Cannady Supply Co.

National Labor Relations Board - Board Decisions

Apr 20, 1971

189 N.L.R.B. 913 (N.L.R.B. 1971)

BOB WHITE TARGET COMPANY
Richard L. Cannady and Jane Cannady doing business
as Bob White Target Company , Division of
Cannady Supply Co . and Production Workers
Local 605, affiliated with Laborers ' International
Union of North America, AFL-CIO. Case
17-CA-4263
April 20, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On November 9, 1970, Trial Examiner Josephine H.
Klein issued her Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Respondent filed exceptions to
the Trial Examiner's Decision and a brief in support
of its exceptions. The General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Richard L. Cannady and Jane
Cannady, doing business as Bob White Target
Company, Division of Cannady Supply Co., its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
CHAIRMAN MILLER, dissenting in part:
I would find that prejudicial error was committed
by the Trial Examiner in denying Respondent's
motion for an adjournment when, during the hearing,
counsel for the General Counsel announced, with no
prior notice, that he intended to litigate the question
913
of union majority status and seek a remedial order to
bargain. While it is true that Respondent' s counsel
had an opportunity to cross-examine the witnesses
selected and called by General Counsel, that was no
substitute for an opportunity to make a full investiga-
tion and prepare a full defense . While questions of
remedy frequently do not affect evidentiary matters
or trial preparation in cases involving violations of
Sections 8(a)(1) and 8 (a)(3), the General Counsel's
request for a bargaining order to remedy such
violations always raises for investigation and trial
issues well beyond the scope of a normal complaint
under those sections . These issues routinely include:
whether the unit sought was appropriate; whether the
union enjoyed majority status at an appropriate time;
and whether, if so, its majority status was secured
without fraud or coercion. Moreover, any particular
case may involve any of the panoply of issues which
routinely arise in our representation cases, from
problems of contract bar to those of union conflict of
interest . An eleventh-hour opportunity to cross-exam-
ine employees who chose to sign cards simply cannot
be equated with the opportunity to prepare for a trial
of these issues. Therefore, I would reopen the record
to give Respondent an opportunity to present eviden-
ce on these issues before deciding what remedy is
appropriate for the violations which this record
demonstrates.
i In the circumstances of this case , we do not agree with our colleague's
view that the Trial Examiner committed prejudicial error in denying
Respondent's motion for an adjournment. Here, the Respondent and the
General Counsel stipulated that there were only 11 regular full-time
employees on April 7 and 8, the dates when Respondent committed the
unfair labor practices . Of this number, 10 signed authorization cards
Meeker and Ewing, who between them solicited all the authorization cards,
as well as all the card signers except Shepard , were called as witnesses by
either the General Counsel or Respondent All were available for
examination and cross-examination by Respondent Indeed, Respondent
questioned several employees about the circumstances surrounding the
solicitation of the cards and in no instance was there a suggestion of fraud
or coercion The authorization cards are not ambiguous None of the
testifying employees suggested that he did not understand the meaning,
nature and purpose of these cards In our view , further proceedings at this
time would only serve to allow Respondent to conduct a "fishing
expedition " Consequently , we conclude that to remand the case at this
juncture would serve no purpose but to further delay bargaining and
thereby further injure the employees wronged by the actions of the
Respondent.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner : This case 1 was tried
in Ottawa, Kansas, on August 11 and 12 , 1970,2 on a
complaint issued on June 24 pursuant to a charge filed on
i In conformity with the finding made in part IA of this Decision, the
Caption of this case is hereby amended to read as set forth [in the Board
Caption]
2 Unless otherwise specifically indicated, all dates herein are in 1970
189 NLRB No. 128
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 9, alleging violations of Section 8(a)(1) and (3) of the
Act.3 Since the hearing, briefs have been filed on behalf of
the General Counsel and Respondent.4
On the entire record,5 observation of the demeanor of the
witnesses , and consideration of the briefs , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. The complaint alleges that "Bob White Target
Company [hereafter called Bob White] and Cannady
Supply Company [hereafter called Supply] are .. .
affiliated businesses , having common ownership and
management , which formulates and administers a common
labor policy" and that the two "companies" are "a single,
integrated business engaged, inter alia, in the manufacture
and sale, at both retail and wholesale, of trap-shooting
targets and sporting goods from their one plant and store
location at Ottawa, Kansas." The answer to the complaint
admits "common ownership" of the two "companies" by
Richard L. Cannady (hereafter called Richard) and his wife
(hereafter called Jane),6 but it denies that the two
"companies" are so interrelated that they may be
considered a "single employer" or "joint employers" for
purposes of the Board's jurisdictional standards.
The parties agree that the two "companies" together
annually receive goods and materials valued in excess of
$50,000 directly from outside Kansas and sell products
valued in excess of $500,000, of which goods and materials
valued in excess of $ 50,000 are shipped directly to points
outside Kansas. The parties have stipulated that if the
"companies" are found to be a single employer or joint
employers the Board will have jurisdiction,7 but that there
will be no such jurisdiction if Bob White, the manufactur-
ing plant, is deemed to be the sole employer.
Bob White manufactures trapshooting targets (sometimes
referred to as "rocks" or "blue rocks," under the registered
tradename "Bob White". In addition, Bob White produces
a small amount of trapshooting equipment, which is sold to
organizations such as the Boy Scouts. Bob White normally
has approximately 10 to 15 production employees, though
this number apparently increases seasonally, when a
nightshift is added. It has no other employees, except for
Milburn Moffett, foreman and truckdriver or deliveryman.
There is presently no sign or other exterior designation of
the identity of the plant.
About I- or 2 blocks away from the Bob White plant is
the combined office and sales room of Supply, which has an
3 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519,
29 U.S.C. Sec. 151 et seq.)
4 Although, as herein found, Mr. and Mrs. Richard L. Cannady, as
individuals in a joint enter ise or "sole proprietorship," are legally the
respondents , since they operate under a firm name, the singular , neuter
noun "Respondent " will be used in this Decision.
5 The parties' joint motion to correct the transcript, filed on September
3, is hereby granted and the transcript is corrected in accordance therewith.
6 First names are here used for ease of identification. The employees
apparently call the employers by their first names.
I Since the combined "companies" meet the Board's jurisdictional
standards for both retail and non-retail enterprises, it is unnecessary to
determine into which category Respondent falls.
6 The profit and loss schedule in the Cannady's 1969 joint federal
identifying sign outside . Supply sells merchandise , includ-
ing sporting goods and equipment , such as targets, guns,
and ammunition.8 Supply has one employee, Clifford
Bedders, who assists as a retail salesclerk and truckdriver
for pickups and deliveries. He makes pickups and deliveries
of material for both "companies," as does the foreman of
the Bob White plant.
All records are maintained on the Supply premises, which
are also referred to as the "office" or the "warehouse."
Richard and Jane file joint federal income tax returns in
which profit and loss of both "companies" are reported in
the same schedule.9 They have only one employer
identification number for federal tax and social security
purposes. Richard does the bookkeeping for Supply and he
and Jane both do it for Bob White.
Clifford Bedders, the one employee at Supply, is paid a
weekly salary in cash. The Bob White plant employees are
paid by check, drawn by either Richard or Jane under
Supply's name on their joint account, although the checks
and letterheads bear Bob White's name.
The evidence indicates that Jane serves as plant manager,
generally supervising production. However, there is eviden-
ce that she also participates in the retail selling operation at
the warehouse. Richard appears to be in overall charge of
sales, whether wholesale sales made nominally by Bob
White or retail sales made in the name of Supply. When
Supply sells Bob White targets, it does not purchase them
from Bob White but rather, in Richard's words, "we just
pick them up and sell them." There are two trucks, one with
Bob White's name appearing on it, the other with the
Supply's name . The two trucks, however, are used for
pickups and deliveries of either "company."
Although Jane does most of the day-to-day management
of the production plant, Richard visits frequently and does
considerable maintenance and repair work. He conceded
that he has given Bob White's foreman instructions
concerning deliveries and pickups.
Although, in testifying, Richard maintained that he had
no authority over and played no role in the personnel
affairs of Bob White, direct evidence in the record belies
this statement. For example, in July, four of the employees
here involved received written offers of employment signed
by Richard on behalf of Bob White. In June Bob White's
counsel wrote to the Union representative and sent a copy
of the letter to "Mt. Richard Cannady."lo Further, as
discussed below, after the production workers ceased work,
Richard informed them that they would be "through" if
they elected to receive paychecks rather than resume work.
He has also hired or rehired 2 or 3 production employees.
income tax return states that their business name is "Cannady Supply" and
their "principal business activity is manufacture and retail [sale of]
products [ such] as hardware and blue rocks."
9 Richard testified that "the tax accountant told us there was no use in
keeping separate records." The Cannadys apparently also operate a farm,
which is reported in a separate tax schedule.
ioAlthough the official transcript does not expressly show this fact, it
may be noted that Richard sat at counsel table throughout the hearing,
whereas Jane did not. The transcript does show that when, at the outset of
the hearing, counsel for the General Counsel stated that he would like to
call Jane as a witness , Respondent 's counsel stated that she was "not
available." She was at that time in the Court House but not present in the
courtroom in which the hearing was held.
BOB WHITE TARGET COMPANY
The record as a whole leaves little doubt that Richard
and Jane Cannady jointly own a business which sells
merchandise , some of which it produces . Overall manage-
ment , administration , and sales operations are conducted
by Richard , with Jane serving as plant manager . Bob White
appears to be "the manufacturing or production arm," or,
as Respondent designates it, a "Division of Cannady
Supply Co." Drapery Mfg. Co., 166 NLRB 805, 811.
Separate corporations less intimately interrelated than
the two unincorporated "companies" here involved have
repeatedly been found to constitute a single employer
under the Act. Cf., e.g., Tracon, Inc., 184 NLRB No. 18,
(TXD); Playtime Kiddie Wear, Inc., 184 NLRB No.
41, (TXD); Huberta Coal Co., 168 NLRB 122; Elias
Bros. Big Boy Inc., 137 NLRB 1057, 1066-1067,
modified 325 F. 2d 360 (C.A. 6); N.L.R.B. v.Jordan
Bus Co., 380 F . 2d 219, 221 (C.A. 10); N.L.R. B. v. M.
P. Building Corp., 411 F. 2d 567, 568 (C.A. 5). The
principles applicable to interrelated corporate entities
would appear a fortiori pertinent to unincorporated
enterprises owned and operated jointly by husband and
wife . Cf. Cockatoo, Inc., 146 NLRB 611.
Respondent (a sole proprietorship consisting of Richard
L. Cannady and Jane Cannady, doing business as Bob
White Target Company, Division of Cannady Supply Co.)
is, and at all material times has been , and employer engaged
in commerce within the meaning of Section 2 (2) and (6) of
the Act.
B. Production Workers Local 605, affiliated with
Laborers ' International Union of North America,
AFL-CIO, is a labor organization as defined in Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
On April 8 Respondent discharged employee Donna
Meeker. Immediately thereafter the remaining employees
ceased work. The complaint alleges that Meeker was
discharged for her Union activities; that the ensuing work
stoppage was an unfair labor practice strike; that eight
employees were discharged for engaging in the strike; and
that seven of the eight employees have been wrongfully
denied reinstatement despite their unconditional offers to
return to work. Respondent, on the other hand, maintains
that Meeker was discharged for cause and that the other
employees voluntarily quit their jobs, were offered
reinstatement, were properly replaced, and have not made
unconditional offers to return to work.
The complaint also alleges incidental coercive or
threatening statements by Respondent, which Respondent
denies.
If it is found that Respondent violated Section 8(a)(1)
and/or 8(a)(3), a further issue is presented by the General
Counsel's request that, as part of the remedy, Respondent
be ordered to bargain with the Union. Respondent raises a
question concerning the propriety of backpay requirements
if it is found guilty of unfair labor practices.
11 The remaining targets proceed farther and are painted yellow. White
targets are used for nightime shooting, yellow during daylight.
12 There apparently have never been any problems concerning the
B. The Chronology-Undisputed Facts
915
Targets are made of a substance consisting of pitch and
lime. The mixture is fed into a heated tank at approximately
five minute intervals throughout the day. The heated
mixture is fed, by automatic machine , into molds. An
employee removes the targets from the molds , inspects
them , removes any excess pieces (called "knots") and then
places the targets on a conveyor belt. The conveyor belt
first passes the white painting table , where there are two
employees , one of whom takes every third target as they
pass." One target is placed on a revolving wheel and one
employee , using a brush , covers the top surface with paint
which is 4 mixture of glue, water and powdered pigment.
She then places another target on top and paints it,
pursuing this course until a stack of targets has accumulat-
ed. They are then removed from the wheel and spread out,
in a fan-like pattern , on a table to dry under a heat lamp
and fans. The drying time varies somewhat , depending on
such factors as the consistency of the body material and of
paint, the condition of the brush used, the weather
(particularly humidity), and the efficiency of the heat lamp
and fans. However , the normal drying time is around 5 to
10 minutes . The targets are rounded discs, resembling
relatively small and shallow cereal bowls . There is an outer
rim approximately 1/8 inch wide and possibly inch deep.
When the targets are stacked , this outer rim of each rests on
the corresponding rim of the one below. This is the only
area of contact between targets when in stacks. In the
center of the convex (front) side of the targets is shallow,
circular declivity. Somewhat more paint tends to accumu-
late in this area than in others, primarily because of paint
dripping when the brush is lifted after the target is painted.
The center of the target accordingly dries last.
When the targets are dry, a second employee stacks them,
rubs the outer circumference with leather (a process
referred to as "scuffing down"), and then packs them in
boxes. Each box contains 9 stacks of 15 targets, for a total
of 135 targets per box. After the targets have been so
inserted, the box is sealed.
If the outer rims of the targets are not dry when the
targets are stacked, they will stick together. However, white
targets may safely be, and often are, packed while the paint
on the center portion is still damp.12 While targets with wet
paint will not dry readily after being packed, with the result
that they will remain wet and may stick together; eventually
the paint may turn to loose powder which does not adhere
to the targets. Targets which are wet and/or stuck together
are difficult, or even impossible, to load properly for
satisfactory shooting.
After September 1969, when Meeker was hired, she and
Carolee Boerman worked together painting and packing
white targets. Customarily, each day Boerman started
painting targets while Meeker packed them. The two girls
exchanged operations at intervals throughout the day.
On or about March 24, the employees were dismissed for
the day because of gas fumes at the plant. Five of the
employees then got together to discuss their working
packing of yellow targets , on which only the center portion is painted, so
that stacked targets do not touch each other at any painted surfaces.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions. As a result of this meeting, employees Meeker
and Shirley Atchison consulted the Kansas State Depart-
ment of Labor. In the course of their meeting, the
representatives of the Labor Department agreed to ask a
representative of the Laborers Union to get in touch with
the employees.
On April 3, James E. Summers, regional representative of
the AFL-CIO, visited the Bob White plant. Without
identifying himself, he spoke to Jane and then asked to see
Meeker. He spoke to Meeker briefly and gave her some
blank AFL-CIO authorization cards, on which
"Production Workers Local 605" had been rubberstamped.
Jane was at the other side of the plant during the
conversation between Summers and Meeker, both of whom
indicated that Jane did not overhear the conversation or see
Summers give the Union cards to Meeker.
After work on April 3, Meeker and several of the other
employees went to a nearby drive-in restaurant, where three
of the employees (Shirley Atchison, Josephine Patterson
and Frances Wright) signed Union authorization cards.
Meeker executed a card on April 4 and other employees
(Carolee Boerman and Norma Evans) did so on April 6.
On the evening of April 7, Summers, accompanied by
Eugene Ewing, field representative of Production Workers
Local 605, visited Meeker at her home. Ewing and Meeker
then visited the homes of other employees, and Ewing
secured executed Union authorization cards from Doris
Lucas, who was then classified as a part-time employee,
Ella Mae Waller, and Marlin Shepard. Ewing and Meeker
also visited employee Ysabel Cruces. Cruces said she did
not have her eyeglasses readily available, but would take
the card and return it, signed, to Meeker the next day.
At around 10 p.m on April 7, Jane telephoned Lucas'
home. Since Lucas was out, Jane left word for Lucas to
return the call when she got in, no matter how late. About
10:45 Lucas telephoned Jane and was offered and accepted
the status of a full-time regular employee. When they
arrived for work shortly before 8 a.m. the next day, Lucas
informed Meeker of Jane's telephone call. Lucas advised
Meeker to exercise caution that day, since Lucas believed
that Meeker would be closely watched. As the employees
were starting to work at their established positions, Jane
directed Boerman to do K.P. service (miscellaneous
cleaning up and odd chores). Norma Evans, who up to then
had been painting yellow targets, was now assigned to work
with Meeker at the white target operation. Meeker started
to paint targets, but immediately was ordered by Jane to
assume the boxing function. Meeker boxed white targets
for a short time, during which Milburn Moffett, foreman,
watched her closely. Around 8:15, Jane directed Meeker to
accompany Jane to the Supply building, where she would
receive her check. As she was getting her purse, Meeker told
a few of the other employees that she was being discharged
On the way to the office, Jane told Meeker that she was
being discharged for packing wet targets.
Richard and Bedders were in the office when Meeker and
Jane arrived. Jane prepared and gave to Meeker a
13 It does not appear whether Marlin Shepard, the only male employee,
was with the girls, He was not named in the charge or the complaint, and
there is no evidence as to what happened to him after the machine was
shut off
i4 While at Boerman's home, Cruces executed a Union authorization
paycheck, whereupon Meeker left the office and stood in
front of the building awaiting a taxi.
After Meeker and Jane left the plant, employee Atchison
shut the machine off and all work ceased. In answer to
inquiries, Moffett said that Meeker had been terminated for
packing wet targets. When the employees asked to see the
targets in question, Moffett led them to a table which had
on it an open box of targets, about two stacks of which
(around 30 out of 135) had been removed and were on the
table. Several of the employees examined some or all of the
targets. During this period Moffett telephoned the office on
the intercom and employee Lucas did likewise. The
employees then left the plant and, using two automobiles,
went to the office, where they remained for around 5 to 10
minutes.13 Meeker, who was standing in front of the Supply
building when the girls arrived, entered shortly thereafter.
At the end of a disorganized meeting, each employee
(except Meeker and Cruces) was asked if she wanted to go
back to work or recieve her check. The girls were informed
by Richard and Jane that Meeker could not return to work
and that anybody who chose to receive a check would be
"through." Each of the employees elected to receive a
check. In answer to demands for immediate payment, the
employees were informed that the checks would not be
ready until later that day. Respondent's regular payday is
Friday, whereas April 8 was a Wednesday.
Upon leaving the office, about 9:30 a in., the girls
returned to the plant to get their pocketbooks and then all
went to Boerman's home. Meeker telephoned Ewing. In
response to that call, Ewing arrived at Boerman's around
1:30 p.m. At Ewing's suggestion, Lucas telephoned Jane.
Thereafter, each of the employees present authorized
Ewing to make a written request of Respondent for
reinstatement. 14 The employees received their checks later
that day at the Supply office.
On April 9, Ewing, as Union representative, filed the
present charge, alleging discriminatory discharge of nine
named employees.15 The charge was served on April 10 and
received by Richard on April 13.
On April 9 there were four employees working at the
plant. On April 10 Respondent resumed full operation, with
13 employees working. Cruces returned to work on April 9
or 10. Within the next week Respondent instituted a night-
shift.16
On April 13, Ewing, as Union representative, wrote to
Richard as follows:
On April 8 thru a misunderstanding the employment
of the people listed below were terminated. We are
asking that you reinstate these terminated employee's
[sic ].
The list started with Meeker's name and included all those
listed in the charge except for Cruces. Respondent did not
reply to Ewing's letter. Instead, during the latter part of
May and the first week of June each of the terminated
employees except Meeker, Boerman, and Lucas received a
letter from Respondent reading as follows:
I have received a letter from a Mr. Eugene Ewing,
card
15 All the cardsigners except Shepard
16 The nightshift was apparently still in operation at the time of the
hearing , in August, when it was stipulated that Respondent had 25 or 26
full-time employees
BOB WHITE TARGET COMPANY
who is associated with Local 605 in DeSoto, Kansas,
requesting that you be reinstated. I have never heard
from Mr. Ewing or representatives of Local 605 before
and have no knowledge as to whether his letter was
written with your consent or not. That is why I am
writing you.
Shortly after you left our employ, and before Ewing's
letter was received, we hired new employees. As a result,
there are presently no employment openings with the
Company. Will you personally please advise at once if
you are in fact interested in returning to the Company.
If you are, we will place you on a preferential hiring list
as soon as an opening is available.
The individual employees receiving such letters did not
reply. Instead, on June 9, Ewing wrote Respondent as
follows:
Please be advised, the following list of former
employees are not interested at this time in being placed
on a preferential hire-in list:
[The list was the same as that in Ewing's previous
letter.]
We are requesting that the above mentioned
employees be reinstated to employment.
In your letter to these employees, you stated that you
had no knowledge of Local Union 605, but be assured
that the above mentioned employees did request our
correspondance [sic] with your company, since they
have chosen us as their Bargaining Representative,
through the signing of Representation Authorization
Cards.
Thanking you for your further consideration in this
matter, I remain,
On June 15, Ewing's letter was answered by Respondent's
counsel as follows:
Despite your assurance that the persons mentioned
in your letter requested that you correspond in their
behalf, the Company has received no indication from
any of the employees that they made this request of you.
You are not, moreover, designated as bargaining agent.
Consequently the Company cannot regard any request
for reinstatement made by you as being made on behalf
of the individuals named in the letter.
The present complaint was issued on June 24.
During the first half of July, Richard, on behalf of
Respondent, wrote to alleged discriminatees Waller,
Patterson, Atchison, and Boerman as follows:
Although you have not made any request for
reinstatement with our company, a vacancy has
occurred, and we hereby offer you employment under
the same terms and conditions of your previous
employment here and without loss of any rights. If you
desire to accept employment with our company, please
inform me within 24 hours of receipt of this letter.
As of the time of the hearing, in August, Boerman,
Atchison, and Patterson were again working for Respon-
dent. Waller had been offered ajob, which she refused.
17 Respondent has apparently employed some "trasitional" state
hospital patients as part-time workers
C. The Disputed Evidence
1. Discharge of Meeker
917
Both Meeker and Boerman testified to a conversation
they had while at work around February. After discussing
wages and working conditions for awhile, Boerman said
that she had been an officer in a union at a prior job.
Meeker jokingly said that with her big mouth and
Boerman's brain they might be able to have a union on
their present job. According to both Boerman and Meeker,
shortly thereafter Jane said to Meeker that they would have
no union at Respondent's plant. According to Boerman,
Jane also said that before she would have a union in the
plant she would hire only patients of the local state mental
hospital.17 Although Meeker and Boerman testified that
they were the only direct participants in this conversation,
Meeker testified that other persons could have overheard.
Jane denied ever having made the statements attributed to
her. Based on the demeanor of the witnesses, together with
weaknesses and inconsistencies in Jane's testimony, set
forth below, the Examiner credits Meeker and Boerman as
to the testimony here summarized.
Since Jane's statements have not been alleged as
violative of the Act, no finding is made in connection
therewith. However, the expressed animus is significant in
appraising Respondent's conduct and determining its
motivation. Hagan Oldsmobile-Cadillac, 184 NLRB No. 89.
As previously stated, Respondent contends that Meeker
was discharged for packing wet targets. According to
Respondent, the problem had arisen in the past and Meeker
had been warned about a recurrence.
Richard and Jane both testified that sometime in January
the Cedar Hill Gun Club discontinued buying targets from
Respondent because it had received some wet and stuck
together. According to the Cannadys, Meeker and
Boerman were then warned about the matter and were
given instructions not to pack targets wet in the future. Both
Meeker and Boerman denied having been given such
instructions at that time. They conceded that on several
occasions the employees were instructed that white targets
were not to be packed wet, but that it was all right to pack
them with the center portion damp. Boerman testified that
the most recent instructions on that score that she could
recall were given around September 1969, when a nightshift
was instituted and new employees were encountering
difficulty. 18 Meeker testified that in January they encoun-
tered some problem with an unsatisfactory batch of pitch.
Richard acknowledged this, but maintained that the
difficulty did not affect, and could not have impeded, the
drying of targets. On the contrary, he maintained, the bad
pitch required that the targets be molded under higher than
normal heat, with the result that the targets would actually
dry faster than ordinarily.
Respondent maintains that sometime in March it again
had complaints from some of its customers concerning
white targets they received wet and stuck together. Mrs.
Margaret Bailey, operator of a gun club in South Topeka,
testified that it was early in March that she first
1s This appears to be around the time Meeker was hired
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encountered any problem with wet targets. At that time,
Richard told her that he had received other complaints and
that Respondent was trying to do something about the
problem of wet targets. Bailey spoke to Richard about the
matter twice in March and since then she has had no
trouble. Richard testified concerning Bailey's two com-
plaints and another by a Kansas City gun club in March.
He testified that he then asked Jane to find out who was
packing wet targets and be sure that remedial action was
taken
Jane and Moffett testified to their attempt at that time to
find out who was packing wet targets. According to their
testimony, one day they watched Meeker and Boerman and
marked one case of targets packed by each girl. Then, after
the close of business, they opened the two cases. According
to them, the case packed by Meeker contained many targets
which were wet and had not been scuffed down well
enough; those packed by Boerman were "passable" as to
dryness but were not scuffed down entirely satisfactorily.
According to Moffett and Jane, they spoke to both girls
about the matter and Boerman stated that she would try to
do better, while Meeker did not and addressed an obscenity
to Moffett Boerman and Meeker testified that on the
occasion in question they were told simply that the targets
they packed were not scuffed down well enough. The girls
said their leather was worn out and Jane promised to
provide new leather for scuffing. Lack of proper scuffing
was apparently something of a problem, since Jane testified
that it was the only source of complaint ever received prior
to January.
Employees Meeker, Boerman, and Evans all testified to
problems which had beset production during the second
half of March and early April. According to Meeker, for
some 3 or 4 weeks before she was discharged they had been
having trouble with targets breaking on the table before
they were painted or packed. She testified that the
employees "were trying to pick them up fast enough before
they would break. [Jane ] had come over and showed us
how to box and helped us box them because the breakage
was so bad on them." Meeker testified that during that
period, because the targets were not drying quickly enough,
they were being moved to other tables to dry before being
packed and "lots of time [Meeker] called Jane over and
asked her about them because they were not drying and
what should [Meeker] do with them." Evans testified that
both Jane and Richard had packed wet targets. She testified
as follows concerning the problems toward the end of
March:
Carolee [Boerman ] and I would paint a table full and to
to yellows and let them dry completely, which took
about two hours, so Richard came down to the plant
and started to paint whites. He would fill the table and
get up and go around and take them off. They had no
lights or fans on them. I said, "Carolee, how come they
dried so fast for him and not for us9" So when he left we
went and checked the boxes."
Q. What did you find?
A. Wet targets. They were not scuffed properly.
It was undisputed that on or about March 24, during this
period, the plant was closed early because of faulty
ventilation. According to Meeker, this condition required
operation of two vent fans, which caused the white targets
to break. If the fans were shut off, the employees were
sickened by gas fumes.
According to Respondent, the problem of wet targets
arose again on April 7, when he delivered targets to the
Seven and Ten Club in Olathe, Kansas. He testified that he
had arrived at the club about 5:30 or 6 p.m., while daylight
shooting was in progress and was still there when it became
dark and they started to shoot white targets. According to
him, he then helped unpack the white targets he had just
delivered and found they were wet. His testimony in this
connection was very specific:
Tuesday, April 7, we delivered rocks that evening to
the Seven and Ten Club north of Olathe, Kansas, the
targets were made and boxed that day because [we ]
were out of targets and we were running it out of the tar.
We got up there and the shoot was in progress and we
unloaded the targets into the trap, and before I got
away they stopped me, the targets were wet and sticking
together.
He specifically denied that he had received a telephonic
complaint from the club, testifying:
Q. Now, on April 7, you got a call from Olathe, is
that right?
A. No, I didn't . . . I never got a call April 7 . . . I
took the targets there myself and we unpacked the
targets as they
Q. You unpacked the targets?
A. I helped after the boys complained they were
wet. The same day that the targets were run.
Respondent thereafter called Lawrence Mason, proprie-
tor of the Seven and Ten Gun Club. His testimony was as
precise as, but inconsistent with, Richard's, as follows:
As a rule, I try to keep a good week's supply of targets
on hand in case anything would happen I would have
targets to throw to my customers and when I testify
about this shipment, it was to be a Tuesday evening. If I
recall, correctly, I didn't go to use these targets until the
following Friday, the next Friday, and at this time I was
informed by my trap boys that they were stuck together
.. So I called Richard Cannady and, if I am not
mistaken, I believe Saturday, and I told him the
situation and he informed me that he had been
informed by another gun club that the same thing had
happened.
Mason then stated that he could not specifically recall
Richard's arriving at the club on April 7: ". . . that
particular evening or any evening, I couldn't say. I mean
that is five months ago; I am sure he arrived that evening
because, like I say, they are delivered Tuesday evening as a
rule." On cross-examination, Mason repeated that he had
telephoned his complaint to Richard, as follows:
Q. (By Mr. Funk) Then you called Mr. Cannady
Friday?
A. No, I couldn't tell you the exact day I called Mr.
Cannady, but I did call him as soon as I could, as soon
as I felt I could get in touch with him.
BOB WHITE TARGET COMPANY 919
Q Do you recall what time of day you called Mr.
Cannady?
A I don't even recall which day.
Q You don't know which time of day, then?
A. No, I don't, but I believe it was probably during
the day. I would not call him during an evening at
home, no.
Neither through evidence at the hearing nor in argument
in its brief has Respondent provided any explanation or
attempted reconciliation of Richard's and Mason's testimo-
ny. As a disinterested witness, Mason is the more worthy of
credence.
Jane generally sought to corroborate Richard's testimony
as to the April 7 complaint by the Seven and Ten Club. But
her testimony contained certain significant inconsistencies.
For example, on direct examination she testified.
On the night of April 7, we got a complaint from Seven
and Ten and we had a complaint, on the night of April 7
we got a complaint from Seven and Ten and the day
before that, I think, we had one from Elliott Shooting
Park . . They were both wet rocks, sticking together.
However, on cross-examination Jane testified unequivocal-
ly that Respondent did not receive any complaint on April
6. No further reference was made to any complaint by the
Elliott Gun Club. The significance of this matter arises
from another fact on which the General Counsel's and
Respondent's witnesses differed There was no dispute that
the machine is shut off at 4:25 p.m., 5 minutes before
quitting time every day.19 Accordingly, at 4:30, when work
ends, there are some targets which are too wet to pack and
are left on the table to dry. Meeker, Boerman, and Evans all
testified that the morning of April 8 Meeker started work
by clearing and packing targets left over from the previous
day. According to Meeker, on April 8 she packed about 1-1 /2
boxes of targets left from the day before and one-half box
of newly made targets before she was discharged Accord-
ing to Jane and Moffett, Meeker packed only one box the
morning of April 8 Jane testified that there are not always
targets left on the table overnight Her testimony proceeded:
The machine is shut off about five minutes before the
quitting time
TRIAL EXAMINER- Don't you have at that point rocks
that would of necessity be too wet to be packed if it
takes 10 minutes to dry?
THE WITNESS' Sometimes there is, yes. If they are,
they are put on a long table.
TRIAL EXAMINER. You say sometimes. Why not
always9
THE WITNESS- Because I don't walk out the door
when the rest of them leave
TRIAL EXAMINER' Do you pack them?
THE WITNESS- Yes, I boxed white targets.
TRIAL EXAMINER. Did you pack any the night before
this incident)
THE WITNESS. No, I don't think so. I have children,
too, you know, and after the targets have laid there, the
9 Except Friday, when the machine apparently is shut off earlier in
order to complete production and clean up
targets are dry, it takes approximately seven, eight
minutes, and the targets are dry.
TRIAL EXAMINER: Do you recall who packed the last
one, the leftover ones the night of April 7?
THE WITNESS : Yes, I do.
TRIAL EXAMINER: Who did it?
THE WITNESS: My children did.
TRIAL EXAMINER: They packed them all?
THE WITNESS: Yes . . .
Richard testified that deliveries are made of the most
recently produced targets. He stated further that he arrived
at Olathe, about 25 rmles away from Ottawa, about 5:30 or
6 p.m. on April 7. Thus, it appears clear that he delivered to
the Seven and Ten Gun Club the last targets packed that
day. If, as Jane testified, her sons had finished the packing
that day, it would be impossible to conclude that either
Meeker or Boerman was responsible for wet targets
delivered to the Olathe club.
According to Jane and Richard, corroborated in effect by
Moffett, on Richard's return to Ottawa the evening of April
7, he demanded that Jane find out who was responsible for
packing the wet targets. Richard and Jane testified that
they did not simply fire Meeker at the time because they did
not know whether she or Boerman was responsible. They
maintained this despite other testimony by Jane and
Moffett that in March they had checked on both girls and
discovered that Meeker was the culprit. Significantly,
however, on April 8 Jane took Boerman off the white target
operation and checked only on Meeker. Jane did not
undertake then to explain why both girls were not tested in
April, as Respondent maintains they were in March.
Although at one point Richard testified that "the only
reason" nobody was fired earlier was "because we had no
way of knowing who" packed the wet targets, he later said
that "other factors entered into this particular firing than
wet targets . . . she had been insubordinate, cussed the
foreman out and generally just caused trouble." He then
added: "If I had been around the plant, she would have
been fired about three days after she went to work. We have
had two people quit because of her mouth."
Meeker denied having "cussed out" Moffett in March, as
Moffett and Jane testified she did. Neither Moffett nor
Jane apparently had reprimanded her for doing so and Jane
apparently paid little heed to the matter, testifying as
follows-
Q. Why didn't you fire her right then?
s s s
A. I don't think she said the statement to me.
Q. You didn't hear the statement?
A. Yes, I heard the statement.
Q Did you say anything to her about using that
type of language?
A The girls were pretty rough talking.
Q. Isn't it true that everybody that works around
there is pretty rough talking?
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Sometimes they are. You work with a bunch of
ten women.
Q. Including yourself?
A. I try not to. I try to ignore it.
Finally, the record establishes that Meeker was a good
worker. Richard himself testified that Meeker "was one of
the fastest white painters we had." And Richard disclosed
that Meeker, originally assigned to the nightshift, was kept
on for the dayshift when the nightshift was abolished, and
this despite the fact that she had little seniority, having been
hired in September.
Foreman Moffett testified that on the morning of April 8
he watched Meeker and when she had finished packing a
box, he picked it up, took it to the back of the plant, opened
it and removed two stacks (30 targets). He "took them apart
and laid them down on the table, four or five targets, and
run [his] hand over them." According to him,
"approximately half the case" were wet. He said: "The
paint was wet. You had dust as well stuck your hand in a
bucket of paint, it was that wet." On cross-examination he
testified:
Q. You only checked two stacks?
A. I checked them all. I don't have to take the
targets out to look down on them and see if they are
wet.
Q. How can you look down on the targets when
they are stacked in the box and tell they are wet?
A. When you look down on the top of the targets
and it is wet and the paint is running off the side you
know it is wet.
Had they been as wet as Moffett says he found them in the
box, it seems unlikely that he would have waited until they
were all packed and set aside before taking some action.20
And, in view of the fact that Meeker knew she was being
closely watched by Jane and Moffett, it is most improbable
that she would pack targets in the deplorable condition
described by Moffett.
At the employee's request, the remaining 7 stacks were
removed from the box which Moffett had opened. Several
of the employees then examined the targets. Employee
Evans testified that she had examined each target. In
examining them, she had picked them up, placing all five
fingers on the outer perimeters, had felt the tops and
around the edges, and had put her thumb nail into the first
indentations. There was no white paint deposited on her
hands. On completion of her inspection Evans handed each
target to Boerman. Boerman testified that she examined
each of the 135 targets individually, and found only one
which was wet. Employee Lucas testified that she also
checked the targets, actually handling about 4 or 5. She
pressed her thumb on the top of one of the targets, which
was sufficiently damp to leave a thumb print. There was no
paint on her hands after the mspection.21
On all the evidence, the Examiner credits the employee
witnesses and finds that the record does not establish, as
20 He testified that about 12 or 15 times a week he routinely examines
targets by picking them up after they have been scuffed down and stacked,
preparatory to being packed He offered no explanation for his failure to
follow that simple procedure on April 8
21 Respondent attempts to have Lucas discredited because, according to
Respondent, she erroneously testified that two boxes of targets had been
opened However, she testified that she had not seen the box (or boxes)
maintained by Respondent, that Meeker was derelict in the
performance of her job on April 8.
Respondent maintains that the General Counsel has
failed to establish that Meeker's discharge was discrimina-
tory because there is no evidence that Respondent knew of
her Union activities at the time . Respondent maintains, as
Richard and Jane testified, that they had no knowledge
whatsoever of any Union activities among the employees
until around 10 or 11 a.m. on April 8, when employee
Patterson's husband stopped by the office. According to the
Cannadys, Patterson informed them that the Union had
told the girls to quit work.22
As previously set forth, the evening of April 7, Jane
telephoned Lucas. According to Lucas, Jane said that she
understood there were some Union cards "floating around"
the plant and asked if Lucas had been approached about
the Union. Although Lucas had by that time executed a
Union card, she replied in the negative and said that she
doubted that a union would solicit her since she was only a
part-time worker. According to Lucas, Jane then offered
Lucas full-time work as of the next morning and Lucas,
who wanted full-time employment, accepted the offer.
Then, after consulting Richard, Jane asked Lucas to secure
a Union card. Lucas expressed doubt that she could get one
to give to Jane, since, if Lucas was given one, she would be
expected to execute it and turn it in. Lucas then quoted
Jane as suggesting that Lucas could obtain an extra blank
card by saying her husband wanted to see it. When Lucas
said that she did not want to be a "go-between," Jane said
she would not talk to Lucas about the Union at work, their
contacts on that matter to be conducted by telephone
during non-working time. Jane denied all of Lucas'
testimony concerning this telephone conversation except
for the offer of regular employment for Lucas. Jane testified
that on Richard's return from the Seven and Ten Club
around 9 or 9:30 p.m. on April 7, and his report of the wet
targets delivered to the club, she decided that the next day
she would have to discharge the person responsible and
would, therefore, require a full-time replacement Accord-
ingly, she called Lucas to be sure that Lucas would be
present the next day and would assume full-time status
rather than the part- time status she then had. But Lucas
testified that, although she had been hired in February as a
part-time worker, she had actually worked full-time every
day, "except if [she] was sick." Although Respondent's
counsel, in cross-examining Lucas, attempted to show that
she had not actually worked regularly, he established only
that she had not worked on one day, April 2. Respondent
produced no evidence, either testimonial or documentary,
that Lucas had actually worked on an irregular basis. Thus,
there is no apparent reason why Jane would have to
telephone Lucas relatively late in the evening to be sure that
Lucas would be present the next day. Nor is there any
apparent reason why Jane, having called while Lucas was
out, did not make a simple inquiry of, or leave a message
being opened, did not know who opened it (or them), and she "believe[d ]"
that two boxes had been opened However , she "most certainly did not"
examine all the targets individually The Examiner finds nothing in Lucas'
testimony in this regard that casts doubt on her credibility
22 The Examiner draws no adverse inference from Respondent 's failure
to call Mr Patterson , since it is reasonable to assume that he would be
reluctant to testify against his wife
BOB WHITE TARGET COMPANY
with, Lucas' daughter, who answered the phone. Jane's
insistence on speaking to Lucas personnally is understanda-
ble on Lucas' but not on Jane's version of the conversa-
tion. The Examiner credits Lucas.
Lucas further testified that her mother, who usually tends
Lucas' baby during working hours, was unable to do so for
a short time the morning of April 8. Accordingly, before
work began, Lucas asked Jane for permission to bring the
baby to the plant. Jane granted permission, stating that one
of the employees did not have much to do and would take
care of the child. Lucas testified that Jane then said: "You
realize you could not do this if they had a union in here."
Jane testified that she did not recall any conversation about
babysitting on April 8 and she denied that she had ever said
that there would be no babysitting in the plant if a union
came in. She testified that children do not come into the
plant "to be babysitted," but thereafter she conceded that
employees could bring children to the plant if Jane herself
could watch them and that she had done so on one
occasion. On all the evidence, including observation of the
demeanor of the witnesses and the previously noted
inadequacies in Jane's testimony generally, the Examiner
credits Lucas' testimony concerning the prohibition of
bringing children to work if the plant were to be unionized.
The credited evidence thus shows, and the Examiner
finds, that Respondent was aware of Union activities within
the plant when Meeker was discharged.
It is true that there is no direct evidence that Respondent
knew that Meeker was the moving figure in the Union
campaign. However, such direct evidence is not essential.
The timing and circumstances of the discharge and
the inadequacy of Respondent's explanation thereof
(N.L.R B. v. Standard Container Co, 426 F. 2d 1090 (C.A.
5); N. L R B v. Montgomery Ward & Co., 242 F. 2d 497, 502
(C.A. 2), cert. denied, 355 U.S. 829, compel the inference
that Respondent was aware of the undisputed fact that
Meeker was the person responsible for the Union campaign
in the plant. N.L.R.B. v. Schill Steel Products, Inc., 340 F. 2d
568, 572 (C.A. 5). The small size of the plant is a further
factor supporting an inference of employer knowledge of
the Union activities. N.L R B. v. Pembeck Oil Corp, 404 F.
2d 105,110 (C.A. 2), remanded, 395 U.S. 828, N.L.R B. v.
Mid State Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5); Big
Town Super Mart, Inc. 148 NLRB 595, 606-607. According-
ly, it is found that Respondent knew of Meeker's role in the
Union campaign23 and her discharge was discriminatorily
motivated by that fact.
23 It may be something more than conjecture that employee Cruces, a
neightbor of the Cannadys, was the source of Respondent's knowledge
Meeker and Ewing gave her a Union authorization card on the evening of
April 7 Cruces never returned that card to the Union. Although both she
and Moffett testified that she stated she did not want to quit work with the
other employees on April 8, she did so According to her, she was not
asked if she wanted her paycheck, as the other employees were
Nonetheless, she accompanied them to Boerman's house, where she
executed a Union authorization card But then she returned to work within
a day or two
24 Moffett testified that the employees were "screaming at the top of
their lungs" and also that "they all ran up and whispered to Shirley
Atchison and Shirley shut the machine off "
921
2 The work stoppage
a. Discharge of strikers
As previously set forth, immediately after Meeker's
departure from the plant with Jane, the machine was shut
off and the employees ceased work. The evidence is
confused and conflicting as to precisely who said what in
the interval between the shutting down of the machine and
the employees' departure for the warehouse. This is
understandable, there being no disagreement that the
employees were excited and, in Moffett's words, "were all
talking at the same time." 24
At the hearing, Respondent attempted to establish that
the employees quit their jobs in protest against the
discharge of Meeker. Respondent adduced some testimony
to the effect that, before leaving the plant for the
warehouse, several employees expressly stated they were
"quitting." Respondent also refers to some evidence to the
effect that before the employees left the plant and went to
the office, they had decided to request their paychecks, an
indication they were quitting their jobs. The employees,
however, denied that they had voluntarily quit their jobs.
The employees, however, denied that they had voluntarily
quit their jobs. They maintained that they requested their
paychecks only after they were informed that they were
being fired. It is unnecessary to resolve the numerous small
inconsistencies and conflicts in the evidence as to who said
precisely what at the plant after the departure of Meeker
and Jane, since there can be no substantial doubt that
neither the employees nor the employers considered the
employment relationship as having been terminated before
the employees arrived together at the office.25
Again it is virtually impossible to determine precisely
what was said by each of the persons present at the office.
But there is little question that the employees were willing
to return to work if Meeker was reinstated and that
Respondent refused to reverse Meeker's discharge. Finally,
it is undisputed that Respondent gave the employees the
option of returning to work or receiving paychecks, with
Respondent clearly informing them that, in Richard's
words, "if they took their checks and left, they were
through." The meeting at the office ended with Jane then
asking each employee (except Meeker and Cruces) if she
wanted to receive a paycheck. Each employee elected to
receive a check rather than resume work without Meeker.26
It is thus clear that, whatever was said at the plant, when
they then went to the office, the employees were willing to
work if Meeker was allowed to join them and Respondent
was willing to retain them if they would work despite
Meeker's discharge. Thus, their employment had not been
25 In its brief, Rrespondent acknowledges the confusion among the
participants when it argues as follows "Perhaps both sides were confused,
but, even if these employees did not intend to quite, they acted as if they
did To the contrary, if the Cannadys actually intended to fire their
employees, they did not carry through "
26 In its brief , Respondent says ."Cruces was reinstated , the others
would have been had they not conditioned their request on the return of
Meeker " However, both Cruces and Moffett testified that at the Plant
Cruces indicated that she did not want to quit work with the rest and
Moffett told her to go home because , with the machine shut off , there was
no work to do Cruces testified that she was not asked if she wanted a
check Thus, it can hardly be said that Cruces was "reinstated " Not
actually havingjoined the work stoppage, she was not terminated
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminated, voluntarily or involuntarily, when they went to
the office. It was readily apparent that they were not
quitting their jobs but were "engaging in a group protest."
Toledo Commutator Co., 180 NLRB No. 146 (TXD).27
At the office Respondent issued an ultimatum that the
employees resume working or be discharged. Termination
of the employment thus came when they chose not to return
to work without Meeker after Respondent informed them
that such an election meant they were "through."
Accordingly it is found, as alleged, that the employees,
having ceased work to protest the discharge of Meeker,
were unlawfully discharged for refusing to abandon that
protected concerted activity 28
b. Refusal to reinstate strikers
Since it has been found that Meeker's discharge was
violative of Section 8 (a)(3) and it is undisputed that the
work stoppage was a direct reaction to that discharge, the
employees were unfair labor practice strikers. As such, they
were entitled to reinstatement on their unconditional offer
to return to work and they could not be deprived of that
right by Respondent's having hired replacements. N. L.R.B
v. Comfort, Inc., 365 F.2d 867, 877 (C.A. 8), and cases there
cited.
Having elected to receive checks rather than return to
work without Meeker, the employees left the warehouse,
returned to the plant to get their pocketbooks, and then
went to Boerman 's house, where they telephoned Ewing.
After Ewing arrived, at about 2 p.m., Lucas, at Ewing's
suggestion, telephoned the office and spoke to Jane.
According to the General Counsel's witnesses, Lucas asked
for reinstatement of all the girls, including Meeker. Lucas
testified that Jane "said she had hired a whole new crew
and they were coming to work the next morning." This
testimony was corroborated in substantial part by other
employee testimony. Although Jane testified that during
the telephone conversation on the afternoon of April 8
Lucas did not request reinstatement of the striking
employees and that Meeker's name was not mentioned, in
its brief Respondent says:
During her afternoon phone call, Lucas asked for
reinstatement of all the girls, including Meeker .. .
The evidence is clear, and Respondent at no time questions,
that Lucas was acting as spokesman for all the discharged
employees who were present with her at the time. Thus
Respondent concedes, as the Examiner finds, that on the
afternoon of April 8 the striking employees requested
reinstatement.
27 Respondent elicited a pretrial statement by Atchison that "We
agreed the previous Friday that if one of us got fired over the Union that
they would have to fire all of us" She testified that the employees had
agreed to "stick together " These statements certainly do not reflect any
desire or intention among the employees to quit their jobs voluntarily
28 The complaint includes Cruces as one of the strikers allegedly
unlawfully discharged The Examiner finds, however, that the evidence
does not establish that Cruces was discharged, and therefore will
recommend that the complaint be dismissed insofar as it alleges unlawful
discharge of Cruces
29 "[A ]pplications for reinstatement by unfair labor practice strikers are
not made conditional merely by insistence that all be given their jobs back
or none would return" Cactus Petroleum, inc, 134 NLRB 1254, 1261
However, offers to return to work conditioned on the employer's
Respondent maintains , however, that it did not unlawful-
ly refuse to reinstate the strikers because their request was
not unconditional, but rather was conditioned on the
reinstatement of Meeker. In its brief, referring to the Lucas
telephone call of April 8, Respondent says that "despite
Lucas' denial, it is clear that Jane Cannady again said that
she would take back all the girls except Meeker." There is
no evidentiary support for this statement. As previously
stated, in testifying, Jane denied that Lucas had requested
reinstatement or that Meeker's name had been mentioned
in the telephone conversation. Lucas testified that she could
not recall receiving any specific, direct response to the
request for reinstatement, but she credibly testified that
Jane said that replacements had been hired. That
apparently was the fact, since Jane telephoned the State
Employment Service that day and the plant was in full
operation, with 13 production employees, within 2 days.
The evidence does establish, as maintained by Respon-
dent, that Lucas' oral request for reinstatement of the
employees on the afternoon of April 8 was conditioned on
Meeker's being included.29 Respondent argues that, under
Flambeau Plastic Corp., 172 NLRB No. 33, aff'd, sub nom.
Local 380, Allied Industrial Workers v. N.L.R.B. 411 F. 2d
249 (C A. 7), cert. denied, 396 U.S.11003, the conditional
nature of the request for reinstatement precludes a finding
of unlawful refusal to reinstate. The difficulty with this
contention is that Respondent did not reject the request
because it was conditional. In this respect the case differs
markedly from Flambeau, in which the Board's decision
was based largely on the fact that the denial of
reinstatement was "explicitly based on [the employer's]
unwillingness to accept that condition" and its "expressed
willingness to reinstate the strikers and to leave the
determination of the validity of its conduct to the processes
of the Act." In the present case Respondent gave no similar
indication but, on the contrary, exercised its claimed right
to replace the strikers permanently. Cf. Comfort Inc., supra,
152 NLRB1074,1077, enf d., 365 F.2d 867.30
Respondent's subsequent course of conduct reinforces
the necessary inference that it simply did not recognize the
strikers' right to reinstatement. At no time after the
discharge did Respondent state, or even suggest, that it was
refusing to reinstate the strikers because of any condition
imposed by them. Indeed, it is not clear that the requests for
reinstatement made after April 8 were conditioned on
Meeker's reinstatement or that Respondent thought the
offers were so conditioned.
As set forth above, Ewing filed a charge with the Board
on April 9, and then, on April 13, he wrote to Respondent
remedying unfair labor practices are not "unconditional" so as to start the
running of a backpay obligation Texas Foundries, Inc, 101 NLRB 1642,
1680-1681
30 Tex-Tuft Products, Inc 134 NLRB 1628, 1631, cited by Respondent,
is mapropos since it involved economic strikers and the basis of the
decision was that replaced economic strikers need not be reinstated and
unreplaced economic strikers may not condition their offers to return to
work upon the reinstatement of replaced stokers Similarly , Beaver Bros
Baking Co 171 NLRB No 98, is distinguishable from the present case
because it concerned a request for reinstatement "specifically conditioned
upon the reinstatement of all strikers , some of whom Respondent was not
obligated to reinstate" Here, all the employees were entitled to reinstate-
ment
BOB WHITE TARGET COMPANY
requesting reinstatement of eight named employees,
including Meeker. His letter, quoted above, is silent as
to whether the individual requests were conditioned on
reinstatement of all, including Meeker. Respondent might
have been justified in withholding offers of reinstatement
until the matter was clarified. Perhaps the simplest way to
clarify the matter, and one evidencing a good faith
intention to comply with the law, would be to offer
reinstatement to all employees except Meeker, leaving that
matter to determination by the Board, pursuant to the
charge which Respondent received on April 13, 2 days
before it received Ewing's letter. But Respondent apparent-
ly was unconcerned with nature of the demand. Rather, it
chose not to respond to Ewing's letter. No reply was
received to the requests on behalf of Meeker, Boerman, and
Lucas, who were the employees most vocal in support of
Meeker and the walkout. Respondent's only affirmative
action was individual letters to the other five named
employees.31 In these letters Respondent claimed to doubt
the authenticity of the request for reinstatement because it
had "never heard from Mr. Ewing or representatives of
Local 605 before" However, Richard had previously
received the charge, which listed all the strikers and was
signed by Ewing for Local 605. Cf. Texas Foundries, Inc.,
101 NLRB 1642, 1685 fn. 50. In addition, Jane conceded
that on the afternoon of April 8 Lucas had told her that a
Union man was present and asked Jane to see him. That
Jane may not at that time have known the identity of the
Union and of its representative appears to be of little
significance . If Respondent doubted that Ewing was the
"Union man" whom the employees had chosen, there were
obvious ways of verifying his authority. After a disclaimer
of "knowledge as to whether [Ewing's] letter was written
with [the employee's] consent or not," Respondent's letters
proceeded to say that the strikers had been replaced and
thus there were nojobsavailable.The letters concluded with
an offer to place the employees "on a preferential hiring
list." The letters amounted to unconditional refusal of
reinstatement not based on any purported belief that the
requests for reinstatement were conditional.
That Respondent's refusal to reinstate the employees was
not based on any belief that the offers to return to work
were conditional was reemphasized later. On June 15,
Respondent's counsel wrote to Ewing stating flatly that
"the Company cannot regard any request for reinstatement
made by [Ewing] as being made on behalf of the
individuals named in the letter" (emphasis added). And in
July, Richard wrote to employees Waller, Patterson,
Atchison and Boerman, offering them "employment" even
though, according to the letters, they had "not made any
request for reinstatement" (emphasis supplied).
The evidence leaves no doubt that all the employees listed
in Ewing's letter of April 13 did in fact authorize him to
make the request on their behalf. Respondent would have
been bound to honor such requests even if it had
entertained any honest doubt as to Ewing's authority. Cf.
31 In its brief, citing testimony by Richard, Respondent says that this
letter was sent "to all of the employees except Meeker" (emphasis in the
original) On the proposal of Respondent's counsel, the parties stipulated
that the letter "was received by each of the employees except Donna
Meeker, Doris Lucas, and Carolee Boerman " There was no suggestion of a
923
Phaostron Instrument and Electronic Co., 146 NLRB 996,
1006, enfd . 344 F.2d 855 (C.A. 9).
Accordingly, on all the evidence , the Examiner finds that
Respondent has unlawfully denied reinstatement to the
strikers on and after April 8, in contravention of Section
8(a)(1) and (3) of the Act. 32 Safeway Steel Scaffolds Co,
153 NLRB 417, enf'd . 383 F.2d 273 (C.A. 5); Hornick
Building Block Co., 148 NLRB 1231, 1239.
3. Alleged interference
a. Interrogation
The Examiner has heretofore credited Lucas'
testimony that in a telephone conversation on the night of
April 7 Jane asked Lucas about Union activities among the
employees and requested that Lucas secure a Union card
for Jane and keep Jane advised of future Union activities.
Such questioning, particularly in the context of Respon-
dent's other misconduct , constituted coercive interrogation
in contravention of Section 8(a)(1).
b. Threat of loss of benefits
As set forth above , on the morning of April 8, Jane
authorized Lucas to bring her young son to the plant but at
the same time told Lucas that such indulgence would not be
granted if there were a union in the plant. Even if one
credits Jane's testimony that babysitting had been provided
to an employee on only one previous occasion, the
statement on April 8 clearly would convey the impression
that unionization would result in more restricted privileges
than the employees would otherwise enjoy. The ability to
bung her young child to work in the event of urgent need is
not an insignificant benefit to a working mother and the
threatened elimination of such occasional privilege would
naturally create some anxiety and become a factor in the
employee's decision whether to support a union. The
Examiner finds that, as alleged, on April 8 Respondent
threatened an employee with loss of privileges if the plant
became unionized
c. Threat of plant closure
Employees Meeker, Lucas, Evans, Boerman, Atchison,
and Wright all testified that toward the end of meeting in
the office on April 8, after Meeker had been discharged,
Richard said that he would not have a union in the plant
and that, rather than permitting a union in, he would close
the plant and purchase Winchester targets. Richard and
Jane denied that any such statement had been made.
Respondent sought to impeach Wright by referring to the
affidavit she gave to a Board representative on April 9. in
which she said: "I have never heard Mr. Cannady say
anything about the union or joining the union." This
statement was elicited by Respondent's counsel on cross-
examination. Thereafter, on redirect examination by the
General Counsel, Wright testified that on April 8 Richard
possible disparity between the number of letters sent and received
32 The affirmative remedy to be recommended would be the same even
if it were found that the discharges and denials or reinstatement were
directed solely to the concerted activities (Section 8 (a)(1)) without
antiunion, discriminatory motivation (Section 8(a)(3))
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"said that before he would let a union in he would lock the
doors of the plant ." She then testified that she had not
recalled that statement when she gave her Board affidavit.
She explained her earlier lapse by saying . "There was a lot
of confusion going on that day and we were all upset." It is
quite understandable that Wright might be confused the
day after the unusual events here involved 33 Cruces , called
by Respondent , was not specifically examined as to such
statement by Richard, but Cruces testified that she was the
last to enter the room and stood in the background, near
the door . She testified that she was in the room about 5
minutes and "all [she ] heard was [Richard ] ask Jane to take
down the names of the girls who wanted their pay checks."
Bedders, Supply's employee, apparently had been present
but he did not testify.
On all the evidence , including the demeanor of the
witnesses , the Examiner credits the employees and find that
on April 8 , in violation of Section 8(a)(1), Richard
threatened plant closure if the employees chose to be
represented by a union.
CONCLUSIONS OF LAW
1. By interrogating an employee concerning union
activities and requesting the employee to report thereon,
and by threatening employees with plant closure and less
favorable working conditions if the plant becomes union-
ized, Respondent interfered with, restrained , and coerced
employees in the exercise of their rights under Section 7,
thereby engaging in unfair labor practices within the
meaning of Section 8 (a)(1) of the Act
2. By discharging Donna Meeker on April 8, 1970, and
thereafter refusing to reinstate her, in order to discourage
union activities , Respondent has discriminated in regard to
hire and tenure of employment, in violation of Section
8 (a)(3) and (1) of the Act.
3. By discharging employees Shirley Atchison, Carolee
Boerman , Norma Evans, Doris Lucas, Josephine Patterson,
Ella Mae Waller , and Frances Wright on April 8, 1970,
because they engaged in a concerted work stoppage to
protest the discriminatory discharge of Donna Meeker, and
by thereafter failing and refusing to offer said employees
reinstatement to their former positions, Respondent has
engaged in , and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The following described unit is a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act: All production and maintenance
employees at the Ottawa, Kansas, plant of Bob White
Target Company, Division of Cannady Supply Co.,
excluding office clerical , professional employees, watch-
men, guards , and supervisors as defined in the Act
6. Production Workers Local 605, affiliated with
Laborers' International Union of North America,
AFL-CIO, has been since April 7, 1970, the exclusive
collective-bargaining representative of the majority of
Respondent 's employees in a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
7. Respondent did not discriminatorily discharge
Ysabel Cruces.
The Remedy
Having found that Donna Meeker was discriminatorily
discharged, the Examiner will recommend the customary
reinstatement and backpay remedy. Similarly, having
found that the strike was an unfair labor practice strike, and
that the employees were unlawfully discharged for
engaging in such strike, the Examiner will recommend an
appropriate remedy for the seven named strikers.
Respondent argues in its brief that no backpay may be
awarded to the strikers because "all of the employees
persisted in conditioning their request for reinstatement
upon" the reinstatement of Meeker and "all of the
employees except Meeker were offered reinstatement both
on the morning and the afternoon of April 8." As
previously found, the strikers were discharged at the office
on the morning of April 8 and there is no evidence that
Respondent offered reinstatement to any of the employees
on that day. Nor did Respondent make any offers of
reinstatement in response to written requests which were
not stated to be conditional . Thus Southwestern Pipe Inc.,
179 NLRB No. 52, and O'Dantel Oldsmobile, Inc, 179
NLRB No. 55, on which Respondent relies, are not in point
because they involve strikers' rejections of offers or
reinstatement . Under N L. R B. v. Comfort Inc, supra, 365
F.2d at 877, 878, the Examiner will recommend that the
backpay period commence on April 8, when Jane informed
Lucas that replacements had been hired. Sew-Magic, Inc,
184 NLRB No. 115.
Although Boerman , Atchison, and Patterson have
returned to work for Respondent , they were never offered
"reinstatement." Richard's letters offered them
"employment" in "vacancies" that had occurred, not in
their former jobs. Boerman was returned on the night shift,
although she had been working on the day shift as of April
8. Atchison was reemployed at 5 cents per hour less than
her former pay and assigned to painting targets rather than
operating the machine, as she had been doing until April 8.
On returning to work in July, Patterson was assigned to
painting white targets rather than yellow, which she had
previously done 34 Waller was later offered a job "picking
knots" rather than her prior work of painting yellow targets
She refused the offer because it entailed working at the
machine, where, according to her, the heat was greater than
she could endure comfortably. She testified that Jane and
Richard told her at that time that she could not pass a
physical examination, and that Respondent's insurance
carrier had recently imposed a requirement for physical
examination . The remaining strikers (Lucas, Wright, and
Evans), together with Meeker , had not received any offers
of reemployment whatsoever at the time of the hearing.
On the basis of the foregoing facts , the General Counsel
maintains Respondent has failed to meet any part of its
33 Atchison reflected a similar slight lapse of memory Respondent's was added after the statement had been typed and before she signed
counsel adduced the fact that Atchison did not recall Richard's statement 34 Patterson was hired upon reference by the Statement Employment
when she first gave a statement to a Board agent and a reference thereto Service before she received Respondent 's letter offering employment
BOB WHITE TARGET COMPANY
reinstatement obligation. However, the Examiner believes
that the present record is not sufficient for complete,
specific findings in this connection. Accordingly the
Examiner will recommend "the customary remedial order
of reinstatement with backpay and leave it to compliance to
determine the extent, if any, to which Respondents may
have already complied with their obligations." Transport,
Inc. of South Dakota, 181 NLRB No. 69; Texas Foundries,
Inc, supra, 101 NLRB at 1691 fn. 58.
Backpay to Meeker and to the other employees is to be
computed in accordance with F. W. Woolworth Co, 90
NLRB 289, and shall carry 6 percent per annum interest in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716.
There remains for consideration the General Counsel's
request that Respondent be required to bargain with the
Union on request. Although the complaint does not allege
that Respondent violated Section 8(a)(5), the General
Counsel contends it has been established that the Union
represented a majority of the employees in an appropriate
unit and that Respondent's unfair labor practices have been
of such a nature as to require a remedial bargaining order
under N. L.R.B v. Gissel Packing Co, 395 U.S. 575.
First it is necessary to consider the procedural posture of
the case Early in the hearing, in his direct examination of
Meeker, counsel for the General Counsel introduced into
evidence four Union authorization cards, Respondent's
counsel expressly stating there was no objection to their
admission. However, when the General Counsel offered a
fifth card, Respondent's counsel objected on the grounds of
relevance. In response to the objection, the General
Counsel stated that the purpose of the cards was to lay the
foundation for a bargaining order in accordance with
Gissel Respondent then moved for a 2 weeks' continuance
of the hearing, stating that Respondent was "entitled to
more information and a continuance at that time to further
prepare a defense." The Examiner denied the motion for a
continuance, saying:
I am not trying an 8(a)(5) allegation. I am asked to
recommend a discretionary remedy and I will take the
evidence going to that .. .
A violation of Section 8(a)(5) is not a condition precedent
to a bargaining order See N.L R B v. Wylie Mfg Co., 417
F. 2d 192, (C.A. 10), cert. denied, 397 U.S. 913, sustaining
the validity of a "bargaining order as part of the remedy for
the 8(a)(1) violation"; Hichman Garment Co., 184 NLRB
No. 99; Barrington Plaza and Tragniew, Inc., 185
NLRB No. 132; Greystone Knitwear Corp. 136 NLRB
573, 575-576.
Through Meeker, eight authorization cards were intro-
duced. Respondent did not cross-examine Meeker concern-
ing execution of the cards which she had authenticated.
Ewing then identified two additional cards. Respondent's
counsel objected to their admission, saying: "[W]e had no
notice that there were any 8(a)(5) allegations in this
complaint, and we are not prepared to defend against
them." The cards were received into evidence, with
Respondent's counsel specifically "reserv[ing] the right to
examine the witness specifically as to the circumstances
925
under which the cards were obtained." Respondent then
examined Ewing concerning the two cards introduced
through him. The General Counsel thereafter called as
witnesses all the cardsigners except Cruces, whom Respon-
dent called, and Shepard. Each of the General Counsel's
employee witnesses identified her card on direct examina-
tion. Thus Meeker and Ewing, who between them had
solicited all the cards, and all the cardsigners except
Shepard were available for examination of Respondent. At
the conclusion of the evidence, Respondent did not renew
its request for a continuance. In its brief, Respondent says:
It cannot be disputed that although the issue is
technically one of remedy, substantial and serious
questions of fact have been presented for determination
... Respondent had no opportunity after notice to
conduct any investigation as to the manner in which the
cards were solicited, the representation made by the
soliciting party, or the degree of coercion which might
have attended the signing of the cards. Cross-examina-
tion of Counsel for the General Counsel's witnesses is
obviously no substitute for the opportunity to conduct
an investigation and prepare prior to the hearing. It is
submitted that imposition of a bargaining order remedy
in these circumstances would be a gross violation of
Respondent's due process right to adequate notice.
Further, a bargaining order is not appropriate
because the Union has not established that it had a
majority.
Although filed a month after the close of the hearing,
Respondent's brief does not indicate the nature of any
evidence which Respondent might seek to present to
disprove the Union's apparent majority.
The Examiner is of the opinion that Respondent has not
been denied procedural due process. The law has long been
established that bargaining orders may be appropriate to
remedy unfair labor practices with no violation of Section
8(a) (5) alleged. As stated by Chief Justice Warren in Gissel,
395 U.S. at 614, the Board -
has long had a . . . policy of issuing a bargaining order,
in the absence of a 8(a)(5) violation or even a bargaining
demand, when that was the only available, effective
remedy for substantial unfair labor practices.
The courts have acknowledged "the possibility of imposing
a bargaining order, without need of inquiry into majority
status on the basis of cards or otherwise, in `exceptional'
cases marked by `outrageous' and `pervasive' unfair labor
practices" Gissel, supra Thus, under long established law,
the unfair labor practices alleged in the present complaint
carried the potential for a bargaining order.
Respondent was on notice that the Union claimed to
represent a majority of the employees at the time of the
unfair labor practices alleged. On June 9, in reply to
Respondent's expressed doubt as to the Union's authority
to seek reinstatement on behalf of the strikers, Ewing wrote
to Respondent that 8 named employees "have chosen us as
their Bargaining Representative, through the signing of
Representation Authorization Cards." 35 The parties stipu-
lated at the hearing that 11 specifically named employees
35 There is no indication in the record of the basis for the response by bargaining agent "
Respondent's counsel that the Union was "not designated as
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were the only"regular full-time employees " of Bob White
on April 7,36 There appears to be no disagreement among
the parties that on April 7 the appropriate bargaining unit
consisted of these 11 employees .37 Thus 2 months before
the present hearing Ewing had expressly advised Respon-
dent that the Union represented a majority of the
production employees.38
In view of the longstanding Board practice of issuing
bargaining orders in appropriate cases, even in the absence
of an alleged violation of Section 8 (a)(5) or even a
bargaining demand, and the clear notice which Respondent
had been given that the Union claimed to have been chosen
as "Bargaining Representative ,"39 the Examiner concludes
that Respondent could not validly claim "surprise" at the
General Counsel 's request at the hearing for a bargaining
order and his attempt to establish the Union's majority
status in support thereof.
The authorization cards are completely unambiguous
authorizations for representation The employees ' testimo-
ny reflected an accurate understanding of the cards and
unconditioned desire and intention to be represented by the
Union.
On all the evidence , the Examiner finds that the Union
did represent a majority of Respondent's employees in an
appropriate unit on April 7 and 8, the dates of Respon-
dent 's unfair labor practices . That is the crucial date for a
determination of the appropriateness of a bargaining order,
and it is irrelevant that there were 25 or 26 regular full-time
employees at the time of the hearing, in August. See Gibson
Products Co., 185 NLRB No. 74.
[I]n determining whether the employer 's unfair labor
practices are of such a nature as to preclude a fair
election and thus necessitate a bargaining order based
on a past card showing of majority status, the situation
must be appraised as of the time of the commission of
the unfair labor practices , and not currently... .
Cf. N.L R. B. v. Lou De Young's Market Basket, Inc.,430 F.
2d 912 (C.A. 6).
This rule appears particularly applicable to the present
case, since the increase in the number of employees stems
from Respondent ' s addition of a nightshift on or about
April 13. Other evidence in record indicates that Respon-
dent maintains a nightshift only on a seasonal basis. It does
not appear whether the nightshift is still employed or, if so,
for how long it will be. Although the record is not adequate
for a definitive determination of whether the nightshift
employees would be included in an appropriate unit, it does
appear that there is no regular complement of repetitive
seasonal employees . See N.L.R B. v. Jackson Farmers,Inc.,
432 F.2d 1042 (C.A. 10).
The Examiner believes that Respondent 's conduct was
"of such a nature as to preclude a fair election and thus
necessitate a bargaining order based on a past card showing
of majority status." Gibson Products Co., supra. Further, in
36 In addition, there were 5 so-called part-time employees, who were not
regularly scheduled to work but were simply called in "when someone was
sick or could not make it to work "
37 Employee Lucas was classified as a part-time worker through April 7,
but, as set forth above, she was reclassified as "full-time" as of April 8 The
evidence indicates that even before April 8, despite having been hired as a
part-time employees, she had actually been working regularly on a full-time
basis In any event, her authorization card is unnecessary to establish the
the Examiner's opinion Respondent's unfair labor practices
were so "outrageous" and "pervasive" that a remedial
bargaining order would be appropriate to remedy Respon-
dent's violations of Section 8(a) (1) and (3) "without need of
inquiry into majority status on the basis of cards or
otherwise." Gissel, supra, Sayers Printing Co., 185 NLRB
No. 120; Acker Industries, Inc., 184 NLRB No. 51.
Finally, because the unfair labor practices here found
strike at the heart of the Act, the Examiner will recommend
a broad cease-and-desist order.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, the Trial Examiner hereby issues the following
recommended:
ORDER
Respondents, Richard L. Cannady and Jane Cannady,
doing business as Bob White Target Company, Division of
Cannady Supply Co., their agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Illegally interrogating employees as to their union
activities and requesting employees to report on union
activities;
(b) Threatening employees with less favorable terms and
conditions of employment or with plant closure if the
employees choose to be represented by a union;
(c) Discouraging membership and activities in Prod-
uction Workers Local 605, affiliated with Laborers'
International Union of North America, AFL-CIO, or any
other labor organization, by discriminating in regard to the
hire and tenure of employment of any employees;
(d) Discouraging membership in the above-named
Union, or any other labor organization, or interfering with,
restraining or coercing employees in the exercise of their
rights under Section 7 of the Act, by refusing to reinstate
any of its employees or otherwise discriminating in regard
to their hire or tenure of employment or any term or
condition of employment;
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the above-named or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in any other concerted activities
for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to reinstate Donna Meeker, Shirley Atchison,
Union's majority
38 With Cruces' and Shepard's cards, the Union was authorized by 9 of
the I I unit employees
39 Jane conceded that in the telephone conversation on the afternoon of
April 8, Lucas requested that Jane meet with the Union representative The
Examiner expresses no opinion as to whether this request and/or either or
both of Ewing's letters to Respondent would suffice as to demand for
recognition and/or bargaining if such demand were necessary
BOB WHITE TARGET COMPANY 927
Carolee Boerman, Norma Evans, Dons Lucas, Josephine
Patterson, Ella Mae Waller, and Frances Wright to their
former positions or, if such positions are no longer
available, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any employees hired on or after
April 8, 1970, for such positions. Respondent shall make
whole each of the named employees in the manner
described in the portion of the Trail Examiner's Decision
entitled "The Remedy" for any loss of earnings suffered by
reason of her discharge between April 8, 1970, and the date
on which reinstatement is offered in accordance herewith;
(b) Notify any of the above-named employees who are
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces;
(c) Preserve and make available to the Board or its agents
upon request, for examination and copying, all payroll
records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms hereof,
(d) Upon request, bargaining collectively with Pro-
duction Workers Local 605, affiliated with Laborers'
International Union of North America, AFL-CIO, as the
statutory representative of the employees in the following
unit:
All production and maintenance employees at the
Ottawa, Kansas, plant of Bob White Target Company,
Division of Cannady Supply Co., excluding office clerical,
professional employees, watchmen, guards and supervisors
as defined in the Act;
(e) Post at the plant of Bob White Target Company,
Division of Cannady Supply Co., and at the office or
warehouse of Cannady Supply Co., both in Ottawa,
Kansas, copies of the notice attached hereto and marked
"Appendix" 40 Copies of such notice, on forms to be
provided by the Regional Director for Region 17, shall,
after being duly signed by Respondents, be posted
immediately upon receipt thereof, and be maintained for a
period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondents have taken to comply
herewith 11
40 In the event no exceptions be filed as provided by Section 102 46 of
the Rules and Regulations of the Board, the findings, conclusions,
recommendations, and Recommended Order herein, shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes In the event that the Board's Order be
enforced by a judgment of a United States Court of Appeals, the works in
the notice reading "Posted by Order of the National Labor Relations
Board" shall be changed to read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board "
91 In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director in
writing within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Production
Workers Local 605, affiliated with Laborers' Interna-
tional Union of North America, AFL-CIO, or any
other union, by discharging or otherwise discriminating
against any employees because of their union or
concerted activities.
WE WILL NOT interrogate employees concerning their
union desires, activities, membership or sympathies.
WE WILL NOT threaten employees with closure of the
Bob White Target Company plant or with less favorable
terms or conditions of employment if they choose to be
represented by a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce the production and maintenance
employees at the Bob White Target Company plant in
the exercise of their rights to self-organization, to form
labor organizations, to join or assist the above-named
labor organization (or any other labor organization), to
bargain collectively through representatives of their
own choosing and to engage in other concerted
activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or
all such activities.
WE WILL offer immediate and full reinstatement to
the following named employees, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered
by reason of the discrimination practiced against them
since April 8, 1970, with interest thereon at the rate of 6
percent per annum:
Donna Meeker Dons Lucas
Shirley Atchison Josephone Patterson
Carolee Boerman Ella Mae Waller
Norma Evans Frances Wright
If any of the above-named employees should
currently be serving in the Armed Forces of the United
States, we will notify them of their right to full
reinstatement upon application after discharge from the
Armed Forces.
WE WILL bargain, on request, with Production
Workers Local 605, affiliated with Laborers' Interna-
tional Union of North America, AFL-CIO, as the
exclusive representative of our employees in the
following appropriate unit:
All production and maintenance employees
employed at the Ottawa, Kansas, plant of Bob
White Target Company, Division of Cannady
Supply Co., excluding office clerical, professional
employees, watchmen, guards and supervisors as
defined in the National Labor Relations Act.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to
refrain from becoming or remaining , members of the
above-named Union or any other labor organization.
RICHARD L. CANNADY AND
JANE CANNADY, DOING
BUSINESS AS BOB WHITE
TARGET COMPANY,
DIVISION OF CANNADY
SUPPLY CO.
(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, 610
Federal Building, 601 East 12th Street, Kansas City,
Missouri 64106 , Telephone 816-374-5181.