McCormick & Co.

MeCormick & Inc., Produd Division 0. 20, 1 The 1979,' hereinafter mem- ben Indeed, yards the itselt! a g a 6-yearbld boxcan his "Fuck you," ' &tm refer 1 made supervisors 1979." beiig Respondent discipline Bave afrangement. i@ and Associated Gmcen F.2d res gesrae Plasreren' & Internarional 922 DECISIONS O F NATIONAL LABOR RELATIONS BOARD Co., Grocery and Clifford Pitchford. Case 32-€CA-2178 February 198 DECISION AND ORDER On September 24, 1980, Administrative Law Judge Burton Litvack issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and each filed an answering brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ing& and conclusions of the Administrative Law Judge only to the extent consistent herewith. operative facts are fully described in the Administrative Law Judge's Decision. On or about July 26, the International Longshoremen and Warehousemen's Union Local 6, re- ferred to as the Union, commenced an economic strike against Respondent. Also on that date, of the Union, including Charging Party Pitch- ford, began picketing Respondent's facilities. With one minor exception, the picketing was entirely peaceful. the record reveals that Respon- dent's supervisors crossing the picket line often stopped and engaged in friendly conversations with picketing employees. Throughout the strike, Pitch- ford picketed for at least 4 hours per day, On August 23, Pitchford was assigned to picket in front of the "annex" building from approximate- ly 3 p.m. until 7 p.m. The picket line was located at the driveway entrance to the annex, approxi- mately 75 from building A railroad spur line is located about 30 yards behind the annex building. Upon reporting for picket line duty on August 23, Pitchford was accompanied by his two sons, 6 and 12. Initially, Pitchford's sons played some distance from the picket line. Upon noticing the railroad track behind the annex build- ing, however, the requested that Pitch- ford take his brother and him to see whether there were any hidden behind the building. Pitchford agreed, got in his car with sons, and drove behind the annex. A few moments later, a pickup truck containing two supervisors appeared. One supervisor, James Hashimoto, who was riding in the bed of the pickup, asked Pitchford whether he knew where he was and stated that Pitchford should not be there. Pitchford replied, and "It's none of your damn business." Hashimoto reiterated that Pitchford should not be behind the annex building and stated that he did not like Pitchford's attitude. Pitchford then took off his hat All to 1979. 254 NLRB No. 11 and glasses, placed them in his car, and wiped his forehead with his handkerchief. Hashimoto asked whether Pitchford was going to leave. Pitchford replied, "Who's going to make me? You and what army?" Hashimoto said that he was leaving and that Pitchford had to leave also. Pitchford respond- ed, "Fuck you." Hashimoto then said he was going to get the authorities and left. Pitchford thereafter returned to the picket line without further incident. Approximately 1 week later Pitchford received a letter, dated August 28, which stated, in pertinent part, that Pitchford war "suspended on the grounds of misconduct" because he "refused to leave Com- pany property when ordered to do so and . . . abusive remarks and. threatening gestures to Company on . . . August 23, The letter further stated that a copy was for- warded to the Union, and that would review any comments Pitchford might have as to the circumstances of the incident before making a final determination in the matter. On October 2, representatives of the Union and Respondent met to discuss the incident and the resulting Pitchford was present at the meeting and his version of the incident. At the conclusion of the meeting, Respondent and the Union agreed upon a settlement which provided that Pitchford would be immediately reinstated with his period off work counting as a suspension, his seniority would be re- duced to May I, and he would be placed on proba- tion for a period of 1 year. Pitchford initially balked at accepting the settlement, but then acced- ed to the Respondent's manager of human relations admitted that, in reaching disci- plinary decision, no consideration was given to , Pitchford's rights, if any, under the Act. Notwithstanding that the foregoing facts were uncontroverted and based on the testimony of Pitchford himself, the Administrative Law Judge discredited Pitchford's testimony concerning the reason he went to the rear of the annex building and found that the true reason Pitchford drove behind the annex was to check on Respondent's ac- tivities in the vicinity of the railroad tracks. Having so found, the Administrative Law Judge further stated that such activity was "obviously clearly in aid of the strike," citing of New England v. N.LR.B., 562 1333, 1338 (1st Cir. 1977). Moreover, the Administrative Law Judge further found that, even if he did credit Pitchford's testimony, "it would constitute sheer sophistry to assert that such was not within the of the picketing activities." We find merit to Respondent's exceptions to each of these findings. Initially, we reaffirm our policy, as set forth in Operarive Cemenr Masons' MCCORMICK & Asrociation, (Burnham Emthem, Inc.), (1973), cir- cumstanma the case basis alone establish faie caac, Pitchford testified exmination w a p can ' tracka tracka boxcar-whatever wan there. Outside Pitchford annex Pitchford activities. does activities annex raultant harbored reason far pretextual aeneral Couneel failed his Wrlght Inc., (1980), lqc) dismissed STATEMEM OF BURTON LITVACK, wan Salinas, 0. sutmtance, McCormick & Co.. Producta E(aM1) suspen- Local 394 207 NLRB 147 that: A trier of fact need not accept uncontradicted testimony as true if it contains improbabilities or if there are reasonable grounds for conclud- ing that it is false. It is well settled that a wit- ness' testimony may be contradicted by as well as by statements and that demeanor may be considered in such circum- stances. However, this policy is not a substitute for es- tablishment of a prima facie by a preponder- ance of the record evidence. Speculation, conjec- ture, and surmise are not a substitute for such evi- dence; there must be some in the record from which inferences may be drawn which are con- trary to direct testimony, if such is desired. Cir- cumstances, demeanor, and inherent probabilities may play a role in any such determination, but speculation or conjecture standing may not be used to satisfy the General Counsel's burden to a prima In the instant on direct as follows: Q. The question was, how was it that you didn't stay at that picket site location the entire time? A. Well the boys were in back of the back of the picket line a little where the were parked. They were playing and the youngest noticed the railroad and he wanted to know if there were any trains back there. Q. And as a result of that question what happened? A. Well I said that I didn't think there was any trains back there but with the railroad there, there probably was a couple of box cars back there. He wanted to go see. The baby did-the 6 year old. On cross-examination, Pitchford similarly testified: Q. When you started out you didn't know there was a boxcar back there, did you? A. Not for certain, no. Q. And indeed your main purpose in going back there was to see if there was a boxcar there. A. Of course. Q. And you wanted to see what the Compa- ny was doing with the boxcar back there. Isn't that right? A. Did I? Q. Wasn't that your main purpose for going back? CO., INC. 923 A. No, it was to take my sons back there so they could see the boxcar. THE JUDGE: I didn't understand that last answer. A. He's saying I went back there for one reason and I'm saying I went back there for another reason. My reason is to take the two boys back there so they could see the train or back of this testimony, there is not one iota of evidence in the record as to the reason went behind the building. We therefore reject the Administrative Law Judge's finding that the true reason went behind the annex building was to check on Respondent's While we do not disturb the Administrative Law Judge's discrediting of Pitchford's testimony, we hold that a preponderance of the evidence not support the Administrative Law Judge's finding as to the reason Pitchford went behind the annex. We note that, apart from the fact that Pitchford partici- pated in the strike, there is no evidence to connect the strike activities to Pitchford's behind the building or to his discipline. We further note that there is no evidence that Respon- dent any animus against the Union or its employees' union activities, and that there is no in- dication that the asserted by Respondent disciplining Pitchford was in nature. Under these circumstances, we find that the disci- plining of Pitchford was not strike-related and that the has to carry burden of establishing a prima facie case of discrimination, as required by Line, A Division of Wright Line, 251 NLRB 1083 and shall there- fore dismiss the complaint in its entirety. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint be, and it hereby is, in its entirety. DECISION THE CASE Administrative Law Judge: This case heard before me in California, on May 6, 1980, pursuant to a complaint issued by the Regional Director for Region 32 of the National Labor Relations Board, herein called the Board, on November 29, 1979, pursuant to a charge filed by Clifford Pitchford, an individual, on October 10, 1979. The complaint alleges, in that Inc.. Grocery Division, herein called Respondent, violated Section and (3) of the National Labor Relations Act, as amended, herein called the Act, by the sion, parties contractual A11 &rded e m i n e filed demanor w i t n q Maryland o k place busineas Salinas, manufacture nonretail during kswncc shipped goods product8 valued S50.000 directly custom- outaide the admita, rod ir the 2(2), (6). and 11. U B b R OROANlUTION Respondent end Internationel Longbnmen & Warehowmen Local huein called meaning 2(5) 111. ISSUES Whether strike misconduct 8(a)(1) Pitchford's Whether 2, 5. war arsigned 8(a)(l) IV. UNFAIR UBOR PRACTICES slle foods, itcma cans. consirting a building Sali- naa, represents ~Apondent's employees, inEluding th& classified representa mechanics agreement Respondent 1979,' thosc employees, 0. rep against f d l y mechanics .bout However, since contractual unrdved, IAM-repreacnted Sptanber Ines- most d othu f o r d bargaining employees September within returned becaw been y~ aa reprcacntcd employmmt. least hours waa that entrana back approximately the milmad a p annex. disclosg becaw stma, accompanied 4 the strikers' pnrked distance line buildin8 and, his Volkswagon, l k far been Jim Ha- bed data are 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reducing the seniority, placing on probation for 1 year, and reassigning to more arduous work of Pitchford for participation in a strike against Respondent. Respon- dent filed an answer denying the commission of any unfair labor practices, and alleging that the Board should defer a decision on the merita to an informal settlement agreement which was fully agreed upon by the while in the midst of their grievance proce- dure parties were full opportunity to appear, to introduce evidence, and to and cross- examine witnesses. Extensive briefs were by counsel for the General counsel and by Respondent and have been carefully considered. Upon the entire record in the case, from my observa- tion of the of the and having care- fully considered the poet-hearing briefs, I make the fol- lowing: Respondent. a corporation, with an and of in Baltimore, Maryland, and a plant facility located in California, is engaged in the and retail and sale of spices. Re- spondent, the most recent 12-month period prior to of the complaint, sold and and in excess of to era located State of California. Respondent I find, that Respondent an employer en- gaged in commerce within meaning of Section (7)of the Act THE INVOLVED admits, I find, that Union 6, the Union, is a labor organization within the of Section of the Act. 1. Whether Pitchford's activities on August 23, 1979, were related to the employees' strike. 2. Respondent's discipline of Pitchford for al- leged is violative of Section and (3) of the Act. 3. Whether alleged misconduct on August 23, 1979, was sufficiently flagrant and serious so as to warrant diiipline 4. the Board should defer to the parties' Oc- tober 1979, private resolution of the dispute. Whether Pitchford to more onerous job duties on or about October 3, 1979, in violation of Section and (3) of the Act. THE ALLEGED A. Facts Respondent, which is engaged in the manufacture and of spices, convenience extracts, and other in bottles, and foil packets, maintains a plant of main and annex facility in California. The Union a bargaining unit of as warehousemen, and the International Association of Ma- chinists, herein called the IAM, Respondent's and maintenance employees. Each Union's collective-bargaining with ex- pired on or about July 26, and on that date including Clifford Pitchford, who are resented by the Union, commenced a strike Re- spondent. Rather than striking, the and maintenance employees honored the Union's picket line. Subsequently, Respondent and the Union negotiated a settlement of the strike, and on or September 1 the strike ended. their dis- pute remained the employ- ees commenced their own strike on 1. much as its employees were honoring the IAM picket line, Respondent delayed a callback of the Union-represented unit until 17. The IAM and Respondent settled their strike on September 24, and the next 2-week period all employees to work and the plant fully operational. Prior to August 23, Pitchford had employed by Respondent for approximately 7 a warehouse- man and had been by the Union for the entire period of his During the Union's strike, Pitchford picketed for at 4 per day, and on August 23 he assigned to picket in front of the annex building from approximately 3 p.m. until 7 p.m. The record discloses that on date Pitchford picketed on the street at the to the annex build- ing, that the building is set 75 yards from street, and that a spur line runs proximately 30 yards behind the The record further that, his wife was working that afternoon, Pitchford's two young ages 12 and 6, him while he picketed, but that the boys were physically separated from him, playing near can some from the actual picket Pitchford testified during direct exami- nation that, while he picketed, his youngest son noticed the railroad spur line behind the and asked him whether any trains were back there. Pitchford replied that he did not know but that there might be some box- cars there. His son said that he wanted to see them. according to Pitchford, he consented and put the boys in drove onto the annex property and around behind it, and parked between the spur and the building. Pitchford and his sons left the car, and he pointed out a boxcar standing at the end of the build- ing. Pitchford further testified that he and his sons had standing in back of the building for no mare than a few minutes when a pickup truck drove around the near side of the building and towards them. He did not recog- nize the driver but did recognize a supervisor. shimoto, standing in the of the truck. The pickup stopped next to Pitchford's car, 15 to 20 yards from where Pitchford and his sons were standing. All herein in 1979. & (Pitch- knew was because for hat glesses scat [car] wiped swat then whether "[Wlell make army?" back Pitchford 1'11 durinn crossexamination significant discrepancies his in day. driving b o p e boxcar- whrbever back there," responses questiom counsel Thus, testified youngat possibility croakexamination, pressed possible wen himrdf testifylnl were next crossexamination oldat stauding towardti his "that sorr weakly a& cross-examination fonner Pitchford further informing wsr his glasses, started pickup and Pitchford deputed evidence phydcrl Hashi- mot0 Pitchford resultant Also, Ha- d l e d sr witneg abovedescribed even&. received dated from Lormz, Respondent's re& b a n ground8 M, remarks threatening supervimrs August am thie Willaim Rorsch, fd thin circ~mst.ncea.~ the later, went William Roesch. had letter mating. mating is unclear, October Pitchford's WPI procedure. Presmt Roasch, atoas, stewardess. Respondent McFaddm, Clyourn, manage?, Hayncs, h e f i b compensation, Lormz. McFadden "was cau- Respondent a Lbrenz testifd employe, Stan Bisnchini. received letter. was p l d hh pnonncl along pdice -13, m iacidmt hubcap super- c u .I car passed picketing employes. Lbrenz d- mitt4 t h m w n diripline and differentiated inasmuch u "was a Lbrenz Pitchford tatifled regarding thi Thtir accounts mutually cormbontive. MCCORMICK CO., INC. 925 According to Pitchford, Hashimoto asked if he ford) where he and told Pitchford that he should not be there. Pitchford responded, "Fuck you!' Hashimoto repeated that Pitchford should not be behind the building and that he did not like Pitchford's attitude. Pitchford testified, "At this point I was getting a little nervous there was two of them . . . and I was afraid myself and my two sons. . . . And then I took off my and my and laid them on the front of my and I took a handkerchief and the off my forehead." Hashimoto asked Pitchford was going to leave. While stating that "I never indicated to him that I would not leave," Pitchford re- sponded, who's going to me-you and what Hashimoto replied that he was going to bring "the authorities" and asked if Pitchford would still be there when he returned. replied. "Of course be gone." The pickup truck thereupon droverway. and Pitchford followed a few moments later. Pitchford's testimonv re- vealed several and deviations from prior testimony his description of the eventa of that Initially, while reiterating that his reason for behind the annex building was "to take the two back there so they could the train or was his to the of Respondent's belie this explanation. Pitchford originally that hie son raised the of driving behind the building after ob- serving the railroad tracks leading there. However. on when as to whether it was to see the railroad tracks from where the pickets located, Pitchford replied that you could see the tracks but "I could be mistaken." Next, he contradicted regarding the location of his sons while behind the building. Originally that they to him, Pitchford on admitted that his youngest son remained in the car and that his son was away from him at the corner of the build- ing He further admitted that, as the pickup truck drove him, older son yelled somebody was coming" Asked whether he instructed his to be a lookout, Pitchford did not specifically deny it but rather replied, "I don't recall saying that to my son." As to the confrontation with Hashimoto. Pitchford mitted on that the gave no in- dication that he was about to get out of the pickup truck. admitted that Hashimoto began the confrontation by him that he on private property. Pitchford replied that he knew. Hashimoto then politely asked what Pitchford was doing there, and the letter responded, "Fuck you." Hashimoto then polite- ly asked Pitchford to leave. Thereupon, the latter took off hat and over towards the said, "You and who else is going to make me." continued, admitting that Hashimoto stated that he had a right to know what Pitchford was doing. Pitchford replied that it was none of Hashimoto's busi- ness. Hashimoto then announced that he was leaving and that Pitchford had to leave when he did. Pitchford again retorted. "Fuck you." Finally, Hashimoto announced that he was leaving to get the authorities and left. At that point Pitchford also the area. There is no record of any contact between and or any damage. shimoto WPI not a by Respondent to testify concerning the Approximately I week later Pitchford a letter August 28 Roy man- ager of human relations. Said letter as follows: This is to advise you that you have suspended on the of misconduct in that you refused to leave company property when ordered to do and that you made abusive and ges- tures to company on . . . 23, 1979. I sending a copy of letter to the I.L.W.U. representative, Mr. and indicating that, before the Company makes a determination in matter, we will review any comments you might have as to the Upon receipt of Pitchford to the Union's office and spoke to The latter told Pitchford that he received a copy of the and that lata on they would have a Although the origin of the the record establishes that on 2 a meeting concern- ing the August 23 incident and resulting dis- cipline held in the "Nutmeg Room," of the main plant and that it war held pursuant to the contractual grievance at the meeting for the Union were Pitchford, Pete Robledo, a shop ste- ward, and Pat a shop Representing were Mike supervisor of em- ploye relations, Hill production Pat supervisor of and and The meeting lasted approximately 2 hours, and Roasch and were the main Roasch began the mating by stating that Pitchford was currently on suspension and that he wanted to get him back to work. Thereupon, Pitchford was asked to give his version of the August 23 incident, and he did so. McFadden then reported Hashimoto's account of the confrontation and. while questioning Pitchford, accused him of attempting to pick a fight. Pitchford responded that he was only trying to defend himself because he heard that Hashimoto a green beret." At that point the union and Respondent representatives each cussed. Approximately a half hour later. the meeting resumed. McFadden announced that would take cer- tain actions as a result of the August 23 incident: (I) Pitchford would immediately be taken back to work in the first available job, which probably would be the that another a which in file with a concerning during which he kicked at the of a visor's the through that no attendant the Pitch- ford incident the latter not related to the strike." Both and meeting. re- spective were 1, ar suspension. McFadden discloses Roasch, too Roesch speak Roasch meting, R m h McFadden McFad- speak Lorenz, Pitchford's actiom %cause w u Pitchford concurred, w u decided Lormz that R e reaching ita disciplinary decihn, ford'r rights, Pursuant the agreement, Pitchford r e line. After hia nurse. disability h.d issued Rutherford 27,' nurse. examined full relusa8 apparently hia w0rk.O Counsel 8(a)(1) producta mechanically department he "caroscl," auspcnhn end d injured hb performing California Nationd a u u d underwent di eumimtioo, and ductor dingno4 8~ ~ulin" .ad p l w d Pitchlord on divbiity Septanber Octokr ' Respondent dlow" individluh u n l a can dl weigh& be 100% b c k mr counsel the General Counsel uun Pitcbford whik Rerpondmt October culicr. 00 Octokr pitch ford'^ back w r d u p d n "acute tnunutk lumb.aed ~tmin." haring, admitted that h d bem given penhion weight# and had ido the pmsnu ha inmuch n wm month." "palletizing" packeta ~ - Mexiun M connotes, prepared 30 asserted work his fdled required fdled i n c h off between 73 Lorenz warehousemen than line,' real d~ercmcc-and his departmenta yurrs Dimmion herein that Pitchford participated repramted strike against September well, strike8 a retain pendency destructive L G w r f i n e Tmilers, Inc., (1967). Respondent sons uncontroverted Pitchford. probably lurn @ .bout hours Mexiun 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mexican dinner line, (2) his seniority would be reduced to May 1979, (3) he would be placed on probation for I year, and (4) the period he was off from work would be counted a Pitchford asked for time to think about the settlement; however, stated that Respondent expected him to be at work the next day. The record that at this point Pitchford met privately with complained that the punishment was harsh, and asked if he could to Respondent about reducing the discipline. did so but shortly thereafter reported back to Pitchford that Respondent was adamant as to the punishment. After this private Pitchford and met again with Respondent's representatives. Pitchford ex- plained to that he was upset over the disci- pline and wanted to speak to someone about it. den suggested that he to his wife but that Pitch- ford would have to report for work the next day or be terminated. The meeting ended at that point. According to Respondent's representatives interpreted as accepting the settlement there no indication that what had been said would not be complied with." testifying "it that I would be back to work." Finally, admitted no consideration was given by spondent, in to Pitch- if any, under the Act. to settlement ported for work on October 3 and was assigned to the Mexican dinner working for approximately 30 minutes, he complained that back hurt and was taken to the plant Pitchford had with him a certificate for a back injury, which been by a Dr. on September and showed it to the She the doctor's note and told Pitchford that he could not return to work without a Since that date, due to back injury, Pitch- ford has not reported back for for the General Counsel contends that Re- spondent's placing of Pitchford on the Mexican dinner line constituted a more onerous work assignment and, therefore, violated Section and (3) of the Act. The record discloses that prior to the strike Pitchford worked in the foil department, wherein gravies, spices, and other are inserted into foil pouches. Warehousemen, such as Pitchford, carry raw materials into the and package the finished pouches. According to Pitchford, worked on the sorting out boxes of different foil products and After him but prior to the the IAM strike. Pitchford back whii dutia. He a a the injury "low back fmm I I until I. Pitchford admitted that " d m not to work they lift "You have to or not go at dl." Neither Pitchford for that injured him back working for on 3 or 9, injury At the Pitchford he not yet to lift havy that he no about condition of back "I haven't my doctor in a couple of then and strapping together boxes filled with foil in groups of six. The boxes came to Pitchford on a conveyor belt which is waist high, and a bundle of six groups weighs no more than 18 to 20 pounds. The dinner line, the name is Re- spondent's operation wherein Mexican-style dinners are and packaged. Although on October 3 he worked in said department for just minutes and, given his back condition, the extent of his work therein is ques- tionable, Pitchford that the was more onerous; job assignment consisted of supplying to the women on the line little t u b with tomatoes, sauces, and corn and he was to lift t u b onto a conveyor system. The latter is approximately 18 the ground, and the t u b weighed and 80 pounds. Also, Pitchford's function entailed packaging the dinners in boxes. Roy testified, without contradiction, that em- ployees in the classification perform basi- cally the same function throughout the plant. Also, Pitchford admitted that the Union has always considered warehousemen's work in the foil department to be more demanding other plant work and, consequently, has sought a wage premium for that work, that no special training was required for work on the Mexican foods that the only problem-be- tween the foil and Mexican dinner was the "heavier weight," and that "I had worked in [the Mexi- can dinner department] in the previous" doing the same work. B. and Findings There is no issue in the union- employees' Respon- dent from July 26 until I or that on August 23 he picketed in front of the annex building. It is settled law that economic are form of protected concerted activity, that strikers their status as em- ployees during the of a strike, and that, with limited exceptions. actions by employers affecting said status are inherently of Section 7 rights. N. R.B. v. 388 U.S.26 Nevertheless, contrary to Counsel for the General Coun- sel, argues that, by leaving the picket line and entering onto Respondent's private property in order to show his a "train" behind the annex building, Pitchford was not engaged in protected activities inas- much as said conduct was wholly unconnected with and not in furtherance of the strike but rather a personal un- dertaking. Contrary to Respondent, I believe that Pitch- ford's conduct was in aid of the strike and, therefore, protected by Section 7 of the Act. At the outset, acceptance of Respondent's contention necessitates the crediting of Pitchford's testimony con- cerning the events of August 23. While not unmindful that his testimony was and notwithstand- ing his stated reason for being behind the annex building According to "Well I think you could the in 2 on the Dinner line." & regard.8 admissions crosa+xamina- tion crossexamination doe6 asserted vis-u-vis Gmcen hc N.LR.B., F.2d ruraon res qestae Thua, Haahimoto, worktime behind normal acixpted thew protected that Hashi- wrrs d k i - plinrry n d l y implics Asscciated Gmcers supm, task the Board strikers, diflermtiate "cases employeer cases W: McQuaide. Inc., ' tricr fsct Decd r c e p t uncontradicted aa conwins improbabilities arc reawnable thal i fdw. ic settled witna' m y contn- dicted c i r c u m a ~ n n statements demeanor m y mnddered circumstancm." Opemtivo Plorfemrr' & MOION' Inarnafional Arc~ciofion. Local (Burnhorn Bmfhcn hc.). (1975), P.2d acts gestura that meaning threats senre T m Nurnkr Incorpomted, d/b/a/ B i d Kew based confrontation peaceful Pitchford often strident adversPri.l strikers thew aa used Pitchford, Board doer wc in- tanpaate laoguage, is vital is8uer exprejs pleaamtries room" Longvbw Furnitun Compny, 1100 301. 301 d e d 206 F.2d Cir. meanin# glaaus and maLc while startiog is ambiguoum was, mom a Pitchtord's course unintimidated the supervk himnelf Thus, evidence c l m Haehimoto, sons counrel Flatiron d/b/a Flcrtima M a t e ~ h Cornpony, 250 (1980).e MI unmindbl fact the typical striker milcon- caw. Pitchford w a terminated suspended and MP Indrufrie~ Inc.. ef oL, the Boud "LM severe discipline diachrr&e] nonetheleu affects tenure h n m e jeopardizing protected and ptcket. reinatate, employee exercising MCCORMICK CO., INC. 927 when confronted by Hashimoto, I do not credit hi testi- mony in this Rather, I believe the record sup- ports the inference that Pitchford went to the rear of the annex building in order to check on Respondent's sus- pected activities back there. As pointed out above, Pitch- ford's testimony was utterly contradictory regarding the circumstances of his confrontation with Hashimoto, and I give credence to his during that his youngest son remained in the Volkswagon while behind the annex building, that his older son stood near a corner of the building, and that the latter warned Pitchford when the pickup truck approached. Regarding his elder son's activities, I find it compelling that Pitch- ford did not specifically deny instructing him to act as a lookout. In short, Pitchford's testimo- ny regarding hi and his sons' activities in back of the annex building not comport with his reason for their presence there out rather suggests a more nefar- ious motivation. What, of course, is significant is that, if, as I believe, Pitchford drove behind the annex building to check on Respondent's activities the boxcar there, such activity, although possibly not to be con- doned, was obviously and clearly in aid of the strike. As- sociated of New England, v. 562 1333, 1338 (1st Cir. 1977). Moreover, even if I were to credit Pitchford's stated for being behind the annex building, I believe it would constitute sheer sophistry to assert that such was not within the of the picketing activities. the record establishes that Pitchford picketed prior to going behind the building and resumed after confronting and that the entire incident lasted for only a short time. Also, it is patently obvious that Hashimoto would not have bothered Pitchford had not the latter been a striker. Surely, during Pitchford's pres- ence the building would have been a oc- currence and Accordingly, in circum- stances, I believe that Pitchford's activities on August 23 were by Section 7 of the Act and clearly relat- ed to the Union's strike. Notwithstanding such a finding, Respondent argues Pitchford's conduct during his mating with moto "flagrantly insubordinate." and "justified action." Initially, I note that "the right to strike soma 'leeway for impulsive behav- ior." of New England at 1335. The for is to evaluate the character of al- legedly improper acts committed by and, in so doing, to in which have arguably exceeded the bounds of lawful conduct . . . in a 'moment of animal exuberance' from those in which the misconduct is so flagrant or egregious as to require subordination of the employee's protected rights in order to vindicate the broader interests of society as a whole." C. 220 NLRB 593, 594 "A of not testimony true if it or if there grounds for concluding it It well that a testimony be by well by and that be in such Cement 394 207 NLRB I47 (1973). enfd. in part 552 519 (3d Cir. 1977). As to essentially verbal confrontations, such as that which is at issue herein, the Board holds that "mere verbal abusive language and threats not accompanied by any physical or would provide added emphasis or to the words are not a sufficient basis to deny reinstatement after a strike. However, physical assault and conduct that gives a of immediacy and credence would justify [discipline.]" Bitch One, Manor, 243 NLRB 495, 498 (1979). Initially, upon the numerous inconsistencies in his testimony and his demenaor while testifying, I credit as being more probable and reliable Pitchford's cross-ex- amination account of his with Hashimoto on August 23. Analysis of said incident establishes that Pitchford clearly acted in a generally insolent, insubordi- nate, and pugnacious manner. However, I do not believe Pitchford's conduct was sufficiently flagrant and egre- gious to warrant discipline. In so concluding, I note that the incident lasted for just a brief moment in the context of a generally strike, that did leave the property, and that strike situations, as herein in- volved, engender and ex- changes between and supervisors. Further- more, to the language by "Although the not condone the of abusive and it common knowledge that in a strike where economic are at stake, striking employees . . . will their sentiments in language not altogether suited to the of the drawing NLRB (1952). enfd. as 274 (4th 1953). Moreover, the of Pitchford's conduct, re- moving his hat and muttering "You and who else is going to me" towards the pickup truck, and I believe, no than overly exuberant bravado. Also, rather than being the actions of one provoking fight, of action suggests a striker who was acting in presence of a and preparing to defend from attack. there is no record that Pitchford ever advanced to the pickup or that he made any effort to force Hashimoto down from the bed of the pickup. Also, I find it highly unlikely that Pitchford would provoke a fight with and probably the driver, with his two young nearby. In sum, in agreement with for the General Counsel, I think that Pitchford's conduct constituted merely a mo- mentary act of "animal exuberance" not sufficiently seri- ous enough to justify discipline of a striker. Paving Company NLRB 554 Accordingly, by suspending Pitch- @ I not of the that, unlike duct not but nthcr there- after put back to work. However, in held: [than an em- ployee's employment and the prohibited effect of inter- fering with and an employee's right to strike Like a refusal to it punishes an for his or her statutorily protected rights." 227 NLRB 1709, 1710 (1977). 8(a)(l) Oeneral muonable." t e r n he these circumstances, (1973), case, all Express Incorpomted, (1979), Rwdway Ex- pns record doar diacusscd, negotiations" Rwdwy Exprw, undentand terms agmmmt. settlement propod scope, an Rorrhwy Express, discipline the diacuedann. Bolvd Roadwy Expm Moreover, tenna settlement consisted hio that Section 8(a)(l) counsel General Pitchford's 8(a)(1) the argument Pitchford's es- tablishes j worked hb admitted asaignmmt and recommend dismissel THE REMEDY suspending loss earnings he nonnally the 1979,1° backpay F. W; Woolworth (1950). prmcribed Isir & Hating Ca, md Florida Corpomtion, r e coneider Pitchford Respondent engaged 2(2), (6). I a organization 2(5) 0. August then -&cause ~rotected with coerced employ& guaranteed 8(a)(1) These 2(6) reversed groundr F.2d lruamuch rr wrr p&uI status om September 11 tk reminder suspension md, have worked, b8ckpy penal ndcd September Counsel General C o u d does seek back- pay-and none is warmkd-for penod October 3. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ford on August 28, Respondent acted in violation of Sec- tion and (3) of the Act. Contrary to counsel for the Counsel, Respon- dent next asserts that the Board should defer any deci- sion on the merits herein to the parties' informal resolu- tion of the instant dispute on October 2 inasmuch as said agreement "was eminently fair and Initially, I think that by his admitted conduct Pitchford tacitly ac- cepted Respondent's for returning to work and that there is no question that understood the implica- tions of the settlement. In citing Centml Cartage Company, 206 NLRB 337 Re- spondent contends that deferral is proper. In that the parties reached a private settlement of their dispute subsequent to a hearing before the Board's Administra- tive Law Judge. The Board concluded that it should defer inasmuch as the parties raised no issues concerning the t e n i as were willing to abide by them, and as "all issues in dispute were considered and appropriately resolved in a manner which" disposed of the matter. Centml Cartage Company, supm at 338. However, in Roadway 246 NLRB 174 the Board distinguished, and gave a limited interpretation to, Centml Cartage involved a voluntary settlement by the parties to a grievance. In concluding that deferral was not warrant- ed, the Board principally relied upon the fact that "the not disclose whether the legality of [the dis- cipline] was ever much less resolved, during the settlement supm at 175. As a secondary factor, the Board noted that the em- ployee did not agree with nor apparently the of the Herein, while Pitchford under- stood the terms of the and does not dispute their in the legality of Respondent's was not a factor in settlement Accordingly, inasmuch as I am bound by precedent, I do not believe the deferral to the par- ties' October 2 resolution of the instant dispute is war- ranted. supm. inasmuch as the of the of additional disci- pline to Pitchford-reduction of his seniority and place- ment on probation--for August 23 conduct, I find such additional discipline was likewise violative of and (3) of the Act. Finally, for the Counsel argues that assignment on October 3 to the Mexican dinner line constituted a more onerous work assignment and, therefore, was also violative of Section and (3) of Act. His only apparent rationale for this argu- ment is that the weight to be lifted in that department is substantially higher. The record establishes that the im- petus for this was Pitchford's back condition, which did not permit him to perform the work in the Mexican dinner area. However, there is no evidence that Respondent was aware of ailment prior to the assignment. Moreover, Pitchford, by his own admis- sion, worked on the new job for at least 30 minutes before stopping due to his injury. The record further I that warehousemen work in all plant areas, per- forming essentially the same kind of work, and that , Pitchford previously on the Mexican dinner line--presumably when back permitted that work. Fi- nally, Pitchford that work on the Mexican dinner line in no way caused his injury, In these circum- stances, I do not believe that to the Mexican dinner line constituted additional punishment for Pitch- ford's August 23 conduct shall of that portion of the complaint. V. \ Having found that Respondent engaged in unfair labor practices. I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully disciplined Pitchford by him from work, reducing his se- niority, and placing him on probationary status, I shall recommend that Respondent be ordered to make Pitch- ford whole for any of may have suffered as a result of his suspension by payment to him of the amount he would have earned from date of his suspension, August 28, 1979, until September 10, with to be computed in the manner pre- scribed in Company, 90 NLRB 289 and with interest as in Plumbing 138 NLRB 716 (1962). Steel 231 NLRB 651 (1977); that Respondent store Pitchford's senority back to his original date of hire; and that Respondent no longer as being on probationary status. 1. is an employer in commerce within the meaning of Section and (7) of the Act. 2. The Union is labor within the mean- ing of Section of the Act. 3. By suspending Clifford Pitchford on or about 28, 1979, and reducing his seniority and him on probation for 1 year he engaged in concerted activities, Respondent interfered restrained, and in the exercise of their rights by Section 7 of the Act, and thereby committed unfair labor practices within the meaning of Section and (3) of the Act. 4. unfair labor practices affect commerce within the meaning of Section and (7) of the Act. 5. Unless specifically found, Respondent committed no other unfair labor practices. [Recommended Order omitted from publication.] Abilities and Goodwill Inc., 241 NLRB 27 (1979). on other 612 6 (1st Cir. 1979). Pitchford on disability for of t k period therefore, could not tk on 10. for the not the 1979. to date.