U. S. Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 255 (N.L.R.B. 1974)

CUSTOM CRAFT MFG. CO. 255
Custom Craft Manufacturing Company, a Division of
U. S. Industries, Inc. and United Rubber, Cork, Li-
noleum and Plastic Workers of America , AFL-CIO-
CLC. Cases 26-CA-4674, 26-CA-4696, 26-
CA-4712, 26-CA-4767, 26-CA-4780, and 26-
CA-4786
June 28, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On January 31, 1974, Adminstrative Law Judge
Paul E. Weil issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the Re-
spondent filed exceptions and supporting briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs t
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Custom Craft Manufactur-
ing Company, a Division of U. S. Industries, Inc.,
Halls, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
i The Respondent's motion requesting oral argument is denied as the
record, including the exceptions and briefs, adequately presents the issues
and positions of the parties
2 Official notice is taken of the court's opinion in Case No . a3-1923 where-
in the United States Court of Appeals for the Sixth Circuit granted enforce-
ment of our Decision and Order in Custom Craft Manufacturing Company,
a Division of U. S. Industries, Inc, 204 NLRB No. Ill (inadvertently cited
by the court as 205 NLRB No. 111). In that case, we found that the Company
violated Sec . 8(aX5) and ( 1) of the National Labor Relations Act, as amend-
ed, by refusing to bargain with the Union as the exclusive bargaining repre-
sentative.
DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Administrative Law Judge: On March 14,
1973, Local Union No. 954, United Rubber, Cork, Linole-
um and Plastic Workers of America, AFL-CIO-CLC, here-
inafter called the Union, filed with the Regional Director of
Region 26 of the National Labor Relations Board, hereinaf-
ter called the Board, a charge alleging that Custom Craft
Manufacturing Company, a Division of U. S. Industries,
Inc., hereinafter called Respondent, violated Section 8(a)(3)
and (1) of the National Labor Relations Act, hereinafter
called the Act, by its refusal to reinstate an employee, Joe
Pickard, and by other acts and conduct (Case 26-CA-4674).
On April 3, 1973, the Union charged Respondent in a sec-
ond charge (Case 26-CA-4696) with violation of Section
8(a)(1), (3), and (5) by Respondent's refusal to pay vacation
and holiday pay for the week of December 25, 1972, when
the employees were on strike and by unilaterally changing
eligibility rules for holiday pay and vacation pay. On April
16 the Union filed another charge (Case 26-CA--4712), al-
leging the refusal of the Respondent to reinstate an employ-
ee, Idella Furgerson, and the termination of said Idella
Furgerson and alleging a violation of Section 8(a)(5) by
unilateral changes in working conditions by Respondent.
On April 26, the Union filed an amendment to Case 26-
CA-4674, another to Case 26-CA-4696, and another to
Case 26-CA-4712 and on May 16 filed a second amended
charge to Cases 26-CA-4696 and 26-CA-4712.1 On May
23, 1973, the Regional Director issued an order consolidat-
ing the three cases theretofore filed and a consolidated com-
plaint alleging violations of Section 8(a)(1), (3), and (5) by
the acts and conduct of Respondent.
On June 22, the Union filed an amendment to the charge
in Case 26-CA-4674 and a new charge (Case 26-CA-4780)
alleging the constructive discharge of two more employees,
Elic Ezekiel and Aaron Queen, and the discriminatory lay-
off and refusal to recall a third employee, Alice Faye War-
ren. On June 29 yet another charge was filed (Case
26-CA-4786) alleging the improper reinstatement and sub-
sequent termination of Weldon Johnson. Case 26-CA-4674
was amended for the third time on July 20, 1973, putting
together into one charge all allegations with regard to John-
son and adding several more employees who were allegedly
discriminated against by Respondent. On the same date
Case 26-CA-14780 was amended for the first time. A second
order consolidating cases, now consolidating all five cases,
and an amended consolidated complaint was issued on July
20, 1973. An amendment to the amended consolidated com-
plaint was issued by the Regional Director dated July 30,
1973, adding, among other things, allegations contained in
charge 26-CA-4767 which had been filed June 11 against
Respondent alleging that two employees, T. W. Nichols
and Frances Nichols, his wife, were discharged on or about
May 30 by Respondent because of their union membership.
A further order consolidating cases was then issued on July
31, consolidating Case 26-CA-4767 with the five cases
theretofore consolidated.
Respondent duly answered each complaint as it was is-
sued, in each case denying the commission of any unfair
i With the exception of the initial charge all of the additional charges and
amended charges were filed in the name of the International rather than of
the local. In this Decision the term "union" will be used both with reference
to the International and to the local
212 NLRB No. 36
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices . On the issues thus joined the matter came
on for hearing before me at Dyersburg , Tennessee, on Sep-
tember 18 , 19, 20, and 21 , on which date the hearing was
closed . Thereafter, on the motion of the General Counsel,
the hearing was reopened and again closed at Memphis,
Tennessee , on November 5, 1973 . Since the close of the
hearing, I have received a deposition of Jerry Hopper taken
on November 28, 1973 , in the offices of Fowler, Young and
Perl. I herewith receive the deposition as well as a late filed
exhibit marked for identification as General Counsel's Ex-
hibit 36 .2 At the hearing all parties were represented by
counsel and had an opportunity to examine and cross-ex-
amine witnesses and adduce relevant and material evidence.
The hearing being finally closed , on the basis of the evi-
dence now in hand and in consideration of briefs filed by
the General Counsel and by Respondent, I make the follow-
ing: 3
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged at Halls, Tennessee,
in the manufacture and assembly of cabinets . Respondent
annually ships its product valued in excess of $50 ,000 from
its Halls, Tennessee , plant to points directly outside the
State of Tennessee and annually receives goods valued in
excess of $50,000 from points located outside the State of
Tennessee at its Halls, Tennessee, plant . Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On September 18, 1972 , the Board certified the Union as
the exclusive collective -bargaining representative of em-
ployees in a unit consisting of all production and mainte-
nance employees , including plant clericals and all
truckdrivers employed by Respondent at its Halls, Tennes-
see, location , excluding all office clerical employees , profes-
sional employees, watchmen , guards and supervisors as
defined in the Act . A week later the Union's International
representative, Minch, requested an early meeting for the
commencement of negotiations to which Respondent's
president, R. Glenn Williams , replied advising Minch that
Respondent contended that the certification was invalid
and accordingly would not bargain . On October 2, 1972, the
Union filed a charge alleging violation of Section 8(a)(5)
and (1 ) of the Act by Respondent 's refusal to bargain and,
2 Arrangements were made at the hearing to receive the deposition and
G.C Exh. 36.
3 The unopposed motions of the General Counsel and the Respondent to
correct the record are hereby granted
on October 17, the Regional Director issued a complaint
alleging that the refusal to bargain violated Section 8(a)(5)
and (1) of the Act .-On October 30, 1972 , Local 954 of the
Union was chartered , officers were elected, and Minch told
the members who were present that there had been a refusal
to bargain and that the employees had a choice between
striking to force recognition or waiting the outcome of liti-
gation . The following day the Union sent notification of a
strike vote to be taken on November 2 and on that occasion
the employees voted 122 to I1 to strike . On November 14
the strike commenced at 7 a.m.
On November 16 the employer sent a letter to all employ-
ees stating that the plant would reopen November 20, that
all employees should report to work at their usual starting
time, that local law enforcement officials would be on the
scene to make sure that there was no trouble , and that
striking employees will not get holiday pay for Thanksgiv-
ing and the day after it. The letter also stated that Respond-
ent intended to begin replacing employees who did not
report for work the following Monday and would not make
any future premium payments for hospitalization so that the
insurance would be canceled if the employees did not return
to work unless they made their own arrangements for cover-
age. The letter was apparently effective. Of 196 employees
who struck on November 14, 108 abandoned the strike dur-
ing the week of November 20, 1972. The remaining employ-
ees continued to strike and on February 13, 1973, Union
Representative Minch had a conference by telephone with
Respondent 's attorneys pursuant to which an agreement
was reached that all striking employees who made written
unconditional offers to return to work before February 22,
1973, would be reinstated to their "old jobs or substantially
equivalentjobs" by March 12 , 1973. On February 15 Minch
advised Respondent that the Union terminated the strike as
of February 19 and instructed the striking employees to
report to the plant during the period between February 19
and February 22 .4 On ' the morning of February 19 Minch
met with the strikers' and instructed them to return to the
plant and make their applications for reinstatement. The
strikers went in a body to the plant where they were fur-
nished with a document which had apparently been pre-
pared by the Respondent entitled "unconditional
application for reinstatement" which in form appears to be
very similar to most applications for employment. One of
the boxes on the application provided , under the heading
"employment desired," boxes for answers to questions of
what position the employee was applying for, what date he
could start , whether he would accept substantially equiva-
lent employment to his old job, and whether he was present-
ly employed and, if so , where. At the bottom part of the
application provided for the employee to fill out is the fol-
lowing language:
I authorize investigation of all statements contained in
this application . I understand that misrepresentation or
omission of facts called for is cause for dismissal. Fur-
ther, I understand and agree that my employment is for
no definite period and may, regardless of the date of
payment of my wages and salary, be terminated at
4 All dates hereinafter are in the year 1973 unless otherwise specified.
CUSTOM CRAFT MFG. CO. 257
anytime without any previous notice.
Sixty-one employees made application for reinstatement on
the required forms. What happened then is best stated in the
words of Jerry Hopper, who was plant manager at the time
and personally handled the reinstatement of the strikers:
Q. Now, at what date did you decide to call certain
people, who[m] you were going to call this week and
whom you were going to call next week? I gather most
of them filed their applicationa that same day.
A. They filled them in at once and brought them
back at once which made it harder really. If they had
brought them in a few at a time, we could have stacked
them in order and tried to take them back as they came.
As it was, it was through knowing which areas that we
needed to fill. I did look at the application to try to get
the people their work. Of course, some of them were
vague and some or them weren't filled out complete but
we did the best we could trying to get these people back
to work for their benefit just as quick as I possibly
could. That was all. And of course, somebody had to
be last.
Q. Well, when you called in a give[n] employee, as
the general rule when you call them in, did you give
them a choice of the job they held before the strike and
the job to which you had assigned them?
A. I offered them the' job openings that I had at that
time or they could wait until the time limitation and
possibly we could place them back on their original
jobs.
Q. And did you tell them that the only way that they
could hope to get back on their jobs that they had
before was to wait for the time limitation?
A. No. I didn't promise any of them that we would
place them back on their old job[s].
Q. You just told them that if the job came open
during the time period that they would be placed on it?
A. Yes, sir. Once they accepted the job that I had at
that time. But I knew that I couldn't promise to change
them later because that would mean the full crew that
I would have to go back and switch later on. We made
an offer to each employee.
As a result of this system of reinstatement, many employ-
ees were put back to work at jobs other than those they held
before the strike. No attempt was made by Respondent to
put any employee back in the job he had previously held,
especially if that job was a choice assignment and was filled
by a nonstriker or by an employee hired during the strike.
No employee hired during the strike was discharged to
make way for the returning strikers, but instead they were
fitted into whatever job openings occurred. As a result of
this system of reinstatement, employees were placed on jobs
that they could not do or that were substantially more diffi-
cult. As a result of this fact, a number of employees were
terminated and such terminations form the gist of the Gen-
eral Counsel's complaint.
B. The Unilateral Changes
On December 12, 1972, during the strike, Respondent
posted on its bulletin board a memorandum to all employ-
ees setting forth a leave of absence policy pursuant to which
leave requests were required to be submitted in writing and
could be granted for absences of no more than one work-
week for compelling personal reasons other than personal
illness or injuries. In addition, the policy provides that the
failure to return on the scheduled day would result in auto-
matic termination and reinstatement of an employee at the
conclusion of leave subject to business needs and the availa-
bility of a suitable vacancy. Finally, the memorandum pro-
vided that group insurance would be continued subject to
timely payment of the employees' contribution, not to ex-
ceed 4 weeks of personal leave or 6 months for personal
injuries or disability and that vacation pay distribution
would be made to employees on leave except that employ-
ees on military leave will receive their vacation pay on their
return to work.
There is no evidence that any of the policies set forth
above have ever been promulgated prior to December 12,
1972. The record reveals that some employees were granted
leave on oral request and Respondent President Williams
admitted that prior to December 12 no rule had been pub-
lished.
On January 2 Respondent posted a notice on the employ-
ee bulletin board entitled "vacations and holidays." The
notice stated that employees who had been on the payroll
continuously for 2 or more years on the first day of the
vacation period would be entitled to 2 weeks' vacation pay
and that employees who had been on Respondent's payroll
continuously for 1 year on the first day of the vacation
period would be entitled to 1 week's vacation with pay. This
was no variance from former procedures. However, the
memorandum went on to provide that a determination
whether an employee is entitled to vacation depends on his
attendance record which must show that he worked a total
of 1,920 clock hours during the 52-week period immediately
preceding the beginning of the vacation period. Time lost as
a result of accidents covered by workmen's compensation,
illnesses excused by a doctor's statement, jury duty, and
approved leave of absences as set forth in the December 12
memo were to be counted toward the total hours.
Respondent President Williams testified that he had no
personal knowledge of the vacation policy prior to his ad-
vent with the Company in 1972, but that he had consulted
with a named individual whom he characterized as the only
managerial employee who remained with the Company af-
ter his advent. No evidence was adduced by Respondent
from anyone, employees or supervisors or indeed from the
person by whom Williams allegedly was informed as to the
preceding vacation policy. Various employees who took the
witness stand testified that no provision had ever existed
that employees must work any given number of hours to
achieve vacation pay and it appears that in some circum-
5 It appears that Respondent's entire managerial staff and some of its
supervisors were terminated at one time in 1972 as the result of what Williams
termed "defalcations" pursuant to which they were indicted and tried for
some crime.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances vacation pay was given to employees who did not
in fact work 1,920 hours in the last preceding year. In the
absence of any effort by Respondent to prove by substantial
evidence that the vacation policy was other than that testi-
fied to by employees, I find and conclude that the memo-
randum of January 2 represented a change in the policy of
Respondent. The General Counsel contends that both the
changes in leave of absence policy and in holiday and vaca-
tion policy represent unilateral changes violative of Section
8(a)(5) and (1) of the Act.
C. Discussion and Conclusions
The General Counsel's evidence that the strike resulted
from and was in protest of Respondent's refusal to bargain
with the Union is uncontroverted on the record. Inasmuch
as the Board has found that Respondent has violated Sec-
tion 8(a)(5) of the Act by this refusal to bargain,6 It follows
that the strike is an unfair labor practice strike and I so find.
Similarly, Respondent having promulgated rules con-
cerning vacation and holiday eligibility and having institut-
ed procedures and limitations on the granting of excused
leaves of absence, both of which represented substantial
changes from its preceding policies and customs , without
consulting with the Union, I find that Respondent has
thereby violated Section 8(a)(5) and (1) of the Act.
Unfair labor practice strikers under Board and court de-
cisions too numerous to list have a right to be reinstated
upon a proper demand to "the same or to a substantially
equivalent" job. In another context the Board has spelled
out that the above-quoted phrase means reinstatement to
the same position if it still exists or to a substantially equiva-
lent position if the " same" position no longer exists.
There is no contention here that the request for reinstate-
ment was anything but unconditional. Respondent took
great pains in drawing up a reinstatement application to
make sure that the requests were unconditional and I find
that they were. Accordingly, upon Respondent's receipt of
the application, it had a duty to return the unfair labor
practice strikers to their same jobs if they were still in exis-
tence. This Respondent declined to do. The job in many
cases were filled with employees hired during the strike or
employees who had not gone on strike or who had them-
selves crossed the picket line during the strike. Respondent
may not reward the nonstriking or newly hired employees
by giving them the pick of the jobs as it seems to have done.
The parties litigated at great length the comparison between
the jobs formerly held by the employees alleged to have
been discriminated against with the jobs given them after
the strike, but this factor is immaterial. Whether in
Respondent's opinion the jobs offered the employees were
easier, less burdensome, or in some way equivalent makes
no difference; they were not the same jobs, to which the
employees had a right to reinstatement.
Further, Respondent contends that each of the employees
acquiesced in accepting the "substantially equivalent" job
offered them. However, it is clear from the testimony of
each of the employees and of Hopper, the agent of Re-
'204 NLRB No. 1 I I
spondent who personally handled the reinstatement of the
strikers, that employees were faced with a situation where
they could take thejob offered or wait perhaps forever for
their old jobs to become vacant. The offer of this choice to
the employees simply is not available to Respondent under
existing law and Respondent is in violation of the Act by
this action.
Respondent contends in some cases that, by signing a
"waiver" on the back of their applications at the request of
Hopper,' the employees acquiesced in Respondent's choice
of a job for them and thereby lost any right to the job they
held prior to the strike. This "waiver" strikes me as a some-
what cynical attempt by Respondent to establish some sort
of a defense for its actions which it must have realized were
attleast arguably unlawful. I find that the "waivers" do not
relieve Respondent of its duty to reinstate the strikers to the
jobs they held prior to going on strike.
Respondent also contends that all jobs in Respondent's
plant are substantially equivalent and that normally all em-
ployees are moved from job to job. The record however
reveals that such is not the case. Employee Pickard had
regularly worked on a single job for at least 5 years before
the strike. Hudson, Reynolds, and Furgerson had had regu-
larly assigned jobs for at least a year. I find Respondent's
defense in this regard without merit.
Respondent appears to contend that, because it per-
formed the same type of reinstatement with regard to all 61
reinstated unfair labor practice strikers and the General
Counsel has complained only about 10 of them, the case
somehow must fall. Respondent cites no authority for this
proposition and I see no validity to it. The fact that of the
61 reinstated employees others than the 10 may have been
reinstated to jobs other than those that they held before the
strike renders the reinstatements alleged as violations no
less violative.
Finally.. Respondent appears to contend that, by entering
into a strike settlement agreement that provided that the
employees be returned to the same or substantially equiva-
lentjobs, the Union must have realized that the Respondent
would place the employees in substantially equivalent jobs
rather than displace the employees who worked during the
strike. This defense is roughly equivalent to saying that the
Union should have known better than to trust the Respon-
dent to act in good faith. As the General Counsel pointed
out in his brief, the Board has heretofore held that strike
settlement agreements may not be used to deny strikers
their reinstatement rights.8 Here, as in the Laher case, it is
apparent that the strike settlement agreement was part of a
scheme on the part of Respondent to deny returning strikers
their rights in order to reward and protect the employees
who worked during the strike. I find no defense to Respon-
dent in the strike settlement agreement.
Discussed below are the instances alleged by the General
Counsel as violations.
Weldon Johnson: Before the strike Weldon Johnson was
in a job unscrewing wooden legs from finished cabinets for
wrapping and packing by other employees. After the strike
7 The "waiver" stated, in one form or another, substantially " I [named
employee] do except [sic ] a job [such as on finish line as a utility worker]
and understand this is not permanent ," followed by the employee's signature
s See Laher Spring & Electric Car Corp, 192 NLRB 464
CUSTOM CRAFT MFG. CO. 259
Johnson was told to report to the warehouse where he was
assigned to unload trucks, clean up the warehouse, and
finally stack bundles of small precut parts. He had trouble
stacking the parts, was given a written reprimand for his
failure to follow instructions, and ultimately was discharged
because of his inability to stack them in accordance with
what he understood his instructions to be. Hopper testified
that he had no knowledge what work Johnson performed
prior to the strike and made no effort to determine what his
prestrike job was. I find that Johnson was discriminatorily
reinstated and that as a result of the discriminatorly rein-
statement he was discharged. I find further that the dis-
charge was violative because it resulted from Respondent's
unfair labor practice.9 As in the Binder case if Johnson had
been properly reinstated he would not have been placed in
a situation which gave rise to his subsequent discharge and,
accordingly, the subsequent discharge is violative. Johnson,
who was illiterate, was not asked to sign a statement accept-
ing reinstatement to a job other than that he had left.
Idella Furgerson: Idella Furgerson at the time of the strike
was engaged in picking up cabinets, placing them on a
flatbed cart, rolling them from one production line to anoth-
er, and unloading them from the cart on to the second
production line. After the strike she was put in the packing
department wrapping cabinet legs for packing and shipping.
She did not impress anyone with her work on this job and
then was detailed to the millroom where she did construc-
tion work, gluing wood pieces to cabinets and attaching
them by screws. She worked on two different jobs in the
millroom and was discharged after being given a warning
slip for failure to produce up to company standards. Hopper
testified that he took her off the hauling job because she had
complained in the past about the job being heavy and that
it hurt her back. Mrs. Furgerson denied having complained
and there was no evidence that she ever complained to
management about this. Nevertheless, she asked for the
same job back but was not given it. I find that by its failure
to reinstate Mrs. Furgerson to the job she held before the
strike and by Respondent's discharge of Mrs. Furgerson for
failing to perform up to its production standards in the
millroom work to which she was then assigned, Respondent
violated Section 8(a)(3) and (1) of the Act.10
Joe Pickard: Pickard had been employed before the strike
loading cabinets onto conveyors in the finishing depart-
ment. He did this work for about '4 years before the strike
except for a few days during vacation periods during which
he worked in the warehouse. On his return Pickard was
assigned to the warehouse, although his application reflects
that he had worked in the finishing department. He found
the work in the warehouse beyond his physical capacity and
complained to his supervisor. Receiving no satisfaction, he
informed Hopper that he did not think he could perform the
9 Tex-tan Welhausen Company, 172 NLRB 851; Binder Metal Products,
Inc., 154 NLRB 1662.
10 Hopper testified that, when he offered the changed job to Furgerson at
her initial interview, she replied that she was "more than willing to try it."
It must be remembered that the employees were interviewed alone by Hop-
per, the plant manager, and were all anxious to get back to work. The fact
that Mrs. Furgerson may have been willing to try a changed job, when she
was put in the position of either doing so or not being recalled, affords
Respondent no defense
work and asked for a lighter job. Hopper refused to put him
on lighter work because he did not want to establish a
precedent and told Pickard that it was against company
policy to be moving people around. Hopper then discharged
Pickard for refusal to do assigned work. I find with regard
to Pickard that Respondent's refusal to reinstate him to the
job he held before the strike and subsequent discharge for
his failure to perform the job to which he was assigned
constitute violations of Section 8(a)(3) and (1) of the Act."
With regard to Pickard, Hopper testified that he made no
attempt to identify Pickard's prestrike job prior to his inter-
view. This appears to have been Hopper's normal course.
He had no intention of displacing any of the strikerreplace-
ments with returning strikers and accordingly had no inter-
est in the jobs they had held; he was concerned only with
the jobs that he was prepared to offer them.
Alice Faye Warren: Warren before the strike was a spray
sealer. This job was apparently one of the least desirable
jobs in the plant and entailed spraying a sealing fluid onto
the furniture with a spray gun in a booth. The spray gave
off obnoxious fumes that caused her to become ill. She went
to a doctor who wrote a note to management asking Re-
spondent to put her on another job. While her testimony is
unclear, it appears that before the strike she was put on
gluing furniture but continued to have problems because
the fumes went throughout the plant. After the strike she
came back and she was again put on a sealer spray. Again
she asked to be taken off it and was again put on gluing, but
after 2 days was discharged because of her inability to stand
the smell of the sealer. When Respondent attempted to
move her back to spray sealing she would not go and left
Respondent's employ. After she had been off for a period
of time she prevailed on her doctor to write her a note
stating that she could go back to any job and applied again
as a sealer but was not reinstated. I find that the only job
to which Warren had any right was the job of spray sealing.
She could not keep this job and indeed became ill anywhere
she worked in the plant. The job of gluing was admittedly
not a permanent assignment, the employee who normally
did the work was off briefly but retained the right to the job.
I find that Respondent did in fact attempt to reinstate her
to the sealing job and to find other work for her that she
could tolerate, but her inability to stand the effects of the
sealer which appears to have permeated the entire plant
made it impossible for her to continue in Respondent's
employ. Accordingly, I find that Respondent has not violat-
ed the Act with regard to its handling of Mrs. Warren. I
shall recommend that the complaint be dismissed insofar as
her discharge is alleged to be violative.
Juanita Woodard before the strike had been employed
since April 1972, on ajob as a touchup painter; prior to that
she was a utility sprayer, spraying either lacquer or sealer.
After the strike when she returned she was offered the job
of spraying sealer but was not permitted to return to her job
as a touchup painter which at this time was occupied by a
nonstriker, Horton. Woodard voluntarily quit; her termina-
tion is not alleged as a violation. I find that by its failure to
reinstate her to her original job Respondent violated Section
8(a)(3) and (1) of the Act.
11 Rckard's old job was manned by a striker replacement.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jewel Reynolds poor to the strike worked on the job of
sanding the furniture , after it had received its second lac-
quer coat , to remove the fibers raised by the spray operation
and stamping the manufacturing date on each piece of fur-
niture . When she returned after the strike she applied for a
job of sander and stamper but was placed on the job of
hauling cabinets which had previously been handled by
Mrs. Furgerson . After about a week of hauling cabinets she
complained about the work and was transferred to another
job of sanding after the sealing operation where she re-
mained until the hearing . Her prestrike job was filled by a
striker replacement , Rose Anderson , the wife of a foreman.
I find that Respondent 's failure to reinstate Jewel Reynolds
violated Section 8(a)(3) and ( 1) of the Act.
Mary Frances Osborne Arwood had been employed before
the strike as a lacquer sprayer applying the second coat of
lacquer. This apparently was the most desireable of the
spraying jobs on the finishing line. When she returned from
the strike , and after a period of illness, she was assigned the
sealer sprayer job formerly held by Warren . After remaining
on the sealer job for a month and a half she was transferred
to a job of toner, then to another job of nm coating, and
finally to the job of utility worker , relieving all of the spray
painters during their absences on a temporary basis.
Arwood 's prestrike job was occupied on her return by a
striker replacement . I find that the Respondent 's failure to
reinstate her to her prestrike job violated Section 8(a)(3) and
(1) of the Act.
M. L. Hudson : Mrs. Hudson was a second lacquer spray-
er when the strike began . She apparently was exceptionally
capable because she was assigned to train new employees on
the job of spraying lacquer . Two weeks after she filed her
application for reinstatement she was called in and told that
the only job available was the utility worker position. She
was then assigned as a relief sprayer for 2 or 3 days and then
transferred to a job of shading cabinets and sealing cabinet
tops . Her job as a second lacquer sprayer was occupied on
her return from the strike by an employee who had aban-
doned the strike on November 20 and who had before the
stoke been the first lacquer sprayer . Another employee who
had been painting cabinet fronts and legs when the strike
began and who worked during the strike took over the first
lacquer job . I find that by its failure to reinstate Mrs. Hud-
son to her prestrike job Respondent violated Section 8(a)(3)
and (1) of the Act.
William Brown : William Brown before the strike had
worked assembling drawers and frames for large cabinets.
Prior to the strike , he had been tried out for a time on night
shift assembling small cabinets and had failed to make pro-
duction and had been returned to the job of assembling
drawers and frames for large cabinets where he worked until
the strike began . After the strike Brown was assigned to
building small cabinets , the same job that he had failed the
preceding year . Nevertheless he was placed on that job and
remained there until he entered the hospital on September
12, 1973. After his return to work in October 1973 he was
assigned to his prestrike job. His prestrike job was per-
formed after the strike by a striker replacement hired in
January 1973 . I find that the Respondent violated Section
8(a)(1) and (3) of the Act by failing to reinstate Brown to
the job which he had held prior to the strike.
D. The Termination of Employees T. W. and Frances
Nichols
T. W. and Frances Nichols, husband and wife , had been
employed prior to the strike and had returned and were
reinstated . On May 28, 1973 , Mrs. Nichols had an attack of
high blood pressure and called the plant informing a secre-
tary that she would be absent as she needed to see a doctor.
That day was a holiday and she was unable to see a doctor,
whereupon she saw a doctor the next day and got a chit
from him to excuse her absence . Her husband took off the
same 2 days to dove her inasmuch as she had no driver's
license . On the following workday the Nicholses returned to
the plant where Mrs . Nichols handed her doctor 's statement
to Manager Hopper , he took the statement and handed her
her timecard , but refused to give T . W. Nichols his card or
permit him to return to work , saying he wanted to talk to
him. A scene ensued and the Nicholses walked out. The
following Friday Hopper sent word to the Nicholses that he
wanted to see them . They came in to the office and had a
fairly quiet conversation during the course of which Hopper
invited the Nicholses to return to work the following Mon-
day and said that he would ask them to sign a paper bearing
a text which he read or recited to them . They agreed to do
so. Over the weekend the Nicholses consulted with Brown,
the union president, who called Union Agent Minch, who
in his turn advised the Nicholses not to sign any statement
unless they were given a copy. The following Monday
morning they went to the plant where Hopper told them
that he did not have the statements typed but they could
return to work and sign them later in the day. The Nicholses
refused to sign the paper unless they were given a copy and
Hopper refused to give them a copy whereupon they walked
out of the plant, claiming that they had been discharged,
with Hopper claiming that they had quit. Hopper testified
that he wanted the paper signed "for the protection of the
Company and myself that they had voluntarily just left."
No one contends that the initial departure of Mr. and
Mrs. Nichols was an unfair labor practice . It appears clear
that in an apparent misunderstanding of Hopper 's motive,
Mrs. Nichols lost her temper and turned her card in and
walked out, with her husband following her . Thereafter
when all the parties had cooled down the Nicholses were
called back into the plant and given an opportunity to go
back to work if they signed a certain document . It is not
contested that Hopper read to the Nicholses on that Friday
just what it was he proposed to have them sign , although
neither of them recalled what it was that he read to them.
On the following Monday it appears equally clear that on
their return to work they refused to sign the document
which Hopper proposed to have prepared for their signature
unless they were given a copy of it. Hopper became ada-
mant and refused to give them a copy and, in view of their
refusal to sign it , told them that he would let the matter
stand as it was the preceding Wednesday ; i.e., they were
terminated . The General Counsel contends that because
Mr. and Mrs. Nichols were advised by the Union to get a
copy of that which Hopper wanted them to sign, somehow
this became union or concerted activity and achieved the
protection of the Act . I do not agree. The advice they re-
ceived , to get a copy , was for their own protection and had
CUSTOM CRAFT MFG. CO. 261
no relationship to the union activities at the plant . Mr. and
Mrs. Nichols, as well as Mr. Hopper, were all unsophisticat-
ed in labor relations matters. The document in question
would have had no legal effect other than as evidence in the
event Respondent were charged with discrimination in their
initial departure and I consider it unlikely that if Hopper
had secured advice on the subject he would have declined
to give them a copy, but the fact is that his refusal to give
them a copy did not violate the Act and his refusal to permit
them to return to work unless they signed the document was
not discriminatory.
The General Counsel would have me find that, because
Hopper 's refusal to permit Mr. and Mrs . Nichols to return
to work was based on his conjecture that trouble would
ensue through the Union if he did not get the signed docu-
ment or that he would have trouble with the Union if he
gave Mr. and Mrs. Nichols a copy, the failure to reinstate
the Nichols was translated into a union-related action on
the part of Respondent and hence into an unfair labor
practice. I do not believe that it can be argued that Hopper's
failure to permit them to return to work normally would
have the effect of encouraging or discouraging union activi-
ty on the part of the employees and I reject the General
Counsel's theory. Accordingly, I recommend that the com-
plaint insofar as the termination or refusal to rehire Mr. and
Mrs. Nichols is alleged as a violation be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Respondent's oper-
ations described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
On the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. At all times material herein Respondent has been en-
gaged in commerce as an employer within the meaning of
Section 2(6) and (7) of the Act.
2. At all times material herein the Union has been a labor
organization within the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees , including
plant clerical employees and all truckdrivers employed by
Respondent at its Halls, Tennessee, location , excluding all
office clerical employees , professional employees, watch-
men, guards and supervisors as defined in the Act constitute
a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages , hours of employment,
and other terms and conditions of employment.
4. At all times since September 18, 1972, the Union has
been the exclusive representative for the purposes of collec-
tive bargaining of the employees in the unit described
above.
5. By unilaterally changing rules relating to vacation,
holiday, and leave of the employees in the unit described
above, Respondent refused and continues to refuse to bar-
gain collectively with the Union as the exclusive bargaining
representative of the employees in the unit described above
and thereby has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) of the Act.
6. The strike commencing on November 14, 1972, and
continuing until February 19, 1973, was an unfair labor
practice strike.
7. The failure and refusal of Respondent to offer to the
striking employees named below reinstatement to their for-
met positions of employment, all of which were in existence,
after said employees made unconditional offers to Re-
spondent to return to work constitutes discrimination in
regard to hire or tenure or terms or conditions of employ-
ment of the employees, thereby discouraging membership in
a labor organization in violation of Section 8(a)(3) of the
Act.
Weldon Johnson Jewell Reynolds
Idella Furgerson Mary Frances Arwood
Joe Pickard M. L. Hudson
Juanita Woodard William Brown
8. By the termination of Weldon Johnson, Idella Furger-
son, and Joe Pickard, because of their failure to perform to
Respondent's satisfaction in the jobs to which they were
reinstated in a discriminatory manner, Respondent has ad-
ditionally violated Section 8(a)(3) of the Act.
9. The terminations of Alice Faye Warren, T. W. Ni-
chols, and Frances Nichols are not unfair labor practices
within the meaning of the Act.
10. By the conduct set forth in Conclusions of Law 5, 7,
and 8 above, Respondent interfered with, coerced, and re-
strained employees in the exercise of their rights protected
in Section 7 of the Act in violation of Section 8(a)(1) and
Sections 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Having found that Re-
spondent has discriminatorily discharged Weldon Johnson,
Idella Furgerson, and Joe Pickard, I shall recommend that
Respondent offer them reinstatement to the jobs they held
before the strike or, if those jobs no longer exist, to substan-
tially equivalent jobs and make them whole for any loss of
earnings they may have suffered as a result of the discrimi-
nation against them, by payment to them of sums of money
equal to those which they normally would have earned from
the date of their discharge to the date of a valid offer of
reinstatement, less net earnings during such period, to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 280, and with interest as described in
Isis Plumbing & Heating Co., 138 NLRB 716.
I have found that Juanita Woodard, Jewell Reynolds,
Mary Frances Osborne Arwood, M. L. Hudson, and Wil-
liam Brown were not reinstated to their prestrike jobs in
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(a)(3) and ( 1) of the Act . I shall recom-
mend that Respondent offer them reinstatement to their
prestrike jobs if they are still in existence , displacing if nec-
essary any present incumbent in such job If their jobs are
not in existence Respondent shall offer them substantially
equivalent employment.12
Having found that Respondent violated Section 8(a)(5)
by its unilateral changes in working conditions , I shall rec-
ommend that Respondent be ordered to rescind its notices
posted in December 1972 and January 1973, returning to its
former means of determining vacation and holiday com-
pensation and granting leaves of absence . In the event it is
determined that any employees suffered a loss of vacation
or holiday pay by reason of Respondent 's change in its
means of computation , I shall further recommend that it be
ordered to make whole any employees who suffered a loss
of vacation or holiday benefits by payment to them of the
sum of money that they would have been given for such
vacation or holidays Further, in the event that any employ-
ee has suffered adverse consequences as a result in the
changes relating to leave of absence , I shall recommend that
Respondent be ordered to reinstate any who may have been
terminated and make them whole as set forth above with
relation to Weldon Johnson, et a!.
Upon the basis of the foregoing findings of fact , conclu-
sions of law , and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act , I hereby issue the
following recommended:
ORDER 13
Respondent, Custom Craft Manufacturing Company, a
Division of U.S. Industries, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership and activities on behalf of
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC, or any other labor organization
by discriminating in regard to the wages, hours, and work-
ing conditions of their employees because they engaged in
an unfair labor practice strike.
(b) Unilaterally affecting changes in its employees wag-
es, hours, or working conditions without notice to or bar-
gaining with the above-named Union or any other labor
organization which represents its employees.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining
or other mutual aid or to refrain from any or all such activi-
ties.
2. Take the following affirmative action which is de-
signed to effectuate the policies of the Act:
(a) Offer to Weldon Johnson, Idella Furgerson, and Joe
Pickard their former jobs or, if such jobs no longer exist,
substantially equivalent jobs and make them whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Offer to Juanita Woodard, Jewell Reynolds, Mary
Frances Arwood, M. L. Hudson, and William Brown rein-
statement to the jobs they held before the strike. If any of
thosejobs are no longer in existence, they are to be offered
reinstatement to substantially equivalent jobs.
(c) Rescind the rules relating to vacation and holiday pay
posted in January 1973 and the rules relating to leaves of
absence posted in December 1972, and reinstate and make
whole any employees who suffered loss of theirjobs, work-
time, or income as a result of the unilateral imposition of
those rules as provided in the section of this Decision enti-
tled "The Remedy "
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(e) Post at its plant in Halls, Tennessee, copies of the
attached notice marked "Appendix." t4 Copies of said no-
tice, on forms provided by the Regional Director for Region
26, after being duly signed by its representative, shall be
posted by Respondent immediately 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.
(f) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
1211 should be noted that Respondent's viewpoint of heavy warehousing
as a job substantially equivalent to taking legs off of cabinets is not accepted
This order envisages that the term "substantially equivalent" means exactly
what it says, not what Respondent contended at the hearing, in the testimony
of its president, that all jobs in the plant were substantially equivalent to one
another
U In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
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
14 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 of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
CUSTOM CRAFT MFG. CO. 263
mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT refuse to bargain collectively with Unit-
ed Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC, as the exclusive collective-
bargaining representative of our employees in a unit
appropriate for collective bargaining by unilaterally
changing working conditions in our plant without no-
tice to and negotiation with that Union.
WE WILL NOT discourage membership in the above-
named Union or any other labor organization by dis-
criminatorily refusing to reinstate unfair labor practice
strikers while continuing to employ strike replacements
or otherwise discriminate against any employee.
WE WILL make whole our employees who were dis-
charged as a result of their discriminatory reinstate-
ment after the strike for any loss of pay they may have
suffered as a result of our discrimination against them,
by payment to each of them of the amount of money
they lost as a result of our action.
WE WILL reinstate the following employees to the jobs
they held before the strike . If these jobs no longer exist
we will reinstate them to substantially equivalent jobs
in our plant:
Weldon Johnson Jewell Reynolds
Idella Furgerson Mary Frances Arwood
Joe Pickard M. L. Hudson
Juanita Woodard William Brown
If any of our employees have been terminated or lost any
money as a result of our change in December 1972 of our
leave of absence policies, WE WILL reinstate them and make
them whole for any loss of money resulting from our unilat-
eral imposition of the rules contained in that notice.
If any of our employees lost holiday or vacation pay
because of the rules set forth in our notice posted in January
1973, WE WILL make them whole for any money lost as a result
of our unilateral change in the vacation and holiday pay.
CUSTOM CRAFT
MANUFACTURING COMPANY
(Employer)
Dated By
(Representative) (Title)
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, 746
Federal Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.