Terry Coach Industries, Inc.

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