U. S. Industries, Inc.

CUSTOM CRAFT MFG. CO. 255 Custom Craft Manufacturing Company, a Division of U. S. Industries, Inc. and United Rubber, Cork, Li- noleum and Plastic Workers of America , AFL-CIO- CLC. Cases 26-CA-4674, 26-CA-4696, 26- CA-4712, 26-CA-4767, 26-CA-4780, and 26- CA-4786 June 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 31, 1974, Adminstrative Law Judge Paul E. Weil issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel and the Re- spondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs t and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order? ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Custom Craft Manufactur- ing Company, a Division of U. S. Industries, Inc., Halls, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. i The Respondent's motion requesting oral argument is denied as the record, including the exceptions and briefs, adequately presents the issues and positions of the parties 2 Official notice is taken of the court's opinion in Case No . a3-1923 where- in the United States Court of Appeals for the Sixth Circuit granted enforce- ment of our Decision and Order in Custom Craft Manufacturing Company, a Division of U. S. Industries, Inc, 204 NLRB No. Ill (inadvertently cited by the court as 205 NLRB No. 111). In that case, we found that the Company violated Sec. 8(aX5) and (1) of the National Labor Relations Act, as amend- ed, by refusing to bargain with the Union as the exclusive bargaining repre- sentative. DECISION STATEMENT OF THE CASE PAUL E. WELL, Administrative Law Judge: On March 14, 1973, Local Union No. 954, United Rubber, Cork, Linole- um and Plastic Workers of America, AFL-CIO-CLC, here- inafter called the Union, filed with the Regional Director of Region 26 of the National Labor Relations Board, hereinaf- ter called the Board, a charge alleging that Custom Craft Manufacturing Company, a Division of U. S. Industries, Inc., hereinafter called Respondent, violated Section 8(a)(3) and (1) of the National Labor Relations Act, hereinafter called the Act, by its refusal to reinstate an employee, Joe Pickard, and by other acts and conduct (Case 26-CA-4674). On April 3, 1973, the Union charged Respondent in a sec- ond charge (Case 26-CA-4696) with violation of Section 8(a)(1), (3), and (5) by Respondent's refusal to pay vacation and holiday pay for the week of December 25, 1972, when the employees were on strike and by unilaterally changing eligibility rules for holiday pay and vacation pay. On April 16 the Union filed another charge (Case 26-CA--4712), al- leging the refusal of the Respondent to reinstate an employ- ee, Idella Furgerson, and the termination of said Idella Furgerson and alleging a violation of Section 8(a)(5) by unilateral changes in working conditions by Respondent. On April 26, the Union filed an amendment to Case 26- CA-4674, another to Case 26-CA-4696, and another to Case 26-CA-4712 and on May 16 filed a second amended charge to Cases 26-CA-4696 and 26-CA-4712.1 On May 23, 1973, the Regional Director issued an order consolidat- ing the three cases theretofore filed and a consolidated com- plaint alleging violations of Section 8(a)(1), (3), and (5) by the acts and conduct of Respondent. On June 22, the Union filed an amendment to the charge in Case 26-CA-4674 and a new charge (Case 26-CA-4780) alleging the constructive discharge of two more employees, Elic Ezekiel and Aaron Queen, and the discriminatory lay- off and refusal to recall a third employee, Alice Faye War- ren. On June 29 yet another charge was filed (Case 26-CA-4786) alleging the improper reinstatement and sub- sequent termination of Weldon Johnson. Case 26-CA-4674 was amended for the third time on July 20, 1973, putting together into one charge all allegations with regard to John- son and adding several more employees who were allegedly discriminated against by Respondent. On the same date Case 26-CA-14780 was amended for the first time. A second order consolidating cases, now consolidating all five cases, and an amended consolidated complaint was issued on July 20, 1973. An amendment to the amended consolidated com- plaint was issued by the Regional Director dated July 30, 1973, adding, among other things, allegations contained in charge 26-CA-4767 which had been filed June 11 against Respondent alleging that two employees, T. W. Nichols and Frances Nichols, his wife, were discharged on or about May 30 by Respondent because of their union membership. A further order consolidating cases was then issued on July 31, consolidating Case 26-CA-4767 with the five cases theretofore consolidated. Respondent duly answered each complaint as it was is- sued, in each case denying the commission of any unfair i With the exception of the initial charge all of the additional charges and amended charges were filed in the name of the International rather than of the local. In this Decision the term "union" will be used both with reference to the International and to the local 212 NLRB No. 36 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices. On the issues thus joined the matter came on for hearing before me at Dyersburg, Tennessee, on Sep- tember 18, 19, 20, and 21 , on which date the hearing was closed. Thereafter, on the motion of the General Counsel, the hearing was reopened and again closed at Memphis, Tennessee, on November 5, 1973 . Since the close of the hearing, I have received a deposition of Jerry Hopper taken on November 28, 1973 , in the offices of Fowler, Young and Perl. I herewith receive the deposition as well as a late filed exhibit marked for identification as General Counsel's Ex- hibit 36 .2 At the hearing all parties were represented by counsel and had an opportunity to examine and cross-ex- amine witnesses and adduce relevant and material evidence. The hearing being finally closed, on the basis of the evi- dence now in hand and in consideration of briefs filed by the General Counsel and by Respondent, I make the follow- ing: 3 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation engaged at Halls, Tennessee, in the manufacture and assembly of cabinets. Respondent annually ships its product valued in excess of $50 ,000 from its Halls, Tennessee, plant to points directly outside the State of Tennessee and annually receives goods valued in excess of $50,000 from points located outside the State of Tennessee at its Halls, Tennessee, plant. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background On September 18, 1972, the Board certified the Union as the exclusive collective-bargaining representative of em- ployees in a unit consisting of all production and mainte- nance employees, including plant clericals and all truckdrivers employed by Respondent at its Halls, Tennes- see, location, excluding all office clerical employees, profes- sional employees, watchmen , guards and supervisors as defined in the Act . A week later the Union's International representative, Minch, requested an early meeting for the commencement of negotiations to which Respondent's president, R. Glenn Williams, replied advising Minch that Respondent contended that the certification was invalid and accordingly would not bargain . On October 2, 1972, the Union filed a charge alleging violation of Section 8(a)(5) and (1) of the Act by Respondent's refusal to bargain and, 2 Arrangements were made at the hearing to receive the deposition and G.C Exh. 36. 3 The unopposed motions of the General Counsel and the Respondent to correct the record are hereby granted on October 17, the Regional Director issued a complaint alleging that the refusal to bargain violated Section 8(a)(5) and (1) of the Act.-On October 30, 1972, Local 954 of the Union was chartered, officers were elected, and Minch told the members who were present that there had been a refusal to bargain and that the employees had a choice between striking to force recognition or waiting the outcome of liti- gation . The following day the Union sent notification of a strike vote to be taken on November 2 and on that occasion the employees voted 122 to I1 to strike . On November 14 the strike commenced at 7 a.m. On November 16 the employer sent a letter to all employ- ees stating that the plant would reopen November 20, that all employees should report to work at their usual starting time, that local law enforcement officials would be on the scene to make sure that there was no trouble , and that striking employees will not get holiday pay for Thanksgiv- ing and the day after it. The letter also stated that Respond- ent intended to begin replacing employees who did not report for work the following Monday and would not make any future premium payments for hospitalization so that the insurance would be canceled if the employees did not return to work unless they made their own arrangements for cover- age. The letter was apparently effective. Of 196 employees who struck on November 14, 108 abandoned the strike dur- ing the week of November 20, 1972. The remaining employ- ees continued to strike and on February 13, 1973, Union Representative Minch had a conference by telephone with Respondent's attorneys pursuant to which an agreement was reached that all striking employees who made written unconditional offers to return to work before February 22, 1973, would be reinstated to their "old jobs or substantially equivalentjobs" by March 12, 1973. On February 15 Minch advised Respondent that the Union terminated the strike as of February 19 and instructed the striking employees to report to the plant during the period between February 19 and February 22 .4 On 'the morning of February 19 Minch met with the strikers' and instructed them to return to the plant and make their applications for reinstatement. The strikers went in a body to the plant where they were fur- nished with a document which had apparently been pre- pared by the Respondent entitled "unconditional application for reinstatement" which in form appears to be very similar to most applications for employment. One of the boxes on the application provided, under the heading "employment desired," boxes for answers to questions of what position the employee was applying for, what date he could start, whether he would accept substantially equiva- lent employment to his old job, and whether he was present- ly employed and, if so, where. At the bottom part of the application provided for the employee to fill out is the fol- lowing language: I authorize investigation of all statements contained in this application . I understand that misrepresentation or omission of facts called for is cause for dismissal. Fur- ther, I understand and agree that my employment is for no definite period and may, regardless of the date of payment of my wages and salary, be terminated at 4 All dates hereinafter are in the year 1973 unless otherwise specified. CUSTOM CRAFT MFG. CO. 257 anytime without any previous notice. Sixty-one employees made application for reinstatement on the required forms. What happened then is best stated in the words of Jerry Hopper, who was plant manager at the time and personally handled the reinstatement of the strikers: Q. Now, at what date did you decide to call certain people, who[m] you were going to call this week and whom you were going to call next week? I gather most of them filed their applicationa that same day. A. They filled them in at once and brought them back at once which made it harder really. If they had brought them in a few at a time, we could have stacked them in order and tried to take them back as they came. As it was, it was through knowing which areas that we needed to fill. I did look at the application to try to get the people their work. Of course, some of them were vague and some or them weren't filled out complete but we did the best we could trying to get these people back to work for their benefit just as quick as I possibly could. That was all. And of course, somebody had to be last. Q. Well, when you called in a give[n] employee, as the general rule when you call them in, did you give them a choice of the job they held before the strike and the job to which you had assigned them? A. I offered them the' job openings that I had at that time or they could wait until the time limitation and possibly we could place them back on their original jobs. Q. And did you tell them that the only way that they could hope to get back on their jobs that they had before was to wait for the time limitation? A. No. I didn't promise any of them that we would place them back on their old job[s]. Q. You just told them that if the job came open during the time period that they would be placed on it? A. Yes, sir. Once they accepted the job that I had at that time. But I knew that I couldn't promise to change them later because that would mean the full crew that I would have to go back and switch later on. We made an offer to each employee. As a result of this system of reinstatement, many employ- ees were put back to work at jobs other than those they held before the strike. No attempt was made by Respondent to put any employee back in the job he had previously held, especially if that job was a choice assignment and was filled by a nonstriker or by an employee hired during the strike. No employee hired during the strike was discharged to make way for the returning strikers, but instead they were fitted into whatever job openings occurred. As a result of this system of reinstatement, employees were placed on jobs that they could not do or that were substantially more diffi- cult. As a result of this fact, a number of employees were terminated and such terminations form the gist of the Gen- eral Counsel's complaint. B. The Unilateral Changes On December 12, 1972, during the strike, Respondent posted on its bulletin board a memorandum to all employ- ees setting forth a leave of absence policy pursuant to which leave requests were required to be submitted in writing and could be granted for absences of no more than one work- week for compelling personal reasons other than personal illness or injuries. In addition, the policy provides that the failure to return on the scheduled day would result in auto- matic termination and reinstatement of an employee at the conclusion of leave subject to business needs and the availa- bility of a suitable vacancy. Finally, the memorandum pro- vided that group insurance would be continued subject to timely payment of the employees' contribution, not to ex- ceed 4 weeks of personal leave or 6 months for personal injuries or disability and that vacation pay distribution would be made to employees on leave except that employ- ees on military leave will receive their vacation pay on their return to work. There is no evidence that any of the policies set forth above have ever been promulgated prior to December 12, 1972. The record reveals that some employees were granted leave on oral request and Respondent President Williams admitted that prior to December 12 no rule had been pub- lished. On January 2 Respondent posted a notice on the employ- ee bulletin board entitled "vacations and holidays." The notice stated that employees who had been on the payroll continuously for 2 or more years on the first day of the vacation period would be entitled to 2 weeks' vacation pay and that employees who had been on Respondent's payroll continuously for 1 year on the first day of the vacation period would be entitled to 1 week's vacation with pay. This was no variance from former procedures. However, the memorandum went on to provide that a determination whether an employee is entitled to vacation depends on his attendance record which must show that he worked a total of 1,920 clock hours during the 52-week period immediately preceding the beginning of the vacation period. Time lost as a result of accidents covered by workmen's compensation, illnesses excused by a doctor's statement, jury duty, and approved leave of absences as set forth in the December 12 memo were to be counted toward the total hours. Respondent President Williams testified that he had no personal knowledge of the vacation policy prior to his ad- vent with the Company in 1972, but that he had consulted with a named individual whom he characterized as the only managerial employee who remained with the Company af- ter his advent. No evidence was adduced by Respondent from anyone, employees or supervisors or indeed from the person by whom Williams allegedly was informed as to the preceding vacation policy. Various employees who took the witness stand testified that no provision had ever existed that employees must work any given number of hours to achieve vacation pay and it appears that in some circum- 5 It appears that Respondent's entire managerial staff and some of its supervisors were terminated at one time in 1972 as the result of what Williams termed "defalcations" pursuant to which they were indicted and tried for some crime. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances vacation pay was given to employees who did not in fact work 1,920 hours in the last preceding year. In the absence of any effort by Respondent to prove by substantial evidence that the vacation policy was other than that testi- fied to by employees, I find and conclude that the memo- randum of January 2 represented a change in the policy of Respondent. The General Counsel contends that both the changes in leave of absence policy and in holiday and vaca- tion policy represent unilateral changes violative of Section 8(a)(5) and (1) of the Act. C. Discussion and Conclusions The General Counsel's evidence that the strike resulted from and was in protest of Respondent's refusal to bargain with the Union is uncontroverted on the record. Inasmuch as the Board has found that Respondent has violated Sec- tion 8(a)(5) of the Act by this refusal to bargain,6 It follows that the strike is an unfair labor practice strike and I so find. Similarly, Respondent having promulgated rules con- cerning vacation and holiday eligibility and having institut- ed procedures and limitations on the granting of excused leaves of absence, both of which represented substantial changes from its preceding policies and customs, without consulting with the Union, I find that Respondent has thereby violated Section 8(a)(5) and (1) of the Act. Unfair labor practice strikers under Board and court de- cisions too numerous to list have a right to be reinstated upon a proper demand to "the same or to a substantially equivalent" job. In another context the Board has spelled out that the above-quoted phrase means reinstatement to the same position if it still exists or to a substantially equiva- lent position if the "same" position no longer exists. There is no contention here that the request for reinstate- ment was anything but unconditional. Respondent took great pains in drawing up a reinstatement application to make sure that the requests were unconditional and I find that they were. Accordingly, upon Respondent's receipt of the application, it had a duty to return the unfair labor practice strikers to their same jobs if they were still in exis- tence. This Respondent declined to do. The job in many cases were filled with employees hired during the strike or employees who had not gone on strike or who had them- selves crossed the picket line during the strike. Respondent may not reward the nonstriking or newly hired employees by giving them the pick of the jobs as it seems to have done. The parties litigated at great length the comparison between the jobs formerly held by the employees alleged to have been discriminated against with the jobs given them after the strike, but this factor is immaterial. Whether in Respondent's opinion the jobs offered the employees were easier, less burdensome, or in some way equivalent makes no difference; they were not the same jobs, to which the employees had a right to reinstatement. Further, Respondent contends that each of the employees acquiesced in accepting the "substantially equivalent" job offered them. However, it is clear from the testimony of each of the employees and of Hopper, the agent of Re- '204 NLRB No. 1 I I spondent who personally handled the reinstatement of the strikers, that employees were faced with a situation where they could take thejob offered or wait perhaps forever for their old jobs to become vacant. The offer of this choice to the employees simply is not available to Respondent under existing law and Respondent is in violation of the Act by this action. Respondent contends in some cases that, by signing a "waiver" on the back of their applications at the request of Hopper,' the employees acquiesced in Respondent's choice of a job for them and thereby lost any right to the job they held prior to the strike. This "waiver" strikes me as a some- what cynical attempt by Respondent to establish some sort of a defense for its actions which it must have realized were attleast arguably unlawful. I find that the "waivers" do not relieve Respondent of its duty to reinstate the strikers to the jobs they held prior to going on strike. Respondent also contends that all jobs in Respondent's plant are substantially equivalent and that normally all em- ployees are moved from job to job. The record however reveals that such is not the case. Employee Pickard had regularly worked on a single job for at least 5 years before the strike. Hudson, Reynolds, and Furgerson had had regu- larly assigned jobs for at least a year. I find Respondent's defense in this regard without merit. Respondent appears to contend that, because it per- formed the same type of reinstatement with regard to all 61 reinstated unfair labor practice strikers and the General Counsel has complained only about 10 of them, the case somehow must fall. Respondent cites no authority for this proposition and I see no validity to it. The fact that of the 61 reinstated employees others than the 10 may have been reinstated to jobs other than those that they held before the strike renders the reinstatements alleged as violations no less violative. Finally.. Respondent appears to contend that, by entering into a strike settlement agreement that provided that the employees be returned to the same or substantially equiva- lentjobs, the Union must have realized that the Respondent would place the employees in substantially equivalent jobs rather than displace the employees who worked during the strike. This defense is roughly equivalent to saying that the Union should have known better than to trust the Respon- dent to act in good faith. As the General Counsel pointed out in his brief, the Board has heretofore held that strike settlement agreements may not be used to deny strikers their reinstatement rights.8 Here, as in the Laher case, it is apparent that the strike settlement agreement was part of a scheme on the part of Respondent to deny returning strikers their rights in order to reward and protect the employees who worked during the strike. I find no defense to Respon- dent in the strike settlement agreement. Discussed below are the instances alleged by the General Counsel as violations. Weldon Johnson: Before the strike Weldon Johnson was in a job unscrewing wooden legs from finished cabinets for wrapping and packing by other employees. After the strike 7 The "waiver" stated, in one form or another, substantially " I [named employee] do except [sic] a job [such as on finish line as a utility worker] and understand this is not permanent," followed by the employee's signature s See Laher Spring & Electric Car Corp, 192 NLRB 464 CUSTOM CRAFT MFG. CO. 259 Johnson was told to report to the warehouse where he was assigned to unload trucks, clean up the warehouse, and finally stack bundles of small precut parts. He had trouble stacking the parts, was given a written reprimand for his failure to follow instructions, and ultimately was discharged because of his inability to stack them in accordance with what he understood his instructions to be. Hopper testified that he had no knowledge what work Johnson performed prior to the strike and made no effort to determine what his prestrike job was. I find that Johnson was discriminatorily reinstated and that as a result of the discriminatorly rein- statement he was discharged. I find further that the dis- charge was violative because it resulted from Respondent's unfair labor practice.9 As in the Binder case if Johnson had been properly reinstated he would not have been placed in a situation which gave rise to his subsequent discharge and, accordingly, the subsequent discharge is violative. Johnson, who was illiterate, was not asked to sign a statement accept- ing reinstatement to a job other than that he had left. Idella Furgerson: Idella Furgerson at the time of the strike was engaged in picking up cabinets, placing them on a flatbed cart, rolling them from one production line to anoth- er, and unloading them from the cart on to the second production line. After the strike she was put in the packing department wrapping cabinet legs for packing and shipping. She did not impress anyone with her work on this job and then was detailed to the millroom where she did construc- tion work, gluing wood pieces to cabinets and attaching them by screws. She worked on two different jobs in the millroom and was discharged after being given a warning slip for failure to produce up to company standards. Hopper testified that he took her off the hauling job because she had complained in the past about the job being heavy and that it hurt her back. Mrs. Furgerson denied having complained and there was no evidence that she ever complained to management about this. Nevertheless, she asked for the same job back but was not given it. I find that by its failure to reinstate Mrs. Furgerson to the job she held before the strike and by Respondent's discharge of Mrs. Furgerson for failing to perform up to its production standards in the millroom work to which she was then assigned, Respondent violated Section 8(a)(3) and (1) of the Act.10 Joe Pickard: Pickard had been employed before the strike loading cabinets onto conveyors in the finishing depart- ment. He did this work for about '4 years before the strike except for a few days during vacation periods during which he worked in the warehouse. On his return Pickard was assigned to the warehouse, although his application reflects that he had worked in the finishing department. He found the work in the warehouse beyond his physical capacity and complained to his supervisor. Receiving no satisfaction, he informed Hopper that he did not think he could perform the 9 Tex-tan Welhausen Company, 172 NLRB 851; Binder Metal Products, Inc., 154 NLRB 1662. 10 Hopper testified that, when he offered the changed job to Furgerson at her initial interview, she replied that she was "more than willing to try it." It must be remembered that the employees were interviewed alone by Hop- per, the plant manager, and were all anxious to get back to work. The fact that Mrs. Furgerson may have been willing to try a changed job, when she was put in the position of either doing so or not being recalled, affords Respondent no defense work and asked for a lighter job. Hopper refused to put him on lighter work because he did not want to establish a precedent and told Pickard that it was against company policy to be moving people around. Hopper then discharged Pickard for refusal to do assigned work. I find with regard to Pickard that Respondent's refusal to reinstate him to the job he held before the strike and subsequent discharge for his failure to perform the job to which he was assigned constitute violations of Section 8(a)(3) and (1) of the Act." With regard to Pickard, Hopper testified that he made no attempt to identify Pickard's prestrike job prior to his inter- view. This appears to have been Hopper's normal course. He had no intention of displacing any of the strikerreplace- ments with returning strikers and accordingly had no inter- est in the jobs they had held; he was concerned only with the jobs that he was prepared to offer them. Alice Faye Warren: Warren before the strike was a spray sealer. This job was apparently one of the least desirable jobs in the plant and entailed spraying a sealing fluid onto the furniture with a spray gun in a booth. The spray gave off obnoxious fumes that caused her to become ill. She went to a doctor who wrote a note to management asking Re- spondent to put her on another job. While her testimony is unclear, it appears that before the strike she was put on gluing furniture but continued to have problems because the fumes went throughout the plant. After the strike she came back and she was again put on a sealer spray. Again she asked to be taken off it and was again put on gluing, but after 2 days was discharged because of her inability to stand the smell of the sealer. When Respondent attempted to move her back to spray sealing she would not go and left Respondent's employ. After she had been off for a period of time she prevailed on her doctor to write her a note stating that she could go back to any job and applied again as a sealer but was not reinstated. I find that the only job to which Warren had any right was the job of spray sealing. She could not keep this job and indeed became ill anywhere she worked in the plant. The job of gluing was admittedly not a permanent assignment, the employee who normally did the work was off briefly but retained the right to the job. I find that Respondent did in fact attempt to reinstate her to the sealing job and to find other work for her that she could tolerate, but her inability to stand the effects of the sealer which appears to have permeated the entire plant made it impossible for her to continue in Respondent's employ. Accordingly, I find that Respondent has not violat- ed the Act with regard to its handling of Mrs. Warren. I shall recommend that the complaint be dismissed insofar as her discharge is alleged to be violative. Juanita Woodard before the strike had been employed since April 1972, on ajob as a touchup painter; prior to that she was a utility sprayer, spraying either lacquer or sealer. After the strike when she returned she was offered the job of spraying sealer but was not permitted to return to her job as a touchup painter which at this time was occupied by a nonstriker, Horton. Woodard voluntarily quit; her termina- tion is not alleged as a violation. I find that by its failure to reinstate her to her original job Respondent violated Section 8(a)(3) and (1) of the Act. 11 Rckard's old job was manned by a striker replacement. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jewel Reynolds poor to the strike worked on the job of sanding the furniture , after it had received its second lac- quer coat, to remove the fibers raised by the spray operation and stamping the manufacturing date on each piece of fur- niture. When she returned after the strike she applied for a job of sander and stamper but was placed on the job of hauling cabinets which had previously been handled by Mrs. Furgerson. After about a week of hauling cabinets she complained about the work and was transferred to another job of sanding after the sealing operation where she re- mained until the hearing. Her prestrike job was filled by a striker replacement , Rose Anderson , the wife of a foreman. I find that Respondent's failure to reinstate Jewel Reynolds violated Section 8(a)(3) and ( 1) of the Act. Mary Frances Osborne Arwood had been employed before the strike as a lacquer sprayer applying the second coat of lacquer. This apparently was the most desireable of the spraying jobs on the finishing line. When she returned from the strike, and after a period of illness, she was assigned the sealer sprayer job formerly held by Warren . After remaining on the sealer job for a month and a half she was transferred to a job of toner, then to another job of nm coating, and finally to the job of utility worker , relieving all of the spray painters during their absences on a temporary basis. Arwood's prestrike job was occupied on her return by a striker replacement. I find that the Respondent's failure to reinstate her to her prestrike job violated Section 8(a)(3) and (1) of the Act. M. L. Hudson: Mrs. Hudson was a second lacquer spray- er when the strike began . She apparently was exceptionally capable because she was assigned to train new employees on the job of spraying lacquer . Two weeks after she filed her application for reinstatement she was called in and told that the only job available was the utility worker position. She was then assigned as a relief sprayer for 2 or 3 days and then transferred to a job of shading cabinets and sealing cabinet tops. Her job as a second lacquer sprayer was occupied on her return from the strike by an employee who had aban- doned the strike on November 20 and who had before the stoke been the first lacquer sprayer . Another employee who had been painting cabinet fronts and legs when the strike began and who worked during the strike took over the first lacquer job . I find that by its failure to reinstate Mrs. Hud- son to her prestrike job Respondent violated Section 8(a)(3) and (1) of the Act. William Brown: William Brown before the strike had worked assembling drawers and frames for large cabinets. Prior to the strike, he had been tried out for a time on night shift assembling small cabinets and had failed to make pro- duction and had been returned to the job of assembling drawers and frames for large cabinets where he worked until the strike began . After the strike Brown was assigned to building small cabinets , the same job that he had failed the preceding year . Nevertheless he was placed on that job and remained there until he entered the hospital on September 12, 1973. After his return to work in October 1973 he was assigned to his prestrike job. His prestrike job was per- formed after the strike by a striker replacement hired in January 1973 . I find that the Respondent violated Section 8(a)(1) and (3) of the Act by failing to reinstate Brown to the job which he had held prior to the strike. D. The Termination of Employees T. W. and Frances Nichols T. W. and Frances Nichols, husband and wife , had been employed prior to the strike and had returned and were reinstated . On May 28, 1973 , Mrs. Nichols had an attack of high blood pressure and called the plant informing a secre- tary that she would be absent as she needed to see a doctor. That day was a holiday and she was unable to see a doctor, whereupon she saw a doctor the next day and got a chit from him to excuse her absence . Her husband took off the same 2 days to dove her inasmuch as she had no driver's license . On the following workday the Nicholses returned to the plant where Mrs . Nichols handed her doctor's statement to Manager Hopper, he took the statement and handed her her timecard , but refused to give T . W. Nichols his card or permit him to return to work , saying he wanted to talk to him. A scene ensued and the Nicholses walked out. The following Friday Hopper sent word to the Nicholses that he wanted to see them. They came in to the office and had a fairly quiet conversation during the course of which Hopper invited the Nicholses to return to work the following Mon- day and said that he would ask them to sign a paper bearing a text which he read or recited to them . They agreed to do so. Over the weekend the Nicholses consulted with Brown, the union president, who called Union Agent Minch, who in his turn advised the Nicholses not to sign any statement unless they were given a copy. The following Monday morning they went to the plant where Hopper told them that he did not have the statements typed but they could return to work and sign them later in the day. The Nicholses refused to sign the paper unless they were given a copy and Hopper refused to give them a copy whereupon they walked out of the plant, claiming that they had been discharged, with Hopper claiming that they had quit. Hopper testified that he wanted the paper signed "for the protection of the Company and myself that they had voluntarily just left." No one contends that the initial departure of Mr. and Mrs. Nichols was an unfair labor practice . It appears clear that in an apparent misunderstanding of Hopper's motive, Mrs. Nichols lost her temper and turned her card in and walked out, with her husband following her . Thereafter when all the parties had cooled down the Nicholses were called back into the plant and given an opportunity to go back to work if they signed a certain document . It is not contested that Hopper read to the Nicholses on that Friday just what it was he proposed to have them sign , although neither of them recalled what it was that he read to them. On the following Monday it appears equally clear that on their return to work they refused to sign the document which Hopper proposed to have prepared for their signature unless they were given a copy of it. Hopper became ada- mant and refused to give them a copy and, in view of their refusal to sign it, told them that he would let the matter stand as it was the preceding Wednesday ; i.e., they were terminated . The General Counsel contends that because Mr. and Mrs. Nichols were advised by the Union to get a copy of that which Hopper wanted them to sign, somehow this became union or concerted activity and achieved the protection of the Act . I do not agree. The advice they re- ceived, to get a copy, was for their own protection and had CUSTOM CRAFT MFG. CO. 261 no relationship to the union activities at the plant . Mr. and Mrs. Nichols, as well as Mr. Hopper, were all unsophisticat- ed in labor relations matters. The document in question would have had no legal effect other than as evidence in the event Respondent were charged with discrimination in their initial departure and I consider it unlikely that if Hopper had secured advice on the subject he would have declined to give them a copy, but the fact is that his refusal to give them a copy did not violate the Act and his refusal to permit them to return to work unless they signed the document was not discriminatory. The General Counsel would have me find that, because Hopper's refusal to permit Mr. and Mrs. Nichols to return to work was based on his conjecture that trouble would ensue through the Union if he did not get the signed docu- ment or that he would have trouble with the Union if he gave Mr. and Mrs. Nichols a copy, the failure to reinstate the Nichols was translated into a union-related action on the part of Respondent and hence into an unfair labor practice. I do not believe that it can be argued that Hopper's failure to permit them to return to work normally would have the effect of encouraging or discouraging union activi- ty on the part of the employees and I reject the General Counsel's theory. Accordingly, I recommend that the com- plaint insofar as the termination or refusal to rehire Mr. and Mrs. Nichols is alleged as a violation be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. On the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. At all times material herein Respondent has been en- gaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 2. At all times material herein the Union has been a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees , including plant clerical employees and all truckdrivers employed by Respondent at its Halls, Tennessee, location , excluding all office clerical employees, professional employees, watch- men, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment. 4. At all times since September 18, 1972, the Union has been the exclusive representative for the purposes of collec- tive bargaining of the employees in the unit described above. 5. By unilaterally changing rules relating to vacation, holiday, and leave of the employees in the unit described above, Respondent refused and continues to refuse to bar- gain collectively with the Union as the exclusive bargaining representative of the employees in the unit described above and thereby has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) of the Act. 6. The strike commencing on November 14, 1972, and continuing until February 19, 1973, was an unfair labor practice strike. 7. The failure and refusal of Respondent to offer to the striking employees named below reinstatement to their for- met positions of employment, all of which were in existence, after said employees made unconditional offers to Re- spondent to return to work constitutes discrimination in regard to hire or tenure or terms or conditions of employ- ment of the employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(3) of the Act. Weldon Johnson Jewell Reynolds Idella Furgerson Mary Frances Arwood Joe Pickard M. L. Hudson Juanita Woodard William Brown 8. By the termination of Weldon Johnson, Idella Furger- son, and Joe Pickard, because of their failure to perform to Respondent's satisfaction in the jobs to which they were reinstated in a discriminatory manner, Respondent has ad- ditionally violated Section 8(a)(3) of the Act. 9. The terminations of Alice Faye Warren, T. W. Ni- chols, and Frances Nichols are not unfair labor practices within the meaning of the Act. 10. By the conduct set forth in Conclusions of Law 5, 7, and 8 above, Respondent interfered with, coerced, and re- strained employees in the exercise of their rights protected in Section 7 of the Act in violation of Section 8(a)(1) and Sections 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Re- spondent has discriminatorily discharged Weldon Johnson, Idella Furgerson, and Joe Pickard, I shall recommend that Respondent offer them reinstatement to the jobs they held before the strike or, if those jobs no longer exist, to substan- tially equivalent jobs and make them whole for any loss of earnings they may have suffered as a result of the discrimi- nation against them, by payment to them of sums of money equal to those which they normally would have earned from the date of their discharge to the date of a valid offer of reinstatement, less net earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 280, and with interest as described in Isis Plumbing & Heating Co., 138 NLRB 716. I have found that Juanita Woodard, Jewell Reynolds, Mary Frances Osborne Arwood, M. L. Hudson, and Wil- liam Brown were not reinstated to their prestrike jobs in 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(a)(3) and ( 1) of the Act. I shall recom- mend that Respondent offer them reinstatement to their prestrike jobs if they are still in existence, displacing if nec- essary any present incumbent in such job If their jobs are not in existence Respondent shall offer them substantially equivalent employment.12 Having found that Respondent violated Section 8(a)(5) by its unilateral changes in working conditions, I shall rec- ommend that Respondent be ordered to rescind its notices posted in December 1972 and January 1973, returning to its former means of determining vacation and holiday com- pensation and granting leaves of absence . In the event it is determined that any employees suffered a loss of vacation or holiday pay by reason of Respondent's change in its means of computation , I shall further recommend that it be ordered to make whole any employees who suffered a loss of vacation or holiday benefits by payment to them of the sum of money that they would have been given for such vacation or holidays Further, in the event that any employ- ee has suffered adverse consequences as a result in the changes relating to leave of absence , I shall recommend that Respondent be ordered to reinstate any who may have been terminated and make them whole as set forth above with relation to Weldon Johnson, et a!. Upon the basis of the foregoing findings of fact , conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 Respondent, Custom Craft Manufacturing Company, a Division of U.S. Industries, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership and activities on behalf of United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, or any other labor organization by discriminating in regard to the wages, hours, and work- ing conditions of their employees because they engaged in an unfair labor practice strike. (b) Unilaterally affecting changes in its employees wag- es, hours, or working conditions without notice to or bar- gaining with the above-named Union or any other labor organization which represents its employees. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or to refrain from any or all such activi- ties. 2. Take the following affirmative action which is de- signed to effectuate the policies of the Act: (a) Offer to Weldon Johnson, Idella Furgerson, and Joe Pickard their former jobs or, if such jobs no longer exist, substantially equivalent jobs and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to Juanita Woodard, Jewell Reynolds, Mary Frances Arwood, M. L. Hudson, and William Brown rein- statement to the jobs they held before the strike. If any of thosejobs are no longer in existence, they are to be offered reinstatement to substantially equivalent jobs. (c) Rescind the rules relating to vacation and holiday pay posted in January 1973 and the rules relating to leaves of absence posted in December 1972, and reinstate and make whole any employees who suffered loss of theirjobs, work- time, or income as a result of the unilateral imposition of those rules as provided in the section of this Decision enti- tled "The Remedy " (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its plant in Halls, Tennessee, copies of the attached notice marked "Appendix." t4 Copies of said no- tice, on forms provided by the Regional Director for Region 26, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 1211 should be noted that Respondent's viewpoint of heavy warehousing as a job substantially equivalent to taking legs off of cabinets is not accepted This order envisages that the term "substantially equivalent" means exactly what it says, not what Respondent contended at the hearing, in the testimony of its president, that all jobs in the plant were substantially equivalent to one another U In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 14 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other CUSTOM CRAFT MFG. CO. 263 mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT refuse to bargain collectively with Unit- ed Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, as the exclusive collective- bargaining representative of our employees in a unit appropriate for collective bargaining by unilaterally changing working conditions in our plant without no- tice to and negotiation with that Union. WE WILL NOT discourage membership in the above- named Union or any other labor organization by dis- criminatorily refusing to reinstate unfair labor practice strikers while continuing to employ strike replacements or otherwise discriminate against any employee. WE WILL make whole our employees who were dis- charged as a result of their discriminatory reinstate- ment after the strike for any loss of pay they may have suffered as a result of our discrimination against them, by payment to each of them of the amount of money they lost as a result of our action. WE WILL reinstate the following employees to the jobs they held before the strike. If these jobs no longer exist we will reinstate them to substantially equivalent jobs in our plant: Weldon Johnson Jewell Reynolds Idella Furgerson Mary Frances Arwood Joe Pickard M. L. Hudson Juanita Woodard William Brown If any of our employees have been terminated or lost any money as a result of our change in December 1972 of our leave of absence policies, WE WILL reinstate them and make them whole for any loss of money resulting from our unilat- eral imposition of the rules contained in that notice. If any of our employees lost holiday or vacation pay because of the rules set forth in our notice posted in January 1973, WE WILL make them whole for any money lost as a result of our unilateral change in the vacation and holiday pay. CUSTOM CRAFT MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.