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacations the contract contains the requirement that the
Respondent is- to pay each employee when the employee
takes his vacation and that the vacation pay does not
accrue until the vacation, is taken, In this manner, Raoul
sought evidently to explain that the reason the vacation pay
was not paid was that the taking of vacations was
impossible and that therefore vacation pay did not accrue,
2.. Concluding findings, with, regard to the
vacation pay issue
The General Counsel and the Union contend that the
vacation pay, was not given as scheduled as a reprisal
against the striking employees and that the payment was
deferred in order to force the employees to abandon the
strike, and to return to.work. They argue that this is clearly
discriminatory and, therefore, in violation of the Act. The
Respondent would seem to be contending that therewas no
discriminatory -motivation on its part; that-the deferral of
the payments, of vacation pay was prompted solely on the
basis of legal consideration; namely,, that the Respondent'
was faced with a financial crisis and the vacation pay was
not due and payable until the vacations were taken and that
this became impossible- because of the intervening strike.
Moreover, : the Respondent also infers that no employees
were given vacation pay;" strikers as well as the nonstrikers
were not paid, and therefore the strikers .were not being
treated in a discriminatory manner.
With regard to the Respondent's contention that the
vacation -pay was due and payable only when vacations-
were taken; and not, until then, an examination of the
recently expired bargaining agreement reveals that vacation
pay is due, and payable when vacations are taken, "or on
the first, pay period in July if no vacation is taken that
year." I conclude that under the quoted provision, since no
vacation was taken vacation pay automatically became due,
and payable.
But regardless of the contract provisions for the payment
of vacation pay, if the failure to"pay was- based not on the
technical application of the cited contract clause but
because of, discriminatory reasons, the technical defense is
of'no avail., Therefore, the various statements of Respon-
dent's officialsand representatives must be considered.
In.evaluating the testimony in the most favorable light to'
the Respondent; there is no question that Re'spondent's
counsel and, representative told the union representative at-
the August 5,bargaining meeting that the Respondent was
under no legal obligation to finance the strike by payment
of, vacation pay.7 -Additionally, Respondent's' President
True told a group of employees on December I 1 that the
payment of vacation pay would not be made until the strike
was over, thereby, making payment of - vacation pay
contingent-on the employees ending the strike. I note also
that at the beginning of the two bargaining sessions, July 31
and August 5, at which the matter,of vacation pay was
discussed, the Respondent's representatives did not in any
7 There- would seem to be no discernible difference in the impact of the
statement as given by various General Counsel witnesses to the effect that
Hutcheson said the - Respondent would not pay the vacation pay and help
finance the strike or whether he said , as Respondent's witnesses testified,
that the Respondent was under no legal obligation to help finance the strike.
8 See Frick Company, 161 NLRB 1089, 1108. '
way claim that the Respondent was unable -to meet" the
financial burden. Finally, the' Respondent's- ultimate
payment - on October 30, 1969, of the ' vacation, pay would
seem to indicate the Respondent did, indeed; believe the
payment had accrued and, was payable although the
Respondent did not assign' this as the reason for finally
making the payment., -
I therefore conclude from the record as it pertains to the
vacation pay problem that the refusal to pay the vacation
pay was discriminatorily motivated. In so-concluding Irely
especially on the statement of President `True in which the
payment of vacation pay was conditioned on- cessation of
the strike8 and the statement of Respondent's representa-
tive to the effect that 'Respondent was under no legal
obligation to help finance-the strike. I have considered the
fact that the. payment was-ultimately made in October 1969
months before the strike ended.' However, this "does not
modify or eliminate the original, motivation but rather
indicates a tardy recognition of Respondent's' legal
obligation.
I have also been cognizant of and have weighed the
significance of the Great Dane Trailer cases and the fact-
that the Respondent here did not pay vacation pay to any
employees even those who evidently did-not join the-strike.
However, I find the present situation-somewhatanalogous
to those, in which the Board has found"that employers
discriminatorily discharged nonunion junior employees in
order to reach for discharge senior union supporting
employees.- In those cases the Board has held that the mere
fact that the nonunion employees were discharged did not
lessen the discriminatory motivation.10 In thetinstant case
the mere fact that the working-employees were not paid did'
not,lessen the discriminatory motivation: -
Accordingly, I - find and,- conclude that ! Respondent's,
refusal to pay the accrued vacation pay at the ' time
originally scheduled was capable of discouraging member-
ship in the Union and was `therefore violative of `Section
8(a)(3)-and (1) of the Act. '
D. Development After September 1961
The strike, as noted above, continued until February 7,
1970, when Fletcher, the ,union president, notified the
Respondent by letter that the strike was °,terminated and-
requested reinstatement on behalf of all striking employees.
Between the time of the Respondent's refusal to pay
vacation pay and the end of the strike, a number of events
occurred which affected the relationship between the
Respondent, the Union and the striking employees.
1. The `September 23 incident and its aftermath
During the weeks' before September 23, 1969, employees
George Carlton Smith,' Leonard A. Ford,,Wayne Barger,,
and Orville H. Tate, all union members who had supported`
the strike, returned to work at the Respondent's plant. They,
formed a car pool for the purpose of transportation to and
9 N .L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26.
10 Cf. Wonder State Manufacturing Company v. N.LR.B,'331 F.2d 737,
738 (C.A.6); Majestic Molded Products, Inc. v.7l.LRB., 330 F.2d 603, 606
(C.A.2); Willard's Shop-Rite Caskois, Inc., 132 NLRB 1146, 1149;
Englewood Lumber Co, 130 NLRB 394, 395.
CAVALIER DIV. OF SEEBURG CORP.
from work. On the afternoon of September 23, as they were
leaving the plant in Smith's car with Smith driving, they
were followed in a car driven by Union President Fletcher
with picketing employees Vernon Brewer, a member of the
Union's bargaining committee, and Edward Snyder. The
Fletcher car followed the Smith car through various streets
and avenues of Chattanooga until the Smith car stopped in
front of a church opposite the home of employee Barger.
Smith pulled into the driveway of the church parking lot
and stopped. Fletcher was blocking traffic, so he too pulled
into the parking lot and turned his car around to face the
Smith 'car approximately 30 to 40 feet away. In following
the Smith car, the occupants of the Fletcher car made no
threatening gestures , no horn was blown, no attempt was
made to interfere with the Smith car's operation, and the
Fletcher car came no closer than about 30 feet to the Smith
car.
After Fletcher stopped the car in the church parking lot,
Fletcher, Snyder, and Brewer sat watching the other car for
perhaps a half minute when the doors of the other car flew
open and the' occupants,went to the front seat. According to
Fletcher, he could see one of the occupants in the front seat
was ill. Fletcher started his car and drove off. As it turned
out, George Smith, the driver of the other car, had had a
heart attack and died.
Two days later, by letter, the Respondent notified
Fletcher, Brewer, and Snyder that they were suspended
pending investigation for misconduct. Thereafter, at a
bargaining session between the parties held on November
12, 1969, the first such session since August 5, the Union's
International representative, William Smith, inquired of
Respondent's representative if the Union accepted the
Respondent's proposed contract which had been offered
for the first time at that session would all the striking
employees be put back to work. Respondent's counsel,
Hutcheson, answered in the negative explaining that there
were not enough jobs for everyone. Then Smith asked
Hutcheson about how many jobs were open. Hutcheson
answered that there were probably less than 100 jobs open.
There is a conflict with regard to what occurred next.
According to General Counsel's witnesses Fletcher and
William Smith, Smith asked William Awoul, chairman of
the-board of the Respondent, with regard to the suspension
of Fletcher, Brewer, and Synder whether if the Union
accepted the contract which the Respondent offered would
Respondent lift the suspension. Raoul, according to Smith
and Fletcher, replied "No, he would not take them back
under any circumstances." According to the version of
Respondent's witness Hal Clements, an attorney in
Respondent counsel's office who was present at that
bargaining session, nothing of this nature was said.
Supporting this testimony is the testimony of Raoul who
seemed 'to have clear recollection of what occurred at that
meeting and who very specifically stated that after
Hutcheson stated that he believed there were probably less
than 100 jobs left open, Smith stated "Well, things will have
to go on for a long time . Quitters never win and winners
31 Unreported.
12 The cited case was Allied Industrial Workers, Local 289, Case
l0-CB-1851. On May 12, 1970, the Associate Executive Secretary of the
Board issued an order by direction of the Board in which the Board
299
never quit." According to Raoul, this was the last thing said
at the meeting and the meeting broke up. Raoul and
Clements specifically stated that during that meeting there
was no- discussion whatsoever by anybody concerning any
individual strikers and their status. Specifically, there was
no mention of the names of-Fletcher, Snyder, or Brewer.
I accept and credit the version of the'meeting as given by
Raoul and Clements. Clements, an attorney, gave a short,
concise, and straightforward version of what occurred.
Raoul impressed me as- having had a vivid recollection of
what occurred at that meeting. On the other hand, although
Smith was also quite positive of what happened,' he
admitted with regard to another meeting that he did; not
take full notes of what occurred, and I find that his
recollection was not as reliable as that of Clements and
Raoul. With regard to Fletcher's testimony, for reasons
hereinafter stated, I do not find him to be a, completely
reliable witness and I therefore do not credit his version, of
what, occurred at the meeting of November 12, 1969. By
reason of the foregoing, I do not find that Raoul or any
other person connected with Respondent's management
stated that they would never under any circumstances
reinstate Fletcher, Snyder, and Brewer. This being so, I will
dismiss that portion of the General Counsel's, complaint
which alleges this statement to have been a violation.
By letter dated -February 10, 1970, the Respondent was
advised by Fletcher that the Union made an unconditional
request to return to work on behalf of all the striking
employees. On April 14, 1970, the Respondent, by letter,
notified Fletcher that the latter was discharged based,on the
finding of the Trial Examiner in Case 10-CB-1851 It
concerning Fletcher's activities on the picket line October
13 and 21, 1969. As heretofore noted, on, those dates
Fletcher engaged in the taking of pictures, of employees
entering and leaving the plant. These employees were either
new hires or employees who were unwilling to join the
strike or who had abandoned the same. The Trial
Examiner, in that decision, found that this picture taking by
Fletcher constituted coercion in violation of Section
8(b)(1)(A) of the Act'2
By letter of August 10, 1970, Respondent notified Brewer
and Snyder that they were discharged. The reason for the
discharge cited in those letters was merely that Snyder and
Brewer had been guilty of misconduct during the strike.
2. The November 3, 1969, incidents
On November 3, 1969, more than the usual number of
pickets appeared on the picket line. Indeed, a number of the
striking= employees who had been assigned picket duty at
other hours appeared at the Respondent's plant in the early
postdawn hours. The record does not establish that this was
by design or whether it was merely coincidence. In any
event, by the time employees began to report to work and
had to pass through the' picket line conditions had
deteriorated to the point of near riot. Stones were hurled at
cars entering the plant and fire bombs were also thrown.
Pickets made threatening gestures to those entering the
adopted completely the findings and conclusions of the Trial Examiner
contained in his Decision. As noted above, since no exceptions were filed to
a Trial Examinees Decision, this case was unreported and not printed in
the Board's official decisions.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant and invectives and obscenities were hurled at the
employees who went to work,that morning.
Among-, the picketing employees whom Respondent
alleges were engaged on that occasion in misconduct were
Lora Creek and Barbara Tarpley. On that morning Tarpley
and Creek, on the picket line, shouted obscenities such as
"slut," "whore," "bitch," and "scab" at various people
entering the plant. Also on one occasion during that
morning either Tarpley or Creek threw down a picket sign
at or near a passing car which was also entering the plant.
In, addition, in one instance, in the case of Mrs. Kathryn
Tate, Tarpley yelled out to the occupants of the car in
which ^ Tate was riding that , they would "get me." In
addition, on another occasion as observed by employee
Carolyn, Brooks, Tarpley and Creek would join hands on
the sidewalk and prevent those who were coming by to
enter the plant from entering the plant on the sidwalk and
forcing them into the road. Also employee Willie Gothard
statedthat as she passed by to go into the plant Tarpley `and
Creek "would sling their feet and arms out." 13,
Tarpley and Creek both continued to strike and picket
until the strike was terminated by union letter to the
Respondent.• After the strike terminated, both Creek and
Tarpley mailed to the Respondent letters requesting
reinstatement and expressing their desire unconditionally
to return to work. The Respondent has failed to respond to
those letters and has failed and refused to offer either Creek
or Tarpley their former jobs or any other position with the
Respondent. Finally, on` September 2, 1970, the Respon-
dent, in separate letters, informed Tarpley and Creek that
they were'discharged for misconduct during the strike. The
letters explained that the delay in deciding on their status
was due to the fact that investigation of their cases was,still
continuing, but in view of the upcoming proceeding (the
instant case) their status -had- to be clarified. In connection
therewith Respondent's 'chairman of the board, Raoul,
testified that Tarpley and Creek were discharged for foul
and abusive language on many , occasions and for
interfering with the ingress and egress of working
employees.
Also involved in an incident on November 3 at the picket
line site was employee Otis Green. On that morning, Green
threw a rock at and struck a car driven and owned by
David E. Barber, an employee who worked through the
strike and crossed the picket line. Although Barber
admitted on cross-examination that he did not see the rock
leave Green's hand, he did see the rock in Green's hand, he
saw, Green's arm come back, and immediately he felt and
saw the rock hit the side of his car. What happened was that
he heard something hit the side of his car after he had seen
Green make the motion with his hand with.the rock in it.
Immediately after this happened Barber stopped his car
and got out and Green started to run away. Although
Green denied that he ever threw a rock, and employee
is All of the foregoing with regard to Tarpley and Creek from the
credited testimony of Respondent's witnesses Carlisle, Lindsey, Swafford,
Hart, Cox, Brooks, Gothard; Tate, and Castleberry. I credit the
Respondent's witnesses in this re's'pect' over the denials of Creek and
Tarpley' and General Counsel's witness Stafford. Creek and Tarpley each
testified that although they' were on the picket line on November 3 and
admitted that rocks and -fine bombs were thrown and that other
disturbances occurred, nevertheless, they were unable or unwilling to tell
Stafford testified that he was °in Green's presence all that
morning and did not see Greeil' throw a rock, I credit the
testimony of witness Barber . Again, in the case of both
Green and Stafford, neither of these men saw anything that
was going on during the morning of November 3. It should
be noted in connection therewith that introduced in the
evidence was a motion picture taken by the Respondent of
that morning's activities which clearly depicted the, rock
throwing and the burning fire bombs but from which the
hurlers of the bombs and the`rocks could not be identified.
Again, it is puzzling and indeed- `strange 'that 'these
individuals who were on the picket line, who participated in
the picketing that morning, did not see anything that
occurred. Accordingly, I do not credit the testimony of
Green and Stafford but do credit the testimony of Barber., I
find and conclude that Green did throw the rock that
morning which did indeed strike Barber's automobile.
On February 17, 1970, Green received from the
Respondent a dismissal slip stating that he was discharged
for misconduct in the course of an economic strike.
James Holsomback, a picketing striker, engaged in a
similar incident on the morning of November 3. According
to Respondent's witness James C. Lindsey on that morning
he 'saw Holsomback hit an automobile with a rock.
Although Holsomback denied this incident, for the reasons
I have failed to credit the other General Counsel witnesses
with regard to the other events of November 3 I discredit
Holsomback's denial and credit Lindsay's testimony,
Accordingly, I find and conclude that Holsomback did,
indeed, throw a rock at a psssing car on that morning.
On February 16, 1970, Holsomback visited the Respon-
dent's plant to request reinstatement upon cessation of the
strike and was interviewed by Personnel Manager Henry.
Henry handed him a slip which was the formal notification
to Holsomback stating that Holsomback was discharged
for misconduct during the course of an economic strike.
Respondent's Chairman Raoul testified that Holsomback
was discharged for striking the car of a nonstriker with a
brick or a rock.
In the afternoon of November 3, employee Bill Nunley
appeared at the home in Whitwell, Tennessee, of Josephine
Barnett and in the presence of witnesses Billie Ray Barnett,
Josephine Barnett, and Carolyn Barnett stated that "If Billy
Thompson crosses the picket line, I intend to kill him in the
morning." Nunley also stated that Billy Thompson had
taken his job at the Respondent's plant. In explanation, it
should be noted that Billy Thompson was a working
employee at Cavalier and the brother of Carolyn Barnett,
and uncle of Ray Barnett. Josephine Barnett is Ray's wife.
Nunley admitted his presence at the time and place
alleged by these witnesses but claimed that he made no
threat on the life of Billy Thompson. He testified that'all
that he stated to the Barnetts was that he wanted to see Billy
who participated in the rock throwing and the fire bomb hurling . This was
true of all of the General Counsel's witnesses who testified as to the
occurrences of the morning of November 3. However, it is reasonable to
believe that these witnesses either out of fear of hurting their fellow
employees or out of fear of testifying against themselves denied any
knowledge as to who participated in the riotious portion of the sequences
of November 3. Accordingly, I do not credit their other testimony
regarding the November 3 incidents.
CAVALIER DIV. OF SEEBURG CORP. 301
Thompson in order to ask the latter not to cross the picket
line.
From my observation of the, witnesses and in view of
what occurred generally on November 3, I find and
conclude that the Barnetts' version of what occurred that
afternoon at the Barnetts ' home is, the more reliable one
and therefore find that Nunley did make the threat as
alleged.
After the strike was over Nunley received a letter from
the Respondent to come down to the plant to check on his
job. He saw Jack Henry, Respondent's personnel manager,
who gave him a discharge slip. This was on February 12,
1970. The discharge slip stated, in effect, that Nunley was
discharged for misconduct during the course of an economic
strike.
3. The Rollins involvement in the "boycott"
As set forth earlier in this Decision, the Respondent is
engaged in the manufacture of a single product; namely
vending machines which are purchased by the various
Coca-Cola bottling companies throughout the United
States. Among these companies is the Coca-Cola Bottling
Company located in Chattanooga„ Striking employee
Leonard Rollins was involved in what Respondent alleges
constituted a secondary boycott against Coca-Cola Bottling
Company of Chattanooga in support of the strike against
the Respondent being conducted by the Union.
Toward the end of October 1969, the Respondent began
to hire permanent replacements for the employees who
were on strike. About the same time , Rollins, who had been
at onetime president of the Union and was considered by
many of the members to be a leader among them and who
was also a picket captain at the time, became involved with
a Reverend H. H. Wright, a civil rights leader among the
poor and blacks in Chattanooga. Although Rollins denied
that he waq the one who - set up a meeting held around
October 5 or 6 at the union hall at which the Reverend
Wright spoke, it is clear that he met the Reverend Wright
just prior to that meeting and in this meeting with the
Reverend Wright the meeting for the 5th or 6th was
planned. The Reverend Wright spoke at the close of the
regular meeting of the Union held at the Labor Temple in
Chattanooga on that day and expressed his surprise that the
Respondent would replace the striking employees. He
inferred that this was part of a conspiracy against the poor
people and the laboring classes among the industrial
community in Chattanooga. Then the, Reverend Wright
and Rollins jointly announced the formation of a coalition
of the poor and laborers "to help the 300 people who had
been dismissed by the Cavalier Division of Seeburg." The
announcement of this coalition was made at a press and
television conference held at the Labor Temple on
November 18, 1969, when both Rollins and Wright gave
statements for the press. In Rollins' statement, although he
did not specifically mention the term boycott, he did state
that the Respondent made coolers for Coca-Cola and that
this was the only product the Respondent made. He further
stated that the Coca-Cola industry was Respondent's only
34, From the newspaper clipping of the Chattanooga Times of November
19, 1969, which was verified by the reporter , a Mrs. Robison, who wrote
the article . Rollins admitted in testifying that the article was accurate in its
buyer. Wright, however, made a more direct statement. He
asked that the public buy no more Coca-Cola.14 -
Thereafter, several marches were organized by the
Reverend Wright in which strikers and others marched
through the streets of Chattanooga carrying signs, some of
which asked the public not to buy Coca-Cola., Rollins,
although he did not, march at the head of these marches,
participated and admitted in his testimony that he walked
up and down the march line obviously for the purpose of
encouraging the marchers and helping to organize the
march. One such march,, in which Rollins testified that he
did not participate, went to the Coca-Cola ' Bottling
Company plant and interfered with the ingress and egress
of trucks and other vehicles to and from the plant. At about
the same time, a handbill was distributed from the union
hall, which handbill could not be directly attributed to any
of the leadership of the Union but which found its way-into
the streets of Chattanooga, urging, the public to support the
strikers by not buying Coca-Cola. It should be noted that in
connection with all of this activity, the International
president of the Respondent's national union specifically
ordered the officers of the Union not to participate in any
boycott activity. Indeed the record shows that-none of them
did.15 The record does not establish by a preponderance of
the testimony that the Union itself was directly involved in
the poor peoples' coalition or the so-called boycott.
However, the record does not show that any - of the
vending machines manufactured by the Respondent after
the strike began were used by the Chattanooga Coca-Cola
Bottling Company.
On February 13, 1970, following termination of the
strike, Rollins made application for reinstatement. He was
discharged by letter of that date in which it was explained
that he was discharged for leading and participating in, the
boycott against the Coca-Cola Company. Additionally,
Board Chairman Raoul testified that Rollins was dis-
charged for that reason.
4. The refusal to bargain
Between August 5 and November 12, 1969, there was a
hiatus of bargaining. Whether this was caused by the
Union's neglect to press bargaining or whether it was
because of the Respondent's failure to respond-is a matter
in dispute. According to Fletcher, the union-president, he
contacted an agent of , the Federal Mediation and
Conciliation Service approximately - 10 times asking the
latter to communicate with the Respondent and tell the
Respondent the Union desired a meeting for purposes of
bargaining. The mediator answered that he did communi-
cate with the Respondent but that the Respondent failed to
come to a meeting -until November 12. On the other-hand.
Hutcheson, counsel for the Respondent,, testified that he'
was in contact with the conciliator on several occasions
during this period and asked the, conciliator whether the
Union requested to call a meeting and the conciliator
answered "No." Because there is no unfair labor practice
charged against the Respondent growing out of this
reporting of what occurred at the press conference.
rs From the testimony of Rollins and employee Dorothy Treadway.
302` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particular failure to, meet. I find that it is unnecessary, to
resolve this conflict of testimony.
In any event, 'I find that at least at sometime during that
period of time Fletcher = made verbal requests to the
conciliator to meet with the Respondent . On December 2,
1969, Fletcher wrote to the Respondent and requested
further bargaining. The Respondent answered that request
with a " letter dated December 4, 1969 ,• from -Hutcheson to
Fletcher, in which , Hutcheson informed Fletcher, "please
be advised that we must at this time defer your request for
further bargaining pending disposition by the National
Labor Relations Board of the petition which has been filed,
apparently - raising a' question concerning representation.
When this matter has been resolved, we shall act
accordingly." The record contains reference to the petition
mentioned , in the Respondent's letter to the Union. It is
apparent that this petition was a petition for decertification
filed by; some dissident members of the Union and some
employees probably who were not members . Insofar as the
record shows , this petition was suspended pending the
outcome `of the instant proceeding.
As heretofore set forth , on February 7, 1970 , Fletcher
notified Respondent that , the 'strike was 'terminated and
requested reinstatement on behalf of all striking employees.
On the same day,'February 7, 1970, Fletcher, as president
of the Union, addressed a letter to Raoul , chairman of the
Respondent's board ' of directors , requesting certain infor-
mation . This letter requested a list of employees who were
presently -filling production and nonproduction jobs for the
Respondent and, among other things , a list of all job
openings as of February 7, 1970, together with the
department which these openings were in and the rate of
pay. By letter dated February , 10, 1970, Hutcheson,
Respondent's counsel, answering the Union's letters of
February 7 , stated, in effect, that the Respondent Would
have to have more information "from the Union with regard
to striking employees who wished to return to work. With
respect to the request for information , Hutcheson stated
that "We can perceive no legal duty to grant your request at
this time ." Hutcheson reminded Fletcher that the petition
for an election" was pending before the Board which
apparently raised a valid question concerning representa-
tion . He then stated that if the Union could establish to the
Respondent's, satisfaction the right to such information he
would be- glad to reconsider -the Company's position and
whatever legal obligation there was toward the Union.
Thus it was that from November 12, 1969 , there was no
further bargaining between the parties.
Thereafter, by letter dated February 18 , 1970, the
Respondent notified the employees who had been on strike
that in order to become eligible to return to work each
employee would have to come in, in person, or notify the
Respondentby letter.
Thereafter some employees , complying with the Respon-
dent's request for a personal visit or a letter request to
return to work , were reinstated. However, there is a
contention that their jobs were not the same or equal to the
jobs they had prior to the 'strike. '
In connection with the Respondent 's refusal to bargain
further , after December 1969, Respondent's Board ;Chair-
man Raoul testified that around December 1, 1969, he
received a copy of a petition for'decertification 'from the
Board . Shortly thereafter he received a letter from Fletcher
concerning the request for meeting. Following"this,
Hutcheson wrote the letter above 'referred to in , which he
told the Union that the Respondent would not further
bargain pending the ojutcome ' of the representation petition
and stated that a question concerning representation
existed . Raoul stated that he had been informed by his
counsel that the Board had a ground rule that a petition is
ordinarily accepted only when 30 percent or more of the
employees have signed it. Moreover , Raoul also knew that
357 people were crossing the picket line . He also knew that
there were 307 or thereabouts striking employees , some of
whom had gone to work in other places .' He knew this
because a few had asked to get a quitting report from the
Respondent . Many of the others had never been seen on the
picket line. Furthermore , Respondent had meetings almost
daily with the employees who were working and he heard
the sentiment of these people on many occasions.
Moreover, his counsel advised him that he thought there
existed a question concerning, representation ., He relied on
all of those factors in deciding not, to bargain further,with
the Union.
E. Concluding Findings
1. The discharge of the nine employees
The first alleged strike misconduct on which the
Respondent bases discharges was that which occurred on
September 23, 1969, 1 involving employee s, Fred, Fletcher,
Vernon Brewer, and Edward ' Snyder. As set forth in detail,
above, this incident involved the following by these three
individuals of the car driven by George Carlton Smith at
the culmination of Which Smith died . The Respondent
contends that the car following incident was a proximate
cause of, Smith's death and that, ' therefore , its action in
discharging Brewer and Snyder was proper in, the
circumstances . As to Fletcher, Respondent contends that if
the latter had not been discharged by reason of the picture
taking incidents of October he would have been discharged
for his participation in the car following incident of
September 23.
The General Counsel contends that the ,discharge of these
three employees,, two of whom were leaders in the strike
movement, was pretextual and that, the car-following
incident was used as an excuse for the Respondent's ridding
itself of three militant- union adherents . The Union makes
still another contention . It argues that the car ' following
incident was a legitimate one because the purpose thereof
was to find the location of the homes of the occupants of
the Smith car so that they could_ be later` contacted for the
purpose of trying to induce _ them,"lawfully, not to cross, the
picket line.
- It would seem that the two issues here presented
regardless of the question of whether the discharges of these
three was pretextual, are, first, whether the employees
involved were engaged in protected` activity and, secondly,
if'not, whether the incident was of sufficient seriousness to
warrant their discharge . This is so because even assuming
that the Respondent had a good-faith ]belief that 'these three
were - responsible for the death of Smith, a good-faith but
"CAVALIER DIV. OF SEEBURG CORP.
mistaken belief is no defense to a discharge of employees
who are otherwise engaged in protected activity and who
were not, in fact, guilty of the conduct for which they were
assumed guilty.16 It is therefore necessary to determine,
first, whether, these employees were engaged in protected
activity.
It is clear from the record, as recited heretofore, that in
following the George Carlton Smith car Fletcher and his
two associates made no'thteatening gestures, no horn was
blown, no attempt was made to run the Smith car off the
road,, there -was - no tailgating, and a safe distance was
maintained between- the cars, The Respondent offered
evidence to show that Smith had been followed home a
week before by'three other union adherents and that he had
arrived at home on the earlier occasion in a state of fear and
excitement. This was -related through his son who testified
that Athe father was agitated 'when he came in and that,
instead of driving his car to the usual parking space, drove
behind the house and literally hid the automobile.
However, there, is no record showing that either Fletcher,
Brewer, or Snyder had any knowledge of the earlier event.
Thus, without more, the following of the Smith car by
Fletcher could be assumed, -to have been for the purpose
testified to by, Fletcher; namely, that he desired to locate
the hone addresses of the riders of the Smith car in order to
contact them at a,later date to, attempt to induce them' not
to report to work and not to cross the picket line. However,
there is- one factor which must still be considered. The men
is the Smith car were all members of the Union and,
moreover,, Fletcher admitted that he had their names and
addresses _ from the city directory. He explained, ' rather
weakly, I find, that he just wanted to see where they lived so
he could locate them' later. I find this not to be credible. I
find 'that Fletcher knew where these individuals lived and
could easily have found them had he so desired.
Accordingly, I find and conclude that the purpose of
following the -Smith car was for the purpose of harassment
to induce and to coerce the riders of the Smith-car not to
report to work. However,' in making this finding I do not in
any way attribute to Fletcher and his associates the cause of
Smith's death." The testimony was such that the only expert
witness who could do' so, the coroner, 'explained at the
hearing that death could have occurred equally either from
fright from the car following or from other causes.
I therefore must determine whether the conduct of
Snyder and Brewer with Fletcher was sufficiently serious to
warrant-their discharge. -
The Board, in the remanded Kohler case,17 held that, in
balancing an employer's unfair labor practices against
strike misconduct of the employees in that case, employees
who actively engaged in halting, encircling, blocking,
shouldering, and bumping of nonstrikers or job applicants
during the -mass picketing or employment office picketing
or verbally harassing, insulting, and abusing nonstrikers at
the picket line and at their homes and business establish-
ment or places of amusement were not engaged'in such
serious conduct as warranted -their discharges as compared
'16 See N.L.R.B. v. Burnup and Sinu, Inc, 379 U.S. 21.
17 Kohler Co., 148 NLRB 1434. The remand was by the court of
appeals, 300 F.2d 699 (C.A.D.C.).
303
to the unfair labor practices in which the employer in that
instance engaged.
In the present case , the Respondent's only preceding
unfair labor practice, as found above, was the withholding
of the vacation pay. That this was a serious unfair labor
practice can readily be found from the fact that the-strikers
were in need of the vacation pay, had earned it, and the
vacation pay had accrued and was due and owing to the
strikers. The failure to'"pay the vacation pay had an adverse
effect, therefore, not only on the outcome of the strike and
the morale of the strikers, but against the very pocketbooks
of the strikers themselves'. Under all of these circumstances,
and in balance, according to the theory of the court in the
Kohler case, above cited, and in N.L.RB. v. Thayer Co., et
al., 213 F.2d 748 (C.A, 1), cert. denied 348 U.S. 883, I
conclude that tl•e conduct of' Snyder, Brewer, and Fletcher
in following the Smith car was not so egregious as to
warrant denying to them reinstatement to their former or
equivalent positions. I find, therefore, that the discharge of
Snyder and Brewer was in violation of Section 8(a)(3) of the
Act.
However, the' case of Fletcher presents further problems.
As testified to by the Respondent's witnesses, Fletcher
would have been discharged for the car-following incident
but, prior to the decision to discharge Brewer and Snyder,
Fletcher was 'discharged for engaging in the activity for
which the Union was found to have violated the Act in
Case 10-CB-185118 As previously noted, Fletcher's
participation in the activity which constituted the unfaair
labor practices in that case was the taking of the pictures, of
persons entering and leaving the plant. I find and conclude
that Fletcher's activity, by reason of the findings in the
prior case, constituted unlawful activity and, therefore, a
form of misconduct in relation to the Respondent's rights
and to the rights of the employees who entered and left the
plant at that time. Coercion of this nature cannot be
presumed to be innocent and protected by the Act.
However, I do not conclude that this type of misconduct is
necessarily the type of misconduct which warrants
discharge or refusal to reinstate. In thus finding this I note
the Respondent's preceding unfair labor practice in
refusing to pay vacation pay. I note also that although I did
not find the Respondent' s use of cameras on the picket line
to be violative of the Act, there is ample evidence and I find
that the Respondent's supervisors and officers did, indeed,
carry cameras openly in and about the picket line area. I
therefore find and conclude that the use of cameras by
Fletcher to take pictures of strikebreakers entering and
leaving the plant is not so egregious in nature as to warrant
his disch'arge.19 Accordingly, I find that the discharge of
Fletcher was in violation of Section g(ax3)' and (1) of the
Act.
, The cases of Lora Creek and Barbara Tarpley must be
accorded the same disposition as those of Brewer, Snyder,
and Fletcher. Tarpley and Creek were certainly guilty of
misconduct on the picket line, which cannot be condoned.
However, their misconduct consisted of screaming and
yelling the words "scab" and other obscenities. There was
18 Allied Industrial Workers, Local 289, unreported.
19 See Local 833, UAW (Kohler Co.) v. N.L.R.B. 300 F.2d 699
(C.A.D.C.).
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some testimony, which I credit, to the effect that at least at
one time they put their arms together to prevent a person or
persons entering the plant from walking on the sidewalk.
The Board has recently held 20 that ."Section Ts protection
of employees who participate in picket lines during
legitimate lawful strikes would beeunduly=jeopardized if any
misconduct on the picket line, .without regard for the
seriousness of such conduct, were automatically to
constitute'grounds-for refusal to reinstate strikers. Mean-
ingful protection in this case must require that the relatively4i
minor and isolated aforesaid incidents .are misconduct, a
great many 'of which cannot be imputed directly and
personally to the alleged discriminatees, do not remove the
Act's protection from the perpetrators, or suffice to
legitimatizea failure,to reinstate them."
In the cited case,, the employees engaged in conduct on
the' picket line which consisted of obscene statements and
name calling, threats of personal injury, and presence in a
group in which property damage occurred. I find that the
conduct of Tarpley and Creek was of a lesser nature than
that found in the cited case . The Board in that case found
the refusal to reinstate the. employees so engaged to be
violative of the -Act. Accordingly, following precedent, I
-find`that the 'discharges of Creek and `Tarpley, were also
violative of Section $(a)(3) and (1) of the Act.
I come -to a- different result in the cases of James
Holsomback and Otis Green. In both instances I have
found that each of these individuals hurled rocks at cars
entering the plant which rock hurling resulted in property
damage. These ' were acts directly attributable to both
Holsomback and Green. Under the' circumstances, I have
no alternative but to_ find that their acts constituted
violence' of such a serious -nature as to justify-, the
Respondent's refusal to reinstate them , and the Respon-
dent's action in discharging them. Accordingly, I shall
dismiss those portions of the complaint which allege that
the Respondent violated Section 8(a)(3) and (1) of the-,Act
in the discharge of Green and Holsomback.
I come to a like conclusion in the case of Bill Nunley.
Nunley threatened the life of Billy Thompson because the
latter took his place in the Respondent's plant while Nunley
was striking. This was not a threat made on the,picket line
in the midst of turmoil such as` occurred on November, 3,
1969. This was not the exhuberance- of a picketer yelling at
strikebreakers crossing the picket line in the middle of, a
,disturbance`at the picketing site . This I was a deliberate
attempt away from the picket line at' the home, of the
intended victim's sister to intimidate, coerce, and perhaps
do more than just threaten. Accordingly, I shall dismiss that
portion of the complaint which alleges that Bill Nunley was
discriminatorily discharged.
As heretofore set `forth more fully, Leonard Rollins was
deeply involved in the boycott of the Coca-Cola Company
which was endorsed and sponsored by the poor peoples'
coalition. As noted,` Rollins spoke at the meetings at the
Labor Temple in which the Union had its offices, and
meeting rooms and at' which the Reverend Wright
participated in organizing the coalition. Moreover, Rollins
20 Hartmann Luggage Company, 183 NLRB No. 128.
21 The Respondent does not contend that the information sought by the
Union in its letter of February 7 was not relevant . There is no contention
admittedly, participated in the marches which were
sponsored by :the- coalition. Thus there, is evidence that
Rollins participated in and sponsored' the coalition which,
in turn,3sponsored the boycott. As noted, no one from, the
Union could identify the writer or publisher of the handbill
which asked the public of Chattanooga and the area not to
purchase Coca-Cola. However, from the news conference
in which Rollins participated and from the -marches in
which he took an active part and helped,direct-and in which
the marchers. carried placards ,asking the public not to buy
Coca-Cola, it is concluded that Rollins,, did, indeed,
participate as a leader in the plan to boycott Coca-Cola
products because Coca-Cola purchased machines manufac-
tured by the Respondent against whom the Union was
striking. While this boycott might not have been technically
a boycott within the -meaning of Section 8(b)(4K)(ii)(A)
and (B) of the Act, I nevertheless find that it was a boycott
which took umbrage with a customer or customers of the
Respondent in an attempt to cause the public not to buy the
product of the customer in order to force the customer to
cease "doing business with the Respondent. This certainly
was not a boycott of the product of the primary employer,
the Respondent in, this case ,`-but was a' boycott of the
product of the secondary employer. Accordingly, I find `and
conclude that Rollins actively' participated and engaged in
a leadership role in conduct which extended the strike
against. his employer beyond the domain `of his immediate
employer to person or persons doing business with his
employer. While this, technically, might not have been an
unfair labor practice in and of itself, it nevertheless
constituted such conduct as would be inexcusable on the
part of any employee who participates in such secondary
activity. Therefore, I find and,conclude that the Respon-
dent's discharge of Rollins was for, cause. Accordingly, I
shall dismiss that portion of the complaint which alleges
that the discharge , of Rollins was in violation of Section
8(a)(3) and (1) of the Act.
In summation , I find, and conclude that the suspension
and discharges of Fred Fletcher,. Vernon Brewer, and
Edward Snyder , were discriminatory and violative, of
Section 8(a)(3) and (1) of the Act. I additionally.find that
the discharges of ,Barbara Tarpley and Lora Creek were
discriminatory and therefore violative of, Section 8(aX3)
and (1)` of the Act. However, I do noty find that the
discharges of Otis Green, James Holsomback, Bill Nunley,
and Leonard Rollins ' were violative of Section 8(ax3) and
(1) of the Act and I shall order dismissed those portions of
the complaint which allege that their discharges were
violative of the Act.
2. As to the refusal to bargain
The Respondent defends. its refusal to bargain on and
after December 4, 1969, and its refusal to give the Union
information, on February 10, 1970, 21 on the ground,
primarily, that -there was a petition for decertification
pending which petition raised a question concerning
representation. Also, the Respondent contends that more
people were working in the plant than were on .strike and,
by the Respondent that it was not legally obligated to give this information
insofar as the content of the information is concerned.
CAVALIER DIV. OF SEEBURG CORP. 305
further, that Raoul, the Respondent's board chairman, had
heard overwhelming sentiment among the , employees
working to the effect that they no longer desired to be
represented by the Union. The Board has held that in
situations such as the one presented here, where the
withdrawal of recognition occurs after the expiration of the
certification year, the Union is to be afforded the benefit of
a presumption of continuing majority status, but that such a
presumption may be rebutted by the showing that the
employer entertained a good-faith doubt which was based
on objective considerations.22 It therefore becomes neces-
sary to evaluate the merits of the so-called objective
considerations which the Respondent offers as the basis for
its claim of a good-faith doubt as to the Union's majority.
The courts have held that, where the doubt is based on a
decertification petition, the naked fact that such a petition
has been filed would not appear to be enough since nothing
else appearing it indicates merely that the petition is
supported by the requisite 30 percent "showing of
interest." 23 However, there are the other factors on which
the Respondent relies, . Raoul cited the fact that he knew
that 357 people were crossing the picket line and that there
were 307 or thereabouts striking employees, some of whom
had gone to work in other places. However, the Board has
clearly stated that the mere failure of employees to support
a strike called by their bargaining representative does not
give rise to a presumption that these employees have
repudiated the Union as their bargaining representatives.24
Moreover, employees who joined the strike at the outset but
later abandoned it are also not presumed to have indicated
their lack of support for, the Union as their bargaining
representatives .25 ' There is still to be considered Raoul's
statement that, he heard the sentiment of the people who
were ' working who desired not to be represented by the
Union any longer. But here again the Respondent does not
in'any of its proffered testimony offer any figures as to, the
numbers or identity of the individuals who expressed this
sentiment.
In contrast to these so-called objective considerations
which the Respondent cites there are the outstanding unfair
labor practices in which the Respondent engaged prior to
its refusal to further bargain with the Union. As of the date
of December 4, the first date of its refusal to bargain, the
Respondent had unlawfully refused to pay the vacation pay
in July as it had accrued to the striking employees and all
other employees. I have heretofore found this to have been
a violation of Section 8(a)(3) and (1) of the Act.
Furthermore , I have heretofore found that the suspension
of Fletcher, Snyder, and Brewer to have been a violation of
Section 8(a)(3) and (1) of the Act. Thus, if, indeed, there
was a loss of majority in union membership as of the, time
of the refusal to bargain, such loss was due, at least in part,
to the Respondent's own unfair labor practices. Hence, I
find that the Respondent cannot justify its action on the
basis of a good-faithful doubt as to the 'Union's majority
status and , therefore , the Respondent's withdrawal of its
recognition of the Union as the majority representative
22 Wabana, Inc., 146 NLRB 1162, 1171; Laystrom Manufacturing Co.
151 NLRB 1842.
22 Wabana Inc., 146 NLRB 1162, 1171; Massey-Ferguson, Inc., 184
NLRB No. 69.
of the employees as a bargaining unit was a violation of
Section 8(aX5) and (1) of the Act.
Moreover, even assuming, arguendo, that the Respondent
did, indeed, have a good faith doubt as' 'to the Union's
majority as of the time that it refused to, bargain, by its own
figures the Respondent cannot support a' finding that the
Union no longer' represented a majority of its employees. As
stated above the mere failure of employees to support a
strike called by their -bargaining representative "does not
give rise to the presumption that these employees have
repudiated the Union as their bargaining representative.
Moreover employees who have abandoned the strike are
not presumed to have indicated their lack of support for the
Union. Therefore, the figures of 357 employees working
and only. 307 striking would not support as an objective test
a finding that the Union had, in fact,' lost its majority.
Moreover, the Respondent also cites the fact that some
employees who were striking abandoned the strike to" take
other employment elsewhere. This additional factor,
however; does not bolster the Respondent's argument that
the'Union no longer is a majority, representative of the
Respondent's employees. Strikers who abandon- the strike
for the purpose of seeking employment elsewhere cannot be
said to have abandoned their desire to work for the
Respondent as members of the bargaining unit., The, most
that can be said for these employees is that they were forced
for economic reasons to seek employment- elsewhere in
order to support themselves and their families. Therefore, I
conclude that the Respondent has failed to establish, .by
objective considerations that; the Union was no longer a
majority representative of the bargaining unit employees at
the time that the Respondent refused to bargain.
In connection with the foregoing, I find that the Union
has been, since March 5, 1962, and now is, the representa-
tive of a -majority of employees of the Respondent in the
following unit which I find to be appropriate for the
purposes of bargaining within the meaning of the Act:
All production and maintenance ` employees at the
Respondent's Chattanooga, Tennessee plant, including
group leaders, but excluding office clerical, plant clerical
employees, watchmen, guards, laboratory technicians,
engineers, draftsmen, research development employees,
professional employees, assistant foremen, working fore-
men, and all other supervisors as defined in the Act.
Accordingly, I find that by refusing to bargain with the
Union on and after December 4, 1969, and by' refusing to
give the Union relevant information on February 12, 1970,
the Respondent unlawfully refused-to bargain in good faith
with the Union in violation of Section 8(a)(5) and (1) of the
Act.
3. The nature of the strike
The question presented is whether the illegal activity of
the Respondent, found above, "served to aggrevate and
prolong the strike." 26 The Board has held that contributing
to the prolongation of the strike by the commission of
24 Coca-Cola Bottling Works, Inc., 186 NLRB No. 142; Palmer Asbestos
& Rubber Corp., 160 NLRB 723.
25 Frick Co, 175 NLRB No. 39.
26 Erie Resistor Corporation, 132 NLRB 621 at 632.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices has the legal effect of converting an
economic strike into an unfair labor practice strike.27 I find
and conclude that the action of the Respondent in
unlawfully refusing to pay vacation pay on or about July 29
served to, aggrevate and prolong the strike. I have
heretofore recited how the employees-who were on strike
reacted 'at the union membership meeting to the announce-
ment by Fletcher that the Respondent was not going to pay
the accrued vacation pay. Thus this action by the
Respondent necessarily resulted in a change of the, attitude
of striking employees from employees merely seeking
economic gains to one, of the employees seeking redress for
unfair labor practices against them. Moreover,, even if the
refusal to pay vacation pay did not convert the strike and
serve to prolong and aggrevate the situation, then certainly
the suspension of the three union adherents, Fletcher, the
president of the Union, Brewer, a member of the bargaining
committee , and Snyder, had that effect. Finally, even if
these' 'two occurrences' were not sufficient in and of
themselves to convert the strike, then surely Respondent's
refusal to bargain in December was the ultimate in serving
to aggrevate'the situation.
-Accordingly, I find and conclude that the strike was
converted from an economic strike to an unfair labor
practice strike on July 29, 1969.
The Respondent argues that at no `time did the picket
signs change from the economic type to, signs in which the
pickets were complaining of unfair labor practices of the
Respondent. The Respondent contends, therefore, the
outward signs would indicate that the nature of the strike
continued to be economic despite the other circumstance. I
could find no precedent in which the Board or the courts
have held that the mere failure to change the picket signs
from economic picket signs to'unfair labor practice picket
signs- would prevent a finding that a strike had been
converted from an economic to an unfair labor practice
strike.
4. The Respondent's reinstatement obligations
Inasmuch as it has been found heretofore that the strike
was converted into an unfair labor practice strike on or
about July 28 or 29, 1969, which was at a time when no
„replacements had as yet been hired by the Respondent, the
Respondent was therefore under an obligation at the end of
the strike to reinstate all of the unfair labor practice strikers
who made unconditional application to return to work. On
February 7, 1970, the Union, on behalf of all striking
employees, made such unconditional application by letter
from the Union signed by the, Union's president, Fletcher,
to the Respondent. Thus, the Respondent's reinstatement
obligation accrued on February 7, 1970, or at the latest the
date on which the letter from the Union to the Respondent
was received by the Respondent.
On February 10, 1970, Respondent, through its counsel,
Hutcheson, answered-Fletcher's letter of February 7. In his
letter, Hutcheson stated that, while the Respondent
acknowledged the statement of the Union that it had
terminated its strike, Respondent felt that the statement
27 Kohler Co., 128 NLRB 1062 at 1084
28 See Coca-Cola Bottling Works, Inc., 186 NLRB No. 142.
29 Coca-Cola Bottling Works, Inc., supra. See also Rybolt Heater Co., 173
that "all strikers are available and willing to return to work
immediately and unconditionally," raised some questions
which needed resolution before the Respondent could
assess its responsibilities in - the matter. Specifically,
Hutcheson stated that Respondent"had information' that
some of the employees previously on strike had secured
permanent' employment elsewhere; - that some of the
persons - had moved out of the area and were thus: not
available; and that others for various° reasons did not desire
to return to ,work. Therefore, according to Hutcheson, the
Respondent needed more information. The letter from
Hutcheson to Fletcher went on to "request that -you
immediately supply us with an accurate list of the names
and addresses of all previous strikers; who have not made
application individually or who desire to preserve their
rights the Cavalier Corporation. If we do not receive,such a
list within a reasonable time, we will assume that, none
other than those who have made- individual application
desire to preserve such rights as they may have:at Cavalier."
The Board has recently held that the obligation to
reinstate is on the, Respondent, and the Union is under no
obligation to furnish the Respondent a list of availability, of
returning strikers.28 `
Finally, as late as March 2, 1970, almost an entire month
after the request for reinstatement was made by Fletcher on
behalf of the striking employees, Hutchesonwrote Fletcher,
in answer to a letter`from Fletcher dated February, 27„ 1970,
repeating the request to return to work, that the Respon
dent'had accumulated substantial evidence that contrary to
the Union's ' assertion many previously striking employees
have no further interest in being employed by Cavalier. The
letter then went on to say that "your unconditional offer to
return to work on behalf of the striking employees is quite
'obviously too broad and inaccurate 'to be "relied upon."
'-Thus, it is apparent that as `late as March 2, 1970, the
Respondent had not completely complied with the Union's
request, for unconditional reinstatement of the striking
employees.
Accordingly, I find that the Respondent's reinstatement
obligations accrued on February 7, 1970, and that its failure
to reemploy all of ' the strikers before March 2 was an
unreasonable delay in their reinstatement and under the
circumstances presented here such conduct was violative of
Section 8(a)(3) and (1) of the Act 29 In these circumstances,
therefore, it will be left-to later compliance proceedings of
the Board to resolve the issue of which employees were
denied- timely and full reinstatement and what; if any,
backpay might be owing to particular employees.30 '
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent found to constitute unfair
labor practices, as set forth in section III, above, occurring
in connection with its operations described in section, I,
above, have a close, intimate, and substantial relation; to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
NLRB No. 89, and cases cited therein.
sa Cf. Florence Printing Co., 158 NLRB 775.
CAVALIER DIV. OF SEEBURG CORP. 307
THE REMEDY
Having found that Respondent engaged in and is
engaging in certain unfair labor practices it shall be
recommended that it cease and desist therefrom and take
certain affirmative action necessary to effectuate the
policies of the Act.
It having been found that the Respondent has discrimina-
torily deferred the payment of vacation pay when due to its
employees, I shall recommend that the Respondent cease
and desist ' therefrom. However, because the said vacation
pay has since been paid to the employees, the necessity to
order payment has been obviated.
It having been found that the Respondent has discrimina-
torily discharged Fred Fletcher, Vernon Brewer, Edward
Snyder, Barbara Tarpley, and Lora Creek, I shall
recommend that Respondent offer the said employees
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their
seniority or other rights and privileges. In addition, I shall
recommend that Respondent make these employees whole
for any loss of earnings they may have suffered by reason of
the discrimination against them by payment to each of a
sum of money 'equal -to that which each would normally
have earned from February 7, 1970, the date on which the
Union made unconditional offer to return to work after the
strike, less net earnings during said period. Backpay shall
be computed - with interest on a quarterly basis in the
manner described by the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-295, and Isis Plumbing &
Heating Co., 138 NLRB 716.
It having been found that the economic strike which
began on July 21, 1969, was converted, on July 29, 1969,
into an unfair labor practice strike, employees who were on
strike at that time thus became unfair labor practice strikers
and were, in consequence thereof, entitled to reinstatement
upon application made for them by the Union-on February
7, 1970, irrespective of 'whether their positions were
thereafter filled by replacements hired by the Respondent.
It therefore will be recommended, in order to effectuate the
'policies of the Act, that the Respondent offer these
employees immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, I am aware of
and have considered the evidence submitted -by the
Respondent that a number of these employees have already
been reinstated to some position in the Respondent's plant.
However, on the present state of the record I cannot
ascertain whether the reinstatement has been to „ their
former or substantially equivalent positions. It is therefore
fitting that the determination of these matters be left to a
supplemental, backpay proceeding. I shall recommend that
the Respondent make whole employees who were on strike
up to February 7, 1970, for any loss they may have suffered
by reason of Respondent's refusal, if, any, to reinstate them,
by payment to each- of them of a sum of money equal to
that which he normally would have earned as wages, such
sum to be computed from February 12, 1970, 5 days after
the unconditional offer to return to work was made by the
Union, together with interest thereon at the rate of 6
percent per annum. Computation of backpay shall be made
in the manner set forth in F. W. 'Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138- NLRB
716.
Having found that Respondent has unlawfully refused to
bargain with the Union in good faith and has thereby
violated Section 8(a)(5) of the Act, I shall recommend that
the Respondent cease and desist from refusing ' to so
bargain and shall further recommend that the Respondent
bargain, upon request, with the Union and, if `an
understanding is reached, embody such understanding in a
signed agreement.
Having found that Respondent has unlawfully refused to
bargain in refusing the information requested by the Union
in its letter of February 7, 1970, 1 shall recommend that the
Respondent cease and desist therefrom and shall further
recommend that the Respondent furnish to the Union such
information as is necessary and that is requested in such
letter. -
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act,
2. The Union is a labor organization -within the
meaning of Section 2(5) of the Act.
3. By deferring the payment of vacation pay of its
employees because they were on a strike, a protected
concerted .union activity, Respondent has engaged in
discrimination in regard to terms and conditions of
employment of its employees within the meaning of Section
8(a)(3) of the Act.
4. By discriminatorily suspending employees Fred
Fletcher, Vernon Brewer, and, Edward Snyder and by
discriminatorily discharging employees Fred. Fletcher,
Vernon Brewer, Edward Snyder, Barbara Tarpley, and
Lora Creek, because they engaged in protected concerted
union activity, Respondent has violated Section 8(a)(3) and
(1) of the Act.
5. All production and maintenance employees at the
Respondent's Chattanooga, Tennessee, plant, including
group leaders, but excluding office clerical, plant clerical
employees, watchmen, guards, laboratory technicians,
engineers, draftsmen, research development employees,
professional employees, assistant foremen, working fore-
men, and all other supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
6. At all times since on or about March 5, 1962, the
Union has been, and' is, the representative of a majority of
employees in the unit described above, for the purposes of
collective bargaining and, -by virtue of Section 9(a) of .the
Act, has been and is the exclusive representative of all the
employees in said unit for the purposes- of collective
bargaining.
7. By refusing on or about December 4, 1969, and
thereafter, to bargain collectively with the, aforesaid labor
organization, the Respondent has engaged in and -is
engaging in unfair labor practices within'the meaning of
Section 8(a)(5), and (1) of the Act.
8. By refusing on or about February 10, 1970, and at all
times thereafter to furnish to the Union relevant informa-
tion requested by the Union, the Respondent has engaged
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and is engaging in unfair labor practices, within the
meaning of Section 8(a)(5) and (1) of the Act.
9. By failing to act promptly on the Union's request for
reinstatement of striking employees, thereby causing an
unreasonable delay. in the reinstatement of said employees,
the Respondent has violated Section 8(a)(5), (3), and (1) of
the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 31
ORDER
Respondent , Cavalier Division of Seeburg Corporation
and Cavalier Corporation , its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to pay accrued vacation pay when due
because - its employees are engaged in a strike or other
concerted or union activities.
(b) Discouraging membership in Allied Industrial
Workers, AFL-CIO, Local Union No. 289, or any other
labor organization, by suspending or discharging any
employees for engaging in a strike or other protected union
or concerted activity or by discriminating against employ-
ees in any other manner in regard to their hire and tenure of
employment or any term or condition of employment.
(c) Refusing to bargain collectively with or furnish
relevant information to Allied Industrial Workers,
AFL-CIO, Local Union No. 289, as the exclusive
representative of its employees in the following appropriate
unit:
All production and maintenance employees at the
Respondent's Chattanooga , Tennessee, plant, including
group leaders , but excluding office clerical, plant
clerical ' employees, watchmen, guards, laboratory
technicians , engineers, draftsmen, research develop-
ment employees , professional employees , assistant
foremen, working foremen, and all other supervisors as
defined in the Act.
(d) Delaying for an unreasonable length of time the
reinstatement of employee -strikers on whose behalf the
Union has made unconditional application for reinstate-
ment.
(e) In any other manner interfering with , restraining, or
coercing employees in the exercise of their right to self-
organization , to form, join, or assist Allied Industrial
Workers, AFL-CIO, Local Union No . 289, or any other
labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other
concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any
and all such activities.
3i In tha event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section I02A8 i of the Rules and Regulations, be adopted by the Board and
become its findings , conclusions and Order , and all objections thereto shall
be deemed waived for all purposes.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Fred Fletcher, Vernon Brewer, Edward
Snyder, Barbara D. Tarpley, and Lora Creek immediate
and full reinstatement to their former job's or, if those jobs
no longer exist, to' substantially equivalent positions,
without prejudice to their seniority or other rights ' and
privileges, and make them whole for any loss of earnings
they may have suffered as 'a result of the discrimination
practiced against them 'in the manner set forth in the section
of this decision entitled "The Remedy,"
(b) Offer reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights` and privileges, to all employees who were on
strike on and after July 21, 1969, on whose behalf the
Union has unconditionally requested, reinstatement, dis-
missing, if necessary, any persons hired after that date and
make each such employee' whole for any loss of earnings he
may have suffered, in the manner set forth in the section
hereof entitled "The Remedy."
(c) Notify, any of its employees in the, above two
categories if presently serving in the'Armed Forces of the
United States of his right to full reinstatement in
accordance with the Selective Service 'Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed forces.
(d) Upon request, bargain _ collectively with, , Allied
Industrial Workers, AFL-CIO,, Local Union No. 289, as
the exclusive bargaining representative of the Respondent's
employees in the unit 'found appropriate with-respect, to
rates of pay, wages, hours of employment, and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(e) Preserve and, upon request, make available to, the
Board or its ,agents, for examination and copying, all
payroll records, social security payment records and
reports, and' all other reports necessary to analyze the
amount of backpay due under, this Order.
(f) Post at its plant in Chattanooga, Tennessee, copies of
the attached notice marked "Appendix."32 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous, places, includ-
ing all places ' where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices ' are not altered, defaced, or
covered by any other material. No other material relative to
this matter shall be posted, during this period.
(g) Notify -the Regional Director for Region 10, do
writing, within 20 days from receipt of this Decision, what
steps the Respondent has taken to comply herewith 33
IT Is{FURTH R ORDERED that the complaint herein shall be
dismissed with respect to any unfair labor practices which
32 In the event that the Board 's Order is enforced by a Judgment of a
United, States Court of Appeals, the words in the notice reading "Posted by
Order oft the National Labor, Relations Board" shall be changed to read
"Posted Pursuant to a Judgment , of the United States Court of, Appeals
Enforcing an Order of the National Labor Relations Board."
33 In the event that this recommended 'Order is adopted by the Board
CAVALIER DIV. OF SEEBURG CORP. 309
are alleged and have not been found to have been violations.
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 10, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."