Kayser-Roth Hosiery Co., Inc.

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kayser-Roth Hosiery Company, Inc., and Textile Workers Union of America, AFL-CIO. Cases 10-CA-7654 and 10-CA-7669 December 30, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On July 21, 1970, Trial Examiner Paul E. Weil issued his Decision in the above-entitled cases, 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 did not engage in certain unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions to the Trial Examin- er's Decision and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief. 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 brief, and the entire record in these cases, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Examiner subject to the modification set forth below: Contrary to the Trial Examiner, we find that Respondent did not have reasonable cause to believe that unfair labor practice striker Brady engaged in picket line misconduct sufficient to disqualify her for reemployment. Instead we find that Respondent violated 8(a)(3) by refusing to reinstate her upon her unconditional application to return to work. The record shows that on May 20, 1969, a crowd of strikers gathered and stoned the cars of nonstriking employ- ees as they left the plant's parking lot. The Trial Examiner found that although Mrs. Brady was not throwing rocks, she was in a group of strikers who I The Trial Examiner, in finding that Frances Miller Pendleton was denied reinstatement in violation of Section 8(a)(3), stated that there was no evidence as to who informed Plant Manager Roberson that Pendleton had engaged in alleged misconduct Although Roberson testified that employee Bonnie Wolfe reported the alleged misconduct to Roberson, Bonnie Wolfe did not testify at the hearing As other statements supported by the record which the Trial Examiner relied on indicate that misconduct attributed to Pendleton was actually committed either by another striker or a nonemployee , and, since Bonnie Wolfe's alleged report to Plant Manager stood in front of the crowd of rock throwers which shielded from the view of management personnel the identity of those strikers who were actually throwing the rocks. The Trial Examiner reasoned that her conduct was no less than participation in the rock throwing itself, and it was solely on the basis of this conduct that he concluded that Respondent had good cause for refusing to reinstate her. We do not agree with this conclusion. The record shows little more than Mrs. Brady's presence in the crowd of strikers at the time of the incident. There is no probative evidence that she was part of a conspiracy to provide a shield for the rock throwers, nor is there any suggestion that she knowingly located herself in the vicinity from which rocks were thrown with any understanding that others would engage in such misconduct. In our opinion, neither the testimony nor the film account of this incident supports the inference that Brady intended to shield the rock throwers. Indeed, the inconsequential nature of Brady's role in this incident is borne out by the testimony of plant manager Roberson that no striker was denied reinstatement solely because he or she was alleged to have shielded the rock throwers. In these circumstances, we find that the Respon- dent's refusal to reinstate Mrs. Brady was in violation of Section 8(a)(3) of the Act, and we shall order the necessary remedy. THE REMEDY Having found that Respondent unlawfully denied reinstatement to Helen Brady, we shall order that the violation be redressed as set forth in section V of the Trial Examiner's Decision entitled "The Remedy." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent, Kayser-Roth Hosiery Company, Inc., Dayton, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order, as so modified: 1. Substitute the following as paragraph 2(b) of the Trial Examiner's Recommended Order: "Offer to Barney Henderson, Margaret Irwin, Roberson constitutes uncorroborated hearsay, we shall affirm the Trial Examiner's finding that Pendleton was denied reinstatement in violation of Section 8(a)(3) 2 In affirming the Trial Examiner's finding that the Respondent did not violate Section 8(a)(5) by its refusal to post certain union notices on its bulletin board pursuant to a provision in the contract between the parties, we do not rely on the Trial Examiner's statement that the bulletin board "can scarcely be termed a matter of wages , hours or conditions of employment " 187 NLRB No. 76 KAYSER-ROTH HOSIERY CO. Lucille Pendleton, Frances Miller Pendleton, Nancy Reed, and Helen Brady immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, all replacements hired after the commencement of the strike and make said employees whole for any loss of wages they may have suffered to the extent and in the manner set forth in the section entitled `The Remedy.' " 2. In footnote 25 of the Trial Examiner's Decision substitute "20" for "10" days. 3. Substitute the attached Appendix for that attached to the Trial Examiner's Decision. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and to keep our word about what we say in this notice. The Act gives all employees these rights: To engage in self-organization; To form, join or help unions; To bargain collectively through a repre- sentative of their own choosing; To act together for collective bargaining or other mutual aid or protection; and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT refuse to bargain collectively with Textile Workers Union of America, AFL-CIO, as the exclusive collective-bargaining representative of our employees in a unit appropriate for collective bargaining by failing and refusing to furnish the Union, upon request, with an up-to- date departmental seniority list of all employees in the unit. WE WILL NOT discourage membership in the above-named Union or any other labor organiza- tion by discriminatorily refusing to reinstate unfair labor practice strikers, or delaying in reinstating unfair labor practice strikers while continuing to employ strike replacements, or otherwise discrimi- nate against any employee. WE WILL make whole all of our employees whose reinstatement after the strike was delayed for any loss of pay they may have suffered as a result of our discrimination against them, by 563 payment to each of them the amount of money they lost as a result of our action. WE WILL offer to the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivallent jobs, discharging if necessary all replacements hired during the strike, and make them whole for any loss of wages they may have suffered as a result of our discrimination. Barney Henderson Lucille Pendleton Margaret Irwin Nancy Reed Frances Miller Pendleton Helen Brady Dated By KAYSER-ROTH HOSIERY COMPANY (Employer) (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner : On February 7, 1969, Textile Workers Union of America, AFL-CIO, hereinafter called the Union , filed a charge against Kayser-Roth Hosiery Company, Inc., hereinafter called Respondent, alleging a violation of Section 8(a)(3) by discrimination against a long list of employees since on or about December 2, 1968. Thereafter on February 24, 1969 , the Union filed a second charge against Respondent alleging additionally a violation of Section 8(a)(5) by refusing to bargain in good faith with the Union and a general allegation of the violation of Section 8(a)(1). On May 5, 1969, the Regional Director for Region 10 of the National Labor Relations Board (Atlanta, Georgia), for the General Counsel, issued a complaint and notice of hearing and ordered consolidation of the two charges. The complaint alleges a violation of Section 8(a)(3) in a refusal of Respondent to reemploy 26 unfair labor practice strikers on their unconditional offer to 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return and an additional violation of Section 8(a)(3) in that Respondent did not timely reinstate some 240 additional employees on their unconditional offer to return. In addition Respondent is charged in the complaint with refusing to bargain by refusing to furnish to the Union a seniority list required by the Union to use in its collective bargaining with Respondent. By its timely answer Respon- dent admitted the jurisdictional facts and that there had been a strike, denied that it was an unfair labor practice strike and admitted that a substantial number of employees who had been out on account of the strike offered to return to work but alleged that the 26 individuals were not reinstated because they were guilty of various acts of violence and misconduct and therefore had rendered themselves unfit for reemployment by the Respondent. With regard to the allegedly dilatory rehiring of the strikers Respondent answered that the delay was caused by the business delays of reopening the plant, training new people and rebuilding the business after the lengthy and violent strike. Respondent generally denied the commission of all unfair labor practices and specifically the failure to give a seniority list as requested by the Union. On September 11, 1969, the Regional Director issued an amendment to the complaint and further notice of hearing adding an allegation that the Respondent additionally violated Section 8(a)(5) by refusing to post certain notices on the bulletin board pursuant to the contract and that Respondent violated Section 8(a)(1) by the action of various supervisors in soliciting employees to revoke their checkoff authorizations. By a duly filed answer Respondent denied all allegations in the amendment to the complaint. Thereafter on January 26 and at various dates between February 24 and March 13, 1970, a hearing was held before me at Dayton, Tennessee, the site of Respondent's plant. All parties were represented by counsel and had an opportunity to adduce relevant evidence, to call witnesses, to examine and cross-examine them, to argue orally on the record and to file briefs. A brief was received from the General Counsel. On the entire record in this matter and in consideration of the brief I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a North Carolina corporation with an office and place of business located in Dayton, Tennessee, where it manufactures hosiery and socks which it annually ships of a value in excess of $50,000 directly to customers outside the State of Tennessee. Respondent is and at all times material herein has been engaged in commerce with the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background At all times relevant the Union has represented all employees of Respondent at the Dayton plant excluding office clerical employees and method and standard employees, professional employees, guards and supervisors as defined in the Act, a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. On or about May 6, 1968, the employees commenced a strike which continued until December 2, 1968, on which date the striking employees made an unconditional offer to return to work. The events leading up to the strike and the nature of the strike were the objects of litigation before the Board culminating in a decision (176 NLRB No. 139) adopting the Decision of Trial Examiner Thomas A. Ricci finding that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith and that the strike which resulted therefrom was an unfair labor practice strike. At the close of the hearing the General Counsel deleted the names of 8 of the 26 employees alleged to have been discriminated against by Respondent's refusal to rehire them after the strike and additionally deleted the names of a few of the 239 employees alleged to have been rehired only after a delay. B. The 8(a)(5) Allegation There is no general 8(a)(5) allegation. The General Counsel contends that Respondent violated Section 8(a)(5) by two distinct courses of action: (1) the Respondent's refusal to post certain notices on the bulletin board pursuant to the contract between the parties and (2) the failure of Respondent to timely make available to the Union a seniority list for its use in collective bargaining. The contract signed by Respondent and the Union on December 2, 1968, contains the following provision (art. XXII): Bulletin Boards The Employer will provide the Union with ample space on its bulletin boards to post notices of the time and place of union meetings and social gatherings. Such notices shall not contain controversial statements and shall be presented to the plant manager for his approval before they are posted. The record contains several notices submitted for posting in accordance with the above provision which Respondent declined to post. One such notice announces a meeting of Local Union 1769 Textile Workers Union of America and urges all members to attend. A second announces a special meeting of the Local and states that election of temporary representatives for the Local will be held and urges all members to attend. A third announces a training institute for members of the Local and gives as the purpose of the training institute to orientate and instruct Local member- ship how to conduct their Local affairs and urges all members to attend. All three of the notices are signed by Ted Benton, International representative. The bases on which Respondent declined to post the KAYSER-ROTH HOSIERY CO notices were two. First it would post no notice which states the purpose of the union meetings and second it would post no notice which had to do with the affairs of the Local Union on the ground that the only certified bargaining agent was the International.' Respondent contends that its position with regard to notices is based on its interpretation of the contract provision recited above. The Supreme Court in Charles Dowd Box Co. v. Courtney, 368 U.S. 502, pointed out that violations of collective- bargaining agreements were specifically rejected as unfair labor practices by the Congress which "deliberately chose to leave the enforcement of collective agreements to the usual process of the law," citing H.R. Rep. No. 510, 80th Cong., 1st Sess., 42. "Once parties have made a collective bargaining contract the conference report stating the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board." While under some circumstances the Board must construe collective-bargaining agreements to determine an issue in connection with the commission of an unfair labor practice as for instance a unilateral change in working conditions, it has no original jurisdiction to enforce collective-bargaining agreements, especially such portions of them that have no direct bearing on the wages, hours and conditions of employment of the employees whom they purport to cover. In the instant case, for instance, the contractual provision which the Board is asked to enforce is a bulletin board provision which, while it may be highly salutory to the Union in communicating with the employees can scarcely be termed a matter of wages, hours or conditions of employment. I see this allegation as nothing more than an attempt by General Counsel to enforce this contractual term. Accordingly, I shall recom- mend that the complaint be dismissed insofar as this alleged breach of contract is alleged to be a breach of Respondent's bargaining duty. With regard to the second allegation of a violation of Section 8(a)(5) the record is clear that the employer over a period of months declined to afford the Union a seniority list based upon departmental seniority. All that the Union had was a seniority list of all employees in the plant prior to the inception of the strike. The Union was aware that employees had been hired during the strike but not where they had been employed in the plant or who they were or what positions they held. Similarly, the Union was unaware of the departmental seniority of the employees who had been employed prior to the strike The matter came to a head when the Union sought to grieve over determinations of the employer with regard to three employees which were unquestionably based on their departmental seniority. The Union at that time pointed out to the employer that its failure to supply a departmental seniority list made it impossible for the Union to handle the grievances. The employer answered that it had no such seniority list and that it determined departmental seniority on a case-by-case basis as issues were raised. With regard to three employees, Respondent informed the Union that the information the Union sought was available only in their personnel files and i It appears that after the International won bargaining rights a Local Union was formed Respondent has at all times declined to recognize the 565 declined to disclose their personnel files or remove the information from them unless and until the employees themselves were brought into the presence of the employer and gave the employer permission to disclose the contents of the personnel files to the Union. The Union protested that it had no desire to go into the personnel files of employees other than to obtain the information required for the processing of these grievances. I conclude that Respondent violated Section 8(a)(5) by its refusal to furnish the list to the Union. It is not a sufficient answer that the employer has not prepared a list per se on a departmental basis but for its own purposes determines departmental seniority on a case-by-case basis. Departmen- tal seniority was a factor in employee placement under the terms of the collective-bargaining agreement, and in the reinstatement of the returning strikers. The test of the employer's duty to furnish information is that it be relevant or necessary to the Union in the negotiation of a contract or the enforcement thereof or the negotiation of grievances thereunder. Clearly, the informa- tion sought by the Union here was relevant. The second test is of course that the information sought be available. Clearly the information was available. Respondent has not contended that it would have been burdensome to put it together. Plant Manager Roberson testified that all of the reinstatements of employees were by department seniority which is arrived at by going to the records and verifying the dates whenever they had to call back additional employees. Inasmuch as they called back additional employees in every department, it must have been necessary to go through the departmental seniority in every department. Accordingly, Respondent was working with the very facts and figures requested by the Union constantly between December 2 and sometime after March 15 when the recall was finally completed. I find that there was no valid reason for the Respondent to withhold the list sought by the Union, especially under the circumstances that the Union's need for it continued on a day-by-day basis throughout the period set forth above. The list was essential if the Union were to fulfill its function of testing the basis on which reinstatement of employees was being accomplished. I find that Respondent violated its duty to bargain in good faith and constituted a violation of Section 8(a)(5) and (1) of the Act. C. The Checkoff Authorizations The General Counsel alleges that Respondent by its supervisors solicited certain employees to revoke their checkoff authorizations for union dues. The Respondent denies that such solicitation took place. The subject of checkoff was one of the large bones of contention between the parties during the strike. The contract as it was finally entered into provided that upon proper written authorization the Company would deposit an employee's paycheck in the bank of his choice in Dayton until such authorization is revoked. The Union prepared a triple authorization card. The first part of it, addressed to the employer, requests that it deposit all payroll checks in Local Union as any part of the representative of its employees 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such and such a bank and furnish the employee each payday with a deposit slip and check stub in the usual form. There is no provision on that card with regard to withdrawal of the authorization other than the words "and until further notice from me." The second card is addressed to the Textile Workers and states that the signatory accepts membership in the Union and assigns to the Umon and authorizes the bank to pay the Union the Local dues in the sum of $2.50 every second week. This card provides "this assignment shall remain in effect until such time as I shall revoke it, in writing to the . . . bank and Local Union by registered mail." The third card is in the same form. The disposition of the cards was as follows, the first card was sent to the employer, the second to the bank, and the third retained by the Union. The result of the language on the cards, I find, is that with regard to the authorization to the employer, mere notice to the employer in any form acceptable to the employer that the signatory employee desires to stop the authorization to deposit the checks in the bank is sufficient. With regard to the authorization to the bank and to the Union, rescission must be in the form of a writing sent by registered mail to the bank and to the Local Union. There was some delay in starting the dues-deduction system. The cards were apparently collected by the Local Union and sometime in January or early February delivered to the employer with the deductions to become effective the second payday thereafter. On the occasion of the first payday on which checks were to be delivered to the bank rather than to the employees, a few of the supervisors inquired of employees whether they wanted their checks and in some cases recited the alternative "or should I send it to the bank." General Counsel adduced evidence of 12 employees that this had taken place with regard to their checks. In no case did a supervisor attempt to persuade the employee to accept a check and in each case concerning which evidence was received the employee informed the supervisors that the checks should be sent to the bank. Some of the employees reported these occurrences to the Union and an International agent complained to Roberson that supervisors were soliciting withdrawal of the authoriza- tions. They theorized that by simply accepting a check on one occasion an employee would effectively cancel his authorization to Respondent's satisfaction Roberson testified that this was not in fact the employer's procedure but that any employee could inform any supervisor or managerial agent of employer that he no longer wanted his checks to be sent to the bank and his authorization would be considered revoked. Inasmuch as the contract contains no provision regarding the rescission of the authorizations and the cards them- selves provide only for "notice" to the employer, it appears to me that the employer is free to accept whatever sort of notice satisfies it. I do not find that the supervisors by offering to give the employees their checks can effectively be considered to have solicited them to withdraw the authorization. I find that the evidence does not support the allegation and I shall recommend that it be dismissed. D. The Delayed Reinstatement Issue The General Counsel alleges that Respondent on or about December 2, 1968, and thereafter, failed and refused to timely reinstate the employees who had made an unconditional offer to return to work at the close of the strike. This allegation does not include the 26 employees alleged to have been discriminated against as the result of Respondent's refusal to reemploy them at all. Respondent denies that it failed to reinstate the employees in a timely fashion and produced evidence that as a result of the strike various things took place which made it impossible for Respondent to go back into full production immediately. I shall briefly summarize this evidence. The Dayton plant produces tights, or leotards as they are sometimes called in the trade, and children's socks. It is the only plant of the Kayser-Roth complex of plants that produces these items. Up until the strike commenced a large portion of Respondent's production consisted of "fish net" tights which was a fad at the time and of which Respondent was selling large quantities. Most of the fish net tubing from which the tights were made was produced by Respondent. Some of it was procured from another plant. The machinery for knitting fish net was somewhat different from that used for knitting the material from which Respondent's tights are normally made. During the period of the strike the fad ran its course as a result of which Respondent not only did not make any more fish net tights after the strike but was left with large quantities of the merchandise which had been completed prior to and during the strike. During the period of the strike some of Respondent's supervisors, its plant engineers, and various other key personnel left Respondent's employ and were not immedi- ately replaced. During the strike, because Respondent' s sales force could not promise delivery of the items produced only at the Dayton plant at any future time, their customers went elsewhere. When a contract was finally reached and Respondent was then able to resume production there were no orders on the books for its product. The initial production went into stock and it was a matter of at least weeks before a sufficient backlog of orders was generated by the sales force to enable Respondent to go back into full production. During the strike because of violence committed at the plant premises, they were left vacant between June 24 and some date in September when production resumed. The result was that some of the machinery became rusty or other types of deterioration took its toll, for a considerable amount of rehabilitation of machinery was necessitated before it could be used productively. To accomplish this rehabilitation Respondent needed not only its complete force of "fixers" but brought in maintenance people from other plants to expedite the procedure. As the result of its efforts to resume normal production Respondent started its first shift in the knitting department on December 2 at the completion of the strike. Roberson testified that 145 employees worked on December 2. The second week thereafter the plant shut down for the Christmas season. The second shift was started on December 30 and on January 1, 186 employees were working and 11 others had KAYSER-ROTH HOSIERY CO. been offered and declined reinstatement. A third shift commenced on February 10. Respondent contends that no replacements for the strikers were employed after December 2. However, on a plant seniority list furnished the Union April 11, 1969, names of 39 employees with hiring dates during the strike appear. Whether additional employees hired during the strike remained in Respondent's employ between Decem- ber 2 and April 1 I does not appear in the record nor did General Counsel make any attempt to adduce evidence that there were such additional employees. Roberson testified that the 39 employees were not strike replacements because the Company was aware that some of the employees would not return to work and some would be discharged. The Company hired no replacements for the strikers. The Company further takes the position that the presence of these employees hired during the strike in fact accelerated the process of calling employees back because it was easier to get production going again with employees who had been in there doing some work. There is no question that these were employees hired during the strike and there is no evidence that any specific person hired during the strike was hired to fill a position of any specific employee who was on strike. Thus I can make no finding that any given striker's job was filled by any given replacement. Admittedly, the Company did not discharge any replacement to make room for strikers. Equally admittedly the Company did not call back some of the strikers until long after December 2, during which period the replacements were working. In my opinion it is inconsistent for the employer to take the position that it could not recall strikers any sooner because of the various factors that precluded it from going into full production immediately on December 2, yet to keep replacements on the payroll while unfair labor practice strikers were waiting recall. I find, as the General Counsel contends in his brief, that to the extent that any employee who was on strike and had offered to return to work on December 2 was not recalled to work at a time when a replacement was doing the same or similar work the unreturned unfair labor practice striker was discriminated against. The parties stipulated to a list of employees who had been employed prior to the strike, did not work during the strike, offered to return to work on December 2 and were returned to work on various dates thereafter. Comparison of the list referred to immediately above and testimony of Plant Manager Roberson reveal that in every category in which strike replacements were employed and continued working until April 11, unfair labor practice strikers were delayed reinstatement by as much as 5 months. The Board decisions make it ultimately clear that unfair labor practice strikers are entitled to immediate reinstate- ment upon their unconditional application to return to work and that the employer must terminate replacements hired during the strike if it is necessary in order to accomplish this. In a situation such as this where the employer cannot immediately go back into full production, to the extent that unfair labor practice strikers are denied 2 The cases on this point are legion The General Counsel cites Mississippi Steel Corp, 169 NLRB No 96, Davis Wholesale Co, 166 NLRB No 119 567 reinstatement for a period of time while replacements continued in their employment, the unfair labor practice strikers are the victims of discriminatory action on the part of the Respondent.2 I find as the General Counsel argues that to the extent that the continuing employment of replacements overlapped the continued unemployment of unreinstated unfair labor practice strikers Respondent is guilty of a violation of Section 8(a)(3) and (1) of the Act. E. The Strikers Denied Reinstatement The complaint lists 26 employees denied reinstatement after the strike. The Respondent contends that each of these employees lost their protection under the Act by reason of misconduct during the strike which makes them unemployable. At the hearing counsel for the General Counsel amended the complaint to delete the names of eight individuals so alleged. Regarding the 18 remaining employees the parties stipulated that they were employees prior to the strike, did not work during the strike, and sought to return to work after the strike. Respondent admits that it refuses to rehire each of them and presented evidence that it had a reasonable basis to believe that each of them committed acts of strike misconduct of a serious enough nature to excuse it from any remedial duty to reinstate them. The General Counsel adduced evidence in an attempt to prove that each of the 18 did not in fact commit the act or acts of misconduct upon which Respondent relies. The issues as to each of them then resolve themselves to three: (1) whether Respondent had a reasonable basis to believe that each employee committed the acts on which it relied; (2) whether these acts were of a serious enough nature to excuse it from such remedial duty; and (3) whether the employees did in fact commit the acts.3 I shall consider each of the 18 separately. 1. Conway Ballard Conway Ballard was discharged, according to the testimony of Manager Roberson, because he participated in turning over the car of nonstriking employee Margaret Reed on June 24 and because of other acts including blocking entrance to the plant on various dates and threatening employees with bodily harm, throwing rocks and eggs at the plant and cars of nonstriking employees and having his hand on a station wagon trying to turn it over. Roberson himself testified credibly that he saw Conway Ballard, Woodrow Tumlin, Bucky Wilkey, Johnny Loual- len, Johnny Owens, and Gene Smith, who is not an employee, and other individuals whom he could not then identify turn over the Reed car. On May 7, shortly after the strike started, a supervisor in the company station wagon attempted to bring a number of clerical employees into the plant through the picket lines. They were stopped by a group of employees, including Con Ballard, who gathered around the station wagon and rocked it while one of their number, Woodrow Tumlin, cried, "turn it over, turn it over." The strikers did not turn the car over but forced it to stop and unload, allegedly so 3 See M R & R Trucking Company, 171 NLRB No 35, Rubin Brothers Footwear, Inc, 99 NLRB 610, N LR B v Burnup and Sims, 379 U S. 21 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the strikers could check to be sure that there were no production workers in the car. As the office workers got out of the car they were permitted to enter the plant without further incident. Without consideration of the other allegations with regard to Ballard, I find that these two incidents both of which were observed by Roberson afford a sufficient basis for Respondent's refusal to reinstate Ballard. General Counsel called Ballard to the witness stand in an attempt to meet the testimony of Respondent's witnesses . With regards the station wagon incident Ballard testified on direct examination that he saw the station wagon had pulled up at the gate and walked over and "pecked on the glass" and called to the supervisor driving it "What's the matter?" The supervisor told him that the pickets wouldn't let him in and that they wanted the employees to get out and walk. Ballard answered , "What's wrong with that?" and turned and walked away. With regard to the incident of the Reed car Ballard testified that he was standing near the intersection where it was turned over and he saw a boy who was not an employee walk over toward the car and say "Let's turn it over." He told the boy not to do that and caught the boy by the hips. The boy kicked him in the legs and said "get the hell away from here" whereupon Ballard walked away. Somebody threw a rock and it hit him on the leg. He testified he saw no one else go to the Reed car and he did not see it turned over because he was not looking until he heard it roll. I consider that Ballard's testimony was completely uncredible . I cannot believe that he was present at the scene when the car was rolled over and the only one of the participants that he saw and could identify was a boy who was not an employee . Ballard testified that he was present on the occasion of the Reed car being turned over for a period of some hours. Motion pictures taken of this scene and the testimony of many witnesses adduced by both General Counsel and Respondent reveal that there was literally a rain of rocks being thrown from the field across the street from the plant, yet Ballard testified that he could identify no one who was throwing rocks. The General Counsel cannot prevail unless he proves affirmatively that the employee did not participate in the misconduct charged. The evidence clearly shows that Respondent reasonably believed that Ballard participated in the misconduct and his testimony to the contrary is unbelieva- ble. Under the circumstances, the General Counsel has failed to sustain his burden. I find that the discharge of Ballard was not unwarranted and does not constitute a violation of Section 8(a)(3) as charged. 2. Robert Bean June 24 was the last day that Respondent attempted to operate the plant. That was the day on which the Reed car was overturned. Also on that day, a mob estimated to 400 persons gathered on an empty lot across the street from the plant and stoned the automobiles of the nonstriking employees as they left the plant. During these activities a 4 During the incident the station wagon belonging to the employer had been turned upside down 5 There is no doubt that Gene Smith threw rocks The movies clearly show him doing so The movies also show other employees throwing rocks Further there can be no doubt that no one person threw all the rocks that group of strikers left the empty lot and walked down the street the length of the plant, breaking windows of the plant, throwing rocks through the ventilators and breaking out the windows of automobiles belonging to employees, managerial employees and to the Respondent which were parked alongside the plant. Jerry Jones, who had been employed by Respondent as assistant plant manager at the time of the strike and has since left Respondent 's employ, testified that on that occasion he took moving pictures from within the plant of the strike activities and that he also watched the strikers and particularly the group of strikers who walked along the side of the plant breaking windows. He identified Robert Bean as one of the striking employees whom he saw throwing rocks and breaking windows out of the cars. Jones identified Bean from the motion pictures that he took of the occasion also. Bean did not deny the identification when he took the witness stand . Bean was also identified by Jones from the motion pictures of the scene at the Reed car. Bean testified that he was present in the group of people across the street from the plant on June 24 . He testified there were about 75 people in the group and that he saw rocks thrown from the group. However, he saw only one person throwing rocks and that was Gene Smith. Gene Smith fortuitously is not an employee . He testified also that he saw the Reed car after it was turned over but did not see anyone turn it over . He testified that after the Reed car was turned over he walked up alongside the plant in a group with Gene Smith, Buckey Wilkey, Tommy Louallen and Johnny Louallen and when he passed the cars parked alongside the plant he did not see anything wrong with them nor did he see one that had been turned over.4 About 35 minutes later he walked back down the street in front of the plant with Tommy Louallen and noticed that the cars parked alongside the plant building were damaged. He testified that at no time did he see anyone throwing rocks except Gene Smith and that he never threw any rocks.5 I find Robert Bean's testimony incredible. Again, as in the case of Ballard, I find that Respondent had good reason to believe that Bean had engaged in misconduct and that the General Counsel has failed to offer convincing evidence that he did not. Accordingly, I find that the failure to reinstate Bean was no violation. 3. William E. Bowman William E . Bowman, known as Eddie Bowman , accord- ing to Roberson's testimony, was discharged because he was identified by Jerry Jones as being a participant in the rock-throwing incident on June 24 . Jerry Jones testified on direct examination that Eddie Bowman was in the group that turned the station wagon over and broke out the windows of all the cars alongside the plant on the evening of June 24. On cross-examination Jones testified that in fact he saw Bowman throwing rocks at the cars on that occasion.6 Bowman testified that on June 24 he sat on the bank across the street from the plant for about 15 minutes day 6 Bowman was also identified as being one of several strikers that blocked entry into the plant on another occasion by a delivery truck However, according to the testimony of Roberson, the only reason for his KAYSER-ROTH HOSIERY CO. 569 after 4:30 when the nonstriking employees commenced coming out of the plant. He did not observe the Reed car being turned over. He left that location and went up Broadway alone, although others were on the street. He saw someone in an upstairs window who appeared to be taking pictures so he went to his car to get his binoculars. He drove back down Broadway again observing people all up and down the street. When he reached the south end of the plant where the crowd was stoning the nonstrikers' cars, he looked through his binoculars at an upstairs window and identified Jerry Jones taking pictures. He testified that he did not throw any stones or break any windows on any occasion. He specifically denied that he was part of a group that "paraded up and down Broadway Street throwing rocks at cars and destroying the Company's property." On cross-examination he testified that there were between 100 and 150 employees on the bank at the time he was there, that he saw "literally a hail of rocks" coming from all around him and that windows broke. He was there when the Reed car came out but he did not remember seeing it and was present while Jerry Jones was taking pictures of it. He also testified that he was the picket captain at that time but that he did not know one soul who threw a rock or broke a glass in a car or participated in turning over the car. He testified that he finally left at 5 o'clock or thereafter, and that when he left the station wagon was still on its wheels and no windows were broken out of any of the cars. He admitted that in an affidavit he had furnished the Board during the investigation of these matters he had stated "at about 5 p.m. I walked back up Broadway in front of the plant and noticed the station wagon turned over on Company property in front of the plant." When confronted with the affidavit he then recalled that after he had left the scene of the riot he had gone back to the union headquarters and at that time he saw the station wagon turned over. I find that Respondent had a reasonable belief that Bowman committed the acts of which he is charged and, because I discredit Bowman, the General Counsel has failed to present any convincing evidence that he did not. Accordingly, I find that Respondent's refusal to reinstate him does not constitute a violation of the Act. 4. Helen Brady Roberson testified that Brady was refused reinstatement because on the first day of the strike, as a group of supervisory employees including Roberson approached the plant, she told them that they could enter the plant but that if anyone else tried to come in the strikers were going to "whip some." She was also involved in some incidents on the picket line of blocking people as they tried to get into the plant and in two or three incidents where strikers blocked the use of a company bus attempting to bring nonstriking employees into the plant. There is no evidence that any employee was in the vicinity when Brady made the remarks attributed to her on May 6, nor is there any evidence that Brady thereafter took any action consistent with the remarks attributed to her on that day. The incident on May 20 in which a crowd of strikers gathered and stoned the cars of nonstriking employees as they left the plant presents a small variation on the usual rock-throwing incident. This incident was recorded on film which is in evidence. The film clearly discloses a tightly knit group of striking employees with a line of strikers across the front, all standing or milling around facing the camera and not apparently doing anything. The testimony is clear that from the group behind the employees standing facing the camera a large number of rocks were thrown breaking out the windows and otherwise damaging the automobiles of the nonstriking employees. Normally an employee must be identified as having committed an act of violence in order to lose the protection of the Act. It is not adequate that an employee merely be identified as having been present when such an act was committed by someone else in a group.? However, in the instant situation it is clear to me from the motion pictures and from the testimony of various witnesses adduced by Respondent that the group of strikers was more than a fortuitous assemblage at that time and place. It appears to me and I find that the front rank of strikers in which Brady was placed by credible testimony had as its purpose on that occasion shielding from the camera and from the view of management personnel in the plant the identity of the persons who were actually throwing the stones. This to me is no less than participation in the stone-throwing incident itself and I find that the Respondent had good cause for accusing Mrs. Brady of misconduct. Mrs. Brady took the witness stand and testified that she did in fact make the statement attributed to her by Roberson on the first day of the strike. With regard to the May 20 incident she testified that she was in a group of people, standing in front of the group with her hands folded watching nonstriking employees as they came out of the plant and down Broadway Street towards the south. She testified that she did not hear any crashes of stone going through windows or hitting the sides of automobiles. She heard nothing about any stones being thrown, she saw two automobiles which were otherwise identified as having been stoned on that occasion and nothing took place in the group of people in which she was standing except that they stood there with their arms folded and shouted "scab" at the employees. Mrs. Brady also admitted that she was one of a group of strikers who boarded a company bus on one occasion. This incident was one of a number of incidents where strikers nullified the usefulness of a bus procured by Respondent to bring employees to and from the plant over the picket line. On various occasions the strikers met the bus at various places along its route and crowded aboard it, sometimes riding on it, sometimes merely delaying it. On one such occasion they refused to dismount from the bus at the plant until Plant Manager Roberson came to the gate and shook hands with each striker as he dismounted. Once again I cannot find that the General Counsel has carried his burden of proving that Mrs. Brady did not take part in activity warranting her discharge. As I have found above, her participation in the shielding of the rock- discharge was his alleged participation in the June 24 rock-throwing incident. 7 See Beaver Bros. Baking Co., Inc., etc., 171 NLRB No. 98, with regard to striker Kelley (TXD). 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD throwing crowd on May 20 was adequate cause for her discharge. Her testimony that while she was standing in front of the crowd with her arms folded facing the plant, no rocks were thrown and she heard no cars hit is unbelievable in the face of the evidence that I have before me of the damage done to cars at that time and place by the group of strikers throwing rocks. Accordingly, I recommend that the complaint be dismissed insofar as it alleges a violation in the Respondent's refusal to reinstate Mrs. Brady. 5. Sandra Bishop Roberson testified that Sandra Bishop was refused reinstatement because she was in the crowd of rock throwers on May 20, discussed above with regard to Helen Brady, and because she participated in incidents of blocking entry of trucks into the plant. She appears in movies depicting the May 20 incident discussed above, the June 24 rock-throwing incident discussed above and also in a film where a Kayser-Roth truck attempted to enter the property. Mrs. Bishop and another striker, Aylene Wilkey, walked back and forth in front of the truck so it could not enter the plant without striking them. They held up the truck until the sheriff's car arrived. The sheriff talked to the driver of the truck but not to the pickets and directed the driver of the truck to proceed on up the street. I have already found with regard to Mrs. Brady that the strikers who shielded the rock-throwing pickets on the May 20 incident lost the protection of the Act even as though they threw rocks themselves. I would make no such finding with regard to presence of any individual in the crowd on June 24. While unquestionably large numbers of rocks were thrown and a great deal of damage was done by them and a lot of misconduct took place, I cannot attribute this misconduct to all of the strikers, estimated as up to 200. No one identified Mrs. Bishop as a rock thrower on that or any other occasion. With regard to the truck-blocking incident the Board distinguishes between a situation where a striker briefly impedes the progress of vehicles across the picket line for the purpose of calling the picket line to the attention of the driver or pleading with the driver to respect the picket line and the situation where a vehicle is blocked so that it cannot gain entry. In the instant case, the vehicle was so blocked. The sheriff made no move to stop the blocking and in fact on the guise of keeping the road clear apparently sent the vehicle on its way. It did not gain entrance to the plant. Under these circumstances it would appear that either the first or third of these alleged incidents is sufficient to protect the employer in its refusal to reinstate. Mrs. Bishop testified that while she was walking picket a number of times, trucks would stop and the pickets, including her, would ask the truckdrivers to honor the picket line and that on some occasions the truckdrivers would accede to their requests. She stated she had no recollection of the incident recorded on film but that there was no occasion when she assisted in blocking a truck to the point that it was not able to enter the plant. With regard to the May 20 incident Mrs. Bishop testified that she was walking picket and saw a group of people down below the gate on that afternoon but saw no rocks thrown. She testified that she was not one of those in the crowd but that at the time she was walking picket. With regard to the incident of stopping the truck she testified on cross- examination that in her affidavit she had in fact stated that no truck ever turned away from the gate because of her picketing. This last statement I considered to be deliberately obfuscatory in view of the fact that she identified herself as one of the pickets in the incident shown in the film in which the truck in fact was turned away by a policeman. Mrs. Bishop also testified that she was present throughout the incidents on June 24 when the nonstriking employees came out of the plant, their cars were stoned and the Reed car turned over. She testified that she did not see anyone throw any rocks although she admitted there were hundreds if not thousands of rocks thrown that day, that she heard rocks hit the cars, saw glass break from the windows and saw the Reed car after it was turned over. I do not credit Mrs. Bishop's testimony with regard either to the May 20 or the June 24 incident. However Respondent's evidence does not place her in a position where she may be charged with having committed anything on those dates. Jerry Jones, the only witness of Respondent who placed her at the May 20 incident, testified that she was walking in front of the crowd. This is consistent with her testimony that she was one of the pickets. No one testified that she threw any rocks on any occasion or was other than one of a group of employees watching the episodes on June 24. The only remaining incident on which Respondent relies is the truck blocking. The film in evidence clearly discloses that her blocking of the Kayser-Roth truck on one occasion was such as to impede its entrance into the plant until the sheriff required it to move along without entering. It had nothing to do with any plea to the driver that he honor the picket line. Under these circumstances I find that Respondent had adequate cause to terminate this employee and does not violate the Act in so doing. I shall recommend that the complaint be dismissed insofar as it alleges Respondent's refusal to reinstate her as a violation. 6. Barbara Gravett Plant Manager Roberson testified that Barbara Gravett was refused reinstatement because she was identified as one of the group of rock throwers on June 24 both at the time the nonstrikers' cars were exiting from the plant and in the crowd of strikers that walked up along side the plant breaking the windows and turning over the station wagon. She was also identified as one of two pickets who blocked the entry of a Thurston Motor Lines truck briefly and caused the arrest of the truckdriver allegedly for hitting them. She was also identified as having been involved in an incident where Trewhitt Dodd was beaten up while trying to repair a tire on another employee's car. On that occasion she tried to pull another nonstriking employee physically out of her car. Mrs. Gravett was identified by Jerry Jones as one of the rock-throwing strikers on June 24. She testified about the entire incident of June 24 but denied throwing any rocks. She testified that she saw the Reed car turned over. She also testified that she did not see the Reed car turned over. She testified that she saw many people throw rocks but did not know any of them. She testified that she did not see anyone turn the Reed car over and she also testified that she saw a KAYSER-ROTH HOSIERY CO 571 young blond boy run out to the Reed car and it flipped over. She testified that she saw many rocks thrown but saw none hit. She also testified that she saw rocks hit cars but no glass broken. Her testimony with regard to this incident was thoroughly incredible. I cannot find that she was not engaged in throwing rocks on Broadway on June 24, as Jones testified. Accordingly I find it unnecessary to consider the various other allegations of misconduct by Respondent. I find that Respondent did not violate the Act in refusing to reinstate her. 7. Audrey Goforth Plant Manager Roberson testified that Audrey Goforth was refused reinstatement because she was involved in the Thurston truck incident with Barbara Gravett, because she was among the employees on the bank on June 24 and because of her involvement in an incident connected with Trewhitt Dodd's car dunng which she was accused, along with two other women, of trying to pull a nonstriking employee out of a car. Films were shown of the Thurston truck incident and a considerable amount of testimony with regard to it appears on the record. The film discloses that the Thurston truck pulled up at a gate at the Company's plant. Two pickets Barbara Gravett and Audrey Goforth were picketing in a crisscross manner, that is to say one started from each side of the entry at the same time and crossed in the middle. The result of such picketing is that it was a practical impossibility for a truck to pass without striking a picket as long as the pickets continued their parade. The truck was signaling for a right turn with a flashing amber light. The truck stopped because of the presence of the pickets and a union agent spoke to the truckdriver for a few moments after which the truckdriver put his vehicle in gear and proceeded into the plant. The pickets moved to the side as the truck moved forward and they were not touched by the truck. The two pickets immediately went to the police station and swore out a warrant for the truckdriver charging him with attempted assault. The police came to the plant and arrested the truckdriver and his helper and took them both to the police station. The warrant was apparently never processed any further. It is not clear what it is about this incident that particularly disturbed Respondent. The actual blocking of the truck was a matter of a few moments but the effect of the incident was that the truck departed empty and Thurston Motor Lines thereafter refused to service the plant. It would appear from Roberson's testimony that it was the latter effect that was most disturbing The testimony of Goforth as well as that of Gravett was completely incredible with regard to this incident Goforth testified that the truck moved forward at a very rapid pace with the result that she was forced to run for her life into the plant grounds, however the film showed that this is not the 8 As a result of which she was found to have been in contempt of court for violating an injunction against picket line activities 9 The record contains evidence that at thejail a large number of striking employees freely addressed themselves to the Thurston drivers threatening them with injury if they returned to Respondent's plant it does not appear that the drivers were afforded any protection whatsoever by the local police 10 Mis Goforth was also identified by Arnold Fitzgerald, who had been case. She identified an affidavit she had given in support of a State court caue8 in which she stated that the truck did not signal a turn, bore down unexpectedly on her, did not stop and chased her into the plant. This of course is contradicted by her testimony, by the films and by the testimony of witnesses called by Respondent. I do not find that the incident is sufficient to warrant Respondent's refusal to reinstate Mrs. Goforth. Temporary blocking of a vehicle at a picket line while a plea is made to the driver not to cross the picket line has not heretofore been held by the Board to be misconduct of such a nature as to remove an employee from the protection of the Act. The Respondent appears to contend that some part of the gravamen of the offense is the swearing of a false affidavit against the driver of the truck. While it is clear that the affidavit was untruthful there was not an adequate basis for the warrant, I am not prepared to find that the picket, in an excitable condition, was knowingly guilty of false swearing. On cross-examination Respondent's counsel made quite a point of the fact that it was not until Mrs. Goforth had seen the films of the incident, which she obviously knew had been taken, that she determined that her testimony would not support the allegation. Whether this be so I do not find that this constitutes misconduct of such a nature as to warrant the refusal to reinstate her. With respect to the refusal thereafter of Thurston to service the plant it appears to me that the threats and activities which were shown to have taken place at the jail were much more likely to have been the cause than the momentary stopping by the pickets on the picket lme 9 As far as the incident on the bank is concerned Mrs. Goforth is not shown to have committed any violent activity, her mere presence among the many persons on the bank does not constitute misconduct. The only testimony with regard to her activities was that she was talking to a policeman during part of the matter.10 With regard to the incident involving Trewhitt Dodd's car, testimony reveals that the automobile with several women and Trewhitt Dodd left the plant and immediately had a flat tire. Dodd took the tire to a service station leaving a nonstriking employee, Della Fields Solomon' 1 in the car. Three strikers approached who were at that time unknown to Miss Fields and attempted to pull her out of the car, according to her testimony. At any rate they reached through the open window of the car and grasped her by the arm and pulled. All that she could recall of what they said was that one of them accused her of crossing the picket line. She identified the three persons as Judy Rockholt, Audrey Goforth, and Barbara Gravest and testified that they had been identified to her after the occurrence. She picked Audrey Goforth and Barbara Gravett out of the crowd at the hearing. Audrey Goforth denied that she was present on this occasion stating that at the time of the occurrence she was personnel manager at the time of the strike, as being in a crowd at a bus stop when nonstriking employees were blocked from entering the plant No specific action was attributed to her by Fitzgerald His demeanor on the witness stand was such that I would not make any finding based on his uncorroborated testimony ii Miss Fields was married after the incident but before the hearing and appears in the transcript as Della Solomon 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketing at the gate of the plant furthest removed from the incident. While the identification by Mrs. Solomon is suspect, Mrs. Solomon appeared to be a rational and credible witness and I believe her. On the other hand Miss Goforth's testimony with regard to the Thurston truck incident was so incredible that I would not credit her denial that she was present at the automobile incident. Under the circumstances of the large amount of violence that had been taking place and was then taking place at the site of the plant and throughout the city of Dayton in connection with the strike, I consider that the action of the three girls in pulling on Mrs. Solomon's arm constituted a serious threat to her no matter what was said and I find that such a threat is adequate to warrant Respondent's refusal to reinstate her. Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges that such refusal to reinstate her was a violation of Section 8(a)(3) of the Act. 8. Barney Henderson Plant Manager Roberson testified that Barney Hender- son was refused reinstatement because he had thrown eggs at automobiles on May 20. He attributed this information to reports by Arnold Fitzgerald. Fitzgerald testified that he saw two employees, Barney Henderson and Billy Adams, throw eggs at automobiles on May 10 and stated that Adams threw an egg at him on that occasion. On cross- examination, confronted with his testimony in the State court injunction proceeding, he admitted he had not seen Adams throw an egg at him but was told that Adams had done so by Jerry Jones who was present on that occasion. As I stated above I do not credit Fitzgerald except to the extent that he was corroborated by otherwise credible testimony. Jerry Jones was asked both on direct and cross- examination about the incident and on each occasion was asked who he saw throwing eggs. On neither occasion did he identify Henderson, only Adams. There is nothing in his testimony to indicate that Barney Henderson was present at that occasion Henderson took the witness stand and testified that he never threw eggs during the strike and that he had no recollection of any occasion on May 20, the date attributed to the occasion by Roberson. On cross-examina- tion he testified that he had seen crowds of employees but was not present during any of the violence that took place. This in a way is corroborated by the fact that he is not named by any witness as being present at any of the incidents with which we are concerned in this matter other than the egg-throwing incident where he was named by Fitzgerald. I credit Henderson that he was not present with Adams on that occasion. I believe that he is substantially corroborated by the testimony of Jerry Jones It might be questioned whether Respondent had adequate cause to believe that Henderson had engaged in misconduct. However, I find that Respondent did solely because Henderson was among the striking employees found by the State court guilty of contempt as a result of violations of the State court injunction against picket line violence. He did not appear and testify in the State court proceeding Assuming that the same evidence was offered there by Respondent as is offered here it is conceivable that the court predicated such a finding on Fitzgerald's testimony, inasmuch as Henderson was not called to the witness stand. However, I find that the General Counsel has sustained his burden of proof with regard to Henderson that he did not take part in this incident and he is charged with no other.12 Accordingly, I find that Respondent by its refusal to reinstate him violated Section 8(a)(3) of the Act, and I shall recommend an order that he be reinstated with backpay. 9. Margaret Irwin Plant Manager Roberson testified that Margaret Irwin was denied reinstatement because on the first day of the strike, May 6, she was involved in keeping Anna Mae Patton and Gladys Kelly out of the mill. The testimony reveals that on the morning in question a large group of strikers appeared at the entrances to the mill and formed shoulder to shoulder between the mill and the street. As nonstriking employees arrived the strikers attempted to block their entry into the plant. Margaret Irwin was one of these persons. As Anna Patton got out of the car and proceeded toward the mill, Margaret Irwin blocked her with her body and kept moving back and forth keeping between Patton and the mill. As Patton came near the door she ran for the door with Irwin and another employee running after her. Irwin apparently grasped Patton and deflected her into a car.13 Patton then eluded Irwin and the other striker and entered the plant. A few minutes later another employee, Gladys Kelly, arrived at the plant and Irwin, together with others, attempted to block her. Kelly tried to push on through and Irwin grasped her by the shoulder telling her that there was a picket line and she could not come through. Kelly's supervisor came up at that time and Irwin went back into the picket line and Kelly entered the plant. Mrs. Irwin testified that she was present on the occasion and she saw both Patton and Kelly. She said when Patton got out of the car she immediately started running toward the door, she did not come within 10 feet of Mrs. Irwin at any time. Mrs. Irwin never touched her or chased her. As Patton neared the plant door she slipped on some gravel and ran into a car. She almost fell, recovered her balance and entered the plant. With regard to Kelly, Irwin testified that she was talking to another nonstriking employee asking her not to cross the picket line when Kelly got out of a car, came up to her, pushed her with her shoulder and went through the picket line and entered the plant. I do not completely credit any of the witnesses as to this occurrence. I believe that what happened was that both Patton and Kelly were blocked by a crowd of pickets, including Mrs. Irwin, and that she attempted to hold them back both with her hands and her body. I believe that she told them, as she testified she told another striker, that they should not cross the picket line. It is clear that employees attempting to cross the picket line can reasonably expect to be accosted by pickets and it is clear that under the circumstances here the two employees were definitely 12 N L R B v Burnup & Sums, 379 U S 21 appears from the testimony of other witnesses that the contact of Patton 13 1 do not credit Patton's testimony that she "slung her into the car " It with the car was largely accidental KAYSER-ROTH HOSIERY CO. impeded at least for a matter of a minute or two by the pickets including Mrs. Irwin. The Board has adopted the rule first set forth in N.L.R.B. v. Thayer Co., 213 F.2d 748, cert. denied 348 U.S. 883, that the Board will balance the alleged misconduct of the strikers against the unfair labor practices of the employer and determine whether under the circumstances the misconduct is justifiable. The General Counsel cites this rule and argues that under the circumstances here a greater latitude should be afforded the strikers in their strike activities. Respondent on the other hand argued at the hearing 14 that the rule is not applicable in this case because the unfair labor practices found to have been committed in the past were committed by supervisory and managerial people no longer employed at the plant and that there is no occasion for such a balancing. The decision of the Board in which the strike was determined to be an unfair labor practice strike reveals that the strike resulted from a course of bargaining in bad faith which completely stultified the collective-bargaining process and substantial- ly nullified the action of the employees in choosing to be represented by the Union. From the very start of the strike it is clear that the striking employees were incensed and attributed to Plant Manager Roberson, who had been the employer's spokesman throughout the negotiations, much of their distaste for the Respondent's activities. This does not seem to be the case of a belligerent minority attempting to impose its will on the passive majority of the employees who are not personally involved. On the contrary not only does it seem that a majority of the employees supported the strike but the entire community seems to have been solidly behind them, with the exception of a few employees willing to work in spite of the strike. Under all these circumstances it appears to me that the activities at the inception of the strike charged against Margaret Irwin are insufficient to warrant the extreme action taken by Respondent in refusing to reinstate her. There is no evidence that at any time after the first day Mrs. Irwin took part in any of the violent activities that so many other strikers were engaged in. Both the incidents charged against her took place in the first few moments of the strike and obviously were activities in which many other strikers participated. Testimony of Jones, Fitzgerald and Roberson all reveal that the strikers formed an almost solid wall the length of the plant at that time. While both Patton and Kelly testified that they were substantially injured by Irwin's actions it does not appear that the injury amounted to any more than a bruise in either case and it is extremely improbable in my mind that Irwin took any action that she could reasonably have anticipated would injure any woman. I do not believe that the alleged injuries add in any respect to the justice of the sanction applied to Irwin by Respondent. I find that while the action of Irwin with regard to Patton and Kelly is not to be condoned, under all the circum- stances present in this case, it does not warrant the refusal by Respondent to reemploy her. Accordingly, I find that Respondent violated Section 8(a)(3) of the Act in refusing to reemploy her and I shall recommend that it be ordered to reinstate her with backpay. 14 No brief was filed by Respondent. 15 Frances Miller Pendleton was married after the strike but before the 573 10. Tommy Louallen Tommy Louallen was refused reinstatement, according to the testimony of Roberson, because he was a member of the group of employees who went down alongside the plant on June 24 breaking the windows of the cars and turning over the station wagon. Jerry Jones positively identified Tommy Louallen as one of the strikers whom he saw throwing rocks on that occasion. Tommy Louallen took the witness stand and like others of the strikers on the witness stand admitted that he had been present on the afternoon of June 24 on the bank, that he was in the midst of all the rock-throwing people there, that he saw the rocks thrown, saw them hit the cars, break the glass, while he was not watching at the second that it occurred he saw the Reed car before and after it was turned over, that he thereafter walked up Broadway the length of the plant with Robert Bean but that he at no time threw any rocks, he saw no one that he knew throw any rocks and he does not have any idea who turned the car over. I found his testimony completely incredible. I find that Respondent had reason to believe that Tommy Louallen had been engaged in misconduct on June 24 adequate to warrant its refusal to reinstate him. I find that the General Counsel has failed to present convincing evidence that Tommy Louallen was not in fact engaged in the misconduct charged. Accordingly, I find that Respon- dent did not commit an unfair labor practice in its refusal to reinstate Tommy Louallen. I shall recommend that the complaint be dismissed insofar as it alleges that Respon- dent violated the Act in that regard. 11. Frances Miller Pendleton 15 Plant Manager Roberson testified that he refused to reinstate Frances Miller for a number of reasons, that she was one of a crowd who attempted to force her way onto a bus on June 6 and again on June 7, that she was picking up rocks on June 24 at the time that the crowd of employees in the field on the bank across from the plant were throwing rocks although he had no evidence that she had thrown any, that on May 23 she pretended to be hit by Robbie Riggs' car when in fact she was not hit and on May 20 she threw a rock through the window of Robbie Riggs' car. Roberson also testified that on May 5, 6 or 7 Mrs. Pendleton was one of several girls that attempted to take the trousers off Joe Gornik, the driver of the company bus. With regard to the incident of the breaking out of a window in Robbie Riggs' car, Roberson testified that he was informed that Frances Miller Pendleton had thrown a brick or a rock and had broken out the window. There is no evidence as to who so informed him. Fitzgerald, whom I found to be less than fully credible, testified with regard to the incident which took place on May 20. According to him, Lucille Pendleton, Frances Miller Pendleton's sister- in-law, threw a block of concrete or a rock which broke out the window of Robbie Riggs' car. He identified a number of persons present on May 20 in a crowd from which rocks were thrown but Mrs. Frances Pendleton was not among those he identified. Jerry Jones testified that the rock that hearing, accordingly the references to her in the transcript for the most part are under the name Frances Miller. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD broke out Robbie Riggs' window was thrown by Gene Smith, a nonemployee shown by the record to have engaged in a large amount of rock throwing. There is no evidence in the record from which I can infer that Mrs. Pendleton was responsible for any action on May 20 or that Respondent had any good-faith belief that she was responsible.is Mrs. Pendleton denied participating in the incident or throwing any rocks at any time. While her credibility is minimal, I find substantial corroboration to her denial in the failure of both Fitzgerald and Jones to name her as the culprit and the fact that each of them named a different person other than Mrs. Pendleton. Roberson also testified that Mrs. Pendleton was identi- fied by Robbie Riggs as picking up rocks on June 24 while others were throwing them. According to her testimony she was not present at this scene and she was not identified by any witness who appeared before me as having been seen on June 24 on the occasion of the rock-throwing and car- turning incidents. It may also be noted that she was not identified in the motion pictures taken on that occasion. Again I find there is no support in the record for Roberson's assertion.17 Roberson admitted that he had no report that she had thrown any rocks. Respondent also contends that it declined reinstatement of Mrs. Pendleton because she "forced her way" onto the company bus on three occasions. She admitted one of these occasions and there is substantial credible evidence that she was present on at least one other occasion with a group of strikers attempting to board a bus. She was also accused of trying to take the trousers off the busdnver on one of these occasions, however, the story with regard to that leads me to believe that the incident is blown up far beyond its actual worth. It appears that several strikers were addressing themselves to Joe Gornik, the Company's busdriver, and threatening to remove his trousers ostensibly for the purpose of searching them to determine whether he was carrying some sort of pills in them that would render him unfit to drive the bus. From all the accounts on the record it does not appear that anyone seriously attempted to remove his trousers or that the several women involved would have had any trouble doing so if they had tried. Mrs. Pendleton was also identified as having participat- ed on two occasions in incidents in which trucks or cars were stopped entering or leaving the plant. On each such occasion it does not appear that the vehicle was more than delayed by the action of the pickets or that any violence or untoward blocking was taken part in by Frances Pendleton. I conclude that the rock-throwing incidents of which Frances Pendleton was accused have not been established to have taken place with her as an active participant. That she was present on various occasions is clear, but there is no substantial evidence that she threw any rocks and Respondent's evidence convinces me that she was not reported to have done so. While I find Frances Pendleton generally incredible, I credit her to the extent of believing that she was not present on June 24 and did not throw any rocks at Mrs. Riggs' car at any time. With regard to the 16 Roberson testified that he received complaints from Robbie Riggs as well as others but he did not attribute to Robbie Riggs any complaints that Mrs Pendleton was responsible for breaking out her rear window It appears that Robbie Riggs testified at the State court injunction matter, incidents of the company bus and the brief blocking of vehicles on the picket line, I do not believe that the activity complained of is of such a nature as to warrant Respondent's action in refusing to reinstate Frances Pendleton. I find that her discharge was discriminatory and in violation of Section 8(a)(3) and (1) of the Act. 12. Lucille Pendleton According to Roberson's testimony, Lucille Pendleton was refused reinstatement because on several occasions she rode the company bus. She participated in the incident with her sister-in-law relating to taking off Joe Gornik's trousers, she together with her sister-in-law blocked cars coming into the plant, she engaged in harassing phone calls to Robbie Riggs and she was in the group on May 20 at which rocks were thrown through the window of Robbie Riggs' car. She was also one of the persons found guilty of contempt of court for violating the injunction of the State court. With regard to the rock-throwing incident she was identified, according to Roberson, by two employees, Bonnie Wolf and Robbie Riggs, as having thrown a rock through Robbie Riggs' car window on May 20. As I mentioned above, Fitzgerald and Jones each identified other persons as having thrown the rocks that broke out Robbie Riggs' car window on that occasion. Fitzgerald testified that he did not see Lucille Pendleton throw any rocks but that she was in the crowd. Jerry Jones did not testify that he saw her in the crowd. No testimony was offered that Mrs. Pendleton at any time threw any rocks. Mrs. Pendleton testified that she was present on the May 20 incident walking the picket line and that she saw the crowd but was not a part of it. While she denied seeing anyone throw rocks, she admitted that rocks were thrown. She was not among those identified as being in the group shielding the rock throwers on May 20 from the motion pictures. Nor can I identify her in that group from my own viewing. I credit her that she was walking the picket line on that occasion and in view of the testimony of Fitzgerald and Jones which must have contradicted the stones of Robbie Riggs and Bonnie Wolf to Roberson I find that Roberson could not have had a good-faith belief that she was the person who broke out Robbie Riggs' window on May 20. With regard to the blocking of automobiles her participation was shown to be the same as that of Frances, her sister-in-law, which I have found not to be sufficient to warrant the employer's refusal to rehire her. With regard to the bus-riding incident, her participation also seems to have been the same as that of her sister-in-law with the exception that she was admittedly on the bus which on one occasion was driven into the Company's parking lot and the strikers refused to disembark until Plant Manager Roberson came to the bus and shook their hands. Accordingly, they all sat on the bus until he anived and shook their hands whereupon they departed and went back to the picket line. Respondent contended at the hearing that this was adequate cause for the refusal to reinstate Mrs. Pendleton. but she was not called at the instant case to testify i7 It may well be that Roberson had Frances Miller Pendleton and Lucille Pendleton confused KAYSER-ROTH HOSIERY CO. 575 Under all the circumstances of this case I do not agree. It is true that the strikers by riding the buses inhibited Respondent's use of the buses to transport nonstriking employees across the picket line. In fact this was accomplished to the extent that for a period of time the Respondent discontinued using the bus. However, with the exception of a single incident on the record it does not appear that the strikers engaged in any violent or destructive activities with regard to their riding the buses or that any nonstriking employees were coerced by their presence. With regard to the alleged harassing phone calls Lucille Pendleton denied that she ever has telephoned Mrs. Riggs and there is no evidence to the contrary. Under all the circumstances I find that Lucille Pendleton did not engage in activities of such gross misconduct that she lost her protection as an employee. Accordingly, I find that Respondent by refusing to reinstate her violated Section 8(a)(3) and (1) of the Act. 13. Robert Pierce also testified that he knew Buckey Wilkey, Tommy Louallen, Johnny Louallen, Robert Bean and Gene Smith as well as others when he saw them but he didn't see any of them on June 24. He also testified that he could not swear that it was not he portrayed in a movie together with Buckey Wilkey on the occasion of the stone throwing at the plant on June 24, although he testified that he had never been with Buckey Wilkey on that date. Based on his demeanor and on his complete inability to recall seeing anybody on June 24 although he was present at the site of all of the violence that has been spelled out above, I find Robert Pierce's testimony to be incredible. On the other hand, I credit Trewhitt Dodd that he saw Pierce throw a stone through his window. In my opinion Respondent had good cause to believe that Pierce had engaged in misconduct such a nature that Respondent was justified in refusing to reinstate Pierce and I find that there is no violation implicit in its refusal. Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges a violation with regard to the failure to reinstate Robert Pierce. Plant Manager Roberson testified that Pierce was denied reinstatement because of a number of incidents including throwing a rock through the window of Trewhitt Dodd's automobile, being in the company of persons who walked down Broadway on June 24 breaking the windows out of the automobiles and overturning the Company's station wagon and being involved in the Thurston truck incident which I have discussed above, as well as the incident which took place at the jail when the Thurston truckdriver was arrested. Trewhitt Dodd testified credibly that he drove out of the plant and saw Robert Pierce, whom he had known well over a period of years, throw an object at his automobile which broke out a window behind his head. Jerry Jones testified that Pierce was one of the group that marched down Broadway on June 24 breaking automobile windows and overturning the Company's station wagon. Pierce testified that he never threw any rocks at anything or anybody and knew nothing about Trewhitt Dodd's window being broken. He testified on June 24 he had been walking picket duty until 4:30. When he was relieved at that time he heard some commotion on Highway 30 and walked down and saw a car turned over on the road and a large crowd, so he turned and went back north up Broadway, got his car and went home. He testified that he threw no rocks or any other objects on that day. He testified that at the time he went north along Broadway to get his car he did not see Buckey Wilkey or Tommy Louallen or anyone else that he knew and that he had nothing to do with turning over the station wagon. On cross-examination Pierce testified that he didn't know whether a rock might have been thrown from a group in which he was located on the afternoon of May 20 when the rock was thrown through Dodd's car but, in any event, he testified he did not throw the rock. He testified that he had heard that a lot of objects had been thrown on the picket line, a lot of things happened, but he didn't know. He 18 Leona Cooley testified she did not attempt to return to Respondent's employ until after September. 19 Mrs . Cooley's testimony concerning the incident named Mrs. Reed as Nancy Diller. The record does not contain positive proof that Nancy Diller 14. Nancy Reed Nancy Reed was denied reinstatement solely because on May 9, 1969, she physically blocked nonstriking employee Leona Cooley who was trying to enter the plant, causing Mrs. Cooley to return to her home.18 Roberson testified that he was informed by the knitting room supervisor of the incident involving Mrs. Reed and Mrs. Cooley. Mrs. Reed testified that on the third or fourth day of the strike she was standing in the line of strikers with her arms crossed and Leona Cooley came up to her. Mrs. Reed said, "I wish you wouldn't cross our line" whereupon Mrs. Cooley started back down the road crying and said, "I'll go home and pray for you" and that was the end of the incident. She testified that she at no time touched Mrs. Cooley and that Mrs. Cooley came into work the next day. Mrs. Cooley testified in substantial corroboration of the testimony of Mrs. Reed.19 The only substantial differences in the testimony of Mrs. Cooley and Mrs. Reed are that Mrs. Cooley stated that she was touched by Mrs. Reed's shoulder when she was blocked and that thereafter she did not return to her job until shortly before the contract was signed which took place in December. Mrs. Cooley testified that she was hurt, not by the touching of Mrs. Reed's shoulder, but by the fact that people she had worked with all those years would treat her like that and try to keep her from going to her job when she had no other way to make a living. She testified that she knew Nancy Reed well whereas Nancy Reed testified that she had to be told who Leona Cooley was. The testimony of the two women in this regard is not necessarily inconsistent. The only real issue I can see in this matter is whether the alleged misconduct of Mrs. Reed is sufficient to warrant Respondent's refusal to reinstate her. There is no question that Respondent had Mrs. Cooley's story in its possession at the time it decided not to reinstate Mrs. Reed, who was is Nancy Reed. However from the story given by Nancy Reed and Leona Cooley it is clear that Nancy Reed and Nancy Diller are the same person, as Respondent offered to stipulate. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed when she attempted to collect her vacation pay during the summer of 1969 that it had been denied her because of the incident . Under the circumstances of this case it is shown that on the third or fourth day of the strike Nancy Reed was I of perhaps 200 picketing employees who formed a line around the plant . There can be no doubt from the copious testimony regarding the occurrences of the early days that there must have been many incidents where nonstriking employees were touched by the strikers in their line. The fact that Leona Cooley reacted so strongly that she walked away from the Respondent's plant and made no further attempt to enter it for a matter of months could scarcely have been within the contemplation of Nancy Reed or of anyone else. It is clear that other employees successfully negotiated the picket lines especially after the first day and there is no reason to believe that Mrs. Cooley had any harder time than any of the others. She did not complain that she was hurt by the physical contact with Nancy Reed, rather she was hurt by the thought that her fellow workers would "turn against her" by attempting to keep her from entering the plant. There is no evidence that after this incident Nancy Reed took any part whatsoever in the strike which was long and violent . The record contains examples of other employees who were reinstated by Respondent although they had committed acts or had been accused of committing acts more serious than that charged against Nancy Reed. Under the circumstances I conclude that her misconduct was not of such a nature that she should be denied her rights guaranteed under Section 7 of the Act. I conclude that Respondent's refusal to reinstate her violated Section 8(a)(3) and (1) of the Act and I shall recommend an order in accordance with that conclusion. 15. Venus Reed Roberson testified that the only reason Venus Reed was refused reinstatement was because he got a report from Margaret Reed, a nonstriking employee, that on June 13 Mrs. Reed together with three other employees were driving home on a highway when a car driven by Kenneth Toole with Venus Reed as a passenger followed her car blowing the horn and then passing them and as the car passed Venus Reed threw tacks out the window underneath the wheels of her car. Venus Reed testified that on the day in question he was driving with Kenneth Toole on the same highway when Mrs. Reed's car passed them driving at an excessive speed on the left side of the road and went on after which he saw her no more. He testified that Woodrow Tumlin was in the car with Kenneth Toole and him. Mrs. Reed, who is not related to Venus Reed, testified that on June 11 she had been followed from the plant for some miles by a car which cut her off and the driver stopped her and told her not to come back to Dayton. The next day another car followed her and cut her off and then slowed down so that she could not drive at a normal speed. This car was driven by Kenneth Toole who had another man with him. On June 13 she was followed by a car driven by Kenneth Toole in which another man whom she could not identify and Venus Reed were passengers, with Venus Reed riding in the rear seat. She testified that the car followed her closely and then passed her and as it passed her Venus Reed leaned out and threw roofing nails under the tires of her car . She proceeded up the mountain and passed Toole's car farther up the mountain after which Toole followed her almost to her destination . She stopped at the sheriff's office in Pikeville and complained about the harassment on the road and the sheriff promised to have a deputy posted on the road to give her protection thereafter. She continued driving that road until the 24th on which occasion her car was overturned. Based on his demeanor and inconsistencies in his testimony I discredit Venus Reed . I consider Margaret Reed credible and I believe her story. The question remains whether the misconduct charged against Venus Reed is adequate to justify the Respondent 's refusal to reinstate him. I find that it was. In my opinion it is an extremely dangerous thing to throw roofing nails under the tires of an automobile driving over the mountains . I find that Venus Reed thereby jeopardized Mrs. Reed and her three passengers warranting his dismissal and Respondent's refusal to rehire him. Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges that Respondent violated the Act in connection with Venus Reed. 16. Agnes Smith According to the testimony of Roberson, Agnes Smith was denied reinstatement solely because of an incident in which she was alleged to have set up roofing nails on their heads across the entrance to the plant so that automobiles entering the plant would necessarily drive the nails through their tires. The incident as reported to Respondent took place at lunchtime while Agnes Smith and Emma Suttles were walking the picket line across the entrance to gate 3 of the plant. The entrance way hadjust been hosed down and the pavement may still have been wet. A collection of nails and gravel had been washed by the hosing to the side of the driveway. Agnes Smith picked up some of the nails and started making a line of them across the driveway to the inside of the area on which she and Emma Suttles were patrolling. Emma Suttles kicked some of the nails from the pile of debris beside the culvert which Agnes Smith placed on their heads in the driveway. Shirley Holden, Martha Scoggin and Betty Smith all testified that they watched Agnes Smith for up to 10 minutes during their lunch period while she was setting up the nails and that at one time she saw them watching and waved to them. Agnes Smith testified that she walked picket that day at that gate at that time with Emma Suttles and that she saw no nails or tacks in the driveway with the exception of one nail. She testified that she was walking barefoot and Emma Suttles pointed out the nail and warned her against it and then gave it a kick out toward the culvert. She testified that she noticed the girls watching through the windows of the loading dock door as she picketed but did not know who the girls were. She also testified that a guard was standing beside the driveway when she commenced picketing with a hose in his hand and that the ground was still wet. When the ground, which was hot, commenced to dry she asked the guard to wet it again to keep it cool for her. He just laughed. She testified that she was stooping and picking up small stones as she walked and would throw them up and KAYSER-ROTH HOSIERY CO 577 catch them on the back of her hand to pass the time The only time Mrs Suttles bent over or stooped over was when she put her shoes back on because she had been barefoot too and that at no time did she hand her any nails or tacks The guard disappeared while she was still patrolling Emma Suttles testified in complete corroboration of Agnes Smith's testimony On cross-examination Emma Suttles admitted that in the contempt hearing the same testimony had been offered by Respondent that was offered in the instant hearing and the same testimony had been given by Agnes Smith and Emma Suttles denying that nails had been set up but neither Agnes Smith nor Emma Suttles testified at any time that Agnes Smith had picked up gravel and tossed it in their hands I credit Holden, Scoggin, and Smith and discredit Agnes Smith and Emma Suttles I find that in fact Agnes Smith set the nails up on their heads to damage automobile tires of cars entering or leaving the Respon- dent's property There is no question that the use of roofing nails and large construction nails bent in such a way that when thrown to the ground they would more readily fall with the point upwards were used extensively by the strikers throughout the strike Large numbers of punctured tires ensued Indeed Roberson testified that on one occasion all four of the tires on his automobile were flat Both Agnes Smith and Emma Suttles testified that at other gates and at other times they had seen nails scattered in the plant driveway but denied that they had anything to do with it I find that Agnes Smith's conduct in setting the nails up so that they would almost certainly be picked up by automobile tires was misconduct of such a nature that Respondent did not act unlawfully in denying reinstate- ment to her 20 Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges discrimination with regard to Agnes Smith 17 Chester Smith Plant Manager Roberson testified that Chester Smith was refused reinstatement because of a number of incidents Roberson identified Chester Smith as one of the strikers who turned over the Reed car and stated that Chester Smith was identified to him as one of the persons who rocked the company station wagon on May 7, blocked the company truck at the picket line which was subsequently waved on by policemen on May 8, forced his way with four other men onto the company bus on June 7, and threw rocks on various dates in May Chester Smith was cross-examined vigorously especially concerning the incident on June 24 when the Reed car was turned over His demeanor convinced me that he was not telling the truth and his testimony on direct examination and cross-examination contained so many internal incon- sistencies that I halted the cross-examination before it was completed and found on the record that his testimony was incredible The Charging Party took exception to my finding I have carefully reviewed the testimony as recorded in the transcript and I am more than ever convinced that Mr Smith's testimony is worthy of no credit whatsoever Accordingly, I find that the General Counsel has failed to present convincing probative and preponderating evidence that Chester Smith did not commit the acts of misconduct charged to him and upon which Respondent declined to reinstate him Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges that the failure of Respondent to reinstate Chester Smith is a violation 18 Woodrow Tumlin According to the testimony of Roberson, Woodrow Tumlin was involved in a number of incidents all but one of which have been referred to above and he was among the group on May 7 who stopped the station wagon full of clerical employees driven by Arnold Fitzgerald On that occasion he was identified by several witnesses as a participant who urged the others to turn the station wagon over On May 20 he was identified as being one of the group that was throwing rocks at Robbie Riggs' car as well as others Also on that date he was one of a group of pickets that blocked the entrance of a United Parcel Service truck He addressed himself to the driver and told him he could not enter the plant and the driver left the plant without making his delivery or pickup On June 10 when the company bus broke down in the neighboring town of Evansville, and Roberson went up to see what could be done, Tumltn was in a crowd of pickets and yelled to the crowd "if you want to kill somebody there's the man to kill " Finally he was identified as one of the individuals who turned over the Reed car on June 24 Tumlin admitted his presence at the station wagon episode and testified that he walked over to the car and leaned against it and told Fitzgerald who was driving it that the people suspected that he was trying to take scabs into the plant and wanted the passengers to get out and walk into the plant so that the employees could see that they were all office people He testified that the car was not rocked but was "jumping up and down from front to back like somebody had their foot on the bumper or something " He testified he had nothing to do with that, he had his hand on the side of the car while he was talking to Fitzgerald With regard to the UPS truck incident he testified that the truck was not stopped from going into the plant He testified that he asked the driver, whom he knew, to honor the picket line and the driver said that he would do so because he was a union man himself With regard to another truck-stopping incident he testified that he asked the driver of the truck to honor the picket line and the driver refused to do so, so he walked away With regard to the stoning of Robbie Riggs' car he testified that it had a broken window but he saw no rocks thrown, heard no rocks hit any cars on the occasion of the 20th, although he "supposed" that he was in the group from which it has been testified by others rocks were thrown With regard to the Evansville bus incident he testified that he said nothing about killing anyone but he suggested to a policeman that if he wanted to arrest someone he should arrest Roberson because he was trying to get Joe Gornik, the busdriver, killed or hurt in some way With regard to the incident on 20 Farmers Co Operative Gin Association Ibi NLRB 887 enfd sub nom Dallas General Drivers 389 F 2d 553 (re F 0 Hankins & Frank L Hendrick) 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 24 he admitted that he was present throughout the incident and that he saw quite a few rocks, a couple hundred more or less, thrown from the crowd but he did not know who threw any of the rocks, he did not see any rocks hit any vehicles, he did not see the Reed car turned over and indeed did not come within 30 or 40 yards of it but stayed in the field until the car had been turned back up and had been taken away. He testified that he had a conversation with the police chief, Robinette, who asked him to ask the people to back off from the lot because he was afraid they would be hurt. He testified no rocks were being thrown at that time.21 He testified that he walked north on Broadway in front of the plant after the Reed car was turned over, perhaps between 40 minutes and an hour later, and saw various vehicles parked alongside the company building none of which were damaged in any way. Later that evening he passed in an automobile and found that the same vehicles had been damaged and the station wagon turned over. He denied that he had anything to do with damaging or turning over any vehicles on that afternoon. On cross-examination various inconsistencies appeared in Tumlin's testimony. By that time however I was convinced that he was not telling the whole truth. I do not believe it possible that he could have been present throughout the incident on June 24 when the testimony and the movies clearly revealed that large numbers of rocks were thrown and not have seen any person whom he could identify throw a rock. I credit Mrs. Reed's testimony that Tumlin was present when her car was turned over, although she did not see him touch it, and discredit Tumlin's that he was 30 or 40 yards away. I find that Tumlin's testimony is incredible with regard to that incident as well as the UPS truck incident concerning which he gave contradictory testimony in his pretrial affidavit. I conclude that the General Counsel has not sustained his burden of proof that Woodrow Tumlin did not engage in the activities charged against him. Accordingly, I find that Respondent did not violate the Act in refusing to reinstate him. I shall recommend that the complaint be dismissed insofar as it alleges a violation with regard to Woodrow Tumlin. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and 21 Other testimony suggests that at that time Chief Robinette was hit in the back with a rock 22 As General Counsel points out in his brief not only would some 38 employees have been immediately reinstated on December 2 but for the retention of the strike replacements but each of the succeeding employees would have been called back to work sooner but for the employment of the desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated against certain unfair labor practice strikers in that it did not timely reinstate them while at the same time strike replacements were employed and working, I shall recommend that Respondent make whole each of the strikers, whose reinstatement was delayed by reason of the employment of the strike replacements, for any loss of pay they may have suffered because of the discrimination against them, by payment to each of them of a sum of money equal to the amount they would normally have earned during the period between December 2 and their reinstatement or the period between the date on which they would have been reinstated and the date on which they were reinstated.22 Loss of earnings shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co, 138 NLRB 716. While of the 18 employees alleged to have been discriminated against by reason of Respondent's refusal to reinstate them at all, 13 are disqualified by reason of the misconduct alleged or of Respondent's reasonable belief that such misconduct occurred, five are not so disqualified, as found above. With regard to these five, Barney Henderson, Margaret Irwin, Lucille Pendleton, Frances Miller Pendleton, and Nancy Reed, I shall recommend that Respondent offer each of them immediate and full reinstatement to his former job or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, discharging, if necessary, any employee hired on or after the inception of the strike and make each of them whole for loss of earnings which he may have incurred as a result of the Respondent's discrimination by payment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from December 2, 1969, to the date of Respondent's uncondi- tional offer of reinstatement. Said loss of earnings should be computed in the manner set forth in F. W. Woolworth Company, supra, together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., supra. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to reinstate Barney Henderson, Margaret Irwin, Lucille Pendleton, Frances Miller Pendleton and Nancy Reed upon their unconditional application for reinstatement after the strike and by delaying reinstatement replacements Accordingly, all of the sinking employees who were reinstated to fob classifications in which strike replacements were employed have been discriminated against with the possible exception of those who for one reason or another could not have returned to Respondent's employ at a date earlier than they did. KAYSER-ROTH HOSIERY CO. 579 of other employees while strike replacements were em- ployed, Respondent discriminated against employees within the meaning of Section 8(a)(3) and (1) of the Act. 4. Textile Workers Union of America, AFL-CIO, has been at all times relevant hereto the exclusive certified collective-bargaining representative of a majority of Respondent's employees in a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing upon request to furnish the Union with a list of employees together with their departmental seniority, Respondent engaged in conduct violative of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER23 Upon the foregoing findings of fact and conclusions of law and upon the basis of the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended , I recommend that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Textile Workers Union of America, AFL-CIO, or any other labor organization by discriminatorily refusing to reinstate unfair labor practice strikers or delaying in reinstating unfair labor practice strikers while continuing in its employ replacement employees hired during the strike or in any like or related manner discriminating against any employee with regard to his hire or tenure of employment or any term or condition of employment. (b) Refusing to bargain collectively with Textile Workers Union of America, AFL-CIO, as the exclusive representa- tive of all Respondent's employees in an appropriate collective-bargaining unit by refusing to furnish said Union an up-to-date seniority list by department of all employees within the unit. (c) In any like or related manner interfering with, restraining, or coercing its employees in their right to self- organization, to form their own labor organization, to join or assist the Union, or any other labor organization, to bargain collectively with representatives of their own choosing, and 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. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make whole all of its employees whose reinstatement was delayed by the continuing employment at the close of the strike of strike replacements for any loss of pay they may have suffered as a result of the discrimination against them in the manner set forth in the section entitled "The Remedy." (b) Offer to Barney Henderson , Margaret Irwin , Lucille Pendleton, Frances Miller Pendleton, and Nancy Reed immediate and full reinstatement to their formerjobs or, if those jobs no longer exist, to substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges , discharging, if necessary, all replacements hired after the commencement of the strike and make said employees whole for any loss of wages they may have suffered to the extent and in the manner set forth in the section entitled "The Remedy." (c) Post at its plant at Dayton, Tennessee, copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, especially including records disclosing the departmental seniority of all employees necessary in determining the amount due as backpay. (e) Notify Barney Henderson if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (f) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.25 IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges violations of Section 8(a)(1) and (5) which have not been sustained. 23 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 24 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 25 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and to keep our word about what we say in this notice. The Act gives all employees these rights: To engage in self-organization; 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To form, join or help unions; To bargain collectively through a representa- tive of their own choosing; To act together for collective bargaining or other mutual aid or protection; and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT refuse to bargain collectively with Textile Workers Union of America, AFL-CIO, as the exclusive collective-bargaining representative of our employees in a unit appropriate for collective bargain- ing by failing and refusing to furnish the Union, upon request, with an up-to-date departmental seniority list of all employees in the unit. WE WILL NOT discourage membership in the above- named Union or any other labor organization by discriminatonly refusing to reinstate unfair labor practice strikers, or delaying in reinstating unfair labor practice strikers while continuing to employ strike replacements, or otherwise discriminate against any employee. WE WILL make whole all of our employees whose reinstatement after the strike was delayed for any loss of pay they may have suffered as a result of our discrimination against them, by payment to each of them the amount of money they lost as a result of our action. WE WILL offer to the employees named below immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent jobs, discharging if necessary all replace- ments hired during the strike, and make them whole for any loss of wages they may have suffered as a result of our discrimination. Barney Henderson Margaret Irwin Frances Miller Pendleton Lucille Pendleton Nancy Reed Dated By KAYSER-ROTH HOSIERY COMPANY (Employer) (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, T6024 Federal Building (Loyola) 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.