Terry Coach Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 560 (N.L.R.B. 1967)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Terry Coach Industries , Inc. and Industrial Car-
penters Union , Local 530, United Brotherhood
of Carpenters & Joiners of America , AFL-CIO,
Case 21-CA-7219
June 30, 1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On March 31, 1967, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions,' the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified
herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Terry Coach Indus-
tries, Inc., El Monte, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
MAURICE ALEXANDRE, Trial Examiner: This matter
was heard at Los Angeles, California, on November 16,
1966, upon a complaint issued on September 15, 1966,1
alleging that the Respondent had violated Section 8(a)(3)
and (1) of the National Labor Relations Act, as amended,
by refusing to reinstate Willis H. Smith. In its answer,
Respondent denied the commision of any unfair labor
practices, alleging that Smith was not entitled to reinstate-
ment by reason of misconduct during the course of a
strike.
Upon the entire record, my observation of the wit-
nesses, and consideration of the briefs filed by the
General Counsel and the Respondent, I make the follow-
ing:
FINDINGS AND CONCLUSIONS2
1. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Respondent is a California corporation engaged in the
manufacture and distribution of travel trailers at its plant
in El Monte, California, where it employs about 100 per-
sons. Until the strike at the plant, Willis H. Smith was a
leadman in the metal department, where his duties con-
sisted of applying the metal and outside moldings on
trailers.
On May 3, 1966,3 a number of Respondent's em-
ployees, including Smith, spontaneously ceased work and
went on strike to obtain higher wages. Advice was sought
from the Charging Union, union authorization cards were
signed by a number of employees, and picketing began
the next day. On May 11, on advice from the Union, the
strikers, including Smith, presented themselves at
Respondent's plant, unconditionally offered ter return to
their former jobs, and were informed by Respondent that
they would be notified as soon as places could be found
for them at the plant. That evening, Smith received a tele-
gram from Respondent stating that he had been
discharged because of his misconduct during the strike.
The parties stipulated that Smith had not been replaced
at the time he sought reinstatement, and that the only
issue presented is the question of his misconduct during
the strike, discussed below.
B. The Lunch Truck Incident
' The Respondent 's exceptions to the Trial Examiner's Decision are in
large part directed to the credibility resolutions of the Trial Examiner We
will not overrule the Trial Examiner 's findings as to credibility unless a
clear preponderance of all the relevant evidence convinces us that they
were incorrect Upon the entire record , such conclusion is not warranted
here. Standard Dry Wall Products , 91 NLRB 544 , enfd. 188 F.2d 362
(C A. 3).
2 The complaint alleges that the Respondent also violated Section
8(a)(3) of the Act in refusing to reinstate Smith The Trial Examiner inad-
vertently made no finding in that regard . In the absence of exceptions
thereto, we hereby dismiss the 8(a)(3) allegation of the complaint. In ac-
cepting the Trial Examiner 's violation findings, we deem it unnecessary to
decide or pass upon so much of his decision as suggests that Smith would
be entitled to reinstatement even if he had committed all of the acts of
misconduct the Respondent attributed to Smith. We agree with the Trial
Examiner 's conclusion that Smith's misconduct in the three incidents
found was not such as to remove him from the protection of the Act.
On May 4, several pickets stopped a lunch truck,
which serviced plant employees, just as it emerged
through the main gate to the plant. Employee Kummer
testified that about 11:45 a.m. that day, he was eating
' Based upon a charge filed on May 24, 1966, and an amended charge
filed on September 13, 1966, by Industrial Carpenters Union, Local 530,
United Brotherhood of Carpenters & Joiners of America, AFL-CIO.
2 No issue of commerce is presented. The complaint alleges and the
answer admits facts which establish that Respondent is an employer en-
gaged in commerce within the meaning of the Act I find such facts to be
as pleaded.
3 All dates hereafter mentioned relate to 1966 unless otherwise in-
dicated.
166 NLRB No. 76
TERRY COACH INDUSTRIES, INC. 561
lunch in his car parked about 20 to 30 feet away from the
truck; that the pickets asked the truckdriver why he had
gone inside and who was going to feed them; that as the
truck left, he heard Smith yell at the driver, "You better
not come back tomorrow, you chicken shit"; and that he
reported the incident to Production Manager Brewster.
On direct examination, in reply to an inquiry as to
whether he could clearly hear what was being said during
the conversation, he replied, "Yes, definitely." On cross-
examination, he testified that he heard Smith and another
employee ask questions of the truckdriver, but could not
hear the latter's answers. He further testified that Smith
often wore a red shirt at the plant and did so that day,4
and that he was able to see Smith from the side as the
latter shouted at the truck. Kummer further testified that
he saw Smith's new Thunderbird at the plant that day
sometime prior to the incident, but that he was not certain
that he actually saw Smith at the plant either before or
after the incident.
Production' Manager Brewster testified that shortly be-
fore noon on May 4, he was informed that the lunch truck
had been stopped; that upon going out he saw the truck
surrounded by about 15 persons, began running to a
telephone and did not see Smith; that someone shouted
that Brewster was going to call the police; that the pickets
moved aside and the truck left; that shortly thereafter, he
was told on the telephone by the truckdriver that he had
been stopped and threatened, was frightened, and did not
know whether or not to return; that Brewster told him to
return that afternoon; and that the truck did return and
subsequently serviced the employees at normal times.
Smith denied that he threatened or even talked to a
lunch truck driver at the plant that day. He testified that
on the third or fourth day of the strike, a lunch truck
began to enter the plant and stopped at the place where he
and a group of pickets were standing; that some of the
pickets asked the driver not to go inside; but that the
latter replied that he had to go in. He further testified that
on May 4, he arrived at the plant about 8 a.m.;5 that a
union representative instructed the strikers to go to the
union hall to obtain picket signs; that " [w] a all got in our
cars and followed each other down there"; that after
about an hour, he returned home for lunch; and that at
about 1 p.m., he went back to the plant, where he
remained for the rest of the day. Smith was later called as
a rebuttal witness, at which time he testified as follows.
At the time of the strike, he owned a shirt of "orangish
color" but did not own or wear a red shirt. On the morn-
ing of May 4, he left his 1966 Thunderbird at home, was
driven to work by his half-brother, Don Wright, in the
latter's car and went in the same car to the union hall
about 9 or 10 a.m. and then to his home after an hour or
two. He arrived home close to noon, ate lunch, remained
there about an hour, and then returned to the plant in his
own car at 1 or 1:30 p.m. He was not at the plant during
the lunch hour.
Donald Wright, Smith's half-brother who was also
called as a rebuttal witness, testified on direct examina-
tion that he picked up Smith in his car on May 4, drove
him to the plant, then to the union hall, and then to
Smith's home "way before lunch." On cross-examina-
tion, he testified that they left the union hall about 1 p.m.,
and that Smith was back at the plant between 1:30 and 2
p.m. On redirect examination, he testified that he dropped
Smith at home "pretty close to lunch. Somewhere in that
neighborhood."
I credit Kummer's testimony that Smith participated in
stopping the truck for a few minutes, and that he made the
remarks attributed to him. Kummer recalled seeing
Smith's new Thunderbird at the plant during the morning
of May 4, and identified Smith as the picket who made
the remarks to the driver about noon that day. Although
Smith later denied that he drove to the plant in his own
car that morning, he testified on direct examination that
the strikers went to the union hall "in our cars." It was
not until his rebuttal testimony that he stated that he was
driven to the plant, to the union hall, and finally to his
home, in Wright's car. Wright gave conflicting testimony
as to when he reached Smith's home. Since he stated at
one point that he drove to Smith's home considerably be-
fore lunch, it is probable that Smith had a very early lunch
and returned to the plant before noon.
C. The Name-Calling Incident
Production Manager Brewster testified that on May 4,
while standing in front of the plant office adjacent to the
alley along the side of the building, he heard Smith say to
two female nonstriking employees as they were leaving
through the main gate at quitting time: "You bitches ...
You guys setting down working, that is why you got
broad asses." He testified that he recognized Smith by his
red shirt and jeans;6 that at first he was about 12 feet from
Smith and did not hear what Smith said; that he ap-
proached, saw Smith's profile, and was within 6 feet of
him when he heard Smith's remarks; that the two non-
strikers were accompanied by a man; that some of the
plant managers were standing in front of the office; and
that the sheriffs were at the plant gate. He further testified
that another employee was standing close to Smith at the
time of the remarks. When asked to identify the em-
ployee, Brewster testified as follows:
Q. Who was that?
A. Well, I am not right sure who it was.
Q. You couldn't see his face?
A. No, I couldn't see his face... .
* * *
Q. And you do not know who he was?
A. I think I know who he was , but I wouldn't say,
because I can't swear to it.
According to Brewster, the girls ignored Smith.
Smith testified that he made no obscene remarks to em-
ployees leaving the plant and that he neither spoke to nor
saw any female employees leave the plant through the
front.
It seems unlikely that Smith would make insulting re-
marks to female employees in the presence of sheriffs
deputies. In any event, Brewster evidenced some unreli-
ability in his testimony regarding his recognition of the em-
4 Kummer testified that he had seen red shirts worn by other employees
at the plant.
5 On cross-examination, Smith testified that he arrived shortly before
work began at 7:30 a.m.
6 Brewster testified that he had seen Smith wear the red shirt before,
that he generally wears jeans, that the shirt was "pretty close" in color to
the one he was wearing at the hearing, that the red shirt and jeans were
"significant" to him, but that he knows Smith regardless of what he wears.
562 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
ployee standing beside Smith. Moreover, his testimony
regarding Smith's remark was not corroborated by the
employees to whom it was allegedly addressed. Ac-
cordingly, I do not accept his testimony, and I credit
Smith's denial that he made the remarks.
D. The Rakow Incident
Employee Rakow struck with the other employees on
May 3, but returned to work on May 4. On leaving the
plant that day, he found that two tires on his car had been
damaged. While working on his tires, he was approached
by Smith and employee Jovee. On direct examination,
Rakow testified that "outlandish" things "were said" to
him, i.e., he "was called" names such as "a bastard and a
son of a bitch," and was told that "they" would "get" him
if he did not join the strikers; that some of the remarks
were made by Smith; and that some were made by Jovee
and a few other persons who had walked up. When asked
which remarks were made by Smith, Rakow testified that
he made the threat.? On cross-examination, Rakow
testified that about all that Jovee said was that he did not
slice the tires, that Smith was the only one who attempted
to have him join the strike, and that Smith called him
several names and threatened him. When asked to explain
the meaning of "outlandish" things, he testified that he
"was called" the epithets quoted above. Smith admitted
talking to Rakow on that occasion but denied threatening
him.
In view of Rakow's conflicting testimony as to whether
Smith called him names on May 4, as well as his frequent
use of the passive tense without naming Smith, I am un-
able to rely upon his testimony. Accordingly, I find that
Smith did not call Rakow names on May 4, and I credit
Smith's denial that he threatened Rakow on that date. In
any event, the record does not establish that Rakow told
any representative of Respondent about the incident prior
to the refusal to reinstate Smith. I am thus unable to find
that the incident was one of the reasons for such refusal.
E. The Rakow-Pearl Incident
Shortly after 7:30 a.m. on May 5, six to eight strikers,
including employees Smith, Vincent, and McKee, en-
gaged in picketing in the alleyway, 10 to 12 feet in width,
which adjoined the plant and led to a parking lot in back
of the plant. Assistant Production Manager George
testified on direct examination that the pickets blocked
the entrance to the alley so that cars could not enter it and
were compelled to reach the parking lot by driving on ad-
joining property; that the pickets refused to comply with
his request to move and stop blocking the entrance to the
alley; that when employee Joseph Pearl arrived, he "just
kept on coming, so they moved for him"; but that em-
ployee Arthur Rakow found it necessary to get to the
parking lot via the driveway next to the alley. George
further testified as follows:
When Joe and Art wouldn't stop, and kept on com-
ing, Willis Smith swore at them and called them a
bastard and son of a bitch, and said, "We will take
care of you."
On cross-examination, George testified that the pickets
"wouldn't move" when the first car to arrive that morning
sought to enter the alley. On further interrogation, -he
added, "Not until they were on top of them" and that the
car went through the alleyway. He also testified that he
and a union representative went to a sheriffs car parked
nearby, and that at their request the sheriffs deputy
requested the pickets to keep moving and refrain from
blocking the alley; that when it appeared that an entering
car would continue moving, the pickets stepped aside; but
that some cars slowed down to a stop and the pickets
sought to persuade the occupants not to enter the plant.
George further testified that when employee Pearl ar-
rived, the entrance to the alley was blocked and he ac-
cordingly turned down the adjacent driveway and was not
delayed in any way; and that he was standing behind
Smith at the time he `heard Smith call Pearl the epithets
quoted above. Finally, George testified that when em-
ployee Rakow arrived shortly thereafter, he slowed down
but kept on going; that the pickets moved out of his way;
and that he did not specifically recall any remarks made
to Rakow.8
Rakow testified that the pickets moved out of his way
when his car was about 6 or 7 feet from them; that he was
not delayed and in fact "made it faster than usual"
because he was going faster; and that he recognized
Smith's presence among the pickets by the red shirt that
he wore, but was not looking at Smith when he heard his
voice. When asked whether he heard Smith use an epithet
and threaten him, he replied, "I was sworn at."
Smith denied that he ever blocked ingress to the plant
by Rakow, Pearl, or any other nonstriking employee, and
denied that he ever threatened Rakow or any nonstriking
employee with harm, physical violence, or other con-
sequence.
I am unable to rely on George's testimony. Although
he testified that the pickets blocked the alley, he admitted
that they did move for oncoming cars. He gave conflicting
testimony as to which of the two employees, Rakow or
Pearl, continued driving in the alley, and which one used
the adjacent driveway. He also gave conflicting testimony
as to whether he heard Smith make a threat to Rakow and
call him names. Rakow did not testify that he was
threatened by Smith, and accused him of hurting one
epithet at him. Pearl did not testify. I therefore credit
Smith's denial that he blocked ingress to the plant by
Rakow, Pearl, or any other employees on May 5, and his
denial that he made threats to them on that date. How-
ever, since Smith made no specific denial thereof, I credit
Rakow's testimony that Smith called him a "bastard" on
that date.
F. The Hare Truck Incident
On or about May 5, Brewster was told by his assistant
that Hare Window Company had advised by telephone
that the pickets had refused to permit its truck to enter the
plant. On Brewster's instructions, the assistant requested
Hare Window to instruct its driver, who was then a block
from the plant, to return. When the truck returned shortly
thereafter, Brewster pushed his way through the pickets
which blocked the truck, stepped on the running board,
7 Rakow testified that he did not suspect Smith of having damaged his
tires.
8 When asked whether employees Vincent and McKee were reinstated
despite the fact that they participated in blocking the alley, George
replied "Yes, right. But I don't recall any profanity "
TERRY COACH INDUSTRIES, INC. 563
and told the driver to proceed. As the truck began mov-
ing, all the pickets except Smith gave way. When
Brewster stepped down and told Smith to "move or else,"
the latter stepped aside and the truck entered the plant.
Smith testified that the driver merely waited until the
pickets moved out of his way, was told to enter, and did
so.
I find that Smith participated with other pickets in
preventing the Hare Truck from entering the plant; and
that when the truckdriver returned soon thereafter, he
was the last striker to move and permit the truck to
proceed.
G. Smith's A lleged Attempts to Pick Fights
Brewster testified that more than once, he observed
Smith curse and invite unnamed nonstriking employees
in the plant to come out and fight, but never saw him en-
gage in a fight during the strike; that he once observed
Smith invite Rakow to fight; but that he never complained
to the police about Smith or any other single individual.9
Smith testified that he "hollered in there a few times for
some of them to come on out and join us," but that he
never tried to pick a fight with any nonstriking em-
ployees. Since the nonstrikers were not named, and since
Rakow, though called as a witness, did not corroborate
Brewster's testimony, I credit Smith's denial that he
sought to pick fights with nonstrikers.
Concluding Findings
It is settled that the Act prohibits an employer from ter-
minating the employment status of a striker at the conclu-
sion of an economic strike unless the latter was replaced
prior to his unconditional application for reinstatement,
or engaged in misconduct which results in a loss of the
protection of the Act. If he refuses to reinstate a striker
who has not been replaced, and the latter's conduct is not
unprotected, he engaged in discrimination in violation of
Section 8(a)(1). Montgomery Ward & Co., Inc., 155
NLRB 999. It is admitted that Smith had not been
replaced at the time he applied for reinstatement.
Moreover, as found, the only misconduct engaged in by
Smith, and relied upon by the Respondent in refusing to
reinstate him,10 consisted of blocking the Hare truck from
entering the plant for a short time, his participation in
stopping the lunch truck for a few moments, telling the
lunch truck driver that he had "better not come back
tomorrow," and calling the driver and Rakow offensive
names . The question is whether such misconduct con-
stituted sufficient justification for refusing to reinstate
Smith. i i
The applicable test in answering that question is
whether the misconduct "is so violent or of such serious
character as to render the employees unfit for further
service,"'z or whether it merely constitutes "a trivial
rough incident" occurring in "a moment of animal exuber-
ance." 13 This distinction has been drawn on the theory
that some types of "impulsive behavior." being "normal
outgrowths of the intense feelings developed on picket
lines," "must have been within the contemplation of Con-
gress when it provided" for the right to strike.14 These
principles are not disputed by the parties. Rather, their
disagreement stems from the application of such princi-
ples to the instant case. Applying these principles, I find
that Smith's misconduct was not so serious as to render
him unfit for further service.
In support of its position, the Respondent cites a
number of Board decisions which, with one exception,
are not apposite, since they involved threats of serious
violence.15 No such threats were made by Smith.
Although he told the lunch truck driver not to return,
such a remark was less serious than the threats made by
employees for whom the Board has ordered reinstate-
ment. Burlington Roadbuilders, Inc., 149 NLRB 791,
805 (threat to employee and prediction that plant would
be damaged); National Packing Company, Inc., 147
NLRB 446, 447, 456-457, remanded on other grounds,
352 F.2d 482 (C.A. 10) (threats of physical violence);
Stewart Hog Ring Company, Inc., 131 NLRB 310. 313
("Don't go in there or I will get you"; "I would like to
take you back behind the building"); Schott Metal
Products Company, 128 NLRB 415, 416 ("I'm going to
get you one of these days"; threat to "whip" a non-
striker). Respondent itself states in its brief (at 14) that
the lunch truck incident was "probably one of the less im-
portant incidents." I find that the remark to the lunch
truck driver was not such flagrant misconduct as to war-
rant a denial of reinstatement.
In the American Tool case, cited by the Respondent,
the Board refused to order reinstatement of a picket who,
among other things, placed himself in front of a truck
delivering a load of scrap and blocked its ingress to the
plant until the truckdriver left. On the other hand, in
National Packing Company, Inc., supra, the Board or-
dered reinstatement of a striker who had blocked vehicles
from entering the plant, inasmuch as such vehicles were
allowed to proceed after very brief conversations with the
drivers. Although Smith joined in blocking the Hare truck
until it left, and placed himself in front of it when it
returned shortly thereafter, he stepped aside and per-
mitted it to enter. In addition, unlike the American Tool
case, the record herein contains no evidence of mass
shouting of obscenities at Respondent's plant. These con-
siderations are sufficient to distinguish Smith' s miscon-
duct from that involved in American Tool, and persuade
me that Smith's misconduct in the Hare truck incident is
governed by National Packing rather than American
4 Brewster testified that a police officer was called to investigate the
"ruckus" resulting from "an object that Art Rakow supposedly had in his
hand," and that he received a police report that "it wasn 't a real gun, it was
a toy."
11 Misconduct not relied upon cannot justify a denial of reinstatement
KohlerCo., 128 NLRB 1062, 1239.
11 Having found that Smith did not engage in some of the misconduct at-
tributed to him, I need not consider such misconduct even though
Respondent believed in good faith that Smith was guilty thereof N L.R.B.
v. Burnup and Sims, Inc , 379 U.S. 21.
11 N.L R.B v Illinois Tool Works, 153 F.2d 811 , 815-816 (C.A. 7).
13 Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc, 312 U.S.
287,293.
14 N.L R.B. v. Wichita Television Corporation, Inc., 277 F.2d 579,585
(C.A 10), cert. denied 364 U.S. 871; N.L.R B v. Thor Power Tool Com-
pany, 351 F.2d 584, 587 (CA. 7); Republic Steel Corporation v
N.L.R.B., 107 F.2d 472,479 (C.A. 3).
15 Brookville Glove Company, 114 NLRB 213, enfd. 234 F.2d 400
(C.A. 3), Waycross Machine Shop, 123 NLRB 1331, enfd 283 F.2d733
(C.A. 5), The Rivoli Mills, Inc., 104 NLRB 169, enfd. 212 F.2d 792
(C.A. 6), Intertown Corporation (Michigan), 90 NLRB 1145; Valley Die
Cast Corp., 130 NLRB 508, enfd. 303 F.2d 64 (C.A. 6); American Tool
Works Company, 116 NLRB 1681.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tool. This view is fortified by the fact that although
Respondent believed that employees Vincent and McKee
had participated in temporarily blocking ingress to the
plant by nonstriking employees, it reinstated the two
strikers. Apparently, Respondent itself did not regard
temporary blocking of ingress as serious misconduct.
In explaining the reinstatement of Vincent and McKee,
Assistant Production Manager George pointed out that
they did not utilize profanity. Moreover, as already noted.
Respondent's brief states that Smith's misconduct toward
the lunch truck driver, which included profanity, was one
of the less important incidents. It was thus appear that
profanity directed against nonstriking employees as
distinguished from nonemployees was one of the more
important reasons for the refusal to reinstate Smith. I find
that his profanity to Rakow, and his even more vulgar re-
mark to the lunch truck driver, did not amount to miscon-
duct so flagrant as to render him unfit for further service.
That employees do not always employ language used
in polite society is one of the facts of industrial life. 16 It is
also "common knowledge that in a strike where vital
economic issues are at stake. striking employees resent
those who cross the picket line and will express their sen-
timents in language not altogether suited to the pleasant-
ries of the drawing room or even to courtesies of parlia-
mentary disputation."17 It is thus understandable that
Smith would use vigorous language to a nonstriking em-
ployee and to a lunch truck driver who did not service the
pickets. Although his language is not to be condoned, it
was no more improper than that used by strikers who
have been ordered reinstated by the Board.18 In the few
cases in which the Board has relied upon profanity, either
by itself or along with other misconduct, as a basis for
refusing reinstatement to strikers, the latter had engaged
in coercion and intimidation of nonstrikers by mass
shouting of profanities,19 or had used unmentionable
language.20 Smith engaged in no such misconduct.
I find that Smith's misconduct in the Hare truck, lunch
truck, and Rakow incidents, whether considered
separately or together, involved nothing more than
"rough trivial incident[s]" and was not such as to remove
him from the protection of the Act. Moreover, assuming,
arguendo, that Smith engaged in all the misconduct at-
tributed to him by the Respondent, I would reach the
same conclusion. If Smith's profanity was directed at
female nonstriking employees, that fact would not neces-
sarily convert otherwise protected conduct into unpro-
tected activity. Chivalry in language is not one of the at-
tributes of industrial life, particularly during a strike;21
and although the language attributed to Smith is not to be
commended, it would not warrant a refusal to reinstate
him.22 Similarly, the profanity and threats described in
Respondent's version of the Rakow-Pearl incident are
not essentially different from those already considered.
Finally, Smith's alleged attempts to pick fights con-
stituted minor misconduct, and were certainly less seri-
ous than the blocking of ingress condoned by the
Respondent.23 Accordingly, I find that Respondent's
refusal to reinstate Smith, when he unconditionally
sought to return to work at the end of the strike, con-
stituted discrimination violative of Section 8(a)(1).
II. THE REMEDY
Having found that the Respondent engaged in an unfair
labor practice, I shall recommend that it cease and desist
therefrom and take certain affirmative action.
Affirmatively, I shall recommend that Respondent
offer Willis H. Smith immediate and full reinstatement to
the position which he held at the time of the refusal to
reinstate him or to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, dismissing if necessary an employee hired sub-
sequent to such refusal to reinstate him. I shall further
recommend that Respondent make Smith whole for any
loss of pay suffered because of the refusal to reinstate him
by paying to him a sum of money equal to that which he
would have been paid by Respondent from the date of the
refusal to reinstate him to the date on which Respondent
offers reinstatement as aforesaid, less his net earnings, if
any, during the said period. The loss of pay under the
order recommended shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By discriminatorily refusing to reinstate Willis H.
Smith upon conclusion of the strike on May 11, 1966,
Respondent engaged in an unfair labor practice within the
to Aning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Terry Coach Industries , Inc., its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from discriminating against any of
its employees because of their concerted activities, or in
any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed under Section 7 of the Act.
16 Longview Furniture Company, 100 NLRB 301, 304, enfd. as
modified 206 F.2d 274 (C.A.4), Nebraska Bag Company, dlbla
Nebraska Bag Processing Company, 122 NLRB 654,668-669; Meyer &
Welch, Inc., 96 NLRB 236, 256; Spitzer Motor Sales, Inc., 102 NLRB
437,446-447, enfd 211 F.2d 235 (C.A 2).
17 Longview Furniture Company, supra, fn. 16.
18 E.g., The Rangaire Corporation, 157 NLRB 682; National Packing
Company, Inc., supra.
19 American Tool Works Company, supra Mass shouting of profanities
was the basis for the Court's modification of the Board's reinstatement
order in the Longview Furniture case, footnote 16, supra. But cf. Kohler
Co., 148 NLRB 1434, 1444-49, enfd. 345 F 2d 7 8 (C.A.D.C.), cert. de-
nied 382 U.S. 836.
20 Efco Manufacturing, Inc., 108 NLRB 245, 249, 266; Nutone, Inc.,
112 NLRB 1153, 1171-1173, modified in other respects 243 F.2d 593
(C.A.D C.). In Efco, the striker ascribed to a nonstriker on his way to
enter the plant the "capability of committing an act so foul as to be unmen-
tionable " In Nutone, the court stated that the striker " possessed an
unusual talent for vivid oral expression" and that the Trial Examiner's
description of her language as "vile and obscene" was "pallid."
21 Profanity even by female employees is not unknown Meyer &
Welch, Inc., in. 16, supra.
22 H N. Thayer Company, 99 NLRB 1122, 1133, 1212. The record In
that case shows that two strikers recited doggerel which cast aspersions
on the virtue of Fregeau, a nonstriking female employee.
23 Cf. N.L R.B v. Morrison Cafeteria Company, 311 F.2d 534, 538
(C.A 8);KohlerCo, 128 NLRB1062, 1207.
TERRY COACH INDUSTRIES, INC.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Willis H. Smith immediate and full rein-
statement to his former or a substantially equivalent posi-
tion, and make him whole for any loss of pay he may have
suffered by reason of Respondent's discrimination
against him, in the manner set forth in the section herein
entitled "The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records.
timecards. personnel records and reports, and all other
records necessary to analyze the amount of backpay due
and the right of reinstatement under the terms of this
Recommended Order.
(d) Post at its place of business in El Monte, Califor-
nia. copies of the attached notice marked "Appendix.' 21
[Copies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material I
(e) Notify the Regional Director for Region 2 1, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps it has taken to comply herewith.'
21 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
15 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 21 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
565
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL offer to Willis H. Smith immediate and
full reinstatement to his old job and pay him for all
back wages lost as a result of the discrimination
against him.
WE WILL NOT discriminate against employees, or
in any like or related manner interfere with them in
any way in the exercise of their guaranteed statutory
rights
TERRY COACH INDUSTRIES,
INC.
(Employer)
Dated By
(Representative ) (Title)
NOTE: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 849 South
Broadway, Los Angles, California, Telephone 688-5229.
308-926 0-70-37