National Tape Corp.

NATIONAL TAPE CORPORATION National Tape Corporation and Textile Workers Union of America, AFL-CIO. Cases 14-CA-491 1, 14-CA-5070, 14-CA-5132, and 14-RC-6163 December 17, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On February 2, 1970, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other alleged unfair labor practices. Thereaft- er, the General Counsel, Respondent, and Charging Party filed exceptions to the Decision 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 these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications: 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their union activ- ities ; by telling employees they were not to talk about the Union; by taking union authorization cards away from employees; by warning employees not to sign authorization cards, stating that other employees had been dismissed for passing out such cards; by telling employees that they were being continued on layoff status because of Respondent's belief that they had signed union authorization cards; and by threatening striking employees with discharge if they did not return to work. 2. The complaint alleges that Respondent further violated Section 8(a)(1) by making certain threats and by engaging in surveillance . The General Counsel and Charging Party have excepted to the Trial Examiner's failure to rule on these allegations. We find merit in these exceptions. The evidence adduced in support of i There is also testimony that this surveillance occurred sometime in March However, it would appear that February 25 is the correct date in 321 these allegations shows that shortly after Foreman Paul Maes removed union authorization cards from the pockets of employees Melvin Morber and Amb- rose Beshears, Maes told Morber that Beshears "better watch it or he wouldn't be around much longer" and that he was going to watch both of them. We find that this threat was designed to prevent the employees from engaging in any further union activities and as such violated Section 8(a)(1) of the Act. The evidence elicited in support of the surveillance allegation shows that Maes did in fact engage in surveillance of Beshears and Morber. Thus, on February 25, 1969,1 while Beshears was talking to employees Marvin Hickey and Harvey Bloodworth in the lunchroom during nonworking time, employee Morber asked Beshears to walk with him while they talked. At that time Maes followed and kept an eye on them from around corners. It is apparent that Maes was carrying out his threat to engage in surveillance and in so doing violated Section 8(a)(1). In February 1969, Foreman Maes and employee Alan Bundren were engaged in a discussion concern- ing unions in general. In this conversation, Maes referred to a "law suit" and then mentioned employ- ees Morber and Beshears and said "Damn them, it's all their fault." It is clear that in the above context Maes held known union supporters Morber and Beshears responsible for the union activity and for the results flowing therefrom including the unfair labor practice charges against Respondent. Hence, the malice contained in Maes' statement toward these known union adherents was certain to be coercive and tended to deter Bundren from engaging in any union activity in violation of Section 8(a)(1) of the Act. On March 26, 1969, the Union commenced picket- ing at the Respondent's plant. Employee Larry Crider was the strike captain. As strike captain, it was Crider's duty to see that the picket line was main- tained. While he was at the picket line Respondent's Vice President Mario Perri drove by, rolled down his car window, stuck his finger out shaking it at Crider and repeated several times, "Larry, baby, you're mine." We find that this threatening conduct toward an employee engaged in picket line activity is violative of Section 8(a)(1) of the Act. About April 2 or 3, 1969, Perri stopped at the picket line and called employee Ed Fallin to his car. Perri opened the conversation stating that he thought Fallin was his friend. When Fallin replied that he was, Perri wanted to know if he was his friend what was he doing on the picket line. In response, Fallin stated that he wanted his rights and wanted to be treated like a human being. Perri then stated that he knew where that employees Hickey and Bloodworth who, according to Beshears, were present at the time the surveillance took place, were laid off on that date. 187 NLRB No. 41 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fallin lived and he would hate to have to attend his funeral. We find that this threat of bodily harm towards an employee because of his picket line activity is a clear violation of Section 8(a)(1). 3. We agree with the Trial Examiner's findings that Respondent laid off employees Martell McAnel- ly, Kenneth Pedigo, Thelma Pulley, Lillian Barr, on October 23, 1968, discharged Freely Barnett on November 23, 1968, and laid off Ruth Gurley on February 25, 1969, in violation of Section 8(a)(3) and (1) of the Act. 4. We also agree with the Trial Examiner's findings that Respondent did not violate Section 8(a)(3) and (1) of the Act by laying off employees Ann Gartner, Ernie Williams, Alan Bundren, Jack Mor- gan, and James Morgan. We find, however, contrary to the Trial Examiner, for reasons set forth below, that Respondent violated Section 8(a)(3) and (1) by discharging employee Barr on January 23, 1968, after reinstating her from a discriminatory layoff; by laying off employees Marvin Hickey and Donald Blood- worth on February 25, 1969; and by laying off employees Ambrose Beshears, Larry Crider, and transferring employee Melvin Morber to Jackson County Woodworks on March 24, 1969. Employee Lillian Barr was hired on October 8, 1968, as a packer and rewinder. On October 23, 1969, Barr was laid off assertedly for production difficulties. During her layoff, Barr contacted Supervisor Mildred Lacey and asked when she was going to be recalled. In response, Lacey stated that Maes had said that Barr and employee Pulley had signed union cards. Barr denied this accusation and said that she would contact the Labor Board and a friend in the Herrin Chamber of Commerce to see what they could do for her. Lacey then asked Barr to wait a few days in that Perri was in New York and that she would talk to him again . Barr was recalled on November 11, 1968. The Trial Examiner correctly concluded that Barr was discriminatorily separated. Barr's troubles, how- ever, did not end with her reinstatement. She was subsequently discharged on January 23, 1969, by Paul Shalita, a management representative, for allegedly packing second grade tape with first grade tape.2 Barr denied packing the second grade tape. The record shows that employees on the shift before and after Barr had packed the same kind of tape which Barr packed on the night preceding her discharge. The evidence also shows that when a shift ended and a box was partially packed it was finished by the employees 2 At first, Foreman Amo Hand testified that Barr was discharged for packing first grade tape with second grade tape but later in his testimony indicated that Shalita told him that second grade tape was put in with first grade Barr testified that the reason given for her discharge was the packing of second grade tape, which she referred to as "bad tape," with first grade tape . Shalita did not testify at this proceeding 3 We find that the evidence is sufficiently clear that employees were on the next shift without checking what had been previously packed in the partially filled box. But, even if Barr had packed, as alleged, the second grade tape with the first grade tape she was doing so pursuant to the instructions of General Manager W. R. Henning- son who had told her to put about one roll of second grade tape in with first grade tape. Further, packer Linda Murphy testified that Perri had told her to pack second grade tape with first grade tape.3 As the evidence shows that other employees on different shifts had packed the same kind of tape packed by Barr and that Respondent's representatives had told Barr and at least one other employee to pack second grade tape with first grade tape, we are convinced that the ground advanced for the discharge of Barr was a mere pretext to disguise Respondent's real motive which was to rid itself of an employee whom it continued to believe was a supporter of the Union. Employee Marvin Hickey was hired on October 12, 1968, as a helper on the slitting machine and was promoted to operator and received a pay increase. He introduced his friend Donald Bloodworth to Perri who hired Bloodworth on November 24, 1968, to be Hickey's helper on the slitter. Hickey and Bloodworth had never been criticized for their work and foreman Hand told Hickey that he slit the best half-inch tape they had ever produced. On February 13, 1969, Hickey and Bloodworth signed authorization cards for the Union. On February 23, 1969, Hickey and Bloodworth attended a union meeting in the Textile Workers' union hall. This hall in Herrin is identified by a sign on the window, and is so situated that occupants inside can be seen through a large plate glass window and those persons entering and leaving the hall can be seen from various vantage points. As set out above, at lunchtime on February 25, 1969, Hickey and Bloodworth were talking to employee Beshears who had been warned by Respondent about his union activities and threatened with surveillance. Employee Morber, who had also been threatened with surveillance, approached Hickey and Beshears and walked off with Beshears at which time Foreman Maes trailed and kept an eye on them. Later that same day, both Hickey and Bloodworth were laid off. They were told that their layoff was because the plant did not have enough rubber and cloth to make tape. In point of fact, however, there was a supply of rubber already on hand and a supply of cloth had been received the day before the layoff. instructed by Hennmgson and Perri to pack second grade tape with first grade tape. This evidence stands uncontradicted by Perri and Henningson who testified at this proceeding Also as we read the record, Barr consistently took the position that she did not know whether she packed the box in question but was sure that she did not pack the bad tape in that box NATIONAL TAPE CORPORATION Prior to the slitting operation rubber is placed on the tape by the use of calender machines. These machines were in operation at the time of the layoff and continued thereafter without a reduction in prod- uction. The record also discloses that at the time of the layoff the. -e was material on hand that was ready to be slit. In fact, the slitting operation continued at the same level after the layoff as it had prior thereof. As there was no shortage of material for slitters' work, the reason given for the layoff of Bloodworth and Hickey clearly was a pretext.4 Both employees had provided satisfactory services. Nevertheless, 12 days after they signed union cards, 2 days after they attended a union meeting and a few hours after they were observed talking with employee Beshears,5 an active union supporter, both employees were laid off. In these circumstances, we find that Hickey and his helper Bloodworth were laid off because of Respon- dent's desire to rid itself of suspected union support- ers. Employee Larry Crider was hired in January 1969, as a slitter operator. He obtained authorization cards at a union meeting that he attended. In the week preceding his layoff, he solicited employees' support for the Union and obtained authorization card signatures from eight of them. General Manager Henningson was in the area at the time these solicitations took place. These events occurred about the time the Union filed a petition for an election on March 19, 1969. On March 23, Crider attended a union meeting at the Textile Workers hall. When he went to work the following day he was told by Foreman Brantley that he was being laid off because they were "cutting back." As indicated above, at that time tape was waiting to be slit and the operators were unable to keep up with the work then available. The calender machines that produce tape for slitting were working full time and there was no reduction in the work going to the slitters. Under these circumstances, we find that Respon- dent's asserted reason for laying off Crider to be pretextual, and that Respondent's real reason was to rid itself of a union organizer thereby discouraging union activity. Employees Melvin Morber and Ambrose Beshears were hired in May and June 1968. In October 1968, 4 Contrary to our dissenting colleague , Respondent did not defend its action with regard to the layoffs on grounds that a cutback was necessary as a result of a reduction in sales and a shortage of raw materials For, the only evidence elicited concerning specific reasons for the layoff of Bloodworth , Hickey and the March layoff, discussed infra, of Crider, Beshears, and the transfer of Morber, was their own testimony as to what they were told by Respondent and not testimony of Respondent's representatives Respondent's representatives did not give specific testimony on this matter . The record shows that at the hearings held in Case 14-CA-491I, prior to the issuance of the complaint concerning the above-named employees, Respondent's representatives gave testimony in defense of the 8(a)(3) allegations involving employees McAnelly, Pedigo, 323 Beshears received three authorization cards from employee McAnelly and was told to sign one card and pass out the other cards. Later that day without saying a word Foreman Maes removed them from Beshears pocket. Maes then went over to talk to Vice President Perri. The next day, Personnel Director Mildred Lacey warned Beshears against soliciting for the Union and told him that Respondent had rid itself of two other employees who were passing out authoriza- tion cards and that his name was mentioned. About the same time Foreman Maes caught Morber with an authorization card and removed it from his possession. The next day Maes told Morber that the employees would have difficulty in getting the Union and that Beshears had better watch out or he would not be around much longer. Maes further told Morber that he was going to watch both of them. As set out above, Maes did keep them under surveillance. In fact, Maes indicated to employee Bundren in Febru- ary that Beshears and Morber were responsible for the "law suit" against Respondent. On March 7, 1969, Beshears and Morber testified in support of the allegations in the original and first amended complaint. After the initial hearing, Besh- ears continued his activity of soliciting support for the Union. He attended all union meetings. In fact he acted as a liaison between the Union and employees by keeping them informed of when such meetings would be held. On March 23, Beshears attended a union meeting and was laid off the following day. He did not testify as to why he was laid off. On the same day, Morber was transferred to Jackson County Woodworks. Morber testified that upon asking why he was being transferred, Maes replied "it was either that or get laid off." On the basis of the foregoing, we are convinced that Respondent laid off Beshears and transferred Morber for antiunion reasons. Neither employee was given a satisfactory explanation by Respondent for the action taken. While it appears that Morber was not as active in the Union as Beshears, it is apparent that Respondent identified both as being union support- ers. This is clearly demonstrated by the 8(a)(1) conduct that was directed against them by Respon- dent. Accordingly, we conclude that the layoff of Beshears and the transfer of Morber were but part of Pulley, Barr, and Barnett. This included testimony that Respondent was generally experiencing production problems with regard to the quality of the tape and that there were layoffs because of these problems. Subsequently, a complaint issued in Case 14-CA-5070 and was consolidated with Case l4-CA-491 I This complaint alleged, inter alia, the discriminatory layoff of Bloodworth, Hickey, Crider, Beshears and the discriminatory transfer of Morber . At the hearing on this complaint, the supervisors of these employees did not testify although Maes and Hand had testified at the earlier unfair labor practice proceeding . Perri and Henningson, however, were again called as witnesses but did not testify as to why these employees were terminated 5 Beshears testified that he was talking to both Hickey and Bloodworth 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's unremitting effort to rid itself one by one of the union supporters at National Tape. 5. The Trial Examiner found that the strike which commenced on March 26, 1969, and terminated on May 21, 1969, was an economic rather than an unfair labor practice strike. In so holding, the Trial Examin- er relied on the following facts. On the morning of March 26, 1969, a union meeting was held. A majority of the employees present at that meeting were those employees who were laid off on March 24. After airing the plight of the laid off employees, a vote was taken in which the employees decided to take strike action. Later that same day, picket lines were established. Certain employees who did not attend the strike meeting and were unfamiliar with the cause of the strike nevertheless refused to cross the picket line. The Trial Examiner was of the view that the strike was caused by the recent March 24 layoff and since he dismissed the 8(a)(3) allegations with respect to those laid off employees he concluded that the strike was not an unfair labor practice strike, but rather an economic strike. The General Counsel and Charging Party excepted to this finding. We find merit in this exception. Having found, contrary to the Trial Examiner, that on May 24 Respondent discriminatorily laid off employ- ees Beshears and Crider and discriminatorily trans- ferred Morber, we also find that the strike which was triggered by such discriminatory action was an unfair labor practice strike rather than an economic strike as found by the Trial Examiner. We further find that while the strike was triggered by the March 24 discriminatory layoffs and transfer it was also provoked by earlier unfair labor practices committed by the Respondent. As found herein, Respondent from the beginning of the Union's organizing campaign interfered with, restrained, and coerced its employees in violation of their Section 7 rights. Respondent not only engaged in unlawful interrogation, surveillance, and threats, but also sought to rid itself of union supporters by layoffs, discharges, and transfers. On March 19, the Union filed a petition for an election and on March 23 held a meeting to discuss the pending petition. Employees in attendance at that meeting expressed their concern over Respondent's conduct. They discussed the separation of employees and stated their belief that employees who attended union meetings were select- ed for layoff or discharge. They asked Union Representative Ford why it had taken so long to get an election, what had become of the unfair labor practice charges that were filed for the employees who were laid off, and why Respondent continued to watch and harass them on union activities. On March 24, Respondent laid off several employ- ees including Beshears, Crider and transferred Mor- ber. Some of the very same employees who were protesting, on March 23, the earlier layoffs now found themselves laid off. As a result thereof, the employees again met on March 26 and discussed the continuing layoff and transfer of union supporters and decided to strike. The discussion at that meeting, however, was not confined to just the recent terminations. Certain unfair labor practices that preceded the March 24 layoff were also discussed at that meeting. Thus, the record discloses that the February 25 discriminatory layoffs of employees Gurley, Hickey, and Bloodworth were a subject of discussion. Also, employee Beshears testified that he stated at the March 26 meeting that Respondent seems to be laying off union card signers and keeping those who had not signed cards. He also told the employees at the meeting that Respondent had taken union cards out of his pocket at the plant and warned him if he signed any union cards he would be discharged. According to Union Represent- ative Ford, the employees expressed the opinion that the way things were going none of the union supporters would be left at the time of the election and also expressed dissatisfaction with the progress made in resolving the earlier unfair labor practices. After the strike commenced on March 26, Respondent continued its unlawful conduct by threatening strikers with bodily harm and discharge. The strike was terminated on May 21, 1969, on which date a letter was addressed to the Respondent by the Union. The letter contained an unconditional offer on behalf of the striking employees to return to work. After receiving the letter, Respondent sent a letter dated May 28, to the strikers directing them to come to the plant and state whether they were available for rehire.6 Most of the strikers responded to this letter, but were not immediately reinstated. Later, some of the strikers were recalled to work. On June 20, a representation election was held with the challenged ballots sufficient in number to affect the results of the election. Objections to the election were filed by the Textile Workers Union. However, on July 28, Res- pondent's plant burned down which rendered unfeas- ible further operations. On these facts, we find that the strike was provoked by Respondent's overall unfair labor practices that were part of a deliberate effort that began in October 1968 to eradicate union activity among its employees. If the employees had not taken into consideration Respondent's earlier unfair labor practices, the March 24 separations might have passed without incident. However, the record demonstrates that the employees were well aware of Respondent's previous 9 Respondent had hired replacements to fill the job vacancies created by the strike. NATIONAL TAPE CORPORATION unlawful conduct. The March 24 terminations, including the discriminatory layoff of employees Beshears and Crider and the discriminatory transfer of Morber, were, so to speak, the trigger for the strike because of Respondent's overall unfair labor prac- tices. Accordingly, as this was an unfair labor practice strike, Respondent violated Section 8(a)(1) and (3) of the Act by not recalling the strikers at the time they made their unconditional offer to return to work. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. We have found that Respondent discriminatorily laid off Martell McAnelly, Kenneth C. Pedigo, Lillian Barr, and Thelma Pulley on October 23, 1968; discriminatorily discharged Freely R. Barnett on November 23, 1968, and Lillian Barr on January 23, 1968, after reinstating her from the earlier discrimina- tory layoff on November 11, 1968; discriminatorily laid off Ruth Gurley, Marvin Hickey, and Donald Bloodworth on February 25, 1969; and discriminato- rily laid off Ambrose Beshears, Larry Crider, and unlawfully transferred Melvin Morber on March 24, 1969. We shall therefore order that the Respondent remedy such unlawful conduct by making these employees whole for any loss of earnings they may have suffered as a result of the discrimination against them in the following manner. Discriminatees McAnelly, Pedigo, Barnett, Barr, Gurley, Bloodworth, Hickey, Beshears,7 and Morber8 were not offered reinstatement to their former or substantially equivalent positions without loss of seniority or other rights and privileges. We shall order the Respondent to make these employees whole from the dates of their discrimination to the dates on which their jobs would have normally ceased by reason of Respondent's termination of the Herrin, Illinois, operation. The Trial Examiner found that discrimina- tee Pulley received an offer to return to work on January 27, 1969. We shall order the Respondent to make her whole from October 23, 1968, the date of discrimination, to January 27, 1969, the date of the Respondent's offer of reinstatement. Discriminatee Crider was reinstated by Respondent during the week 7 On March 29, Beshears received a telegram stating "please report to work at National Tape Corp. at 3 p in . today." We do not consider this to be a valid offer of reinstatement to an 8(aX3) s On March 27, Morber talked by phone to supervisor Brantley. He asked if they needed help at National Tape and was told "Yes, come on over " The next morning he went to National Tape to report for work but on arriving there found that a picket line had been set up He had not previously known of the picketing but upon seeing the picket line refused to cross and in fact engaged in picketing on that day On the same day, he received a telegram stating "Please report today 3/28/69 at National Tape on your regular scheduled shift if not you will be permanently replaced " 325 ending August 16, 1969. We shall order the Respon- dent to make him whole from the date of his discrimination to the date of his reinstatement. We have also found that the strike which com- menced on March 26, 1969, was caused by Respon- dent's unfair labor practices and was therefore an unfair labor practice strike; that on May 21, 1969, the Union, on behalf of the striking employees, made an unconditional offer to return to work; that Respon- dent did not immediately reinstate the strikers; and that Respondent thereafter did reinstate some but not all of the strikers. Accordingly, we shall order Respondent to make whole the unfair labor practice strikers for any loss of pay they may have suffered by reason of Respondent's failure to reinstate them by the payment to them of a sum of money equal to the amount they would have earned in wages during the period from May 21, 1969, to the dates they were reinstated or offered reinstatement, as the case may be, or if neither, then the dates on which their jobs would have normally ceased by reason of Respon- dent's termination of the Herrin, Illinois, operation. We shall leave for determination during the compli- ance stage of this proceeding Respondent's backpay liability, if any, to each of the individuals alleged to be unfair labor practice strikers and, where liable, the discriminatory period for each with regard to the computation of such backpay. The employees covered by this section of the Decision shall be made whole in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. We agree with the Trial Examiner that a reinstate- ment order need not be required under the circum- stances of this case. The record shows that the plant burned down on July 28, 1969. The Respondent attempted without success to acquire other facilities in the Herrin, Illinois, area so as to continue its operations. The Respondent then purchased a plant in Woodbine, New Jersey, and moved the Herrin facilities there. At the time of the hearing, the New Jersey plant was about to go into production and General Manager Henningson was to move to Woodbine, New Jersey. The General Counsel has not requested reinstatement at the New Jersey plant nor is Respondent made no attempt to assure Mother that this offer of reinstatement to his regular shift would be to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges which he may have enjoyed at the time of the discriminatory transfer. Moreover, even if the offer were considered valid in these respects, we would still find it to be inadequate by its own terms since it was limited timewise to an unreasonably short period in that Morber was required to accept such offer on the very day it was received by him. Under these circumstances, we do not consider the offer of reinstatement to be a valid one. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there evidence that Respondent plans to operate in the foreseeable future in the Herrin area. In these circumstances, we find no basis for fashioning a reinstatement order at Herrin where no plant is in existence and no future operations are contemplated. We shall, however, order Respondent to mail a copy of the notice herein, after the notice is signed by Respondent's representative, to each of the former employees of the Respondent's Herrin plant who were employed during the time the unfair labor practices were committed. THE CHALLENGED BALLOTS AND OBJECTIONS IN CASE 14-RC-6163 For the reasons stated by the Trial Examiner, we would find that, in the circumstances of this case, the policies of the Act would not be effectuated by resolution of the question concerning representation. ADDITIONAL CONCLUSIONS OF LAW Amend Conclusion of Law number 3 in the Trial Examiner's Decision to read as follows: 3. By laying off employees Martell McAnelly, Kenneth C. Pedigo, Thelma Pulley, Lillian Barr, on October 23, 1968; by discharging Freely Barnett on November 23, 1968; by laying off Ruth Gurley, Marvin Hickey, and Donald Bloodworth on February 25, 1969; and by laying off employees Ambrose Beshears, Larry Crider and transferring Melvin Morber on March 24, 1969; Respondent engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. Add the following two paragraphs after Conclusion of Law number 3 in the Trial Examiner's Decision, as amended above, and renumber subsequent Conclu- sions of Law accordingly: 4. The strike in which Respondent's employees engaged beginning on March 26, 1969, was an unfair labor practice strike. 5. By refusing to immediately reinstate the unfair labor practice strikers who applied for reinstatement, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, National Tape Corporation, Herrin, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees as to their union activities. (b) Telling employees they were not to talk about the Union. (c) Taking authorization cards away from employ- ees. (d) Warning employees not to sign union authoriza- tion cards. (e) Telling employees that they were being contin- ued in layoff status because they had signed union authorization cards. (f) Threatening employees with discharge. (g) Threatening employees with bodily harm for supporting the Union. (h) Engaging in surveillance of employees' union activities. (i) Discharging, laying off, transferring, or otherwise discriminating against employees because they sup- port and are active on behalf of the Union or any other labor organization. (j) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in 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 right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole Martell McAnelly, Kenneth Pedi- go, Thelma Pulley, Lillian Barr, Freely Barnett, Ruth Gurley, Marvin Hickey, Donald Bloodworth, Amb- rose Beshears, Larry Crider, and Melvin Morber, for any loss of pay which they may have suffered by reason of the Respondent's discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Make whole the unfair labor practice strikers for any loss of pay they may have suffered by reason of the Respondent's discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (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 under the terms of the Order. (d) Mail a copy of the attached notice marked "Appendix" 9 to each employee who was employed s In the event that this Order is enforced by a Judgment of a United of the National Labor Relations Board" shall be changed to read "Posted States Court of Appeals, the words in the notice reading "Posted by Order Pursuant to a Judgment of the United States Court of Appeals Enforcing NATIONAL TAPE CORPORATION 327 during the time the unfair labor practices were committed. (e) Notify the Regional Director for Region 14, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. - IT IS FURTHER ORDERED that all allegations of the complaint not specifically found to involve violations of the Act be, and they hereby are, dismissed. CHAIRMAN MILLER, dissenting in part: Contrary to the majority, I would reverse the Trial Examiner only insofar as he failed to find that the strike of March 26, 1969, was an unfair labor practice strike 10 and that Respondent violated 8(a)(1) through Foreman Maes' threat to Morber and Beshears, through the impression of surveillance created by Maes in following employees Morber and Beshears, and through Vice President Perri's threat to Fallin. I disagree with the additional 8(a)(1) violations found by the majority. In my opinion, the statement by Maes blaming Morber and Beshears for the "lawsuit" and Perri's comment to Crider, "Larry baby, you're mine," though, perhaps intemperate and demonstrating animus towards employee activity on behalf of the Union, were vague and failed to fall within accepted standards for 8(a)(1) violations. For the reasons set forth below, I would also affirm the Trial Examiner's dismissal of alleged 8(a)(3) violations relative to the discharge of Barr, the layoff of Hickey, Bloodworth, Crider, and Beshears, and the transfer of Morber. Barr was terminated on January 23, 1969 because she allegedly packed bad tape. Although at the time of an earlier layoff in October 1968, Barr was thought by Respondent to have executed a card, she had not in fact done so and at no time did she openly engage in any form of union activity. Further, the record contains no evidence suggesting that, as of the time of her discharge, Respondent continued to believe that she was a union supporter. The Trial Examiner, in dismissing, found "no credible evidence that . . . Barr was discriminatorily discharged ..." The majority reverses, concluding that the asserted ground for the discharge was pretext. In doing so, the majority relies solely upon rather vague testimony that employees had been instructed to pack second grade tape with first grade tape.ii Nonetheless, from Barr's own testimony, it is clear that any such instructions would not justify the packing job which led to her discharge. Thus, Barr's own opinion concerning the tape she was accused of packing was expressed as follows: ". . . a two year old wouldn't pack that kind of tape." an Order of the National Labor Relations Board " 10 My conclusion in this regard is based solely upon evidence showing that the strike was provoked by Respondent's overall pattern of unfair labor practices and employee dissatisfaction with the progress being made Furthermore, while Barr initially testified that she didn't know whether she packed that box, then denied that she had, on cross-examination she admitted she couldn't be sure as to whether or not she had packed it. In these circumstances, including Barr's admission that Respondent was troubled by quality control problems at the time of her discharge, it seems clear enough that the General Counsel has failed to cast doubt upon the valid cause assigned by Respondent for the discharge, and that the Trial Examiner correctly found that there was no credible evidence that Barr was discharged for reasons other than packing low grade tape in first quality boxes. Also without merit is the majority's finding that Hickey and Bloodworth, a slitter operator and helper, respectively, were laid off for discriminatory reasons. The union activities of each were limited to signing cards and attending union meetings. The majority reverses the Trial Examiner's dismissal on grounds that the stated reason for the layoff was pretext. In so concluding, they point to a statement by a low-level supervisor that the terminations were attributable to a shortage of materials. The majority finds this unsup- ported by the record in view of evidence showing that a supply of rubber and cloth was on hand at the time of the layoff. At best, this evidence is inconclusive. Respondent defended its action on grounds that a cutback was necessary as a result of a reduction in sales, and that, due to a shortage of raw materials, a slitter operator and helper could be eliminated. I have no quarrel with the majority's findings that tape making materials were available at the time of layoff. Respondent did not suspend slitting operations and therefore some material was obviously on hand when the layoff occurred. The key question is how much? The availability of some material would hardly refute Respondent's explanation that short supplies made it feasible to dispense with the services of one slitter operator and helper. Yet there is absolutely no indication in the record that would support a finding that materials were on hand in such abundance as to justify continued employment of these workers. Hickey himself testified that the quantity on hand at the time of layoff could have been exhausted in less than a week. But aside from the General Counsel's failure to refute the assigned reason for the layoff, additional factors negate the existence of discrimina- tory motivation. Thus, the General Counsel concedes that replacements were never hired to fill the jobs of Hickey and Bloodworth. Additionally, though the General Counsel points to the fact that the layoff in efforts seeking to obtain a remedy through Board procedures 11 The record shows that there were at least three or four different qualities of tapes The testimony concerning the instructions is vague and does not indicate that employees were licensed to pack the lowest grade tape with that of the highest quality 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD followed shortly after Hickey and Bloodworth attend- ed a union meeting, the record also shows that five of the six remaining slitter operators and helpers also attended that meeting and were retained. I would affirm the Trial Examiner's dismissal. The majority also reverses the Trial Examiner by finding that Crider and Beshears were laid off and Morber transferred, all in violation of Section 8(a)(3). I disagree. Each incident occurred contemporaneous- ly with the layoff of five additional employees. The group layoff and transfer was explained by Respon- dent to have been dictated by a lack of orders and excessive inventory. The record contains no evidence to the contrary. Indeed, the Trial Examiner stated that the record contains ". . . no credible facts which either by inference or otherwise support a prima facie case for the General Counsel as it concerns the above- mentioned employees." Yet the majority finds Cn- der's layoff unlawful because production materials were available and his department continued to operate thereafter. In my opinion, these considera- tions are not inconsistent with Respondent's reason for the layoff and are plainly insufficient to support reversal of the Trial Examiner. Nor can I agree with the majority, that in the case of Beshears and Morber, the action taken against them must have been unlawful because they were the object of certain 8(a)(1) conduct some 6 months previously. In my opinion, the majority has failed to establish valid reasons for distinguishing Crider, Beshears, and Morber from the other five employees, which the majority concedes were lawfully terminated simulta- neously with, and for the same reasons, as the former group. Here again, I would affirm the Trial Examin- er's dismissal. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate any of our employees concerning their union activities. WE WILL NOT tell our employees that they cannot talk about the Union. WE WILL NOT take union authorization cards away from our employees. WE WILL NOT tell our employees not to sign union authorization cards. WE WILL NOT tell our employees that they were being continued in layoff status because they had signed union authorization cards. WE WILL NOT threaten our employees with discharge. WE WILL NOT threaten our employees with bodily harm for supporting the union. WE WILL NOT engage in surveillance of our employees union activities. WE WILL NOT discharge, layoff, or transfer any employee because of his or her membership in, or activity on behalf of, the Union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights under the National Labor Relations Act, as amended. WE WILL make whole Martell McAnelly, Ken- neth Pedigo, Thelma Pulley, Lillian Barr, Freely Barnett, Ruth Gurley, Marvin Hickey, Donald Bloodworth, Ambrose Beshears, Larry Crider, and Melvin Morber, for any loss of pay they may have suffered as a result of our discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." WE WILL make striking employees whole for any loss of pay suffered by reason of our refusal to reinstate them in the manner set forth in the section of this Decision entitled "The Remedy." NATIONAL TAPE CORPORATION (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, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314-622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: The original charge in Case 14-CA-4911 was filed by Textile Workers Union of America, AFL-CIO, herein referred to as the Textile Union, on November 25, 1968, and served on Respondent, National Tape Corporation, by registered mail on or about the same date. Complaint and Notice of Hearing was issued on January 8, 1969; the first amended charge was filed and served on February 12, 1969; and the amendment to complaint was issued February 12, 1969. The amended complaint charged that the Respondent had violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein referred to as the Act, by certain specific NATIONAL TAPE CORPORATION 329 acts of interrogation and threats all designed to dissuade employees from becoming or remaining members of the Textile Union. Additionally it was alleged that the employer discriminatorily, in violation of Section 8(a)(3) of the Act, laid off and failed to recall employees Martell McAnelly, Kenneth Pedigo, Lillian Barr, and Thelma Pulley and discriminatorily discharged Freely R. Barnett on or about November 23, 1968. The Respondent filed timely answer denying that it had engaged in or was engaging in the unfair labor practices alleged. The case came on for hearing on March 6 and 7 and April 21, 1969, at Herrin, Illinois. Each party was afforded a full opportunity to be heard, to call, examine and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. Thereafter on April 14, 1969, the Textile Union filed a charge in Case 14-CA-5070 which was served on the Respondent by registered mail on the same date. A complaint was issued on May 19, 1969. The complaint alleged that the Respondent had violated Section 8(a)(1) of the Act by specific interrogations and threats, all designed to dissuade employees from becoming or remaining members of the Textile Union. Additionally, it was alleged that the employer in violation of Section 8(a)(3) of the Act discriminatonly laid off or discharged Harvey Bloodworth, Marvin Hickey, and Ruth Gurley on February 25, 1969, discriminatorily laid off or discharged Ambrose Beshears, Ann Gartner, Jack Morgan, Jim Morgan, Ernie Williams, Larry Crider, and Alan Bundren on March 24, 1969, and on the same date discnmmatonly transferred Melvin Morber to work at a disadvantageous location where he was required to perform more arduous work. It was further alleged that a strike of the Respondent's employees occurred on March 26, 1969, which was caused and prolonged by the Respondent's alleged unfair labor practices. The Respondent, by timely answer, denied generally that it had engaged or was engaging in the unfair labor practices alleged but admitted that a "group of Respondent's employees refused to perform services for Respondent since on or about March 26, 1969." Upon motion of the General Counsel Case 14-CA-5070 was consolidated with Case 14-CA-4911 on May 23, 1969. On June 5, 1969, the Textile Union filed a charge in Case 14-CA-5132 which was served by registered mail on the Respondent on the same date. A complaint was issued on June 17, 1969. The complaint charged that the strike which occurred on March 26, 1969, was caused and prolonged by the unfair practices referred to in Case 14-CA-4911 and 14-CA-5070 and that the Respondent had, in violation of Section 8(a)(3) of the Act, failed and refused to reinstate the strikers who offered unconditionally to return to work on May 21, 1969. The Respondent filed timely answer, denying generally that it had engaged in or was engaging in unfair labor practices and alleging that the "Respondent has offered jobs to the employees whenever replacement's employment with the Respondent has terminated or when new jobs became available." On motion of the General Counsel Case 14-CA-5132 was consolidated with Cases 14-CA-4911 and 14-CA-5070 on June 20, 1969. On August 12, 1969 , the Acting Regional Director for Region 14 issued a supplemental decision and order directing a hearing in Case 14-RC-6163. On August 22, 1969, Case 14-RC-6163, on motion of the General Counsel, was consolidated with Cases 14-CA-4911, 14-CA-5070, and 14-CA-5132. The consolidated cases came on for hearing on September 22, 23, 24, and 25 and November 12 and 13, 1969, at Herrin, Illinois. Each party was afforded a full opportunity to be heard, to call, examine and cross- examine witnesses, to argue orally on the record , to submit proposed findings of fact and conclusions , and to file briefs. All briefs have been carefully considered by the Trial Examiner. Upon the whole record and upon his observation of the witnesses the Trial Examiner makes the following: FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Delaware. At all times material herein Respondent has maintained its principal office and place of business at 895 Mamaroneck Avenue in the city of Mamaroneck and State of New York. Respondent maintained a plant in the Ordill area, Herrin, Illinois, where it is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of pressure-sensitive tape and related products.' The Ordill area, Herrin, Illinois, plant is the only facility involved in this proceeding. During the year ending December 31, 1968, which period is representative of its operations during all times material hereto, Respondent in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Ordill area, Herrin, Illinois, plant, paper and other goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported and delivered to said plant directly from points located outside the State of Illinois. The Trial Examiner finds as is admitted by Respondent that at all times material herein the Respon- dent was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Textile Workers Union of America, AFL-CIO, and Local No. 347 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America are and have been labor organizations within the meaning of Section 2(5) of the Act. 1 The parties stipulated that on July 28, 1969, a fire occurred at the Respondent's Herrin plant The Herrin plant has been closed and operations moved to Woodbine, New Jersey 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES Case 14-CA-4911 The Facts the same day Maes asked him whether he had a union card. Morber answered, "Yes." Maes requested the card. Morber did not respond, whereupon Maes "politely took" the card out of Morber's "shirt pocket," and walked over to where Brantley, Henningson, and Perri were standing.9 The next day Maes told Morber that the employees "were going to have one heck of a time getting the union, that it would take more than 20 or 30, it would take close to 150 to get a union in there." Referring to Ambrose Beshears, Maes said that "he'd better watch it or he wouldn't be around much longer." On October 23, the day after the union card activity detailed above occurred, the alleged discriminatees Martell McAnelly, Kenneth Pedigo, Lillian Barr, and Thelma Pulley were laid off. About 10 days after the layoffs Foreman Joseph Rizzo, Jr., told Barnett that the employer was "going to get some help next day or two," and further commented, "I found out why that layoff was . . . it was on account of union activity, trying to get a union in here, and we don't want no union in here right now. When we get ready for a union, ... We got our own." Rizzo, Jr., added that the employer had "fired two maintenance men." Rizzo, Jr., also asked Barnett whether employee Oglesby mentioned the Union to him. Alleged discriminatee Barnett was discharged on November 23, 1968. Kenneth Pedigo was hired as a maintenance welder. Four days after he went to work his foreman, Maes, said to him that "he'd appreciate [his] not talking to the union men because the company could not afford a union at the time." The next day after he had been given blank union authorization cards Maes advised him that "there was going to be a layoff" and that he was included. Maes said that he "didn't figure it would be long, not more than a week and a half at the most." Maes added that "he'd appreciate it [if he] didn't take another job someplace because he really needed [him]." Pedigo telephoned Maes about a week and a half after he was laid off and was told to call back in about a week. About a week later Pedigo reached Henningson, by telephone; Henningson said that he would contact Maes. Henningson was unable to reach Maes but talked to Perri. Perri informed him that Pedigo "definitely wasn't going to be called back." While in the employment of the Respondent Pedigo received no complaints about his work. On the Friday before his layoff Maes asked Pedigo to take the midnight shift "because ... he knew that [Pedigo] was capable of handling it and he would have a man he could depend on there." While Martell McAnelly had been working for Allen Industries, Foreman Maes asked him to take a job in maintenance with the Respondent. At the time of his hire Maes told him he was looking for "qualified mechanics, maintenance men" and that he knew McAnelly was qualified because he had worked with him. McAnelly was to have her sign it Pulley picked up the card and placed it in her purse. 5 Uncontradicted and credited testimony of Pedigo 6 The uncontroverted and credited testimony of Beshears r Mildred Lacy was not called for testimony 8 The uncontroverted and credited testimony of Beshears 9 The uncontroverted and credited testimony of Morber. Richard L. Ford, International representative for the Textile Union, commenced union organizational activities among the Respondent's employees around October 20, 1968. About that time there were approximately 27 employees on the Respondent's payroll.2 Ford met at the union hall with Freely Barnett, one of the Respondent's employees, and Larry Jackson, president of the Allen local.3 Ford advised Barnett that the Union would undertake an organizational campaign if the employees were interested. Barnett signed a union authorization card and was given about 25 or 30 blank cards by Ford. Four days later Barnett returned "approximately 8 or 10" cards to Ford. Barnett carried the blank cards to the Respondent's plant where he gave blank cards to employee Martell McAnelly during the lunch period at the clock alley. Barnett asked McAnelly to solicit card signers. McAnelly later returned five signed cards to Barnett. Barnett distributed several other cards, three of which were returned to him signed. On October 22, 1968, McAnelly distributed blank cards to Kenneth Pedigo, Ambrose Beshears, and Thelma Pulley.4 Pedigo, who had received three cards, handed one card to "a guy by the name of Ernie" and another to Richard Bowlinger. The third card Pedigo signed and returned to McAnelly the next day in the boilerroom. Around 3:30 p.m., on October 22, 1968, Foreman Paul Maes showed Pedigo a union card and asked him whether he had one.5 Pedigo falsely answered that he did not have a card. During this interrogation Vice President Mario Perri, General Manager W. R. Henningson, and Foreman Robert Brantley were in the vicinity. McAnelly "stuck three cards" in Beshears' shirt pocket and told him to sign one card and give the others to two other employees. About 3:20 p.m., on the same day, Beshears was waiting for clock-out time; Foreman Maes "came up and took those union cards out of [Beshears'] pocket" and joined Vice President Perri with whom he conversed." The next day Mildred Lacy, an admitted supervisor,7 appeared in the boilerroom. She told Beshears, `just between me and you . . . you better not be signing cards or anything . . . we have got rid of the guys that was passing out the union cards . . . your name was mentioned."s A couple of days later, Beshears heard Maes say that "when the company got ready for a union, that they'd put one in." Maes added that "if he had anything to do with it, the union wasn't going to get in." On another occasion Maes told Beshears that he could not talk about the Union. When employee Melvin E. Morber received his card from Pedigo he placed it in his shirt pocket. Around 2:30 p.m. of 2 The Regional Director's Decision and Direction of Election in Case 14-RC-6163 indicates that as of April 14, 1969, the unit averaged 55 employees in size 3 Jackson had contacted Barnett and had made an appointment for him with Ford 4 McAnelly laid a card on Pulley's machine and said that he would like NATIONAL TAPE CORPORATION 331 capable of performing setup work and had installed machinery similar to that in use at the Respondent's plant. McAnelly's job was filled by Gary Jackson on November 5 and Pedigo's job was filled by Harold Flambrough on November 4. According to Henningson, Pedigo and McAnelly were not recalled because Maes found someone "whom he felt was more competent for the job. to When asked, Maes testified that he did not know why McAnelly and Pedigo were not recalled. He said that he had not considered them for recall." According to Maes, the work "started to increase again and [the Respondent] decided [it would] put more men on again." Maes explained that Flambrough and Jackson were "just two gentlemen that came looking for jobs and [he] interviewed them." At the time of their interview he did "not particularly" consider Pedigo and McAnelly. He said it had not entered his mind to recall them. At the time Maes said he was "looking for newer talent or different types of laborers, workers," Flambrough was "more of an electn- cian" and Jackson "had a lot of experience as a setup man." On January 8, 1969, the complaint in Case 14--CA-4911 was issued and served on the Respondent. Thereafter, in the latter part of January, both McAnelly and Pedigo were instructed by the Respondent to report to the Jackson County Woodworks.12 They appeared at the Respondent's establishment February 3 where they sat for about 45 minutes after which they called Amo Hands, one of the supervisors. Maes appeared and told them he had nothing for them. In that Perri was out of town, he said that he would have to wait until morning to talk to him. He told Pedigo and McAnelly to go home. That evening someone called and directed Pedigo and McAnelly to report to the Jackson County Woodworks at 7:30 a.m. Both employees reported for work. Their jobs at the Jackson County Woodworks plant involved generally heavy work. They handled rough lumber and moved sawdust, rolled logs and built skids. In addition, they did "general flunky work" around the mill. They worked in two large buildings made out of tin and rough lumber, which were opened and unheated except for wood stoves. For protection against the cold employees wore insulated clothing. At the Respon- dent's plant Pedigo and McAnelly worked inside a heated building. They oiled the mills several times nightly and changed scrapers and rollers on calendars; the rollers weighed about 50 pounds. They also tended the boiler which required the filling of an automatic feed and the removal of clinkers. While Pedigo and McAnelly were working at the Jackson County Woodworks they were carved on the Respondent's payroll and were paid the same rate of pay they had been receiving in the maintenance department on the Respon- dent's payroll.13 Thelma Pulley and Lillian Barr were classified as packers and rewinders. On October 23, 1968, Henmngson advised Barr and Pulley that "due to difficulties" they were being laid off. Pulley telephoned Mildred Lacy several times to ascertain if and when she would be called back for employment. On one occasion about 3 weeks after her layoff, Lacy told Pulley that she had "bad news' for her. She informed Pulley that somebody told Perri that she had signed "a union card." She added that she had been unable to convince Perri that Pulley had not signed a card and that Perri was not going to call her or Lillian Barr back. Pulley again called Lacy later in the day and requested the identity of the person who had told Perri she had signed a union card. Lacy gave her a name. Pulley replied that she did not know the man; she said that she would like to talk to him and face the man who said that she had signed a union card because she was not guilty. Thereafter Pulley went to the plant and asked to see Perri. Lacy after contacting Perri reported that he was too busy to talk to Pulley, that the quota was full, and that he could not call her back.14 Pulley was offered reemployment on January 27, 1969, but did not return. Judy Baldwin had been hired as a rewinder on November 11, 1968. Lillian Barr, who had been laid off on the same day as Pulley, had been contacted by Lacy a few days before her layoff. Lacy asked her whether she had been approached about the Union. Barr answered, "No." Lacy responded that Barr would be contacted and that there were cards in the other building. She asked Barr not to sign a card. Lacy added that "they had a union of their own to come in when they got in full production." That evening a union card was laid on Barr's table by another employee. During her layoff Barr also called Lacy to ascertain if and when she would return to work. On one occasion Lacy informed her that Maes had said that she and Thelma Pulley had signed union cards. Barr denied the accusation and said that she was "going to do something about it." She said that she would contact the Labor Board and that she had a friend in the Herrin Chamber of Commerce. She said that she was going to see what they could do about it for her. Lacy told Barr to wait a few days in that Pem was in New York. She said that when he came back Monday she would talk to him again. 15 Barr was recalled on November 11, 1968. Thereafter she was discharged on January 23, 1969, for unsatisfactory services by Paul Shalita, a management representative who visited the plant about 10 Maes testified that he had never told anyone "that there was a reason why Mr Pedigo and Mr. McAnelly were not recalled " 11 Henningson testified that the employer's practice in regard to recalling laid off employees was, As the Jobs for them open up we would bring them back that they were qualified for" 12 Perri described the relationship between the Respondent and the Jackson County Woodworks as follows A The relation is they helped us install, put the building into shape There was a period where we had to establish payroll in this area, and they would, at that time they would assume the responsibility until such time we were able to set up our own Q So that they paid your employees, and you reimbursed them9 A Yes There was a cross-lining, a mutual understanding between the two companies Q Do they still do some work for you9 A Yes Q Pallets, and skids, and that sort of thing9 A Yes Q Have you employed people at their facilities and paid them on the National Tape checks or with the National Tape checks') A Yes, we have 11 The Trial Examiner is of the opinion that the work at the Jackson Lumber Woodworks was not substantially equivalent to the work performed by these employees at the Respondent 's plant Such work was more arduous and required a greater exposure to inclement weather Moreover the Jackson County Woodworks' jobs did not afford the utilization of the employees' skills to the same extent as did their Jobs at the Respondent's plant 14 The uncontradicted and credited testimony of Pulley 15 The uncontroverted and credited testimony of Barr 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD every 2 weeks. Shalita opened a box of tape packed by Barr and found first-rate tape packed with second-rate tape. He directed Barr's immediate discharge. Freely R. Barnett, a mill operator, was discharged on November 23, 1968, by Foreman Joseph Rizzo, Jr., for "unsatisfactory work." According to Rizzo, Barnett had been a good worker and he had discussed with him the possibility of advancement. The basis for his discharge explained by Rizzo was "that he had one man working with him at the time and he was making the man do most of the work." Prior to Barnett's discharge Rizzo had been hospitalized and had been released around November 18. At the time of Barnett's discharge Rizzo was not working but did visit the plant for several hours a day. Rizzo testified that the day before he discharged Barnett "the man that was working with him complained about him." Rizzo could not remember the name of this employee who no longer works for the Company. Rizzo was asked whether he took the matter up with Barnett. He answered, "I didn't see him. I saw him but I didn't take it up with him at all. I just sent him a telegram on that certain day that specified." Rizzo also testified that he had not observed Barnett's work before he discharged him. Pem and Henningson approved the discharge. Thereafter Barnett was notified by the Respondent to report to work on January 27, 1969, at 3 o'clock. He reported for work and worked that day and the following day. On the following day Rizzo came to him and told him that when he had finished his shift he was to report the next morning at 7 o'clock at Jackson County Woodworks north of Murphysboro. Barnett replied that he could not make it and "besides [he] was hired out for National Tape as a mill operator and not for Jackson County Woodwork." Rizzo did not tell Barnett in detail what kind of a job he would have at the Jackson County Woodworks. He said it was "just woodworking, carpentering, and stuff like that." Barnett told him he wasn't a carpenter. The plant was about 30 miles from Barnett's home; National Tape was about 8 miles. Barnett did not report for work at the Jackson County Woodworks.is Conclusions and Reasons Therefor First: The Violations of Section 8(a)(1) of the Act In the light of the entire record and in the context used the Trial Examiner finds: 1. The Respondent, by Foreman Paul Maes' interroga- tion of employee Pedigo on October 22, 1968, as to whether he had a union card, interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act.17 2. The Respondent, by Foreman Maes' removal of blank union cards from employee Beshears' pocket interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. The Respondent, by Mildred Lacy's remark to employee Beshears, to wit, "You better not be signing cards ... we have got rid of guys that were passing out union cards," threatened Beshears with reprisal for union activity and thereby Respondent violated Section 8(a)(1) of the Act. 4. The Respondent, by Foreman Maes' statement to employee Beshears that he could not talk about the Union, interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. 5. The Respondent, by Maes' interrogation of Morber as to whether he had a union card and his removal of a union card from Morber's pocket, interfered with, re- strained, and coerced employees in the rights guaranteed by Section 7 of the Act. 6. The Respondent, by Mildred Lacy's interrogation of employee Barr as to whether she had been approached by the Union and her request that Barr not sign a union card, interfered with, restrained, and coerced employees in the rights guaranteed by Section 7 of the Act. 7. In that Rizzo's statements to Barnett constituted a threat that employees would be discharged for union activity, by these statements the Respondent interfered with, restrained, and coerced employees in the rights guaranteed by Section 7 of the Act. 8. The Respondent, by Rizzo's interrogation of Barnett in respect to employee Oglesby's union connections, interfered with, restrained, and coerced employees in the rights guaranteed by Section 7 of the Act. 9. Lacy's statements to Barr and Pulley to the effect that they were being continued on layoff because of union activities interfered with, restrained, and coerced employ- ees in the rights guaranteed by Section 7 of the Act. Second: The discharge of Kenneth Pedigo and Martell McAnelly. On October 23, 1968, the Respondent "got rid of the guys that were passing out union cards." Kenneth Pedigo had passed cards to several employees and had been coercively interrogated by Foreman Maes; McAnelly had passed cards to Pedigo and others. Thus Pedigo and McAnelly fit the description of "guys that were passing out union cards." Moreover, they were the only "guys that were passing out union cards" who were separated from employment on October 23.i8 That the Respondent intended to discharge Pedigo and McAnelly is trenchant from their replacements by employee Flambrough on November 4 and employee Jackson on November 5, although Pedigo and McAnelly were considered as competent employees. Such replace- ments reflect the pretextual nature of the Respondent's conduct since Maes' respect for the qualifications of these employees was such that he had asked McAnelly to leave Allen Industries to work for the Respondent and had indicated to Pedigo that he should not take a job elsewhere during his layoff. With this in mind, it is obvious why Maes was unable to explain why McAnelly and Pedigo were not recalled. Incredibly Maes testified that their recall had not entered his mind. From these facts, as well as from those revealed in the record as a whole, the motive of the Respondent to discourage membership in a labor organiza- i6 The Respondent advanced no reason for Barnett's transfer to that such questioning was pursuant to the Employers legitimate business Jackson County Woodworks interests Cf Winchester Spinning Corporation, 402 F.2d 299 (C.A. 4). 17 The clear purpose of Maes' question was to aid the employer in the 18 Barnett, the only other employee who passed out cards, was not furtherance of its antiunion campaign Pedigo's dissembling indicated an separated from employment until November 23, 1968 apprehension of reprisal . Moreover, the Respondent has shown no proof NATIONAL TAPE CORPORATION 333 tion is unmistakable. Accordingly, the Trial Examiner finds that the "real motive" 19 of the Respondent was to discourage membership in a labor organization and that by the Respondent's termination of the employment of Pedigo and McAnelly on October 23, 1968 , the Respondent violated Section 8(a)(1) and (3) of the Act. Third: The discharges of Thelma Pulley and Lillian Barr The record is clear that Thelma Pulley and Lillian Barr were not returned to employment after their layoffs because the Respondent believed they were union card signers. Since the Respondent's motive, in this respect, was to bar them from employment because of suspected union activities, their initial layoffs, in view of their timing and the Respondent's union animus, may not be disassociated from the same motive. Nor does the credible record gainsay this conclusion . Thus the Trial Examiner is convinced that the "real motive" behind their separations from employment was their suspected union activity and that their separations from employment, and the reasons therefor revealed to the employees, discouraged membership in a labor organiza- tion. Nor is it essential to such finding that the Respondent be correct in its belief that the employees were union card signers since the employer intended that its action taken in respect to these employees discourage employees from union affection . Cf. N.L.R.B. v. Piezo Manufacturing Corporation, 290 F.2d 455 (C.A. 2). Accordingly, the Trial Examiner finds that by Pulley and Barr's separations from employment the Respondent violated Section 8(a)(1) and (3) of the Act. Fourth: The discharge of Freely R. Barnett Barnett was the employee instigator of the union card solicitations on the Respondent's premises. Direct proof of the Respondent's knowledge of Barnett's role as a union activist is not essential since the Respondent 's knowledge of Barnett's union activity may be properly inferred from the small size of the Respondent's complement of employees. East Bay Rambler, Inc., 168 NLRB No. 143; Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149, 1150 , enfd. 185 F.2d 285 (C.A. 2); American Grinding & Machine Co., 150 NLRB 1357, 1358; Angwell Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7). Such inference draws support from the employer's interrogations directed toward eliciting information in respect to union activities. Moreo- ver, the circumstances themselves under which Barnett was discharged lend support to the inference that the employer knew of his union connection and that the employer discharged him to discourage employees from union adherence . Factors in this respect are (1) the abruptness of is " the 'real motive' of the employer in an alleged 8(a)(3) violation is decisive " N.L R.B. v. Brown Food Store, 380 U.S. 278, 287 "It is the 'true purpose' or 'real motive' in hiring or firing that constitutes the test." Local 357, International Brotherhood of Teamsters [Los Angeles-Seattle Motor Express] v N L.R B, 365 U S 667, 675 20 The Court of Appeals for the Ninth Circuit stated in Shattuck Denn Mining Corporation v. N L R B, 362 F 2d 466 (C A 9) If [he] trier of fact . finds that [the) stated motive for a discharge is false, he can infer that there is another motive and can infer that the motive is one that the employer desires to conceal, an unlawful motive, at least where [as in this case ] the surrounding facts tend to reinforce that inference. 2i In N L R B v Melrose Processing Co, 351 F 2d 693 (C.A. 8), the court opined. If one can show that every other alternative except the fact Barnett's discharge, (2) his satisfactory work record, and (3) the implausibility of the reasons given for his discharge.20 According to Rizzo, Jr., Barnett was summarily discharged upon the complaint of Barnett's helper without his personal observation of Barnett's alleged unsatisfactory work or a discussion with him about it. While Rizzo, Jr., advanced this cause for Barnett's discharge, his demeanor on the stand indicated that he did not expect anyone to believe that he so abruptly discharged a seemingly satisfactory employee upon the one complaint of his helper. The Trial Examiner is convinced that Rizzo, Jr., was concealing the true reason for Barnett's discharge and that Barnett, in fact, was discharged because of his union association and to discourage membership in a labor organization.21 The assigned reason for Barnett's discharge was a pretext tailored to give color to an obvious discriminatory act. By reason of the pretextual nature of Barnett's discharge the Trial Examiner finds that the "real motive" of the Respondent was to discourage membership in a labor organization and that by the discharge of Barnett on March 25, 1968, the Respondent violated Section 8(a)(1) and (3) of the Act.22 Case 14-CA-5070 and Case 14-CA-5132 First: About the middle of January 1969 Lacy asked employee Ann Gartner whether she had signed a union card. Gartner answered, "Well, I hear they are wanting a union," to which Lacy responded, "Oh, my, let's don't talk union, Ann." Later in the month Lacy again asked Gartner whether she had signed a card. When Gartner answered in the negative, Lacy commented, "I'm glad you haven't, Ann, and don't sign them, we don't want to have no trouble." 23 In the context of the Respondent's other coercive activity, Lacy's continued interrogation of employees about whether or not they had signed union cards is coercive and violates Section 8(a)(1) of the Act. Second: In January 1969 employee Linda Murphy was told by Charles Will, a supervisor, that she "shouldn't talk about the union at the plant" and that she should "never enter it in [her] mind." Such limitation imposed upon employee Murphy clearly violated Section 8(a)(1) of the Act. Third: When Bruce Smith applied for work at the Respondent's plant in the forepart of February 1969, Supervisor Charles Will asked him if he was in the Union. Smith answered, "No," to which Will responded, that "that was good, that he didn't want anybody in the union or anybody that would push for a union, the company was sought to be proved is not true, you indirectly prove that fact is true. By excluding every other reasonable hypothesis that fact is left standing alone as proved 22 While Barnett was recalled to work at the Respondent 's plant on January 27, 1969 , as a mill operator ; on January 28, 1969, he was directed to report to the Jackson County Woodworks. The Trial Examiner does not consider the Respondent's putative reinstatement of Barnett for such a brief tenure as a mill operator, followed almost immediately by his transfer to more arduous and unpleasant tasks at the Jackson County Woodworks, as satisfying the Respondent 's obligation to offer him full reinstatement to his former or substantially equivalent position or to toll backpay. Moreover, in that the record is barren of any credible explanation for Barnett's transfer , it appears that the transfer was a continuation of the Respondent's prior discriminatory conduct. 23 The uncontroverted and credited testimony of Gartner. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD young and he didn't feel they could stand a union right at the time." A few days later Will told Smith, "We have men that are pushing for a union, but one by one we are getting rid of them." Smith was assigned by Will to check the bathroom to ascertain who was writing union references on the walls and to keep his "ears open with the men" and report anything he heard about the Union. Will said the Respondent would terminate employees who were writing on the bathroom walls. Smith quit on March 21, 1969, rather than make the reports.24 The Trial Examiner finds that by Will's conduct detailed above the Respondent interfered with, restrained, and coerced employees in the rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. Fourth: On February 25, 1969, Lacy approached employee Stephany Menkoski and said, "You didn't sign a card, did you." Menkoski falsely answered that she had not signed a card.25 By such coercive interrogation the Respondent violated Section 8(a)(1) of the Act. Fifth: On February 23, 1969, a union meeting was held. Among Respondent's employees present were Ruth Gurley, Marvin Lee Hickey, Harvey Donald Bloodworth, Freely R. Barnett, and Ambrose Beshears. Gurley, Hickey, and Bloodworth were laid off on February 25, 1969. The General Counsel claims these layoffs were discriminatory and were directly related to the employees' attendance at the February 23 union meeting. Hickey was hired on October 20, 1968, as a slitting machine operator. Bloodworth was hired as Hickey's helper on November 24, 1968. Both employees signed union cards at the union meeting of February 13, 1969. When Hickey was laid off he was told by Amo Hand that "they didn't have the material to make the tape out of." Bloodworth remembered that Hand had said to him that "it was a shortage of material, cloth or something." Three slitters and three helpers worked on each shift. Of these slitters and helpers, in addition to Hickey and Bloodworth, Larry Crider, Guy Gibbia, Jim Davis, Kenneth LeMasters, and Bobby Henson were present at the union meeting of February 23. These employees were not laid off. The jobs of Hickey and Bloodworth were not filled. While the layoffs of Hickey and Bloodworth following almost immediately after they had attended a union meeting are of a suspicious nature in view of the employer's union animus, the Trial Examiner is of the opinion that the General Counsel has not established a prima facie case in regard to their layoffs,26 and that the allegations in the complaint involving Hickey and Bloodworth should be dismissed. Sixth. Ruth Gurley went to work for the Respondent January 1, 1969, at the insistance of Mildred Lacy who arranged it so that Gurley's son could be hired for the same shift. Gurley was hired because she was an experienced hand. Gurley worked as a rewinder and packer. Gurley attended the February 23 meeting of the Union at which she signed a union authorization card. On February 25 Mildred Lacy came to Gurley's machine and asked her if 24 The uncontradicted and credited testimony of Smith 25 The uncontradicted and credited testimony of Menkoski she had signed a union card. Gurley answered, "Yes, I did." Shortly thereafter Supervisor Amo Hand appeared and told her she was laid off. Later she asked him the reason. "He said they were talking, they were to move [her] machine ... to the rehabilitation center." Gurley was operating a rewinder on the day shift. Two rewinders were in operation. About a week previously Hand had informed Gurley that six more rewind machines were to be added . Measurements of her machine were taken in preparation for making the additional machines. At the time of Gurley's layoff there were three girls who were packing, a task which Gurley was qualified to do. One had worked for the employer less time than Gurley. There is no credible proof that the rewinder machine used by Gurley was moved to the rehabilitation center. While working for the Respondent, Gurley's perform- ance was satisfactory. Perri had once told her that she was doing a "fine job." In fact Gurley had taught a packer who was retained when Gurley was laid off. At the time of Gurley's layoff there was "tape waiting to be packed." On the basis of the foregoing facts and an examination of the record as a whole, the Trial Examiner finds that Lacy's interrogation of Gurley as to whether she had signed a union card was coercive in nature and constituted a violation of Section 8(a)(1) of the Act. In view of the Respondent's union animus, the satisfacto- ry character of Gurley's services, her experience and desirability as an employee, and her senior seniority, the precipitous nature of her layoff prior to the end of a pay period and the adequate workload at the time of her layoff, the Trial Examiner is of the opinion that the abrupt layoff of Gurley was motivated by union considerations and was touched off by Lacy's ascertainment that Gurley had signed a union card. Moreover, there is no credible proof that the reason for Gurley's layoff as related to her was the true reason. The Trial Examiner finds that the "real motive" for the Respondent's layoff of Gurley was to discourage membership in a labor organization. The Trial Examiner further finds that by the layoff of Gurley on February 25, 1969, the Respondent violated Section 8(a)(1) and (3) of the Act. Seventh: On March 19, 1969, the Union filed a petition for a representation election. A union meeting was held on March 23, 1969, at which, with others, Ambrose Beshears, Ann Gartner, Jack Eugene Morgan, James Harold Morgan, Ernie Williams, Larry L. Crider, Alan Bundren, and Melvin Morber attended. On March 24, 1969, Ambrose Beshears, Ann Gartner, Jack Eugene Morgan, James Harold Morgan, Ernie Williams, Larry L. Crider, and Alan Bundren were laid off and Melvin Morber was transferred to Jackson County Woodworks. The General Counsel maintains that the layoffs of the above employees and the transfer of Morber were discriminatory. In respect to these layoffs Jack Eugene Morgan testified that he received a telegram in which he was informed that he was laid off for lack of work. Later in the day he inquired of Maes why he had been laid off. Maes said "that they couldn't sell tape and they just couldn't keep that many men employed." Maes told James Harold Morgan that 26 See Mallory Capacitor Company, A Division of P R Mallory & Co., Inc, 169 NLRB No 5 NATIONAL TAPE CORPORATION "they was having a cut back ... he didn't know the reason, they just told him they was having a cut back and told him how many men to keep . . . he wasn't keeping them by seniority or anything, just job classification." Maes told Ernie Williams that he was going to lay off seven. Crider was told that "they was cutting back, and they had more tape out there than they could run, than the slitters was running then, to keep up with ...." The Trial Examiner has carefully reviewed the entire record and finds no credible facts which either by inference or otherwise support a prima facie case for the General Counsel as it concerns the above-mentioned employees. Accordingly the Trial Examiner recommends that the allegation in the complaint involving Ambrose Beshears, Ann Gartner, Jack Eugene Morgan, James Harold Morgan, Ernie Williams, Larry L. Crider, and Melvin Morber be dismissed. Eighth- At 9 a.m. on March 26, 1969, a group of employees met in a union meeting. The employees laid off on March 24 made up the majority of the employees present. Their plight was aired to the group and a strike, recommended by Union Representative Ford, was ap- proved by the group. Picket lines were established at the employer's premises at 10 p.m. on the same date. Certain employees who did not attend the March 26 meeting nevertheless respected the picket line even though the cause of the strike was unknown to them. Employee witnesses advanced diverse reasons for the strike. The real reason, as disclosed by the record, was the protest against the layoff of the employees on March 24, 1969.27 Since the Trial Examiner has found that these layoffs were not unlawful, it follows that the strike protesting such layoffs was not an unfair labor practice strike and that the strikers could have been replaced prior to the termination of the strike as they were. Ninth: After the strike was commenced striking employ- ees Ernie Williams, Alan Bundren, and James Morgan were sent telegrams dated April 1, 1969, as follows: "Report to your regularly scheduled shift April 2, 1969 or you will be permanently discharged." The General Counsel contends that these telegrams sent by the Respondent were threats to discharge strikers if they did not give up their strike activity and return to work, and thus the Respondent violated Section 8(a)(1) of the Act. Since it is clear that these telegrams coercively interfered with employees' rights to engage in union activities guaranteed by Section 7 of the Act, the Respondent violated Section 8(a)(1) of the Act. Stewart Hog Ring Co., Inc., 131 NLRB 310, 339. Tenth: On May 19, 1969, in a union meeting, employees voted to terminate the strike. The strike was terminated on May 21, 1969, on which date a letter was also addressed to the employer by the Textile Union. The letter contained an unconditional offer on behalf of the striking employees to return to work immediately. Thereafter some of the strikers were returned to work. Under the Laidlaw doctrine 28 certain strikers were not recalled who, had the Laidlaw doctrine been applied, were eligible for employment in that after May 21, 1969, there existed availablejobs vacated by 27 The General Counsel observes, "Thus it appears from the credible evidence that the layoffs after the TWU meeting on March 23 were the trigger for the strike " Counsel for the General Counsel's brief to the 335 striker replacements. Since the availability of suchjobs and the placement of the strikers in available jobs will depend to some extent on whether the Trial Examiner may be in error in respect to the determination of the job rights of the alleged discriminatees, the Trial Examiner has made no resolution of the specific reinstatement status of each striker. The matter of Laidlaw is best referred to the compliance stage of these proceedings, at which time by reason of the final adjudication of the job rights of the alleged discriminatees an accurate and meaningful applica- tion of the Laidlaw doctrine can be effected. Eleventh: On June 20, 1969, a representation election was conducted (see, infra). On July 28, 1969, a fire occurred at the Respondent's Herrin, Illinois, establishment which rendered unfeasible further operations at such site. Operations of the Herrin plant are being continued by the Respondent in Woodbine, New Jersey. CONCLUSIONS OF LAW 1. The Unions are labor organizations 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. 3. By unlawfully separating from employment Martell McAnelly, Kenneth C. Pedigo, Thelma Alice Pulley, and Lillian Barr on October 23, 1968, discharging Freely R. Barnett on November 23, 1968, and laying off Ruth Gurley on February 25, 1969, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the 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 meaning of Section 2(6) and (7) of the Act. THE RECOMMENDED 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. It having been found that the Respondent unlawfully separated Martell McAnelly, Kenneth C. Pedigo, Lillian Barr, and Thelma Alice Pulley on October 23, 1968, unlawfully discharged Freely R. Barnett on November 23, 1968, and unlawfully laid off Ruth Gurley on February 25, 1969, and thereby violated Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent remedy such unlawful conduct in accordance with Board policy,29 by making Martell McAnelly, Kenneth C. Pedigo, Lillian Trial Examiner, p 30 28 The Laidlaw Corporation, 171 NLRB No 75. 29 See The Rushton Company, 158 NLRB 1730, fn 2 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barr, Thelma Alice Pulley, Freely R. Barnett, and Ruth Gurley whole for any loss of earnings30 they may have suffered as a result of the discrimination against them by the payment to them of a sum of money equal to the amount they would have earned between the dates of their discrimination and the dates31 on which their jobs would have normally ceased by reason of the Respondent's termination of its Herrin, Illinois, operations32 less their net 30 In that by reason of the fire on July 28, 1969, and the lack of facilities in the Herrin area, it does not appear that the Respondent in the foreseeable future will again operate in the Herrin area and, in that the General Counsel has not requested reinstatement for the discrimmatees at the Respondent's New Jersey plant, the Trial Examiner is not recommending that the Respondent offer the discrimmatees reinstatement Furthermore, in view of these facts and the fact that there is no evidence that any of the Respondent's New Jersey employees have been exposed to the Respondent's unfair labor practices, the Trial Examiner is not, as requested by the General Counsel, recommending that a notice be posted at the Respondent's New Jersey plant or mailed to the former employees of the Respondent's Herrin plant. 31 Since there is no credible evidence that Lillian Louise Barr was discriminatorily discharged in violation of Section 8(aX3) of the Act after she had been reemployed on November II, 1968, the Respondent's backpay liability as to Barr shall terminate on November 11, 1968. Since Thelma Louise Pulley on January 27, 1969, refused the Respondent's offer of the job she had filled when she was separated from earnings during such period (Crossett Lumber Company, 8 NLRB 440). Said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.] employment, the Respondent's backpay liability as to Pulley shall terminate on January 27, 1969 Since Martell McAnelly, Kenneth C Pedigo, Freely R Barnett, and Ruth Gurley were not offered their former or substantially equivalent positions, without prejudice to their seniority or other rights and priviledges, the Respondent's backpay liability (less net earnings) continued throughout the backpay period for them 32 In that the record reveals that each of the discriminatees would not have worked during the period of the strike (March 26, 1969, to May 21, 1969) backpay liability is tolled during this period. However, since certain of these employees were not offered their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges prior to the strike (which the Respondent was obligated to do in order to toll backpay), the Laidlaw doctrine is not applicable to them Being discnmmatees they were not subject to replacement during the stake or at any other time ; they remained on the Respondent's payroll during the period of their discrimination as employees of the Respondent entitled to the full rights and privileges of an employee