The Rushton Co.

National Labor Relations Board - Board Decisions

Jun 9, 1966

158 N.L.R.B. 1730 (N.L.R.B. 1966)

1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW-AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent Employer and Respondent Union, by maintaining
in effect a collective-bargaining agreement prohibiting the distribu-
tion of literature in opposition to Respondent Union, or in behalf of
or in opposition to any labor organization other than Respondent
Union, during nonworking time in nonworking areas of the Employ-
er's property, violated and are violating Section 8(a) (1) and (b) (1)
(A) of the Act, respectively.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, General Motors Corporation, Van Nuys, California,
its officers, agents, successors, and assigns, and Respondent Interna-
tional Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW-AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from maintaining, giving effect to, or enforcing
any provision of a collective-bargaining agreement which prohibits
any employee from distributing literature in behalf of any labor
organization other than the contracting labor organization or distrib-
uting literature in opposition to any labor organization where, in
either case, the activity occurs in nonworking areas on nonworking
time.
2. Notify the Regional Director for ,Region 31, in writing, within
10 days from the date of this, Decision and Order, what steps have
been taken to comply herewith. -
CHAIRMAN MCCULLOCH AND MEMBER JENKINS took no part in the
above Decision and Order.
The Rushton Company and International Union of District 50,
United Mine Workers of America. Case No. 10-CA-6178.
June 9, 1966 _
DECISION AND ORDER
On February 18, 1966, Trial Examiner Lowell ^Goerlich issued his
Decision in the above-entitled case , finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
158 NLRB No. 151. ;
THE RUSHTON COMPANY 1731
the meaning of the National Labor Relations Act, as amended, and
recommending that " it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in certain
unfair labor practices and recommended dismissal of these allegations
of the complaint. -Thereafter, the Respondent and the General Coun-
sel filed exceptions and supporting briefs.
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 this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions , and rec-
ommendations 2 of the Trial Examiner, as modified herein.
[The Board adopted the Trial 'Examiner's Recommended Order
with the following modifications :
[1. Delete "like or similar" from paragraph 1(d) and substitute
"other."
[2. Paragraph 2(c) is amended to read : -
["(c) Make whole Elizabeth Smith for any loss of pay she may
have suffered by reason of Respondent's discrimination against her,
as set forth in the second paragraph of the remedy section in the
Trial Examiner's Decision.
[3. As the State of Georgia has a right-to-work law, delete the pro-
viso "except to the extent that such right may be affected by an agree-
ment requiring membership in a• labor organization as a condition of
employment as authorized by Section 8 (a) (3) of the Act, as
amended" from paragraph 1(d) of the Recommended Order, and a
similar proviso from the fifth indented paragraph of the notice.
1 Respondent excepts to the failure of the Trial Examiner to consider , rule upon or make
an affirmative finding respecting its motion to dismiss that part of paragraph 7 of the com-
plaint alleging interrogation on June 21 , 1965. We find no merit in this motion. In
any event , the record otherwise establishes , as the Trial Examiner properly found, that
Respondent violated Section 8(a)(1) by coercive interrogations and threats of reprisal.
2 The General Counsel excepts to the Trial Examiner ' s recommendation that employee
Elizabeth Smith be denied backpay if she fails or refuses to accept an offer of reinstate-
ment. We find merit in this exception . A denial of backpay in such circumstances would
be clearly contrary to our numerous decisions awarding backpay where discriminatees have
declined reinstatement . Accordingly , we do not adopt the third and last paragraph in
section V of the Decision , entitled "The Remedy
In its exceptions , the Respondent alleges bias and prejudice on the part of the Trial
Examiner , and specifically asserts that his recommendation respecting denial of backpay is
in itself evidence of bias and prejudice . We have considered the entire record in this
case and find no merit in this allegation.
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Also delete the proviso "except as authorized in Section 8(a) (3)
of the Act, as amended" from the- second indented paragraph of the
notice.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On a charge filed by the International Union of District 50, United Mine
Workers of America, the Regional Director of the National Labor Relations
Board for Region 10 on September 17, 1965, issued a complaint against The
Rushton Company, Respondent herein, alleging that the Respondent engaged and
was engaging in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein
called the Act. The Respondent filed timely answer denying generally that it had
engaged in the unfair labor practices alleged.
Pursuant to due notice the case came on to be heard before Trial Examiner
Lowell Goerlich on January 6 and 7, 1966, at Atlanta, Georgia. Each party was
afforded full opportunity to be heard, call, examine and cross-examine witnesses,
to argue orally on the record, and to submit proposed findings of fact and con-
clusions of law and to file briefs. All briefs have been reviewed and considered
by me. °
The issues before me are:
(1) Whether the Respondent by its supervisors, Frances Moore and Lena Settle,
interrogated its employees concerning their union membership, activities, and desires
in violation of Section 8(a)(1) of the Act.
(2) Whether the Respondent by its supervisor, Frances Moore, threatened its
employees with discharge because of their membership in and activities on behalf
of the Union in violation of Section 8(a)(1) of the Act.
(3) Whether on or about July 2, 1965, the Respondent discharged and there-
after failed to reinstate its employee, Elizabeth Smith, in violation of Section
8(a)(1) and (3) of the Act.'
(4) Whether on or about July 5, 1965, Respondent's Plant Manager Phillips,
in a speech to its employees, in violation of Section 8(a)(1) of the Act, threatened
its employees that if the Union was successful in its organizational campaign
Respondent would lose contracts and there would be a large layoff of employees.
Upon the whole record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
The Respondent, The Rushton Company, is a Georgia corporation maintain-
ing its office and place of business at Atlanta, Georgia, where it is engaged in the
manufacture and sale of stuffed toys.
During the past year, a representative period, the Respondent sold and shipped'
finished products valued in excess of $50,000 directly to customers located outside
the State of Georgia..
The Respondent admits, and I find, that the Respondent is now, and has been at
all times material herein, engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
IT. THE LABOR ORGANIZATION
The International Union of District 50, United Mine Workers of America,
herein referred to as the Union, is a labor organization within the meaning of-
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interrogations
According to Supervisor Lena Settle some time around June 30 or July 1,
Plant Superintendent Frances Moore asker her "to see if [her] girls had signed
The Respondent in its brief states this issue in this manner:
... whether the Respondent Company discriminatorily discharged Elizabeth Smith
because of her Union activities or whether the Respondent discharged Smith because-
of a lack of work and her lack of cooperativeness in refusing to accept reasonable and-
proper supervision.
THE RUSHTON COMPANY 1733
Union cards." Settle responded that she "would rather not ask them." 2 There-
upon Superintendent Moore commenced "balling people over to her desk and
talking to them." Two employees, Elizabeth Smith and Ailene Morris, reported
their conversations with Moore to Settle as did Moore. Elizabeth Smith related
to Settle that Moore asked her "did she sien a Union card" and that she responded
"yes." According to Elizabeth Smith, Moore told her that she understood that
she and her sister, "the two red haired girls" were trying "to get up a union, to
entice the union." Smith responded that she would not "say that [they] were
trying to entice the Union." Whereupon Moore asked whether she had signed
a union card and she answered, "Well I can't speak for my sister; I can only
speak for myself." at which point she disclosed that she had signed a union card.
Moore asked, "Well, what do you think that a union can do for you." Smith
answered, "Well, I'm hoping that we can get an increase in salary, better working
conditions and vacations and retirement ." The conversation ended with Moore's
remark, "Well, I'm not mad at you, so I'll let you go on back to work. Don't
think I'm mad with you and just don't say anything to them about it." 3
During the latter part of June or the first part of July, while in the shipping
department, employee John Luther Reeves was asked by Moore whether he had
signed a union card. Reeves responded in the affirmative. Moore also asked
Reeves whether other employees had signed cards; he answered that he did not
know. About the same time Moore also asked employee Clifton Crane whether
he had signed a union card. Crane said that he had signed a card the other time
the Union tried to organize the plant. Moore commented that she thought "the
old cards still counted."
Robert Billinger testified that around June 21, 1965, Moore came to the shipping
department and asked employees whether they were "involved with the Union."
Moore commented that if it were she, "she wouldn' t get involved with it, because
it's no good." 4 Several days after the first conversation Moore again talked to
employee Billinger. His testimony was "she just asked me-she liked my work
and, you know, just so long as I don't get involved with the Union." 5
The foregoing interrogations clearly served no legitimate employer purpose but
sought information most useful for discrimination.6 Thus the interrogations were
of such character as to reasonably tend to restrain employees in the exercise of
their rights guaranteed by the Act and were unlawful. Charlotte Union Bus Sta-
tion, Inc., 135 NRLB 228, 229; Mallory Plastics Company, 149 NLRB 1649.
B. Threats
Between 2 and 3 o'clock on the same day employee Elizabeth Smith was unlaw-
fully interrogated, while on her break,7 she visited employee Robbie Bailey who, at
the time, was engaged in operating a sewing machine. Bailey testified that Smith
"kind of punched me on the back" and said "Mrs. Moore asked me had I signed
a union card and I told her I had, so you can sign you one, if you want to."
Bailey said, "Well what do you mean." Smith replied, "I saw you all in the hall,
talking." Bailey said, "Well, we wasn't talking about no darn Union, signing no
card" Whereupon Smith left. Bailey arose from her place of employment and
followed Smith. When she had overtaken her she asked Smith what she meant
by coming to her "during working hours and talking to [her] about signing a
2 Settle admitted that she had interrogated one employee , Josephine Sherman , Elizabeth
Smith 's sister . Sherman disclosed that she had signed a card.
' Both the testimony of Elizabeth Smith and Supervisor Settle are credited . Both ap-
peared as straightforward , honest, and truthful witnesses . Settle was at the time of her
testimony, still employed by the Respondent.
'The General Counsel has not alleged this conversation as an unfair labor practice in
the complaint . It was submitted 'as background evidence. I will make no findings in
'respect to this conversation
5 The Reeves , Crane, and Billinger incidents above detailed are uncontradicted in the
record.
6 Elizabeth Smith was later separated from employment
7 Certain nonwork periods allowed by the Respondent during the employee's workday
were referred to as "breaks." During these "break" periods the employees were permitted
to leave their jobs and visit other areas of the plant. General Manager Julian Phillips testi-
fied that the policy relative to employee conduct while on breaks was "generally speaking"
liberal in nature. The employees were not "particularly restricted to their departmental
area," and were "free to move around the building " But the employee was not supposed
"to interfere with those who are supposed to be working."
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card " To which Smith replied, `Well, they cant fire you for signing no card, and
they cant fire you for working in no union " During the conversation Bailey
asked Smith whether Moore had told her that Bailey was standing in the hall
talking with other employees about the Union Smith responded in the negative
whereupon Bailey said, We warn t, and I'm going to ask Mrs Moore did she tell
you we were talking about it" Bailey then proceeded to visit Plant Superintendent
Moore Bailey told Moore that Smith was coming around [her] machine during
working hours and [she] didn't want her coming around [her] machine during
working hours because its dangerous ' She also told Plant Superintendent
Moore that Smith had told her that "the Company couldn't fire her for signing a
union card and working for the Union "
Moore 8 testified that "Robbie Bailey, an employee, a sewing machine operator,
came up to my desk and told me that redhaired Elizabeth over in the eye depart-
ment had been back of her table, molesting her, `bristling up at her' was the words
she used '
According to Settle, who is ciedited, she saw Bailey go to Moore's desk around
2 30 pm She heard Moore say that `she would get it straight, she would
straighten her out " Shortly thereafter Settle said that she heard a commotion
and walked toward it She heai d Moore "tell Mrs Elizabeth Smith that she
could fire, on account of the Union, or anything else she wanted, and she could
tell the people on the White House steps of Washington "
Arlene Kennedy, an employee called by the Respondent as a witness, testified
that she observed a part of the foregoing incident She testified that Moore came
into the department and "she was very angry" She walked to Smith s table and
said "G- D-, Elizabeth what did you mean telling that girl " 9 Ken-
nedy also heard Moore say in a very loud voice, I can fire you if you just
perform your duties "
Superintendent Moore described the incident as follows "I went over and told
her not to go out to another operator's table and molest her during working hours,
and if anyone come to her table I would do the same ' Smith mentioned "in a
low tone of voice, something about a law' Moore said, `Well, a law won't help
back you up in just anything anybody does It depends on what it is " Moore
also added that a week or two before she had told Smith that too many people
stopped by to ask, that she shouldn't be talking about Union during working hours "
Smith testified that Moore came to her table and said "I am tired of this and
I'm going to put a stop to it You had no right to say anything to that
lady about that Union I in tired of it and I can fire you and I can fire you
right damn now Because you had no right to even mention the Union I
can fire you on the White House steps, and the Union and nobody else can do
nothing about it or stop it " Smith's version is credited
The foregoing conduct of Plant Superintendent Moore is proscribed by Section
7 of the Act and is in violation of Section 8 (a) (1) of the Act
C The discharge of Elizabeth Smith
Elizabeth Smith a 29 year old doll eyemaker 10 assigned to the eye department
of the Respondent, signed a union authorization card December 10, 1964, there
after she attended eight or nine union meetings, the first of which was held in her
home She was laid off on July 2, 1965 Prior to her layoff Smith had solicited
60 union authorization card signers, some of which solicitation had taken place
during her breaks
According to Moore the reason for Smith's layoff' were "Lack of work,
lower production and uncooperative " ii
Moore testified that she personally laid off Smith at which time she said to her
that "there wasn't enough work for two people, and since her production was
8 Since Moore's demeanor was lacking in such candor and frankness as is essential for a
favorable credibility finding Moore has not been credited except where her testimony is
uncontradicted or corroborated by other witnesses
8It seems patent that this statement referred to Robbie Bailey and What Smith had said
to her and that Moore was more concerned about what Smith said to Bailey than the fact
that she had visited Bailey
10 Two employees were assigned to doll eyemaker jobs Smith and her sister Josephine
Sherman
u During the hearing counsel for Respondent suggested that Smith was also laid off
because of the Bailey incident and because of the solicitation of union authorization cards
THE RUSHTON COMPANY 1735
lower than the other girl, who was her sister, that [she] was laying her off." 12
Smith asked her whether it was going to be permanent.13 Moore answered that "it
would be, unless something unforseen came up." 14
Smith testified that she was called to Moore's desk on the afternoon of July 2,
shortly before quitting time. Moore said that she was sorry but she would have
to let Smith go. She continued, "I know that you signed a union card and your
sister has, too .... I have to let you go .... I'm sure you will get you another
job, because you are a very good worker. But if you do, you go there and
tend to your business and don't meddle with the Union, or nothing else. Just
keep to yourself . . . . It's good to help some people, but it's better to help
yourself, first." 15
According to Settle about 8:15 a.m. on the day of Smith's discharge Moore
asked her "to get rid" of Smith. Settle asked for the reason. Moore replied that
Smith "was causing disturbance in the plant." She requested Settle to "do it, one
way or the other." Settle said that she would rather Moore "do it." About
10 o'clock Moore asked Settle whether she had made up her mind to discharge
Smith, commenting that Smith "had been standing in the hall and loafing around
a lot." Settle responded that "it was on her breaks." Moore said that if
Settle did not make up her mind "she was going to get rid of her that day; she
would make up her own mind."
At the 2:30 break Moore asked Settle again whether she had made up her
mind. Settle answered in the negative stating that she would "rather her do it,"
and that she had "worried all day over it," and "was sick." Moore said, "Well,
there are a lot of things that's been said, like that she's trying to run your depart-
ment." Settle replied, "That must be hearsay, because she has never tried that.
She's always took authority from me."
At 4 o'clock Moore again suggested that Settle discharge Smith. Settle said
that if she "was so strong in getting rid of Elizabeth, that why didn't she wait
until Monday and lay her off on account of lack of work." Moore replied, "I've
made up my mind that I'm going to let her-go to-day."
Settle testified, as she was leaving work, shortly after 4:30, that she ran into
Smith. She told Smith that she "was sorry, that she was a good worker and that
she had always pleased [her]." Settle also remarked that Moore had asked her
"to do it, but [she] couldn't do it because she [Smith] had always been a good
worker .. 16
On July 5, according to Settle, Moore explained to Settle that one of the reasons
given for Smith's discharge meant "trouble-maker."
Settle also testified without contradiction that about 3 weeks before the dis-
charge of Smith she advised Moore that she did not need two girls 17 making eyes.
Moore responded that "she would place one of them girls in [Settle's] department,
she would let one make eyes, and she would transfer one over to putting in eyes."
There was no suggestion of layoff at that time.
According to Settle "the Union thing blowed up" on the day before Smith was
discharged when Moore and others learned of the extent of the union activity.
Settle testified that shortly after Smith's discharge the Respondent's supervisors
met with the Respondent's attorney who advised them that if the employees asked
for a supervisor's opinion or advice about the Union the supervisor should "dis-
favor of it, for the Company."
12 It is significant that in laying Smith off Moore did not testify that she mentioned "un-
cooperative" or "refusing to accept reasonable and proper supervision" as causes for her
discharge.
231n view of the apparent permanency of Smith's layoff I used the terms " layoff" and
"discharge" interchangeably.
14 The following questions were put to Moore:
Q. Did you mention anything about the Union when you told her she was being
laid off?
A. Not at that time ; no.
TRIAL EXAMINER: Not at that time?
The WITNESS: Well, I say, not then.
TRIAL EXAMINER: Well, did you later?
The WITNESS: No.
15 Employee Smith 's version is credited.
le Moore when questioned testified that she could not remember whether Settle had rec-
ommended layoff.
17 Smith and Sherman were the only girls making eyes
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record reveals that Smith was unable to make production 18 about 3 weeks
before her layoff and that her production record was somewhat inferior to the
production record of her sister. As noted when Moore laid Smith off she did
not mention that Smith was "uncooperative." Moore's testimony, after some
hesitation, on this subject was as follows:
Well, she came over one day and wanted to know why I didn't put on any of
the girls that she brought there. I told her I didn't know she brought any
there. That might not come exactly under the word of 'uncooperative,' but
that was one bearing.ls
Thus "uncooperativeness," or as explained to Settle "trouble-maker" was an
illusive element in Smith's discharge unless it is derived from Smith's union activ-
ities. Moreover, "real motive" 20 is not found for Smith's discharge in the other
reasons advanced by the Respondent, "lack of work" and "lower production."
Smith was a good worker and shortly before "the Union thing blowed up" Moore
intended to retain both Smith and her sister in the Respondent's employment.
When "the Union thing blowed up," Smith became persona non grata 2t
Smith was a known active union partisan. On the day before she was laid off,
she was coercively interrogated. Later, on the same day, she was threatened with
discharge because of her union activities. When "the Union thing blowed up" she
was discharged over the disapproval of her immediate supervisor who thought she
was a good worker. Moreover, up to such time it had been the intention of the
Respondent to retain Smith in its employment even thought the need for two
employees as eyemakers was passing.
The Respondent's treatment of Smith, its coercive interrogations of employees,
and the speech of General Manager Julian P. Phillips,22 each reveals the Respond-
ent's appetency to defeat the Union's organizational campaign. The Respondent's
union animus is apparent in the record. It's explanation of the reason for
Smith's discharge in the light of these facts is implausible. Moreover the credible
testimony of Settle and Smith leaves. no doubt that Smith's union activities were
the "real motive" behind her discharge. I find that the Respondent's discharge of
Elizabeth Smith was discriminatorily motivated and was intended to discourage
union membership and activities. Smith's discharge was not for the reasons
advanced by the Respondent. The discharge of Smith was in violation of Section
:8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with its operations set forth 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.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it is recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
is Smith 's testimony Is uncontradicted that she was unable to make production because
of a change in piecework rates.
le Moore did not include under "uncooperative" Respondent 's concept set out in its brief,
"refusing to-accept reasonable and proper supervision " Thus said suggestion as a cause
for discharge appears as an afterthought.
21 It is the "real motive" of the employer which is decisive in an '8 (a) (3) violation.
N.L.R.B. v. Brown, at at. d/b /a Brown Food Store, 380 U.S 278, 287
n Even though a lawful cause for discharge is available it "is no defense where the em-
ployee is actually [as here] discharged because of [her] Union activities." N L.R B. v.
Ace Comb Co., 342 F. 2d 841, 847 (C A. 8).
"We have repeatedly held that 'if the discharge is because of union activity it is a
violation of the Act even though a valid ground for dismissal might exist.' " N.L.R B.
v. Longhorn Transfer Service, 346 F. 2d 1003, 1006 (C A. 5).
m Among other things Phillips said to the Respondent ' s assembled employees , "I hope
and believe that you will decide that all of us have more to gain in the long run by
working together as a team without the interference and problems which an outside union
could cause," and "We do not believe you need a union to get fair treatment in this
,company."
THE RUSHTON COMPANY 1737
It having also been found that the Respondent unlawfully discharged Elizabeth
Smith on July 2, 1965, and thereby violated Section 8 (a)(3) and (1) of the Act
it is recommended that Respondent remedy such unlawful conduct. It is rec-
ommended that the Respondent offer to Elizabeth Smith immediate and full rein-
statement to her former or a substantially equivalent position and without prejudice
to her seniority or other rights and privileges and make her whole for any loss
of earnings she may have suffered as a result of the discrimination against her, by
payment to her of a sum of money equal to the amount she would have earned
from the date of her discriminatory discharge to the date of an offer of reinstate-
ment, less net earnings during said periods to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
and shall include interest at the rate of 6 percent per annum, to be computed in
the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
The thrust of every proceeding before the Board is to effectuate the purposes of
the Act. In Local 833, International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America v. N.L.R.B., 300 F. 2d 699, 703
(C.A.D.C.), it is said "reinstatement is the only sanction which prevents an
employer from benefiting from his unfair labor practices through discharges
which may weaken or destroy the Union The United States Court of
Appeals for the Fifth Circuit has said "Obviously the discharge of a leading union
advocate is a most effective method of undermining a union organizational effort."
N.L.R.B. V. Longhorn Transfer Service, supra, 1006. When an employee who is dis-
charged because of his union sympathies refuses reinstatement, other employees
are left with a sense of insecurity and lack of assurance that they, in fact, may
join a union and remain an employee of the employer. The return to employment
of a union adherent is not only the final achievement of the Act's protection in
respect to such employee but it is the most realistic and articulate demonstration
of the Act's paramount protection to other employees. So important was the con-
cept to the framers of the Act that reinstatement was specifically mentioned as a
means of effectuating the policies of the Act; backpay is discretionary.23 It follows,
therefore, that the remedy of reinstatement does not produce the desired remedial
effect unless the discriminatee (in this case Smith) accepts reinstatement and returns
to employment. It seems equitable that the discriminatee, for whom the Act is
invoked, should also contribute to the achievement of its purposes by accepting rein-
statement, especially where, as here, without reinstatement, the remedy falls short
of securing the correctives intended. The realities of the industrial world confirm
that if the discriminatee refuses reinstatement, except for the deterrent visited upon
the employer by the payment of backpay (which is sometimes of doubtful value),
little is accomplished and the remedy "fizzles out." Thus I recommend that if
Elizabeth Smith is employed by an employer other than the Respondent on the
date when she is made a lawful offer of reinstatement and she fails or refuses,
except in case of mental or physical disability, to accept such lawful offer of rein-
statement, but chooses to continue in the employment of such employer or another
employer, she shall be barred from backpay for the period of time that she was in
the employment of such employer. I further recommend that if Elizabeth Smith
is unemployed on the date when she is made a lawful offer of reinstatement and
she fails or refuses, except in the case of mental or physical disability, to accept a
lawful offer of reinstatement, she shall be barred from all backpay. To grant
backpay under these circumstances in the light of the circumstances in this case
hardly results in the dissipation of the effects of the prohibited action. Cf. Local
60, United Brotherhood of Carpenters and Joiners of America (Mechanical Han-
dling Systems) v. N.L.R.B., 365 U.S. 651, 655. In this case the deterrent to the
Respondent resulting from the payment of backpay without the actual reinstate-
ment of Smith is outweighed many times in statutory accomplishment by her
actual reinstatement.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to
be exercised herein.
Section 10(c) of the Act provides in part:
. .. the Board . . . shall issue and cause to be served on such person an order re-
quiring such person to cease and desist from such unfair labor practice , and to take
such affirmative action including reinstatement of employees with or without back
pay, as will effectuate the policies of this Act. [ Emphasis supplied.]
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By unlawfully discharging Elizabeth Smith on July 2, 1965, the Respondent
engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
their rights guaranteed them by Section 7 of the Act the Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
6. The Respondent has committed no alleged unfair labor practices which have
not been specifically found to have been unlawful herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this case, it is recommended that Respondent, The Rush-
ton Company, Atlanta, Georgia, its officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Discriminating against any employee because of membership in or activities
on behalf of the International Union of District 50, United Mine Workers of
America or any other labor organization.
(b) Coercively interrogating employees in regard to their union memberships,
sympathies, or activities.
(c) Threatening to discharge any employee because of membership in or activ-
ities on behalf of International Union of District 50, United Mine Workers of
America or any other labor organization.
(d) In any like or similar manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form labor organi-
zations, to join or assist International Union of District 50, United Mine Workers
of America or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain from
any and all such activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer Elizabeth Smith immediate and full reinstatement to her former or
substantially equivalent position without prejudice to her seniority or other rights
and privileges.
(b) Notify Elizabeth Smith if presently serving in the Armed Forces of the
United States of her 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) Make whole Elizabeth Smith for any loss of pay she may have suffered by
reason of Respondent's discrimination against her in accordance with the recom-
mendations set forth in "The Remedy" herein.
(d) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security records, timecards,
personnel records and reports, and all other records relevant or necessary to determi-
nation of backpay due and to the reinstatement and related rights provided under
the terms of this Recommended Order.
(e) Post at its Atlanta, Georgia, facilities, copies of the attached notice and
marked "Appendix." 34 Copies of said notice, to be furnished by the Regional
Director for Region 10, shall, after being duly signed by Respondent's representa-
tive, be posted by it immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
23 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 Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
THE RUSHTON COMPANY 1739
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced or covered by any
-other material.
(f) Notify the Regional Director for Region 10, in writing, within 20 days from
The receipt of this Recommended Order, what steps Respondent has taken to com-
ply herewith.25
It is recommended that the complaint be dismissed insofar as it alleges violations
of the Act other than those found in this Decision.26
25 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
211 have reviewed the speech which was delivered by General Manager Phillips to the
Respondent's employees on or about July 8, 1965 After careful examination of the
speech, the transcript of which I consider to be the best evidence, I am of the opinion that
the allegation in the complaint, to wit* "Respondent, by its supervisor and agent, Plant
Manager Julian Phillips, on or about July 15, 1965, in and about the vicinity of its plant,
In a speech to its employees, threatened its employees that if the Union were successful in
its organizational campaign Respondent would lose contracts and there would be a large
layoff of employees" is not sustained by a preponderance of the evidence.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Elizabeth Smith immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her seniority
or other rights and privileges and make her whole for any loss of earnings she
may have suffered as a result of the discrimination against her.
WE WILL NOT discourage membership in International Union of District 50,
United Mine Workers of America or any other labor organization of our
employees by discharging employees for engaging in protected, concerted activ-
ity or in any other manner discriminating against any individual in regard to
his hire, tenure of employment or any term or condition of employment except
as authorized in Section 8 (a) (3) of the Act, as amended.
WE WILL NOT interrogate our employees regarding their union membership,
sympathies, or activities in a manner violative of Section 8(a) (1) of the Act,
as amended.
WE WILL NOT threaten to discharge any of our employees for activity on
behalf of the International Union of District 50, United Mine Workers of
America or any other labor organization or for engaging in protected, con-
certed activity.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
'employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named or any other labor organiza-
tion to bargain collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any or all such activities
except to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment as au-
thorized in Section 8 (a) (3) of the Act, as amended.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members in good standing of International Union of District 50, United
Mine Workers of America or any other labor organization.
THE RUSHTON COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative)' (Title)
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of her right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
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, 528
Peachtree-Seventh Building , 50 Seventh Street, NE., Atlanta , Georgia, Telephone
No. 526-5741.
Kaiser Cement & Gypsum Corporation and Hawaii Teamsters &
Allied Workers, Local 996, Petitioner. Case No. 37-RC-1228.
June 9, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Dennis R. MarCarthy. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Jenkins and Zagoria].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations 1 involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections 9
(c) (1) and 2(6) and (7) of the Act.
4. The Employer operates a cement production plant at Waianae,
Hawaii, and cement distribution facilities at pier 32 in Honolulu,
Hawaii, in Hilo, Hawaii, and in Kahului, Hawaii. In its petition,
the Petitioner sought to represent a unit consisting of the three
facility operators employed by the Employer at the distribution facil-
ities at pier 32, Hilo, and Kahului. At the hearing, the Petitioner
amended its petition to include two facility operator helpers (helpers)
employed by the Employer at Hilo and Kahului, but excluding em-
I Operating Engineers Local Union No. 3 of the International Union of Operating Engi-
neers, AFL -CIO, hereinafter called the Intervenor , was permitted to intervene at the hear-
ing on the basis of a contractual interest in the employees involved.
158 NLRB No. 148.