Gulf Envelope Company

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gulf Envelope Company and John Hawkins and United Paperworkers International Union, Local 768, AFL-CIO. Cases 23-CA-7490 and 23-CA-7535 June 2, 1981 DECISION AND ORDER On August 15, 1980, Administrative Law Judge Frederick C. Herzog issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed limited cross-exceptions and a sup- porting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 AMENDED REMEDY The Administrative Law Judge found that Re- spondent violated Section 8(a)(3) and (1) of the Act by unlawfully failing and refusing to pay vacation pay to its employees, including Sue Jenkins, fol- lowing a proper request submitted by the Union to Respondent on behalf of the employees. In doing so he correctly concluded that employees were en- titled to vacation pay only after passage of their employment anniversary date. However, in the sec- tion of his Decision entitled "The Remedy" he rec- ommended that Respondent be ordered to pay each striker upon request his or her vacation bene- fits without specifying that he or she must first meet the requirements for entitlement to vacation ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his Fildings The Administrative Law Judge in finlding that the economic strike commencing on April 16, 1979, was converted to an unfair labor practice strike on April 23, 1979, relied primarily on Pittsburgh and Ne.' England Trucking Co., 238 NLRB 1706 (1978) In our view, the court's subsequent denial of enforcement of part of the Board's order therein (unpublished opinion, Docket No. 78-1781 (4th Cir. 1979)) does not affect the result reached herein, as it is apparent that the court's disagreement with the Board's conclusions was premised on its different factual interpretation of the underlying record. 2 In par. 2(c) of his recommended Order, the Administrative Law Judge, in ordering Respondent to reinstate striking employees pursuant to the Union's unconditional request of May 21, 1979, requires Respondent to dismiss if necessary any employees hired as strike replacements (in or after April 16. 1979, the date the strike commenced. However. at its outset, the strike was for economic reasoins. It as not until April 23, 1979, that the strike was converted by Respondent's unlawful conduct to an unfair labor practice strike Thus, any replacement hired between April 16 and 23 are not subject to dismissal in order to accommodate the reinstatement of the strikers Accordingly, awe shall modify par. 2(c) of the recommended Order to require Respondent to dismiss, if necessary, those replacements hired on or after April 23, 1979 256 NLRB No. 58 pay. Accordingly, we modify the Administrative Law Judge's recommended remedy to require pay- ment by Respondent of accrued vacation pay only to those employees who have reached the anniver- sary date of the beginning of his or her employ- ment as of May 15, the date the Union made said request. In fashioning a make-whole remedy for discriminatees Hawkins and Few and the strikers who were unlawfully discharged for participating in the strike that began on April 16, 1979, the Ad- ministrative Law Judge required said employees to request reinstatement to trigger Respondent's back- pay obligations. We find no basis for that require- ment. In Abilities and Goodwill, Inc., 241 NLRB 27 (1979), the Board held that employees who have been unlawfully discharged while on strike are to be treated for purposes of computing backpay the same as other employees who are discriminatorily discharged, and, thus, they will not be required to offer to return to work in order to activate the em- ployer's backpay obligation. Rather, they shall be entitled to backpay from the date of discharge. In accordance with that decision therefore, we find that Respondent's backpay obligations commences with the discharge of the above employees, and, accordingly, we have modified the Administrative Law Judge's recommendation remedy to reflect this finding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Gulf Envelope Company, Houston, Texas, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Substitute the following for paragraph 2(c): "(c) Upon, and pursuant to, the Union's applica- tion of May 21, 1979, on behalf of employees who participated in the strike which began April 16, 1979, and who have not already been reinstated, offer full and immediate reinstatement to all such employees, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dis- missing if necessary any persons hired as replace- ments on or after April 23, 1979. If, after such dis- missals, sufficient jobs are not available for these employees, they shall be placed on a preferential hiring list in accordance with their seniority or other nondiscriminatory practices utilized by Re- spondent, and they shall be offered employment before any other persons are hired. These employ- ees shall be made whole for any loss of earnings GULF ENVELOPE COMPANY 321 they may have suffered or may suffer by reason of Respondent's refusal and failure to reinstate, all of which is to be done in the manner set forth in the section of this Decision entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL. NOT promulgate or maintain a rule prohibiting you from gathering on plant prem- ises or conducting any personal business during working hours except by permission of management, nor will we enforce this rule dis- criminatorily against employees who engage in union activities, and we will rescind rule 3 from the "Employees Handbook." WE WILL NOT refuse to pay accrued vaca- tion pay to employees because of their partici- pation in a strike or other union or protected concerted activities. WE WILL. NOT threaten to discharge striking employees if they do not abandon their strike. WE WILL NOT threaten to discharge striking employees who remain on strike longer than I year. WE WILL NOT threaten to take away the se- niority rights of striking employees who might eventually seek reinstatement. WE WILL NOT discharge or "terminate" em- ployees because they engage in activities on behalf of United Paperworkers International Union, Local 768, AFL-CIO-CLC, or any other labor organization. WE WILL NOT fail or refuse to reinstate em- ployees who engaged in the strike which began April 16, 1979, and which has been found to have been prolonged by our unfair labor practices. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of the right to self-organization, to join or assist United Paperworkers Interna- tional Union, Local 768, AFL-CIO-CLC, or any other labor organization, or to bargain collectively through representatives of their own choice, or to engage in any other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent permitted by Section 8(a)(3) of the Act. WE WILL instead offer any employees, who engaged in the strike which began April 16, 1979, to the extent we have not already done so, full and unconditional reinstatement to their former positions of employment and, if necessary to make places for such employees, WE WILl. dismiss employees hired as replace- ments on or after April 23, 1979. Such rein- statement shall be without prejudice to senior- ity and other rights and privileges. If insuffi- cient jobs are available for reinstatement of all striking employees, we will place the names of those not reinstated upon a preferential hiring list and they will be offered employment before any other persons are hired. WE WILL make whole all striking employees for any loss of vacation pay or benefits they may have suffered by reason of the discrimina- tion against them, with interest. WE WILL offer John H. Hawkins, David Few, Carolyn Foster, Lois Serres, Elsie Keyes, Leonard Brooks, Paul Jacobs, Jr.. Herman Green, Maggie Faterkowski, Evelyn Peterson, Larry Womack, Irene Gonka, Jack Larrabee, Bessie Otts. Gertrude Nowak, and Sue Jenkins immediate and full reinstatement 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, and WE WILL make them whole for any loss of pay they may have suf- fered as a result of our unlawful discrimination against them. GULF ENVELOPE COMPANY DECISION STATEMENT OF THE CASE FREDERICK C. HERZOG, Administrative Law Judge: On April 20, 1979,1 John H. Hawkins, an individual, filed the charge in Case 23-CA-7490, alleging that Gulf Envelope Company (herein referred to as the Respond- ent) violated Section 8(a)(1) and (3) of the Act by termi- nating, and thereafter refusing to employ, Hawkins and David Few. On May 23 United Paperworkers Interna- tional Union, Local 768, AFL-CIO-CLC (herein re- ferred to as the Union), filed the charge in Case 23-CA- 7535 alleging that the Respondent violated Section 8(a)(l) and (3) of the Act by terminating the employment of 55 named employees. In due course an amended con- solidated complaint,2 together with an order consolidat- U' nless otherwise nled, all dates herein shall refer to the ear 1979 2 All references to the complaint herein should he understood to refer to the amended, consolidated complaint GULF ENVELOPE COMPANY 321 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing cases and notice of hearing, was issued by the Re- gional Director for Region 23 of the National Labor Re- lations Board. The Respondent's answer admitted certain factual allegations of the consolidated complaint but denied any wrongdoing. The case was heard before me at Houston, Texas, on September 5 and 6. All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine wit- nesses, to argue orally, and to file briefs. Briefs were filed on behalf of the General Counsel and the Respond- ent, and have been carefully considered. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits, and I find that the Respondent is a Texas corporation having its principal office and place of business in Houston, Texas, where it is engaged in the business of manufacturing en- velopes and related products. During the year preceding the issuance of the consolidated complaint, the Respond- ent purchased goods and materials valued in excess of $50,000 from suppliers located outside the State of Texas, which goods and materials were shipped directly from points outside the State of Texas to the Respondent's plant in Houston, Texas. Additionally, the Respondent's brief asserts that during the past year the Respondent manufactured, sold, and shipped from its Houston, Texas, plant products valued in excess of $50,000, which prod- ucts were manufactured from materials transported through channels of interstate commerce from locations outside the State of Texas. The Respondent is now and has been at all times material herein an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. TIHE I.ABOR ORGANIZATION The complaint alleges, the answer admits, and I find that the Union is now and has been at all times material herein a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE RESPONDENT'S AGENTS AND SUPERVISORS The complaint alleges, the answer admits, and I find that Wayne Schroeder, as president, Reeves Brunk, as production manager, and Allan Binford, as night supervi- sor, have been and are now supervisors for the Respond- ent within the meaning of Section 2(11) of the Act, and agents of the Respondent, acting on its behalf, within the meaning of Section 2(13) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The Respondent is a small company which manufac- tures envelopes in Houston, Texas. It employs approxi- mately 85 production workers on two shifts, commonly referred to as the day and the night shifts. The day shift works the usual 8 hours per day, while the night shift works 10 hours per day. The work complement is ap- proximately evenly split between the day shift and the night shift. Each shift has a foreman. The foreman of the day shift is Earl McCowan. The foreman of the night shift is Binford. Brunk, as production manager, had over- all charge of the plant's production. The Union and the Respondent have had a collective- bargaining relationship for roughly 10 years. Their most recent agreement expired March 31. Negotiations be- tween the parties, both before and after its expiration, failed to produce a new agreement and a strike resulted on April 16, with more than 60 of the work force joining the strike. The strike continued until its termination by the Union on May 21, at which time the Union advised the Respondent by telephone and by wire that it was ter- minating the strike and requesting unconditional rein- statement of striking employees. The Union's written no- tification of the ending of the strike was not received by the Respondent until May 24. No evidence or claim was brought forward indicating any inclination by the Respondent toward the commis- sion of unfair labor practices, or that the Respondent harbored union animus. Indeed, until approximately 25 months before the hearing, Brunk was employed by the Union's International affiliate as an International repre- sentative thereof. Some of his duties while serving as an international representative involved working with the Respondent. B. The Respondent's Rule 3 The complaint alleges that the Respondent has main- tained in force and effect in its employee handbook Rule 3, which reads as follows: "Employees shall not gather in the plant premises or conduct any personal business during working hours except by permission of manage- ment." The General Counsel contends that the maintenance of such a rule is violative of Section 8(a)(l) of the Act. The Respondent admits that such a rule exists in its hand- book, but contends that it may not be properly construed as prohibiting or unduly impinging upon solicitation and that, in any event, it was modified, in effect, by means of explanations given by Brunk to the current representa- tive of the Union, Billy McGilvra, as well as Sue Jen- kins, the Union's shop steward, and other union officers. The Respondent, however, makes no claim that it ever so instructed rank-and-file employees, or even its super- visors, 3 as to the modified meaning of Rule 3. Rule 3 does not facially impair the rights of employees to engage in activities protected by the Act, such as so- licitation and distribution of views and materials having to do with a union. Nevertheless, it is evident that the rule violates Section 8(a)(1) of the Act when viewed within the circumstances of this case. The rule is stated in broad language. If read literally, it cannot fail to give pause to prudent employees wishing to engage in union activities, such as solicitation or distri- bution, 4 notwithstanding the fact that the rule does not a Other than Sue Jenkins' supervisor, ho, having been present when Jenkins was spoken to, must of necessity have overheard the plant man- ager tell Jenkins of his interpretation. This supervisor was not called to testify, and thereby corroborate Brunk's recital of what he had told Jen- kins, McGilvra, and others Nor was the absence of the supervisor ex- plained 4 This failure, of course, negates any presumption of validity from the rule. GULF ENVELOPE COMPANY 323 explicitly mention either solicitation or distribution. For nowhere within the rule itself is any explanation or defi- nition provided regarding the employer's interpretation of terms such as "gathering," "plant premises," "any per- sonal business," or "working hours." Nor, even were I to entirely credit Brunk's account of his explanations of the rule to various union officers and agents in two separate meetings of early and mid-November 1978, could I con- clude that the employer had effectively and adequately removed elements of coercion and ambiguity 5 from the minds of the employees subjected to the rule. Compare Switchcraft, Inc., 241 NLRB 985 (1979); W. W. Grainger, Inc., 229 NLRB 161 (1977); Essex International, Inc., 211 NLRB 749 (1974). Moreover, the evidence supplied by the testimony of Brunk and Binford shows that the rule was applied in such a way as to militate a finding of illegality. For Brunk testified that Rule 3 was among those violated by Hawkins and Few, and that its violation formed part of the basis for their discharges. 6 Yet Binford testified that the Respondent's rule was strictly enforced 7 only against union activities (such as Hawkins' distribution of picket- ing schedules on the night of April 12), while enforce- ment was lax" with respect to other activities of employ- ees involving solicitation and distribution, such as foot- ball pots, flower funds, funeral funds, and baby funds. Such disparate and discriminatory application of Rule 3 renders the entire rule violative of Section 8(a)(1) of the Act. Star-Brite Industries, Inc., 127 NLRB 1008 (1960); Capitol Records, Inc., 233 NLRB 1041, 1045 (1977); Capitol Records, Inc., 232 NLRB 228 (1977). Ac- cordingly, I find and conclude that the allegations made or contained in paragraph 7 (to the extent it has not been admitted) and paragraph 8 of the complaint are true. C. Vacation Pay The complaint alleges that many of Respondent's em- ployees struck on April 16 until May 21, that the Re- spondent refused to pay accrued vacation pay to said strikers on or about May 15, and that the Respondent's refusal was caused by the employees' union or concert- ed, protected activities. The Respondent contended that it had paid vacation pay to all those who had made a re- quest therefor and who were eligible, pursuant to the terms of the previous collective agreement, and in accord with established past practice. This issue arose on May 15 while the strike was still in progress, when the Union, by McGilvra, wrote to the Respondent requesting that its members who had been employed as of January 1 be paid "their vacation pay" in accordance with article 9 of the expired agreement. At- tached to the letter were three signature pages for em- s The risk of ambiguity rests with the party propounding the ambigu- ity. Brown Manufacturing Corporation. 235 NLRB 1329 (1978). 8 Of which something more will e said in that portion of this Deci- sion dealing with the discharges of Hawkins and Few 7 The rule's requirement that management give its approval prior to employee engagement in union, or other, activity, is further reason to find the rule invalid. s Indeed, supervisors sometimes participated in activities invsolving so- licitation and distribution, such as football pots. ployees. There were 419 employees' signatures placed thereon, and the amount of vacation pay due each, rang- ing from 1 to 4 weeks, was noted beside each name. The expired agreement provided that vacation entitle- ment accrued when (a) an employee worked 1,500 hours in the preceding calendar year,IO and (b) the employee reached the anniversary date of the beginning of his or her employment. And, according to Brunk, past practice modified the agreement only in that the Respondent hon- ored requests for vacation time, not vacation pay, from employees who had worked 1,500 hours in the preceding year and who were of demonstrated stability, but who had not actually reached their anniversary dates. And further, again according to Brunk, the Respondent has, in fact, paid vacation pay to all eligible employees from whom a request has been received, the Respondent has granted vacation time as requested by certain of the rein- stated strikers, and the Respondent stands ready to pay others or grant vacation time to others who submit a proper request. However, the Respondent's brief has confirmed my tacit understanding of the evidence presented at the hear- ing, that the Respondent has not honored, and will not honor, any request for vacation pay unless received per- sonally from the employee, rather than the Union. The Respondent's brief states: "It is necessary for the Re- spondent to require employees to make individual re- quests for vacation pay in order to assure correct ad- dresses." Further, employee Sue Jenkins, who is also one of the Union's stewards and negotiator, credibly testified that she satisfied all requirements for vacation entitlement; i.e., 1,500 hours worked during the preceding year, and passage of her anniversary date of March 15. Neverthe- less her request for vacation pay, submitted via McGilv- ra's letter of May 15, has gone unanswered. Thus, I am asked by the General Counsel to believe that there is at least one proven instance where the Re- spondent has ignored its own past practice, to say noth- ing of the terms of the expired agreement. I agree, for, even accepting Brunk's testimony about the Respond- ent's practices, as well as its intentions, there remains no reason to credit his generalized testimony over that of Jenkins', which, at least with respect to her own situa- tion was specific and credible. Similarly, I am convinced that other employees, among the 41 whose signatures were affixed to McGilv- ra's letter, were denied their accrued vacation pay be- cause their requests were made through the Union, their statutory representative, rather than in person, individ- ually. But since this record does not show each employ- ee's anniversary date, I shall make no finding herein specifying those who are owed. Neither the fact that the requests for vacation pay were made through the Union, nor the fact that the strike ended soon thereafter, with a busy administrative time ensuing, excuse the Respondent's failure and refusal 9 The parties stipulated that one name, the 42nd signature appearing on the exhibit, was added to the list after it was sent to the Respondent by iMcGilvra 'o The slight ariance fr first year employees s not deemed signifi- canlt for this L)ecision GULF ENVELOPE COMPANY 323 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to pay accrued vacation pay, properly requested, to its employees. I find that its refusal and failure to pay em- ployee Sue Jenkins, whose signature was affixed to McGilvra's letter of May 15, as well as its failure and re- fusal to pay similarly situated employees, violated Sec- tion 8(a)(1) and (3) of the Act. Wallace Metal Products, Inc., 244 NLRB 41 (1979). 1 specifically find that neither the Respondent's preference for individual requests from employees, nor the busy administrative period attending the end of the strike only a few days after the Union's letter demanding payment of vacation pay constitute a legitimate business reason for its failure and/or refusal to pay vacation pay to its employee, Jenkins, or any other employee who (a) worked 1,500 hours in the preceding calendar year, (b) had passed his or her anniversary date by the date of the request, and (c) had either personally submitted a request for payment or had had a request for payment, in their behalf, submitted by the Union. See N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). D. The Termination of Strikers The complaint alleges that on April 17 all striking em- ployees'I were sent a letter 2 by the Respondent, threat- I The parties stipulated that Appendix A of the complaint, which sets out a list of 67 names, accurately lists names of employees who went on strike on April 16. (The Respondent would add that certain striking em- ployees' names were omitted from the list.) Appendix A reads as follows: Maple Adams Martha Lancaster Nick Andrade Jack Larrabee Albert Arrendendo Doris LeBeck Billy Baugh Martha Lee Leonard Brooks Mary Mayabb Bobby Bullard Linda McCloud Betty Carrington Billy Moses Earnestine Chizer Hedwig Mosley Carolyn Cooke Vickie Neely Louise Cooper Gertrude Nowak Raymond Davis Bessie Otts Albert Duncan Robert Pena Maggie Faterkowski Evelyn Peterson Sophia Fenstermaker Kathy Reed Gayin Foster Barbara Richard Gary Fretwell Shirley Roddy Irene Gorks Frankie Sandoval Herman Green Lalo Sandoval Leo Green Bernice Sebesta Virginia Handerland Lois Serres Mable Herring Merceds Sibley Curtis Holden Alemia Smith Curvis Holden Elvina Snuks Saddie Hunter Bobby Joe Solice Paul Jacobs, Jr. lone Solice Sue Jenkins Gladys Solomon Jackie Johnson Sharon Sutton Mary Johnson Lillie Waldron Sassie Jones Eddie Waldrop Christine Kearney l.arcell Ward Bruce Kellough Harold Wilkins Mare Kellough Margie Wofford Elsie Keyes Larry Womack Patricia Kolek i2 The letter read: To: ALL STRIKING MPL.OYEES This is to advise you that your job will be held open for you until Monday, April 23. 1979, at which time you may return to work with full seniority and no loss in benefits. However, should you choose not to return to work as of that date your job may be permanently filled and your employment at Gulf Envelope Company terminated including cancellation of all insurance policies and other benefits. I urge you to give this serious consideration. Reeves Brunk ening them with discharge should they not return to work by April 23. Further, the complaint alleges that on May 4 the Respondent sent a letter'3 to all employees which, essentially, threatened to terminate the employ- ment status of replaced strikers after one year. And, fi- nally in this connection, the complaint alleges that on various dates between April 23' 4 and May 3 the Re- spondent sent letters,' with identical wording in the bodies thereof, to' 6 named employees. 1 7 The Respondent argues that the tone of these letters, all and singular, is noncoercive, and that they were simply permissible communication of factual material. Indeed the Respondent goes on to argue that the use of the word "terminate" in letters such as those sent on var- ious dates in April and May to 14 strikers, or even in the April 17 letter to all employees, does not constitute either a threat to discharge or actual discharge. Production Manager Gulf Envelope Company P.S. You have enjoyed an excellent Group Insurance Program at Gulf. We regret to inform you, that effective immediately, your Group Insurance has been cancelled. 3 The letter read, in pertinent part: The Company's position regarding employees hired to replace strikers is that these new employees were hired for permanent posi- tions and will retain their jobs so long as they perform their work satisfactorily. Under no circumstances will the Company terminate a satisfactory employee to provide a striking employee a job. Furthermore, if striking employees want to be considered for any present or future vacancies, it will be necessary for each striking em- ployee to advise the Company in writing that you desire uncondi- tional reinstatement and what jobs you believe you are qualified to perform. The Company presently has approximately ten (10) vacan- cies. Employees reinstated will have their seniority reinstated for the purpose of their benefits only. Employees who are guilty of misconduct during the strike, will not be considered for reinstatement. These are approximately twelve (12) such employees If you advise the Company that you want unconditional reinstate- ment and we have no job available at that time, your name will be placed on a preferential hiring list for any future vacancies that might open up and for which you are qualified. The preferential hiring list will be discontinued after one year. I regret that the recent events make this letter necessary and I do not enjoy the actions we have been forced to take but we had no other choice. i4 Actually there were 17 letters and the earliest was sent on April 16. On that date letters were sent to Hawkins and Few. Their cases will be discussed separately, however. Is The body of each letter read: It is with regret that I must inform you that your job has been per- manently filled. Effective immediately your employment at Gulf En- velope Company is terminated. 16 The parties stipulated that letters were sent to 14 named striking employees, with dates as shown below. Carolyn Foster April 30 Lois Serres May 3 Elsie Keyes May 2 Leonard Brooks April 29 Paul Jacobs. Jr April 26 Herman Green April 25 Maggie Faterkowski April 25 Evelyn Peterson April 23 Larry Womack April 24 Irene Gonka April 26 Jack Larrabee Ma 2 Bessie Otts May 3 Gertrude Nowak May 2 Sue Jenkins April 23 i7 The name "Sue Jenkins" was amended from "Sue Luce" by stipula- tion of the parties. --- I GULF ENVELOPE COMPANY 325 I cannot agree. For while I agree with the Respond- ent's argument that the law affords an employer the right to communicate its intention to continue operations in spite of a strike, as well as that strikers may be perma- nently replaced, I believe the word "terminate" has a dif- ferent meaning than that which was ascribed to it by the Respondent's brief or Brunk's testimony.' s As used in the letters to the 14 strikers, in which Brunk advised each of them "Effective immediately your employment at Gulf Envelope is terminated," I have no hesitance in finding and concluding that the word "terminated" was reasonably understood to be synonymous with "fired," "canned," or "discharged." Contrary to the arguments advanced in the Respond- ent's brief and in Brunk's testimony, I conclude that the statements in the letters were not mere legitimate predic- tions of the economic consequences of the strikers' own actions. Instead, the Respondent went further, and, in doing so, acted illegally. The April 17 letter to all striking employees imposed a deadline for abandonment of the strike and recited "your job may be permanently filled and your employment . . . terminated." I find this statement to be coercive, and vio- lative of Section 8(a)(1) of the Act. Pittsburgh and N'ew England Trucking Co., 238 NLRB 1706 (1978). The May 4 letter to all employees is similarly viola- tive, for there is no sanction or warrant for telling em- ployees, for example, that even if they should be reinstat- ed someday, they must accept reinstatement without se- niority, or that they may be placed upon a preferential hiring list to be discontinued after one year. 9 The Laid- law Corporation, 171 NLRB 1366, 1368 (1968). And, finally, the letters sent to 14 strikers, on various dates, cannot be viewed by me as anything other than notifications to employees that they had been fired. De- spite the Respondent's testimony and argument that the word "terminate" was used only in the sense that certain administrative matters were being concluded by the Re- spondent, I am unpersuaded that the term had any mean- ing other than that which is normally attached to it. And, in that connection, and notwithstanding Respond- ent's reference to Webster's Third New International Dictionary, I note that Webster's New Collegiate Dic- tionary defines "terminate" as "(a) to bring to an end (c) to discontinue the employment of [workers] .... " Black's Law Dictionary defines it as "To put an end to; to make to cease; to end." Nor am I persuaded that the Respondent itself either understood or intended the word to have a different, more limited meaning. For if the Respondent did, in fact, use the term as a word of art, denoting only an adminis- trative status, why did the Respondent's own letters to 18 Brunk testified regarding the Respondent's meaning when it used the word "terminate." In doing so (as elsewhere in his testimony) I found him quite willing to be led, and to testify in conclusionary terms. While a certain bias may be understood when a man is both general manager of the Respondent, as well as one of Respondent's trial counsel, I believe that his partisanship detracted from his credibility, both on this point and generally throughout his testimony. i" I reject the Respondent's argument that this threat of a complete severance of the employment relationship was mooted. For, while no em- ployee was in fact ever placed on any such list, the threat was, itself, an accomplished fact, and was never disavowed Few and Hawkins use the exact same term in advising them they had been fired? (See G.C. Exhs. 7 and 8.) In short, I find and conclude that the aforementioned letters to striking employees could have no other effect than to interfere with, restrain, and coerce them in the exercise of their right to exert collective economic pres- sure upon their employer by continuing to strike. And by notifying 14 employees that they had been "terminated," or fired, the Respondent violated Section 8(a)(3) and (1) of the Act, essentially as alleged in paragraphs 10, 11, 12,2 ° and 13 of the complaint. E. The Character of the Strike The complaint alleges that certain employees of the Respondent struck from April 16 until May 21. It further alleges that the strike was caused or prolonged by the Respondent's unfair labor practices set forth in para- graphs 10-15 of the complaint, which, generally speak- ing, relate to sections IV(C) and IV(D) of this Decision. The General Counsel specifically disavowed, during the hearing, any claim that the discharges of Few and Haw- kins21 related to the claimed conversion of the strike herein from an "economic strike" to an "unfair labor practice strike." Further, the complaint omitted any ref- erence to the Respondent's Rule 3, as discussed in sec- tion IV(B) of this Decision, from the allegations regard- ing the conversion of the strike. As noted earlier herein, the strike began as an effort by employees to exert economic pressure upon their em- ployer, in order to extract concessions in the terms of a new collective-bargaining agreement, then being negoti- ated. However, as also seen above, the Respondent com- mitted numerous and substantial violations of Section 8(a)(1) and (3) of the Act during the course of the strike. The General Counsel contends that the character of the strike was thereby changed, that it was converted from an "economic" to an "unfair labor practice" strike. The Respondent argues that not only were no unfair labor practices committed to cause such a conversion but also that the strike was not actually prolonged by the alleged unfair labor practices. The Respondent argues that the records of meetings held by the Union for employees during the strike demonstrate no discussion or debate concerning the character of the strike and, therefore, the strike's character was not changed as a result of any em- ployee discussion or determination. However, the Respondent's argument fails to take into account the Board's holding that employer activity, in violation of the Act, which has an inherently destructive effect upon employees' Section 7 rights, will effect the conversion of an economic strike into an unfair labor practice strike, despite the "failure of the employees to perceive fully the unlawfulness of the [unfair labor prac- tices]." Pittsburgh and New England Trucking Co., 238 NLRB 1706, 1701. 20 Except for employees Few and Hawkins, whose discharges will be discussed separately, and employee Ballard, as to whom the parties' stipu- lation was silent. 21 Both Hawkins and Few went out on strike with the great majority of employees beginning on April 16. This, of course, meant that they re- ceived their letters of termination while they were on strike. GULF ENVELOPE COMPANY 325 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Here, the strike began on April 16. The very next day all striking employees were induced to abandon the strike by a threat that their jobs "may be permanently filled" and their "employment . . . terminated." On May 4, the Respondent sent all employees a letter stressing that replacements were permanent, that none would be terminated to allow for reinstatement of any striker, that any striker's opportunity for reinstatement based on a preferential hiring list would be limited to I year, and that any employee reinstated would have his or her se- niority restored only for purposes of computing bene- fits.2 2 And, finally, the Respondent began on April 23 to hire strikers. It continued doing so until May 3, by which time it had fired 14 strikers, not to mention Haw- kins and Few. While I agree with the Respondent that the evidence does not establish that employees vigorously discussed or debated the strike's causes, or its conversion, I cannot find that fact dispositive. For, as Respondent was ad- vised during the hearing, the question of whether or not a strike was converted is, in large measure, a question of law.23 While employee sentiments with respect thereto have a bearing on the question, they are not always de- terminative. Pittsburgh and New England Trucking Co., supra. In this case, I find and conclude that the Respondent's illegal acts, including the refusal to pay accrued vacation pay, the inducement of employees to abandon the strike, the threats to employees of termination and inferior se- niority rights, and the illegal discharges of many employ- ees amount, in the aggregate, to a pattern of conduct de- signed to both break the strike and to punish those who exercised their statutorily protected right to strike. Ac- cordingly, I conclude that, despite the paucity2 4 of direct evidence of employee concern with, or anger toward, the Respondent's action, the strike was convert- ed from an economic to an unfair labor practice charac- ter as of April 23, the date that the Respondent began its program of illegal discharges.2 5 Pittsburgh and New Eng- land Trucking Co., supra; W. C. McQuaide, Inc., 237 NLRB 177 (1978); Robbins Company, 233 NLRB 549 (1977). 22 Such a threat to vest all permanent replacements or nonstrikers with seniority over strikers amounts to penalizing employees for engaging in a strike, or, in effect, granting superseniority to replacements and non- strikers. It is difficult to conceive of more "inherently destructive" em- ployer conduct, aside from outright "terminations." Compare Erie Resis- tor Corporation, 132 NLRB 621, 626 (1961), affd. 373 U.S. 221 (19163). 2 The Respondent appears to have abandoned its position advanced at the hearing to the effect that the strike could not have been converted since it was illegal from its inception, in that the Union failed to abide by its own constitution and bylaws in securing strike authorization. 24 The testimony of McGilvra on this point was, at best, highly gener- al in its nature. Nevertheless, I know of no reason to discredit it entirely. Contrary to the Respondent's arguments, I found McGilvra's demeanor impressive. It is true that he exhibited hesitance in his responses, but it was my impression that it was caused by an abundance of caution, rather than any desire to fabricate. 2a Absent the General Counsel's express disavowal of intent to claim the strike's conversion by virtue of the discharges of Few and Hawkins, would find that the conversion occurred simultaneously with their dis- charges, which were, as will be shown infra, violative of Sec. (a)(3) and (1) of the Act. F. The Failure To Reinstate Strikers The complaint, in paragraphs 17, 18, and 19, alleges that the Union made an unconditional offer on behalf of all striking employees to return to work when the strike was terminated on May 21. It further alleges that the Re- spondent refused to reinstate employees to their former or substantially equivalent positions because of their sup- port for the Union or their participation in other union or protected, concerted activities. The Respondent argues vigorously to the contrary, saying it has not refused to reinstate any striker entitled to reinstatement. The evidence shows that the Respondent employed roughly 78-85 workers at the time the strike began. Of that number, the General Counsel claims that 67 went on strike; the Respondent asserted that there were at least 67 strikers, and probably more. When the strike was con- cluded, the work force remained at approximately 78-85 employees. However, instead of discharging any employ- ee who had been hired as a replacement, the Respondent simply began reinstating certain of the strikers, thereby eventually enlarging the work force to approximately 105 workers. As described by Brunk, the process involved the fol- lowing steps: Upon receipt on May 22 or 23 of the Union's notification of the strike's termination, the Re- spondent immediately sent a letter 26 to each employee's last known address, stating, inter alia, "If you are inter- ested in re-instatement call me immediately. If I do not hear from you within ten (10) days I will assume that you do not desire to be re-instated." 27 According to Brunk, some 30-36 employees responded by either coming to the plant to seek reinstatement or by phoning the plant. Brunk went on to testify that all such appli- cants for reinstatement were, in fact, reinstated at once. Brunk's testimony on these points stands largely unrebut- ted and is, accordingly, credited. Despite all this, however, Brunk admitted that all em- ployees were not reinstated to their old jobs, on their old shifts. And, in this respect, Brunk's testimony seems in- consistent. At one point he testified that all except three strikers requesting reinstatement had been reinstated, and that these three had asked for conditions not extant prior to the strike. At another point he testified that there were approximately eight who had sought "special con- ditions," and, of these, all but five had been reinstated by the time of the hearing. And, in explaining these "special conditions" situations, Brunk demonstrated the truth of the General Counsel's assertion that the Respondent has not reinstated all strikers to their former positions. In- stead, it appears that the Respondent has reinstated strik- ers only when attrition among nonstrikers or replace- ments created an opening. For Brunk clearly testified that one striker, Kathy Reed, called him after receiving his letter telling her to contact him if she was interested in reinstatement. She eh According to the Respondent, these letters constitute unconditional offers of reinstatement. I cannot agree. Cf. Flatiron Paving Company d/b/a Flatiron Materials Company, 250 NLRB 554 (1980). 27 Included among those who were sent such letters were Hawkins and Few. GULF ENVELOPE COMPANY 327 asked if she could have her former job back, as a com- positor on the day shift. Brunk told her: Kathy, we've got 4 people in composition, 2 of them that have come back from the strike; both have more seniority than you do. So, I can't guar- antee you that you can come back in composition on day shift. Further conversation led him to conclude the conversa- tion with Reed by saying "Well, as soon as that [Reed's] old job comes open, 1'11 call you." This episode with Reed convinces me that Brunk was operating under the mistaken assumption that he dealt with economic strikers, rather than unfair labor practice strikers. For otherwise, Brunk should have known that, regardless of how many compositors had worked during the strike, he was obliged to fully reinstate Reed, even if doing so caused him to discharge strike replacements. 2 8 Reinforcing this belief is Brunk's testimony regarding his phone conversation with David Few. As with Reed, and apparently at least a substantial number of other strikers, Brunk spoke of giving "consideration" to bring- ing strikers back in line with seniority. 29 Such an ap- proach, combined with Respondent's admitted failure to discharge any replacements to make room for the imme- diate reinstatement of all strikers, seems perforce to lead to the conclusion that the Respondent failed in its legal obligations to returning strikers.30 Accordingly, I find and conclude that allegations made and contained in paragraphs 17, 18, and 19 of the complaint are true. Based on this finding, I shall order an appropriate remedy by the Respondent toward employee Kathy Reed, as well as any other similarly situated employee. G. The Discharges of Hawkins and Few 1. Hawkins' work history with the Respondent John Hawkins3 1 worked for the Respondent from August 21, 1972, through April 12, 1979. He was a shop steward for the Union and a member of the Union's ne- gotiating committee who had attended all bargaining ses- sions for 1979's contract negotiations. He was also the leadman in his department, serving under Foreman Allan Binford on the night shift. He last worked for the Re- spondent on the night shift of April 12, the night preced- ing the commencement of the strike. Brunk characterized Hawkins as an employee whose production was good but one who had once had a prob- lem with tardiness and absenteeism. Brunk went on to testify that Hawkins was counseled about this problem, 28 While I am aware that there is no mathematical certainty that two of the four compositors of whom Brunk spoke were strike replacements, such a conclusion seems reasonably probable to me. 29 Brunk's reliance on the fact that he had not yet received "official notice of the strike's end is misplaced. Colonial Manor Convalescent A'urs- ing Home, A Division of the La Grange Land Corporation, 184 NLRB 693, 697 (1970). Certainly, Few's request must be considered adequate: as an illegally discharged employee and striker, he had no need to request rein- statement at all, much less artistically. Abilities and Goodwill. Inc., 241 NLRB 27 (1979). "O Cf. Flatiron Paving Company d/b/a Flatiron Material Company, supra. a I find the testimony of Hawkins to be entirely credible He was forthright and direct in his answers, giving every appearance of attempt- ing to testify truthfully and accurately. that Hawkins bought himself a new watch, and from that point on the Respondent had no further problems with Hawkins. Brunk also testified that, at one point in his employment history, Hawkins had been counseled to take more of an interest in the work of other employees by watching the other employees' work to make sure, as their leadman, that they performed their work correctly, thereby cutting down on mistakes within the department. Again, following the counseling, no further difficulties of this or any other sort with Hawkins' work were enumer- ated by Brunk. Binford characterized Hawkins as a good leadman in the cutting department, one who did a good job, helped the jobs flow, and never had a conflict with his supervisor. However, on April 16, Brunk composed and sent Hawkins a letter as follows: To: John Hawkins Subject: Termination of Employment On April 12, 1979, you participated in the display of an obscene picture 3 2 during working hours and in a production area. Several times in the past and spe- cifically on Thursday, April 12, 1979, you threat- ened to commit assault on other employees during working hours in production areas. On Thursday, April 12, 1979, you left your working area without permission and carried on union activities in pro- duction areas with employees who were engaged in their work and on Company time. You were warned repeatly [sic] by your supervisor to cease and desist from these activities and in direct disobe- dience you continued. For all of the above acts of misconduct and deliber- ate insubordination your employment at Gulf Enve- lope Company is terminated effective immediately. Reeves Brunk Production Manager Gulf Envelope Company 2. Few's work history with the Respondent David Few 3 3 was employed at the Respondent's plant from November 1978 through the night shift of April 12. He was classified as an adjuster in the end-folding De- partment. Few joined the Union approximately a month to a month and a half before his discharge. Brunk's testimony depicted Few as a mediocre em- ployee who required constant supervision. Binford, how- ever, declined to characterize Few as a disciplinary problem, saying it was simply more a matter for "direc- tion" when Few came on the night shift, in that he had a tendency to "wander." He finally described Few as a pretty good adjuster, saying that he liked to joke, that 32 The obscene picture referred to (G.C. Exh. 10) purports to show a man bent over a table with trousers and underclothing partially removed Behind the man bent over the table is the figure of another man in a kneeling position, and with pursed lips. The kneeling figure is labeled "Jamie." The entire scenario is labeled "Kissin' Your Way To A Raise." "a Fews testimony did not favorably impress me His willingness to argue, or to "crack wise." did not speak well of his sincerity. And were it not for my inahility to credit either Brunk or inford. together with Binford's admission about the manner in which Respondent's Rule 3 was applied, I would have serious reservations about finding his discharge to be violatie of the Act. GULF ENVELOPE COMPANY 327 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people liked him, and that Few could handle his job. Few, during the 4 months of his employment, received raises from his initial rate of $5.29 per hour to $6.01 per hour. Like Hawkins, Few was sent a letter by Brunk dated April 16, which read as follows: To: Mr. David Few Subject: Termination of Employment On Thursday, April 12, 1979, you participated in the display of an obscene picture on Company time and in a production area. You left your work area without permission and engaged in Union activities while on Company time and in production area. You continued to do so after being directed not to by your supervisor. For all of the acts of misconduct above and deliber- ate insubordination your employment at Gulf Enve- lope Company is terminated effective immediately. Reeves Brunk Production Manager Gulf Envelope Company 3. The events of April 12 The last night the plant worked prior to April 16 was April 12, due to the shutdown of the plant on Friday, April 13, Good Friday. The night shift on April 12 was marked by an increased level of unrest among employ- ees, as evidenced by an increase in the amount of talking between them and a slight drop in productivity. Accord- ing to Brunk, a certain amount of this is to be anticipated immediately preceding a strike. But, according to Brunk, the activities of Hawkins and Few went beyond that normal amount of unrest which might be anticipated, so much so that there was, in his opinion, a disregard of company rules, and confrontations between supervisors and employees were developing to the point where there was a danger that a supervisor might lose control of his shift. According to Brunk, this meant that there was a need for immediate action to bring the shift back within the control of the supervisor. In elaborating upon their misconduct, Brunk testified that Hawkins and Few vio- lated Respondent's work rules, as embodied in its "Em- ployee's Hand Book" (G.C. Exh. 2). In particular, Brunk testified that Hawkins and Few violated Rule 1, Rule 3, and Rule 17. These rules read, respectively, as follows: . Employees must be at their appointed work places, ready to work, at the regular starting time- and shall remain at such work places and at work until the regular quitting time unless otherwise di- rected by their supervisor. 3. Employees shall not gather in the plant premises or conduct any personal business during working hours except by permission of management. 17. Insubordinate conduct or refusal to follow fore- men's orders. 3 4 4 Brunk advanced no claim that either Hawkins or Few violated Rule 15 (which forbids interference with fellow employees or supervisors). While Brunk received no official notice of the strike's in- ception until Friday, April 13, he acknowledged that he had heard rumors of it as early as Tuesday, April 10. He also stated that he had noted an increase in the "wander- ing" of both Hawkins and Few. As a result, he cautioned Hawkins earlier that week to confine his activities to nonworking time and nonproduction areas, whereupon Hawkins rejoined that Brunk would not be able to prove anything (such as, evidently, misconduct). Brunk also testified that he cautioned Few that he was jeopardizing his job by carrying on activities that were not protected within the plant. According to Brunk, Few made no re- sponse at all to this admonition. Nevertheless, despite the fact that, even according to Brunk's version of these incidents, neither Few nor Haw- kins contradicted him or argued with him on the after- noon of April 12, before the shift began. Brunk instruct- ed their supervisor to keep a close eye on them that night, saying to Binford "You may have problems with them tonight, because they apparently are not listening to instructions." He went on to instruct Binford "If they get too far out of line, in your judgment, simply send them home; just ask them to leave the plant and go home." He elaborated as follows: "I would prefer that you not have to do that, unless it becomes necessary. I would prefer that the shift run as smooth as possible, without any disturbance. But, if they create too much disturbance, simply send them home." And, continuing, Brunk stated that he observed Haw- kins and Few disregarding the instructions they had been given by him, in that they came into the plant early and were seen "visiting around." According to Brunk, he again cautioned them about their behavior. Nevertheless, Brunk departed for the night, leaving Binford to run the night shift as usual. Not surprisingly, in view of the manner in which he had been primed, Binford, himself, began to observe mis- conduct on the part of Hawkins and Few during that work shift. Binford 3 5 was led to testify that he saw Few "out of his department" four or five times, The first time was when he observed Few talking to Hawkins in the cutting department, early in the shift. He waved his arms at Few, as a signal to go back to his own department, and he told Few to stay there. Few responded, "O.K." The second and third times were when he saw Few talking to James Levitt 3 6 in the cutting department. Both times Rule 23 (which states that an employee shall not leave his work assign- ment before the end of the shift without permission from his foreman), Rule 27 (which states that an employee shall not restrict production or interfere with others in the performance of their jobs or engage or par- ticipate in any interruption of work or production), Rule 29 (which states that an employee shall not neglect his job, his duties or his responsibil- ities-nor refuse to perform work assigned to him), or Rule 31 (which states that an employee shall not engage in soliciting funds or property during working hours or on the plant premises without permission of his/her supervisor) ., Binford's testimonial demeanor was exceedingly poor. He prevari- cated, equivocated, hedged, and evaded, in addition to demonstrating in- completeness or selectivity in his recollection It is perhaps a possibility that his discomfiture was caused by nervousness, but he was repeatedly assured and given opportunities to compose himself, to no avail. Accord- ingly, I have concluded that his testimony was not truthful. a3 During the hearing, it became clear that Levitt was the person re- ferred to as "Jamie" in the obscene drawing. - -- GULF ENVELOPE COMPANY 329 Few returned to his own department without the neces- sity for Binford to say anything to him, except, as Bin- ford testified, "I asked him to stay in his department . . . and to behave."3 ' The fourth time was in the ware- house, by the bailer, around midnight. Few was talking to the bailer machine operator and Hawkins, but they broke up as soon as Binford saw them. Binford asked Few what he was doing and Few responded that he had gone there to get an electric jack; Binford observed that Few did, indeed, have the electric jack in his hands. In a similar fashion, Binford was led to recount Haw- kins' derelictions during the shift. He first saw Hawkins out of the department, in the open-end folding depart- ment, talking to James Levitt. Hawkins came up to Bin- ford and Levitt and said, "Don't you think you ought to go back to work?" Binford told Hawkins that he and Levitt were talking and to leave.3 8 Binford next recount- ed, though not until he was being questioned by the Ad- ministrative Law Judge, that he had seen Hawkins by the jet presses, a place where he had no business. Later in the shift, Binford recounted, he twice saw Hawkins "on the folding machines," handing out picketing sched- ules to the employees who worked there. The second time, Binford stated, he "caught" Hawkins and told him not to do union business on company time. And, finally, there was the instance in the warehouse, where he ob- served Hawkins and Few and the bailer machine opera- tor. 39 4. Discussion and conclusions regarding the Respondent's discharges of Few and Hawkins The various reasons assigned by the Respondent as the basis for the discharges of Few and Hawkins are, indeed, formidable, to wit: (1) The obscene picture; (2) the threats and harassment of other employees; (3) in subor- dination; (4) conducting personal business without per- mission; (5) leaving the work area; and (6) causing losses in production. But one cannot help noting that almost all such claimed misconduct eventually proved to be unsup- ported or false. I am mindful that an employer need not act with per- fect consistency or justice in administering its business, and that I am not free to substitute my own for valid, even if seemingly harsh, business judgments. N.L.R.B. v. Waterman Steamship Corporation, 309 U.S. 206, 218-219 (1940). For, as is frequently pointed out, management may discharge for a good reason, a bad reason, or no reason at all. Great Plains Beef Company, 241 NLRB 948 (1979). And my subjective impression of what I may have done were I in the Respondent's business position may not be interposed between the manager and those who are managed. Grand Auto, Inc., d/b/a Super Tire Stores, 236 NLRB 877, fn. 1 (1978). For, while the disci- pline may seem extreme, it does not follow that the as- "3 Few described this as a sort of request for a favor from a friend. Binford denied that he and Few were friends. I credit Few 38 It should be noted that Hawkins was Levitt's leadman. Binford later apologized to Hawkins for the manner in which he had spoken to Haw- kins. Jr Binford said nothing to Hawkins, however, as he acknowledged that Hawkins could have had legitimate reason for being where he was and for behaving as he was. Binford, however, chose to believe that Hawkins was engaged in misconduct, despite appearances to the con- trary. cribed reason for the discharge is pretextual. J. Ray McDermott & Co.. Inc., 233 NLRB 946, 952 (1977). Instead, the Board's job, and mine, is to determine actual motivation in cases where it is alleged that dis- charges were effected in order to discriminate. Santa Fe Drilling Company v. N.L.R.B., 416 F.2d 725, 729 (9th Cir. 1969). For management cannot discharge where the real motivating factor is discriminatory, or to do what Section 8(a)(3) of the Act forbids. Red Kap, a Division of Blue Bell, Inc., 238 NLRB 555 (1979). That valid grounds may exist for terminating an em- ployee is not dispositive of whether that termination was unlawful. N.L.R.B. v. Texas Independent Oil Company, Inc., 232 F.2d 447, 450 (9th Cir. 1956). For "where a re- spondent's motivations are mixed, the Board has held that the legal effect of the conduct is the same as though the illegal reason for its action was the only operative reason." Construction, Production & Maintenance Labor- ers' Union Local No. 383, etc. (William Pulice Concrete Construction), 236 NLRB 125 (1978). Accord: IL.R.B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (2d Cir. 1954); see also N.L.R.B. v. Ayer Lar Sanitarium, 436 F.2d 45, 50 (9th Cir. 1970), and cases cited therein. Con- sequently, a violation of the Act is established where, de- spite the existence of a valid reason for discharge, the evidence shows that the employer has resorted to that reason as a basis for building a case against an employee due to his union activities, United Aircraft Corporation v. .V.L.R.B., 440 F.2d 85, 92 (2d Cir. 1971), or as a result of a campaign of "watchfully waiting for .. . union enthu- siasts to give the . . . slightest reason or pretext to get rid of them because of their union activities." ANL.R.B. v. Lipman Brothers, Inc.., 355 F.2d 15, 21 (st Cir. 1966). Both the Board and the courts have held that, "if the stated motive for a discharge is found to be false, it can be inferred that the motive is an unlawful one which the Respondent desires to conceal, at least where the sur- rounding facts tend to reinforce that inference." First National Bank of Pueblo, 240 NLRB 184, 185 (1979); Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966). Moreover, it has become axiomatic that if a supervisor, upon whose report action is taken, was discriminatorily motivated in making such a report, there can be no ques- tion but that the report must be considered the cause of the action and that any resulting action must be regarded as itself discriminatory. Bechtel Corporation, 195 NLRB 1013, 1020 (1972). And, of course, a sudden decline in the level of toler- ance shown to employees' longstanding practices, coin- ciding with union activities, may give rise to an inference that an employer's stated reason for discipline was false. .4All Brite Window Cleaning and Maintenance Service, Inc., 235 NLRB 596, 602 (1977); The Youngstown Osteopathic Hospital Assoc., 224 NLRB 574 (1976); Apico Inns of Cali- fornia, Inc., d/b/a Holiday Inn of San Bernardino, 212 NLRB 280, enfd. as modified 512 F.2d 1171 (9th Cir. 1975); Shasta Fiberglass, Inc., 202 NLRB 341 (1973). In light of these considerations, I find that the Re- spondent's actions here cannot withstand close examina- tion. For, in their totality, the Respondent's stated rea- sons for the discharges of Few and Hawkins are lame, unconvincing, or simply untrue. Such reasons tend to GULF ENVELOPE COMPANY 329 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support allegations of unlawful motivation. McCain Foods, Inc., 236 NLRB 447, 453 (1978). First of all, the Respondent's animus toward employ- ees engaged in strike activities has been made clear through the numerous and serious unfair labor practices set forth in previous portions of this Decision. Secondly, the Respondent's knowledge of the union activities of Hawkins and/or Few can scarcely be denied. Of course, Hawkins' role as shop steward, and as a member of the negotiating team thrust him into the forefront. But even Few, while lacking the long history or the offices of Hawkins, was apparently so vocal and obvious in his actions that he was identified in his em- ployer's eyes as a key union supporter, like Hawkins. For why else did Brunk choose those two names, and only those, to alert Binford regarding possible misconduct on the night before the strike? And, during that evening, Binford approched Few, saying "Your strike isn't even sanctioned!" Few's response was to contradict him and show him a telegram, which he happened to have in his pocket, indicating that the strike was, in fact, sanctioned, Thus, while granting that I should not substitute my judgment for that of the Respondent's, I must, at the same time, not fail to examine elements of the Respond- ent's case which tend to indicate a lack of candor or truthfulness, for to do so would be to blind myself to ob- vious inconsistencies which tend to demonstrate truthful- ness, or the lack thereof. For example, where employees have worked in a par- ticular fashion without any discipline for a long period of time, it seems suspect when the employer abruptly, and in summary fashion, discharges them at a time when coercion's presence is most suspected. N.L.R.B. v. Mont- gomery Ward & Co., 242 F.2d 497 (2d Cir. 1957), cert. denied 355 U.S. 829; Silco Vending Co., Inc., 219 NLRB 472 (1975); Vecta Contract Company, Division of Vecta Group, Inc., 218 NLRB 408, 413 (1975); All Brite Window Cleaning and Maintenance Service, Inc., supra; Youngstown Osteopathic Hospital Association, supra; N.L.R.B. v. Suth- erland Lumber Company, 452 F.2d 67, 69 (7th Cir. 1971); N.L.R.B. v. Montgomery Ward & Co., Inc., 554 F.2d 996, 1002 (10th Cir. 1977); 7: C. Bakes and Sons, Inc., 232 NLRB 571, 574 (1977). Similarly, the failure of the Respondent here to investi- gate the alleged misconduct of Hawkins and Few fully and fairly, or even in accord with its own policy, sug- gests the presence of discriminatory motivation. ama Meat Packing Corp., 230 NLRB 116, 129 (1977), and cases cited therein. Binford ultimately admitted that neither Few nor Hawkins was observed passing around, or in any way connected to, the obscene picture. And while Binford also claimed that he had received a report that Levitt had been threatened by Few, 40 he admitted, however, that he made no effort to ask Few if he had done as Levitt had accused. Nor did he ask either Few or Haw- kins about any other instances of alleged misconduct that night. Nor did he even attempt to correct them. Nor did 40 Binford initially testified that Levitt had reported that "they,'" mean- ing Few and Hawkins, had threatened to "get" him if he did not join the strike. It was only when he was specifically questioned about the details of the report that he modified his testimony to reflect that only Few had been reported by Levitt. he check with other employees who may have been in a position to observe any exchange between Levitt and Few. 4 ' Yet Binford also testified that employees do have disputes from time to time. And he acknowledged that company policy is to counsel them, and seek a resolu- tion, as well as to secure both sides of a story, 4 2 before taking disciplinary action. No employee besides Few or Hawkins was disciplined, admonished, or reported to Brunk. And it was admitted that both Few's and Hawkins' duties could have caused them to be in the various places they were observed, talking to the people they were seen talking to. And, while the Respondent's witnesses were quick to accuse Few and Hawkins of causing a drop in production by their inattention to duty, and distraction of other em- ployees, it was evident that such claims repeatedly van- ished upon even cursory questioning. For the evidence is clear that employees were allowed to occasionally speak, at least briefly, with one another. And, as noted earlier, the very jobs of both Few and Hawkins required that they move through the plant from time to time, and to speak to other employees. And, though the Respondent's records clearly would have shown any actual decrease in production, both as to individual machines and as to whole areas or departments, the Respondent made no effort to support its contentions regarding a loss in pro- 41 In this connection, the Respondent produced only Levitt from among those who had allegedly been threatened or harassed by Few and/or Hawkins. The failure to call other employees who claimed to have been threatened by either Hawkins and/or Few, such as Raymond Davis, Christopher Ranft, or Robert Pena, warrants my inference that such employees would not have supported Brunk's claims that they com- plained of threats and/or other forms of harassment by Hawkins and/or Few, Gateway Transportation Co., Inc., 193 NLRB 47, fn. 14 at 49 (1971); Sheldon Pontiac, Inc.. d/b/a Sheldon Pontiac, 199 NLRB 950 (1972), for there was neither a claim nor a showing that such witnesses were no longer within the Respondent's control, such as being unavailable to tes- tify upon request or subpena. Levitt's testimony on the subject of threats was that he worked in the cutting department, where Hawkins was his leadman. Though Few worked in a different area, so Levitt testified, Few came up to him at work on April 12 and asked if he was going to strike. Levitt's answer was noncommittal. Whereupon, Few threatened to "get" Levitt if he [Few] lost his job over the matter. Levitt told Few "Well, the way people talk, a person ought to buy a gun." At that, ac- cording to Levitt, Few threatened, "Why, if you pull a gun on me, ever, I'm going to whip your ass." Levitt testified that he then went to Binford and told him what had occurred. While Levitt spoke to Binford, Few came up to them and asked Binford why Levitt was allowed to be out of his work area while others were not. Binford responded that, as the su- pervisor, he could speak to employees whenever he wished, and sent Few back to work. Several hours earlier, according to Levitt, while L evitt was talking to the day-shift foreman, McCowan, Hawkins ap- proached and directed Levitt to return to his machine. McCowan told Levitt to pay Hawkins no attention. And, again, later in the shift, after Binford had taken over from McCowan, Levitt was once more talking to his supervisor when Hawkins approached and asked why he was there talking, out of his work area. Binford told Hawkins to go back to work. I credit Levitt's recital of these events only insofar as he was not contra- dicted by other witnesses. His demeanor indicated partisanship, and he had difficulty separating fact and opinion. 42 Binford excused his inaction by saying he just wanted to get through the night without making further "waves." Brunk excused Bin- ford's failure to follow the instructions he had left regarding sending Few and Hawkins home with the fact that Binford was a new and inexperi- enced supervisor, having occupied the position only a year at that time. I note the marked difference in the tolerance level shown for the "insubor- dination" of Binford, in his failure to follow Brunk's instructions, with that standard which the Respondent wishes to assert is reasonable for union activists, one of whom had considerably less tenure or experience than Binford. GULF ENVELOPE COMPANY 331 duction by the introduction of its own records into evi- dence. Thus, despite the Board's requirement that an em- ployer show with particularity how certain conduct in- terfered with production, 43 no such showing has been made here. The failure to produce such records warrants drawing therefrom the inference that such records would have proven unfavorable to the Respondent's case. Tex- tron, Inc. (Talon Division), 199 NLRB 131, 134 (1972); Custom Wood Interiors, Inc., 248 NLRB 187 (1980); American Lumber Sales, 229 NLRB 414, 421 (1977). Even the alleged threats of assault do not withstand analysis. In the first place, the Respondent did not even claim that it discharged Few on this basis, only Hawkins. Yet, as previously noted, the Respondent failed to pres- ent evidence of any threats of assault, except towards Levitt. And Levitt's testimony directs no accusation against Hawkins, but only Few. Thus, as to Hawkins, the accusation that he threatened other employees seems merely the product of an overly zealous rush to judg- ment by Binford and Brunk. Regardless of whether Few threatened Levitt or did not threaten Levitt, it is clear that no such action could now be useful to support the Respondent's case against Few, for even the Respondent failed to assign this as a reason for Few's discharge. 4 4 Indeed, after reviewing all of the various and sundry reasons for discharge advanced by the Respondent, I am able to detect no validity for any of them. Even were it otherwise to some degree, I could not escape the conclu- sion that the Respondent noted any such infractions only as part of a campaign of "watchful waiting . . . for the slightest reason or pretext." N.L.R.B. v. Lipman Broth- ers, Inc., supra, 21. And, finally, I cannot avoid concluding that Few and Hawkins were discriminatorily discharged in light of my findings earlier herein that they were discharged, in part, by reliance upon an invalid rule which had the effect, as interpreted, of impeding the conduct of personal business between employees only if that business had to do with the Union. That rule, as interpreted and applied by the Respondent, has been found to be invalid. Therefore, it must be presumed that employees were free to behave as though no rule existed. And, it is settled that, absent any rule, talking about a union during working time is pro- tected activity. Hambre Hombre Enterprises, Inc., d/b/a Panchitaos, 228 NLRB 136 (1977); The Catalyst, 230 NLRB 355, 362 (1977). '3 See The Singer Company, 220 NLRB 1179 (1975); Daylin. Inc.. Ds- count Division d/b/a Miller's Discount Dept. Stores. 198 NLRB 281 (1972): The J. L. Hudson Company, 198 NLRB 172 (1972); Selyn Sho' .Manufac- turing Corporation. 172 NLRB 674 (1968). 44 I am not convinced that the Respondent viewed this conduct as egregious. Binford took no immediate action. And when he made his report to Brunk on the next Sunday, he recalled that Brunk's immediate response was "He said that he had grounds for dismissal." Such haste in judging employee actions, without any attempt to hear the employee's side of the story, or even to get its own facts straight as to who commit- ted which offense, bespeaks a willingness, even eagerness, to discriminate Compare Charles Batcrrhelder Company, 250 NLRB 89 (1980): and Capilol Records. Inc., 232 NLRB 228, 229 (1977). Brunk evidently concluded that the policy of "watchful waiting," which he engaged in and hich he caused Binford to engage in. had borne fruit in the form of excuses or the discharges of Few and tHau kins CONCLUSIONS OF LAW i. Respondent Gulf Envelope Company is an employ- er within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Paperworkers International Union, Local 768, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By promulgating, maintaining and enforcing in a manner which discriminates against employees engaged in union activities a rule prohibiting employees from gathering in the plant premises or conducting any per- sonal business during working hours except by permis- sion of management, the Respondent violated Section 8(a)(1) of the Act. 4. By failing and refusing to pay accrued vacation pay, upon request, to employees entitled thereto, including employee Sue Jenkins, without adequate business justifi- cation to excuse its failure or refusal to make such pay- ments the Respondent violated Section 8(a)(l) and (3) of the Act. 5. By threatening to discharge striking employees should they fail to abandon the strike, by threatening to discharge striking employees who choose to remain on strike after 1 year, and by threatening that striking em- ployees would be reinstated, if at all, only without se- niority rights, the Respondent violated Section 8(a)(1) of the Act. 6. By discharging employees Carolyn Foster, Lois Serres, Elsie Keyes, Leonard Brooks, Paul Jacobs, Jr., Herman Green, Maggie Faterkowski, Evelyn Peterson, Larry Womack, Irene Gonka, Jack Larrabee, Bessie Otts, Gertrude Nowak, and Sue Jenkins because of their participation in a strike which began on April 16, 1979, against the Respondent, the Respondent violated Section 8(a)(1) and (3) of the Act. 7. The strike engaged in by the employees commenc- ing on April 16, 1979, was prolonged by the Respond- ent's unlawful conduct, and thus was an unfair labor practice strike as of April 23, 1979. By failing and refus- ing to fully and unconditionally reinstate employess, in- cluding Kathy Reed, based on either individual requests from employees or a collective request for reinstatement asserted on behalf of employees by the Union, the Re- spondent violated Section 8(a)(3) and (1) of the Act. 8. By discharging John H. Hawkins and David Few because they were leading union activists and engaged in union activities, and pursuant to the promulgation, main- tenance, and discriminatory enforcement of the Respond- ent's rule against conducting personal business during working hours except by permission of management, the Respondent violated Section 8(a)(l) and (3) of the Act. 9. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act, the Respondent shall be or- dered to cease and desist therefrom, and take certain af- firmative actions designed to effectuate the policies of GULF ENVELOPE COMPANY 331 332 DECISIONS ()F NATIONAL LABOR RELATIONS BOARD the Act. In light of the finding that the Respondent un- lawfully discharged John H. Hawkins and David Few, as well as Carolyn Foster, Lois Serres, Elsie Keyes, Leonard Brooks, Paul Jacobs, Jr., Herman Green, Maggie Faterkowski, Evelyn Peterson, Larry Womack, Irene Gonka, Jack Larrabee, Bessie Otts, Gertrude Nowak, and Sue Jenkins, it shall be ordered to offer them full and immediate reinstatement to their former positions of employment or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings they say have suffered by reason of the unlawful discrimination against them. In addition, the employees who participated in the strike, prolonged by the Respondent's unfair labor prac- tices, shall, upon their application for reinstatement, be reinstated to their former positions, or, if such positions no longer exist, to substantially equivalent positions with- out impairment to their seniority and other rights and privileges, dismissing, if necessary, any persons hired as replacements on or after April 23, 1979. If, after such dismissals, there are insufficient positions remaining for all of the striking employees who desire reinstatement, the available positions shall be distributed among them without discrimination because of their union member- ship or activities or participation in the strike, in accord- ance with seniority or other nondiscriminatory practices as have been applied in the past by the Respondent in the conduct of its business at its plant in Houston, Texas. Those strikers, if any, for whom no employment is im- mediately available after such distribution, shall be placed upon a preferential hiring list with priority deter- mined among them by seniority or other nondiscrimina- tory practices and, therefore, in accordance with such system they shall be offered reinstatement as positions become available and before other persons are hired for such positions or work. The striking employees shall be made whole for any loss of earnings they may have suf- fered, or may suffer, by reason of the Respondent's refus- al, if any, to reinstate them by payment to each of them a sum of money equal to that which he or she would have earned during the period from 5 days after the date on which he or she applied, or shall apply, for reinstate- ment, to the date of the Respondent's offer of reinstate- ment, should there be any, absent a lawful justification for the Respondent's failure to make such an offer. Back- pay and interest thereon for the unlawful discriminatees and the striking employees shall be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation. 231 NLRB 651 (1977). 45 Additionally, having found that the Respondent unlawfully failed and refused to pay vaca- tion pay to its employees, including Sue Jenkins, follow- ing a proper request submitted to the Respondent on behalf of employees by the Union, the Respondent shall be ordered to pay to each striker who submitted such a request, whether through the Union or individually, in- cluding employee Sue Jenkins, each such employee's va- cation benefits in full, to the extent that it has not al- ready done so. And, having found that the Respondent discharged John H. Hawkins and David Few illegally 4 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962) and in violation of Section 8(a)(l) and (3) of the Act, the Respondent shall be ordered to offer them full and im- mediate reinstatement to their former positions of em- ployment or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings they have suffered by reason of the unlawful discrimination against them, and the Respondent shall accord such employees the rights set forth hereinabove, having to do with the reinstate- ment rights and the backpay obligations toward reinstat- ed strikers. Employees John H. Hawkins and David Few shall be made whole for any loss of earnings they may have suffered, or may suffer, by reason of the Respond- ent's refusal, if any, to reinstate them by payment to each of a sum of money equal to that which he would have earned during the period from 5 days after the date on which he applied, or shall apply, for reinstatement to the date of the Respondent's offer of reinstatement absent a lawful justification for Respondent's refusal to make such an offer. Backpay and interest thereon for the unlawful discrimination practiced against them shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).46 Finally, having found that Respondent's Rule 3 was applied discriminatorily, I shall require its recision. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 7 The Respondent, Gulf Envelope Company, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Promulgating, maintaining, and discriminatorily en- forcing against employees engaged in union activities, a rule prohibiting employees from gathering in the plant premises or conducting personal business during working hours except by permission of management. (b) Failing and refusing to pay accrued vacation pay, upon request, to employees entitled thereto, including employee Sue Jenkins. (c) Threatening to discharge striking employees if they do not abandon the strike. (d) Threatening to discharge striking employees who remain on strike longer than 1 year. (e) Threatening to take away the seniority rights of strikers applying for reinstatement. (f) Discharging employees because they engage in a strike or other activities on behalf of a labor organization or in order to discourage membership in a labor organi- zation. (g) Failing or refusing to unconditionally reinstate its employees who engaged in a strike from April 16, 1979, "4 See fn. 45, supra. 47 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, cnclusions, and Order, and all objections thereto shall he deemed saived for all purposes GULF ENVELOPE COMPANY 333 until May 21, 1979, to their former positions of employ- ment, without prejudice to their seniority or other rights or privileges. (h) In any other manner4 8 interfering with, restraining, or coercing employees in the exercise of the right to self- organization, to join or assist the Union, or any other labor organization, or to bargain collectively through representatives of their own choice, or to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities, except to the extent permitted by Section 8(a)(3) of thc Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make whole employees for any loss of pay they may have suffered by reason of the discrimination found herein relating to the discharges of John Hawkins or David Few, the discharge of strikers, the failure or refus- al to reinstate strikers, or the failure or refusal to pay va- cation pay, all of which is to be computed in conformity with the section of this Decision entitled "The Remedy." (b) Offer to John Hawkins, David Few, Carolyn Foster, Lois Serres, Elsie Keyes, Leonard Brooks, Paul Jacobs, Jr., Herman Green, Maggie Faterkowski, Evelyn Peterson, Larry Womack, Irene Gonka, Jack Larrabee, Bessie Otts, Gertrude Nowak, and Sue Jenkins immedi- ate and full reinstatement to their former positions, or, if those jobs no longer exist, to substantially equivalent po- sitions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the dis- crimination against them in conformity with the section of this Decision entitled "The Remedy." (c) Upon and pursuant to the Union's application of May 21, 1979, on behalf of employees who participated in the strike which began on April 16, 1979, and who have not already been reinstated, offer full and immedi- ate reinstatement to all such employees, or, if those posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any persons hired as replacements on or after April 16, 1979. If, after such 14 As the unfair labor practices committed by the Respondent herein strike at the very heart of employee rights safeguarded b the Act, and indicate a pattern of unlawful conduct by the Respondenl. I provide for a broad order to cease and desist from i any marner ifringing upon the rights of employees guaranteed by Section 7 of the Act IJcAlmott lIo,,d. Inc.. 242 NLRB 1357 (1979) dismissals, sufficient jobs are not available for these em- ployees, they shall be placed on a preferential hiring list in accordance with their seniority or other nondiscrimin- atory practices utilized by the Respondent, and they shall be offered employment before any other persons are hired. These employees shall be made whole for any loss of earnings, if any there be, they may have suffered or may suffer by reason of the Respondent's refusal and failure to reinstate, all of which is to be done in the manner set forth in the section of this Decision entitled "The Remedy." (d) Make whole with interest all striking employees, including Sue Jenkins, for any losses in earnings they may have suffered as a result of the Respondent's failure and refusal to pay them vacation benefits pursuant to the Union's request of May 15, 1979, all to be effected only if the Respondent has not already done so, and then to be done in the manner set forth in that portion of this Decision entitled "The Remedy." (e) Rescind the rule referred to herein as "Rule 3." (f) Post at its plant in Houston, Texas, copies of the attached notice marked "Appendix." 49 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by the Respondent's representative, shall be posted by the Respondent imme- diately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (g) Preserve and. upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (h) Notify the said Regional Director, in writing, wvithin 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. · ' In the eent that this Order is enforced by a Judgment of a tlniled States Court of Appeals, the words in the notice reading "Posted hy Order of the National l.abor Relations Board" shall read "Posted Pursu- antli t a Judgment of the United Stales Court of Appeals Enforcing an Order f lhe Nalional La bor Relations Bard" GULF ENVELOPE COMPANY 333