Gibraltar Sprocket Co.

GIBRALTAR SPROCKET CO. Advance Pattern and Machine Corporation d/b/a Gi- braltar Sprocket Co. and Local 8220, United Steel- workers of America, AFL-CIO-CLC. Case 7-CA- 13846 March 28, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On June 5, 1978, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed ex- ceptions, a brief in support thereof, and a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge, as modified herein,3 and to adopt his recommended Or- der, as modified below. The Administrative Law Judge found that striker Terry VanDenBerghe engaged in serious misconduct which removed him from the statutory and remedial protection of the Act and that his resultant discharge was not, therefore, unlawful. The General Counsel excepts to this finding contending that VanDen- Berghe's conduct was not sufficiently serious to war- rant his discharge. We agree with the General Coun- sel. The strike at Respondent's facility began on Janu- ary 23, 1977.4 On February 9 strikers VanDenBerghe i Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative I.aw Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We find it unnecessary to pass upon the complaint allegation that Re- spondent violated Sec. 8(aX3) by discharging four strikers, inasmuch as we find that these individuals were discharged in violation of Sec. 8(aX)l), and the remedy will remain unchanged whether or not the discharges also vio- lated Sec. 8(a)3). E.g., K.-D Lamp Division, Concord Control, Inc., 228 NLRB 1484, fn. 3 (1977). However, we disavow the Administrative Law Judge's suggestion that antiunion and coercive remarks by Respondent's vice pres- ident, H. Allen Eckhardt, may be discounted as "animal exhuberance" merely because they were made in the vicinity of the picket line. 3 In the section of his Decision entitled "Remedy" the Administrative Law Judge inadvertently failed to note his earlier finding that Respondent's dis- charge of employee William P. Taylor violated Sec. 8(a(3) and (I) of the Act. Further, the Administrative Law Judge, in his Conclusions of Law, inadvertently excluded Taylor's name from the list of discriminatees or failed to incorporate his finding that Taylor's discharge violated Sec. 8(aX3) and (I) of the Act. We shall therefore modify the Conclusions of Law herein to provide that Respondent violated such sections of the Act by discharging William P. Taylor. 4 All events herein occurred in 1977. and Gary LaVere observed Terry Burns park his car near Respondent's plant and enter the office.5 When Burns later drove away in his car he was followed by these two strikers in a car driven by VanDenBerghe. Burns became aware of the car following him and drove at a high rate of speed to get away from it. At one point VanDenBerghe pulled his car alongside Burns and motioned him to pull over. Burns refused and thereafter drove onto the property of Tunnel Lumber Company where he telephoned the police and Respondent's vice president, H. Allen Eckhardt. Inside the Tunnel Lumber Company store, while waiting for the police and Eckhardt to arrive, Van- DenBerghe and LaVere asked Burns if he was going to work for Respondent6 and told him that if he did he would be "scab labor." Burns replied that his ap- plication for employment with Respondent had been "in . .. long enough" and that they could not stop him from feeding his family. When the police officer arrived, Burns, in the presence of Eckhardt, stated what had transpired. The officer responded that there was nothing he could do about it other than to in- struct VanDenBerghe and LaVere to leave the store and return to the plant where they were picketing. Thereafter, when Burns got in his car and left, Van- DenBerghe and LaVere followed him. Eckhardt, in turn, followed them. At one point, when VanDen- Berghe's car came close to Eckhardt's car, VanDen- Berghe threw an empty beer can in the direction of Eckhardt's car. The can did not hit Eckhardt's vehi- cle. On February 23, VanDenBerghe was informed by a letter signed by Eckhardt that he was discharged for "harassment of a visitor to my establishment In determining whether a striker has, through his misconduct, subjected himself to lawful discharge, the Board considers whether the alleged misconduct is of such gravity as to require removal of the protective mantle which the Act affords striking employees. 7 Not every impropriety committed during the course of a strike deprives the employee of the Act's protec- tion.8 Rather, each incident of alleged misconduct must be assessed in light of the surrounding circum- stances, including the severity and frequency of the involved employee's actions. Applying these principles to the facts of this case we are satisfied that VanDenBerghe's actions on Feb- ruary 9 did not amount to such serious misconduct as to warrant his termination and Respondent's subse- quent refusal to reinstate him. In so finding, we note 'On February 10. Burns commenced work as a strike replacement at Respondent's facility. 6 At this point Burns recognized LaVere. A can Cable West, a Division of A lcan Aluminum Corporation, 214 NLRB 236 (1974). 'Coronet Casuals. Inc., 207 NLRB 304 (1973). and cases cited therein. 241 NLRB No. 70 501 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the record is devoid of evidence that VanDen- Berghe drove dangerously close to Burns or that he attempted to force Burns off the road. As for the en- suing encounter at the lumber company, the record fails to show that VanDenBerghe, or his companion, engaged in any violent action directed against Burns or anyone else. Finally, although the Administrative Law Judge made much of the fact that VanDenBerghe, after leaving the lumber company's premises, apparently threw an empty beer can in the direction of Eck- hardt's car, this was clearly a trivial incident and not of such character as to justify Respondent's subse- quent action against VanDenBerghe.9 Thus, leaving aside the question of whether VanDenBerghe was in- tentionally throwing the empty can at Eckhardt's ve- hicle, the record shows that the empty can did not strike Eckhardt's car, let alone damage it. In these circumstances we find, contrary to the Ad- ministrative Law Judge, that Respondent violated Section 8(a)(l) by discharging and refusing to rein- state VanDenBerghe.' ° Remedy We have adopted the Administrative Law Judge's finding that Respondent violated Section 8(a)(3) and (I) of the Act by discriminatorily discharging em- ployee William P. Taylor and violated Section 8(a)(1) of the Act by discharging employees Gerald Miller, Richard Palecki, and Gary LaVere. Additionally, we have found that Respondent discharged Terry Van- DenBerghe in violation of Section 8(a)(1) of the Act. The Administrative Law Judge, in the "Remedy" sec- tion of his decision, recommended that the discrimi- natory discharge of Taylor be remedied by immediate reinstatement with backpay. We agree. The Adminis- trative Law Judge additionally recommended that unlawfully discharged strikers be reinstated upon their application. Recently, however, the Board in Abilities and Goodwill, Inc.," decided to treat unlaw- fully discharged strikers in the same manner as other discriminatorily discharged employees for the pur- pose of computing backpay, by dispensing with the requirement that such strikers unconditionally re- quest reinstatement in order to start the employer's backpay obligation. The Board thus found that such strikers are entitled to receive backpay from the date 9 It is worth noting that Respondent's letter to VanDenBerghe informing him of the discharge makes no reference to the beer can incident. I See, generally, Hudson Wire Company, 236 NLRB 1263 (1978); MP Industries, Inc., e al., 227 NLRB 1709 (1977); Moore Business Forms, Inc., 224 NLRB 393 (1976). In light of this finding we shall modify the Conclusions of Law herein by inserting the name of "Terry VanDenBerghe" after the name of "Richard Palecki" in par. 3 of the corresponding section of the Administrative Law Judge's Decision. 11241 NLRB 27 (1979). of their unlawful discharge until they have been of- fered reinstatement. The Board further found that if the discharged striker responds to the employer's of- fer of reinstatement by continuing to withhold his or her services, the employer's backpay obligation is tolled and the employee resumes the status of a striker. 2 On the basis of the foregoing, we shall order Re- spondent to offer the discharged strikers reinstate- ment to their formerjobs or, if such jobs are no longer available, to substantially equivalent jobs, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them by paying them a sum of money equal to the amount they normally would have earned from the date of their unlawful discharge until the date of Respondent's offer of reinstatement.'3 Backpay shall be computed in the manner set forth by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest thereon as com- puted in the manner prescribed in Florida Steel Cor- poration, 231 NLRB 651 (1977).'4 Respondent may, of course, attempt to prove in the compliance stage of this proceeding that the unlawfully discharged strik- ers incurred a willful loss of earnings by continued participation in the strike after their date of dis- charge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that Respondent, Advance Pattern and Machine Corporation d/b/a Gibraltar Sprocket Co., Port Huron, Michigan, its officers, agents, successors, and assigns, shall take the actions set forth in said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer William P. Taylor, Gerald Miller, Rich- ard Palecki, Gary LaVere, and Terry VanDenBerghe immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent jobs, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any employees hired since the unlawful discharges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimi- 12 As such, the employee will be required to request reinstatement upon the conclusion of, or the striker's abandonment of, the strike. In addition, in the absence of an offer of reinstatement, the employer remains free to avoid or reduce its backpay obligation by establishing that the employee would not have accepted the offer if made, or by any other evidence showing the incur- rence of a willful loss of earnings. 13 Member Murphy, in accordance with her dissenting opinion in Abilities and Goodwill, Inc., supra, would find that Respondent's backpay obligation commences upon the striker's unconditional offer to return to work. " See generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 502 GIBRALTAR nation against them by paying them a sum of money equal to the amount they normally would have earned from the date they were discharged to the date of Respondent's offer of reinstatement, with interest as set forth in the 'Remedy' portion of this Decision." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against employees in regard to hire or ten- ure of employment, or any term or condition of employment because of their union or protected, concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. WE WILL offer William Taylor, Gerald Miller, Richard Palecki, Gary LaVere, and Terry Van- DenBerghe immediate and full reinstatement to their respective former jobs or, if such positions no longer exist, to substantially equivalent jobs without prejudice to their seniority or other rights and privileges, discharging if necessary any employees hired since the unlawful dis- charges, and make each whole for any loss of earning he may have suffered by reason of the unlawful discrimination against him by paying each a sum of money equal to the amount he normally would have earned from the date each was unlawfully discharged to the date of our re- instatement offer, plus interest. ADVANCE PATTERN AND MACHINE CORPO- RATION D/B/A GIBRALTAR SPROCKET Co. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding, under Section 10(b) of the National Labor Rela- tions Act, as amended, was tried pursuant to due notice on November 16, 17, and 18, 1977, at Port Huron, Michigan. The charge was filed on March 7, 1977. The complaint in this matter was issued on April 20, 1977. The issues concern whether Respondent discharged five named employees in violation of Section 8(a)(3) and (1) of the Act. Essentially, the issues concern whether certain conduct of four of the SPROCKET CO. 503 discharged employees during a strike was serious miscon- duct, removing such employees from the protection of the Act. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and Respondent and have been considered.' Upon the entire record in the case and from my observa- tion of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and admis- sions therein. Advance Pattern and Machine Corporation d/b/a Gi- braltar Sprocket Company, the Respondent. is and has been at all times material herein a corporation duly orga- nized under, and existing by virtue of, the laws of the State of Michigan. At all times material herein, Respondent has maintained its principal office and place of business at 3592 Military Street in the city of Port Huron, and State of Michigan, herein called the Respondent's plant. Respondent is and has been at all times material herein engaged in the manu- facture. sale, and distribution of tank sprockets. Respon- dent's plant located at Port Huron, Michigan, is the only facility involved in this proceeding. During a I-year representative period, Respondent, in the course and conduct of its business operations, manufac- tured, sold, and distributed at its Port Huron, Michigan, plant products valued in excess of $50,000 which were shipped from said plant directly to points located outside the State of Michigan. As conceded by Respondent and based upon the forego- ing, it is concluded and found that Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2). (6), and (7) of the Act. 1I. TE I.ABOR ORGANIZATION INVOLVED 2 Local 8220, United Steelworkers of America, AFL-CIO CLC, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR I.ABOR PRACTICES Preliminary Facts I. Supervisory status' At all times material herein, H. Allan Eckhardt occupied the position of vice president and has been and is now a supervisor of Respondent, within the meaning of Section 2(1 1) of the Act. and its agent. The Charging Party adopted the General Counsel's brief as its own. The facts are based upon the pleadings and admissions therein. I The facts are based upon the pleadings and admissions therein. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Background In August and September 1976, certain of Respondent's employees commenced organizational efforts on behalf of the Union (Local 8220, United Steelworkers of America, AFL-CIO-CLC) and the signing of union cards. It is clear that Respondent became aware of the union activity by its employees and responded with a letter to employees on Oc- tober 22, 1976. Such letter, although revealing company op- position of the Union, was mild in nature and was not re- vealing of a propensity to discriminate against employees because of their union or protected, concerted activities. It is clear that a petition for an NLRB representation election was filed by the Union and that an NLRB representation election was scheduled for January 5, 1977. Respondent held a meeting and expressed opposition to the advent of a union on January 3, 1977. On January 5, 1977, the NLRB representation election was held, and the Union received the majority of the votes cast. On January 11, 1977, Respondent filed objections to the January 5, 1977, election. Thereafter, on January 23, 1977, the Union held a meeting, decided to engage in a strike, and commenced a strike which continued through- out the time concerning the issues in this case. Employee Taylor had an accident involving a truck driven by him on December 8, 1976, and worked mainly in production work thereafter until his discharge on January 22, 1977. At such time Taylor was discharged purportedly because of the December 8, 1976, accident and because of certain scrap parts resulting from work on January 7, 1977. Respondent had engaged the services of a labor relations consultant, Grover, and had given such consultant final say so as to discharges during the time of the union campaign and its relationship with the Union. This case involves the determination of whether (I) Re- spondent discharged Taylor on January 22, 1977, because of his (or Respondent's belief thereof) union activities or protected, concerted activities, and (2) Respondent dis- charged Gerald Miller and Richard Palecki on January 23, 1977, Terry VanDenBerghe on February 9, 1977, and Gary LaVere on February 11. 1977, because of their union or protected, concerted activities, all in violation of Section 8(a)(3) and (1) of the Act. The questions relating to the discharges of Miller, Pa- lecki, VanDenBerghe, and LaVere, all concern questions of whether there was picket-line or related misconduct and include a question of whether such conduct reveals that such employees should be denied the remedial protection of the law. 3. The motivation question As indicated, the General Counsel's complaint alleges conduct violative of Section 8(a)(3) and (I) of the Act as to the discharges of Taylor, Miller, Palecki, VanDenBerghe, and LaVere. The issue involving Taylor's discharge clearly relates to the question of motivation. The issues concerning the discharges of Miller, Palecki, VanDenBerghe, and La- Vere. however, essentially concern the question of dis- charges of employees engaged in concerted activity and whether their conduct went outside of the protection of the Act. As to the question of motivation by Respondent against employees because of their union or protected, concerted activities, I have considered all the evidence in the record and am persuaded that the credited evidence does not war- rant a finding that Respondent was motivated in the dis- charge of any employee because of the belief of his union or protected, concerted activity, except in the case of William P. Taylor. Thus, the evidence relating to Respondent's Oc- tober 22, 1976. letter to employees and Respondent's Janu- ary 3, 1977, speech to employees reveals opposition to the Union but does not reveal an expressed propensity to dis- criminate against employees because of their union or pro- tected, concerted activity. The hiring of labor relations con- sultant Grover to guide and advise regarding Respondent's opposition to the Union and the handling of problems relat- ing to the Union further reveals opposition to the Union but does not reveal a propensity to discriminate against employees because of their union or protected, concerted activities. Further, the fact that Grover, prior to the NLRB representation election, discussed with Respondent and as- certained Respondent's belief of how individual employees would vote, in and of itself does no more than reveal an evaluation of expected outcome of the pending election. Nor do the remarks attributed to Eckhardt on the picket line, absent follow through on action related thereto, reveal more than "animal exhuberance" similar to some of the "animal exhuberance" engaged in by the striking employ- ees. However, the facts relating to Taylor's discharge on January 22, 1977, and statements by Eckhardt to Taylor at the time of Taylor's discharge, reveal that Respondent was motivated in the discharge of Taylor by the belief of his support of the Union. Considering the facts surrounding the incidents and the basis for the discharges of Palecki, Miller, VanDenBerghe, and LaVere, the facts are not sufficient to warrant a finding that any of such discharges (of Palecki, Miller, VanDenBerghe, and LaVere) went beyond the issue of discharge for protected or nonprotected conduct. Essentially, the issues as to the discharges of Miller, Pa- lecki, VanDenBerghe, and LaVere arose in the context of a strike, with animal exhuberance and rough language en- gaged in by both the striking employees and Respondent. Just as picket-line or related conduct must be considered in connection with the question of animal exhuberance, the response of Respondent's officials must be similarly consid- ered. Thus, statements by Eckhardt as to the discharges of employees, at times not carried out, under the circum- stances of this case must be viewed as mere talk. The facts in this case reveal the discharges of Miller, Palecki, LaVere, and VanDenBerghe were because of their conduct of a con- certed activity, and the facts reveal in some instances a mis- take in judgment by Respondent as to whether such con- duct exceeded the bounds of conduct protected by the Act. 4. The discharge of certain employees 4 Respondent discharged the following employees em- ployed at its Port Huron plant on or about the dates set opposite their respective names and, since said dates of dis- charge, has failed and refused and continues to fail and ' The facts are based upon the pleadings and admissions therein. 504 GIBRALTAR SPROCKET CO. refuse to reinstate said employees to their former or sub- stantially equivalent positions of employment: William P. Taylor Gerald Miller Richard Palecki Terry VanDenBerghe Gary LaVere January 22, 1977 January 23, 1977 January 23, 1977 February 9, 1977 February 11, 1977 5. The discharge of Taylor' on January 22, 1977 William P. Taylor was initially employed by Respondent on February 15, 1974, and worked thereafter as a truck- driver until December 8, 1976, when he had an accident. Following the accident Respondent was basically used in production in the shop until his discharge on January 22, 1977. William P. Taylor signed a union authorization card at some date prior to January 5, 1977. There is no direct evi- dence that Respondent was aware of Taylor's union activi- ties or desires. In this regard, apparently, the General Counsel introduced evidence that Taylor, in December 1976, was seen by a supervisor talking to LaVere, a union leader and activist, and was warned not to talk to LaVere. The circumstances, however, reveal that Taylor and LaVere were working close to each other and were talking. At an- other time, prior to December 8, 1976, Taylor had brought in a load of steel on the truck and was supposed to unload it. At such time, Taylor was talking to LaVere, was seen by Vice President Eckhardt, and was told by Eckhardt to get someone with a lift truck and to get the steel off his truck. For all of the evidence, nothing in such evidence warrants an inference that the supervisors were other than concerned about employees working, and were not concerned or would believe that the talking was about the Union. On December 8, 1976, Taylor was scheduled to drive a truck from Port Huron, Michigan, to Gary, Indiana. Taylor left Port Huron around 1:30 p.m. on said trip as revealed by the following credited excerpts from Eckhardt's testi- mony. 6 A. I believe it was December 8. It was somewhere around that date. I didn't bring the documents with me. Q. Is that 1977? A. 1976. Q. Were you present at work on that day? A. Yes, I was. Q. What occurred with Mr. Taylor at that time? A. I dispatched him for all of the trips that he made. I personally would give him cash money to travel with and give him pickup orders. On that date he arrived at work at eleven thirty in the morning and I sent him out to prepare the truck to start the truck and warm it up and to see that it had all supplies on board for a trip to Gary, Indiana. At that time he was still working on it I The facts relating to the various incidents and discharges are based upon a composite consideration of the credited aspects of the testimony of the witnesses who testified with respect to the issues. The testimony of witnesses inconsistent with the facts found is discredited. I Both Taylor and Eckhardt appeared credible as to part of their testimony and not believable as to other parts. I credit Eckhardt's testimon) over Tay- lor's as to the time of departure from Port Huron. when lunchtime came. I went to lunch and returned from lunch at twelve forty-five and at twelve fort,-fixe I found him sitting in the office waiting for me to get hack from lunch. lie signed for travel cash. I gave him pickup papers assigning pickup responsibilities that he needed at the steel mill. At approximately one thirt 3 that day and at that time I said "Is the truck reads to go? Hie said es. I said "Well ou better get going because there is a storm coming in and you should be -I want you to get down there in the daylight yet." He said fine. At one thirty I went out in the yard to check on flame cut operations and I found that he had pulled the truck across the street to the Michigan National Bank lot. I walked across the lot and I could see that Bill 'laylor was sitting in the tractor. I walked up to the tractor and knocked on the door and I asked him what he was doing. He said he was filling out his log book. Taylor, as indicated, left Port Huron and proceeded toward Lansing, Michigan, on the way to Gary. Indiana. Taylor's final stop was to get diesel fuel. What occurred is revealed by the following credited excerpts from Taylor's testimony. A. I stopped at Wadhams road and got diesel fuel. must have been there an hour. Then I went up into Imlay City and stopped at the truck stop and it was snowing real hard there. So I thought maybe I will pull in there and get a coffee and a sandwich and maybe it will let up. I stopped at the drive-in and must have been there forty-five minutes to an hour. Q. Did it take about an hour to fuel up first at Wad- hams? A. About yes. Q. About how far from Port Huron is that? A. About six miles. Q. Then you stopped someplace to eat? A. This truck stop in Imlay City. Q. How far is Imlay City? A. I think it is forty-eight miles from Port Huron. Taylor testified that he arrived at Imlay City at approxi- mately 5:30 p.m. and left Imlay City at approximately 6:30 p.m. I do not credit his testimony to such total effect. Rather, having credited Eckhardt's testimony over Taylor's as to the time Taylor left Respondent's premises, I am per- suaded that the facts reveal that Taylor arrived at Imlay City at approximately 4 p.m. Considering Taylor's further testimony as to the time he left Imlay City, the distance between Imlay City and Lansing, where an accident oc- curred (approximately 60 miles) and the estimated 2-1,'2 hours utilized on such portion of said trip. I am persuaded that Taylor left Imlay City around 6:30 p.m., travelled ap- proximately 60 miles and had the accident which occurred around 9 p.m. Around 9 p.m., Taylor had an accident with his truck. What occurred is revealed by the following credited ex- cerpts from Taylor's testimony. A. I was coming down on an on ramp to get on Interstate 69 and it was snowing so hard there was a car coming up beside me and he wouldn't get over as far as I could and when I did I momentarily tapped the 505 I)DECISIONS OF NATIONAL LABOR RELATIONS BOARD hrakes and spun around and hit the guardrail, the bridge abutment. There was no citations given, no tick- ets given out. Q. Did the police in fact appear? A. Yes. Q. You were never ticketed for that accident? A. No. Around I I p.m., Taylor telephoned Vice President Eck- hardt as is revealed by the following credited excerpts from Eckhardt's testimony. A. I received a collect phone call from Taylor about eleven p.m. that night at my home. He was very shook up. He told me about the accident, the truck had been wrecked. I couldn't get much details from him. I couldn't understand the details. The next day, Eckhardt saw Taylor again. What oc- curred is revealed by the following credited excerpts from F-ckhardt's testimony. A. I didn't see Bill Taylor again until the next day. He took I believe a bus back here. I don't remember just how he got back to Port Huron. The truck was a total wreck and couldn't be driven. I interviewed him. I called him and had him come to the shop and met him there about one ten. Q. The following day? A. The following day. I asked him if he had had any medical attention and he said no "I don't think I have anything wrong with me. I just have some stiffjoints." I insisted that he go to a doctor and I named a doctor for him to go to and I had my office assistant call for an appointment to have him examined to make sure that he was in good condition. He did go to see the doctor and I did pay the bill for the examination. Q. What did you do though as far as A. After we finished discussing with him how the accident happened and what his physical condition was Bill Taylor asked me "Am I fired?" At that point I told him "Bill, I am not going to fire you right now. I am going to put you on probation and I have to finish the investigation. I have to get the details of the police report and any other circumstances that surrounded this thing." I told him right then after he had given the information that the accident had happened at about nine fifteen p.m. I told him, I questioned him about the time lag and about the length of time that it took him to travel that far. Q. What do you mean by time lag? A. In other words the time lag was leaving the shop at one thirty p.m. and only having gone as far as Lan- sing by nine p.m. When he was aware that he should keep moving because the storm was coming. In this discussion or a later one that Eckhardt had with Taylor following the accident, Eckhardt asked Taylor and another driver for their chauffeur's license numbers. As re- gards Taylor, it would appear that such was done in con- nection with the investigation of the wreck, Taylor's driving record and related insurance problems, and in evaluation of Taylor as an employee. The cross-examination of Taylor as to whether he was told he was on probation or that an investigation of the accident was underway brought forth the response that Eckhardt took his chauffeur's license number for the purpose of checking his driver's record. It is thus clear that Taylor knew that he was placed on proba- tion. I credit Eckhardt's testimony to the effect that he told Taylor that he was on probation. The facts are also clear that around this time or within a reasonable period of time Respondent's insurance carrier conducted an investigation of the accident and interviewed Taylor over the telephone.7 After Eckhardt placed Taylor on probation for the acci- dent. Taylor worked in the shop on production and did some driving of an older GMC truck on hauls.8 Other than the foregoing, Respondent's investigation of the accident was revealed by the following credited excerpts from Eckhardt's testimony. Q. Did you conduct any investigation then about the accident? A. Yes, I did. It took a company representative that went there and took pictures of the wrecked truck, talk to the tow truck people that had towed it away from the site that it was at, and obtained a copy of the police report. We were not able to locate or talk to the police offi- cer who had taken the report of the accident. Q. Did you do anything else regarding the accident? A. Other than this took a time period of about three weeks to get this police report. It came from as it turned out it was a township agency near Lansing. We had a tough time determining just who had taken the police report. At the commencement of the union question Respondent hired a labor relations consultant, Grover, to aid it in com- bating the unionization of its employees. Such consultant acquired an agreement that Respondent would not dis- charge an employee during the advent of the union prob- lems without his final say so. Said consultant told Eckhardt that if a problem were severe, that Eckhardt could suspend but not fire the employee without Grover's final say-so. 'The facts reveal, as indicated above, that the investiga- tion of the December 8. 1976, accident was basically com- pleted within 3 weeks of the accident. Although Eckhardt did not receive all of the facts of the basic insurance inves- tigation, it is clear that oral or summary findings were re- ceived. The facts, however, reveal that nothing was said to Taylor about the accident until January 22, 1976. Although the damage to the truck was $22,500 and dam- age to a guard rail was $2,200, it appears that damages were covered by insurance. The testimony in this case relating to the accident and reports reveal that the accident was not caused by the faulty driving of Taylor.9 7Eckhardt listened to such interview by use of an extension telephone. Apparently Respondent had two or more trucks before the accident. Since the new truck was destroyed, Taylor's driving was limited to an older GMC truck normall) driven by someone else. I discredit Eckhardt's testi- mony to the extent it may be construed that Taylor's assignment was limited to production work. 9Although Respondent sought to question Taylor about drinking, the facts do not establish that Taylor was drinking at the time of the accident, do not establish a reasonable basis for belief that Taylor was dnnking on De- cember 8, 1976, and do not reveal that belief of drinking was a basis for the reason of Ta)lor's discharge. 506 GIBRALTAR Considering that the investigation of the December 8. 1976. accident was completed around December 29. 1976. and that nothing was said to Taylor about the accident following the conclusion of the investigation, I am per- suaded that Respondent's evaluation of the accident did not reveal that Taylor should be disciplined because of the acci- dent. Thus, Respondent had ample time in early January 1977 to determine the results of the accident investigation. I am persuaded by all of the facts that such would have been done and was done. Thus. I am persuaded that within a reasonable period of time after December 29. 1976. Re- spondent evaluated the investigation and determined that Respondent would not discipline Taylor for the accident. Although Respondent had given Grover the final say-so as to discharge, I am not persuaded that Respondent turned over operation of its business to Grover except in the nature of accepting a restraint upon its right to discharge. Thus. I am persuaded that Respondent, in late December 1976 or early January 1977. determined not to discipline Taylor for the accident." As previously indicated following the December 8. 1976, accident, Taylor was assigned to some in-shop work and did some driving of an older GMC truck on hauls.'' On January 5, 1977, the NLRB representation election was held. On January 7, 1977, Taylor worked on a taper reamer machine from approximately 8 to 10 a.m. During such time, by use of the taper reamer machine, Taylor created a tapered hole in the sprockets upon which he was working. In all, Taylor worked on 18 sprockets during the 2 hours involved. During the rest of the day. Taylor worked at building pallets.' Company procedure required that the employee perform- ing the taper reamer work be responsible for checking and inspecting his work. Thus, the dimensional aspect of the work is checked by the employee by use of a gauge. The accuracy of such gauge can be checked as to its proper calibration by seeing that it is set at "O." If not, the gauge can properly be set by a simple adjustment by the operator. The facts reveal that approximately 43 of the sprockets worked on by Taylor and others on January 7, 1977, were defective because of an error in the dimensions of the ta- pered holes. 10 Eckhardt's pretrial affidavit indicates that he "suspended" Taylor after the December 8. 1976, accident. Eckhardt and counsel misread the word "suspended" for "reprimanded." The facts clearly reveal that Taylor was not suspended. In fact, the affidavit contained language which reveals that Tay- lor was assigned other work. Considering all of the facts, I am persuaded that Eckhardt attempted in his affidavit and testimony to present the "accident" as a pretextuous reason for discharge and to fit the facts within line of his agreement with Grover about suspension and discharge. I credit Taylor's testimony over Eckhardt's where in conflict as to this point. f2 I credit Taylor's testimony to such effect. Eckhardt's testimony was to the effect that he checked company records and ascertained that Taylor worked all day on the taper reamer and worked on approximately 43 sprock- ets. and that 37 of such sprockets had to be scrapped because of a significant error in the dimensions of the tapered hole. The record is clear that employ- ees report production and that company records existed to verify or disprove whether Taylor had worked on 18 or 43 parts. Such records were not pro- duced by Respondent. Further, the facts reveal that Eckhardt checked with other employees and was interested in getting an admission from Taylor at the time of discharge as to his having performed faulty work. Considering all of this, especially Respondent's failure to produce records I credit Taylor's testimony over Eckhardt's as indicated by the facts found. During the time that Taylor worked on the taper reamer. Taylor checked and inspected several of the parts as to the dimensional characteristics of the tapered holes. The rest of the time Taylor did not check or inspect such parts. Taylor relied upon the fact that another employee, who worked on a counter bore operation, sometimes inspected such parts. and upon the fact that a foreman. John Berg. who was being trained or exposed to many operations, was in the area doing some inspection of parts and indicated that the parts were okay. Taylor in his testimony presented contradictory testi- mony as to who was responsible for checking and inspect- ing parts. I credit the aspects of his testimony which re- vealed that he knew he was responsible ltr the checking and inspection of the parts he worked on. I am persuaded that Berg's checking and inspection of parts was not done as an undertaking to relieve Taylor or other employees of initial inspection and checking of parts." On the night of January 7. 1977. the second shift supervi- sor discovered that a large number of sprockets were defec- tive because of a dimensional error in the tapered holes. Such supervisor, on Monday. January 10. 1977, brought this matter to the attention of Taylor's supervisor, Majeski. On the same day Majeski told Taylor and employee Ra- datz, who apparently worked on sprockets on January 7, 1977, that they had run a lot of scrap. When Taylor in- quired as to the cause of the problem. Majeski indicated that the gauge had been off. The matter of the "scrap" sprockets was brought to the attention of Vice President Eckhardt. On Wednesday" Eck- hardt looked at the sprockets and ascertained apparently that there were 37 which were faulty." Eckhardt went to see Taylor and Radatz. took them downstairs, and showed them the "scrap" sprockets. Eckhardt told Taylor and Ra- datz to look at all of the scrap that they had run. Taylor told Eckhardt that he couldn't have done it because he didn't run the machine all day, that he had only worked on the machine until 10 a.m. Eckhardt told Taylor that he still had run them. Taylor then answered that Berg had in- spected them all day. Eckhardt then stated that he was going to think it over and let them know about it. Considering the evidence presented concerning the faulty sprockets and Respondent's failure to produce records re- lating to such work. I find that Respondent ascertained from investigation that Taylor had worked on approxi- mately 18 sprockets and that some other employee or em- ployees had worked on about 32 sprockets with the taper reamer on January 7. 1977. The facts are also clear that the number of bad sprockets produced on January 7. 1977, was high compared to the number of bad sprockets produced in m' It should be noted that Foreman Berg apparently erred in the checking and inspection of parts on January 7, 1977. 14 Considering the logical consistency of the facts, I find Eckhardt's timing of the event better than Taylor's. ' The record is somewhat confused as to the number of scrapped parts. Eckhardt in his testimony attnbutes 37 scrapped parts to the work of Taylor and testified that 43 of the total lot of 50 had to be scrapped. SPROCKET CO. 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the past and that the financial cost trom the scrapping of such parts was significant. ' During the conversation with Taylor and Radatz. Eck- hardt indicated that the fault as regards the sprockets was caused by a faulty gauge or improper use of the gauge. Taylor told Eckhardt that the gauge was working when he had used it, that Berg must have dropped it and knocked it out of kilter. On this day or within several days, Respondent laid off Taylor and eight other men for lack of work. Eckhardt, apparently a few days after the above-mentioned conversa- tion with Taylor, decided to terminate Taylor. In accord- ance with his understanding with Grover. the labor rela- tions consultant, Eckhardt sought clearance to discharge Taylor, and the two discussed Taylor's December 8, 1976, accident and the scrap sprockets of January 7, 1977. Grover exercised his "final say so" as to the discharge by indicating to Eckhardt that the December 8, 1976, accident and the January 7, 1977, scrap sprockets would support a basis for the discharge of Taylor. Grover indicated to Eckhardt that he should seek to get Taylor to admit that he had run the faulty parts." On January 22, 1977. Eckhardt telephoned Taylor and told him that he was not laid off any more, that he was fired, and that if he wanted to he could come down and talk to him at 11 a.m. Later on January 22, 1977, Eckhardt talked to Taylor. the supervisors, and others involved in work on the day of January 7. 1977, when the error in the dimensional quality of the tapered holes occurred. What took place is revealed by the following credited excerpts from Eckhardt's testimony.18 He was there at eleven o'clock. I took him to this department and I also took John Berg, Al Majeski, Steven Radatz. Mike Cornwell and I believe also an Albert Bangston. All people who had worked in that area the entire week. I pointed out to all of them that we had a problem. We had a lot of scrapped parts and I wanted to deter- mine exactly who had worked on the parts. Everybody stated their position. Q. What did Mr. Taylor say? A. Mr. Taylor said that he had worked on the parts and that he had run the parts and he said that I had let Mike Cornwell who was running a boring mill near me do the inspection. I presented to Bill that that is not his instructions on how the job should be operated. He was totally responsible for his own output and I pointed out to him that this is the kind of thing in scrapping parts is going to happen if you thought If Thus, from 1973 to January 7. 1977, only 23 pieces out of 17.000 of the same part number had been scrapped. The estimated scrap damage (metal for parts damaged on January 5. 1977) was approximately $120 per part. Ultimate testimony indicated that apparently 43 parts were scrapped for a total damage cost to metal of $4.600. The facts would indicate a possibility of damaged scrap by Taylor of between 1 I and 18 parts. Thus, there was a damage variable between $1,320 and $2,160 for such parts. 7 Considering the logical consistency of all the facts, I find the facts as indicated. The facts reveal that Eckhardt told Taylor of his discharge before securing Taylor's admission in effect that he had run some of the faulty parts. ms The testimony of all witnesses relating to the facts of Taylor's discharge was fragmented and piecemeal. someone else was inspecting your work. He said "Well I assume Mike was doing the inspecting. I was letting him do it." That was not Mike's job. Bill said "I in- spected some of them but most of them I let Mike do." Eckhardt then took Taylor to his office. What occurred then is revealed by the following credited excerpts from Taylor's testimony. 9 A. I said "Well [how] come you are firing me?" And he says "Because you smashed up my tractor and you ran scrap." I says "Well really it is because of the union activity isn't it?" And he said "That could have some part in it." He got mad and he went into a tirade and then "Them bastards out there in the shop they want more money that's all." I says "Okay. I am not going to talk with you anymore." So I went out the door.20 Conclusions Considering all the facts, I am persuaded that the pre- ponderance of the credited facts and the logical consistency thereof reveal that Respondent discharged Taylor on Janu- ary 22, 1977. because of its belief that he participated in union activities. The facts are clear that Taylor engaged in some union activities, the signing of a union card, before January 5, 1977. There is no direct evidence of Respondent's knowl- edge of such union activities except as contained in Eck- hardt's remarks to Taylor as to the cause of his discharge on January 22, 1977. However, there is evidence that Respon- dent was aware that Taylor talked to a union adherent at work and was warned about the same. Such evidence, cou- pled with the fact that Respondent attempted to assess each employee's union preference prior to the election on Janu- ary 5, 1977, even though between management and labor consultant, and with the circumstances of the January 22, 1977, discharge and Eckhardt's admission of the bearing of union activities upon Taylor's discharge, persuades me that Respondent believed Taylor to have been a union supporter at the time of his discharge. The overall facts relating to Taylor's December 8, 1976, accident and the long delay in expressing blame for the same on Taylor (from December 8, 1976, to January 22, 1977), persuade me that the Decem- ber 8, 1976, accident played no real part in the discharge of Taylor but was merely used as a pretext to bolster the rea- son for the January 22, 1977, discharge. The facts are clear that significant errors occurred concerning the dimensions of tapered holes in the sprockets and that Respondent had reason to believe that Taylor was not the only employee to have committed errors on January 7, 1977. It is clear that Respondent's policy required the individual employees to be responsible for checking and inspection of work. It is 19 Eckhardt did not specifically deny that he referred to union activities as a reason for discharge. Eckhardt's total testimony, however, appeared to present a different version of the same events. I note that the overall testi- mony of Eckhardt appeared inconsistent and contradictory as to when he determined to discharge Taylor. I credit Taylor's version of the last conver- sation between him and Eckhardt, ° The word [how] is inserted herein by me as to what was obviously said or intended. 508 GIBRALTAR SPROCKET CO. also clear that the only employee disciplined or discharged for the faulty work on January 7, 1977. was Taylor. Consid- ering all the foregoing and Eckhardt's remarks to Taylor on January 22. 1977. indicating that union activities played a part in the discharge of Taylor, I conclude and find that the preponderance of the evidence reveals that Respondent dis- charged Taylor on January 22. 1977, because it believed he participated in union activities in violation of Section 8(a)(3) and (1I) of the Act.2' 6. The discharges of Miller and Palecki on January 23, 1977 On January 23, 1977, the Union held a meeting and de- cided to commence a strike against Respondent. There was talk at the meeting of how to keep employees from crossing the picket line to be set up. The strike commenced around 3 p.m. on January 23, 1976.2 After the strike commenced, Foreman Soble parked a car in a parking lot across the street from Respondent's plant premises. Soble walked across the street and entered the plant premises. A passenger, Hyde. remained in the car. The facts persuade that Hyde was apprehensive that the striking employees would physically attempt to prevent his crossing the picket line. Hyde showed the picketing employ- ees that he had a shotgun. Hyde did not point such gun at the employees but merely displayed it. Hyde indicated to the strikers that they should not try to stop him or he would use the gun. Hyde then drove the car from the parking lot to a street that ran into the street that ran beside the plant premises. At the corner of said street intersection, Hyde directed the car toward a plant driveway which was near the intersection and drove through the driveway. There was a snow embankment and Hyde's car cut across part of the embankment near the driveway. In the meantime, pickets from both sides of the driveway were running to the drive- way or gateway.2 One of the pickets, VanDenBerghe, ei- ther ran into the car or was hit by the car and was flipped into the air before hitting the ground.2 Hyde drove the car into the plant premises. Several pickets, including Miller and Palecki, ran into the plant premises after Hyde. There followed a resultant scuffle, with Miller and Palecki beating upon Hyde and attempting to pull him out of the car. Dur- ing the scuffle the gun was discharged. Luckily, no one was shot. The episode ultimately ended, and Vice President Eck- hardt took possession of the gun, and the strikers went back to picketing. On January 28, 1976, Respondent notified Miller and Palecki that they were discharged for their con- duct in the above incident. 21 I note that Eckhardt's testimony avoided in many instances going to the motivation issue. The Respondent seems to contend that the discharges were investigated by labor relations consultant Grover and that Grover deter- mined and was responsible for aspects of motivation. Grover did not testify and clearly was an interested agent, I am persuaded that the evidence relat- ing to motivation is applicable to any aspects of decisionsal authority exer- cised by Grover. 22 At the time of the hearing in this matter the strike referred to was still in effect. 23 The gate had just previously been opened so Hyde could drive in. 24 The overall facts are persuasive that Hyde did not intentionally run into VanDenBerghe. Conclusion The January 23. 1976. episode is the type of unfortunate episode resulting from confrontation in a strike. Employees have a right to strike and to engage in protected, concerted activities. Employees have a right also not to engage in a strike and should not have to fear for their personal safety in crossing the picket line. The confrontation of employees exercising their respec- tive rights and self-protection presents the question in this case of whether Miller and Palecki were engaged in pro- tected. concerted activities or had engaged in misconduct of such a nature as to remove them from the protection of the Act. The Board and courts have ruled in cases similar to this one that where employees' conduct in such circum- stances is that of animal exhuberance in response to the situation, such misconduct is not conduct that justifies dis- charge of such employees. Judgment of whether such con- duct, as engaged in by Palecki and Miller on January 23. 1977, warrants discharge for otherwise protected, concerted activity is for the Board to decide. Considering the totality of the events, I am persuaded that the evidence preponder- ates for a finding that Miller and Palecki were reacting to the situation of the car having hit VanDenBerghe, whether intentional or not, that such conduct of Miller and Palecki was that of animal exhuberance reasonably expected from such circumstances, and that, therefore, Respondent's dis- charge of Miller and Palecki was violative of Section 8(a)( I ) of the Act because they were engaged in protected, con- certed activities.?5 7. The discharge of VanDenBerghe on February 9. 1977 On February 9, 1977, VanDenBerghe and Gary LaVere, striking employees. observed Terry Burns park his car near Respondent's plant and enter the office. When Burns left. VanDenBerghe followed in a car. LaVere went with Van- DenBerghe in the car that followed Burns. Burns became aware that VanDenBerghe and LaVere were following him and drove at a high speed to get away from them. At one point VanDenBerghe and LaVere pulled alongside Burns and motioned for him to pull over. Burns refused, pulled into the property of Tunnel Lumber Company. and tele- phoned the police and H. Allan Eckhardt. Inside the store at Tunnel Lumber Company striking em- ployees VanDenBerghe and LaVere spoke to Burns before the police arrived. What occurred in the store is revealed by the following credited excerpts from Burns' testimony. A. I called Allen Eckhardt and told him what had happened and where I was located at, and the police 2: I have considered the facts also relating to Miller's and Palecki's in- volvement with LaVere in following a company truck on February 1I, 1977. as relating to whether Miller and Palecki are entitled to remedial protection of the statute. In my opinion, their conduct on February i , 1977. does not reveal conduct that would render such employees unsuitable for employment by Respondent I note that Respondent argued in effect that the various employees discharged for alleged misconduct were acting, in effect. in iola- tion of a state court injunction. The evidence related to such point merely reveals, and properly so, that the state judge engaged in legal jaw boning" and did not issue an injunction in such regard. Thus. such evidence has no persuasive value on the issues herein 509 DI)ECISIONS OF NATIONAL LABOR RELATIONS BOARD had arrived and they come into the building and I told them that we would go outside and talk about this. At that point Mr. Eckhardt came. Q. Prior to the time that the police arrived had you had any conversations with the people that were fol- lowing ou?' A. Yes. I'hey told me that the, wanted to know if I was going to be working for Gibraltar Sprocket ('om- pany. what I was doing there and that is when Gary I.aVere happened to mention that he knew me. After I got to looking for awhile I recognized Gary LaVere. * * * * * Q. What else was said then if anything before the police arrived? A. I told them yes I was going to go to work for him, and they say well it is scab labor. I said well I am going to go to work. I have had my application in there long enough and I was going to feed my family. I couldn't stop from feeding my family. Q. Anything else? A. That is all that was said at that point. Q. Then what happened? A. When the police officers arrived we had went outside and I told him about what happened. and I took them for this ride down Dove Street at the high rate of speed and they were invading my privacy fol- lowing me around which I felt wasn't right. I got the right to travel the town without anybody following me. So then the officer at that point said that there was nothing he could do about it other than tell these guys to go on hack down to the company on strike like they are supposed to and not follow me anymore. Q. Who was present when you were talking to the police officer? A. Allen Fckhardt. Gary .aVere and Terry Van- DenBerghe and me. * * * * * Q. What did the police offticer tell Mr. VanDen- Berghe in that conversation and LaVere? A. He told them to go on back down to (Gibraltar Sprocket and go about their strike like they are sup- posed to, and not to follow me anymore. * * * * * A. Well then the officer got in his car and left and I was going to my car, and Gary and Terry had gotten in I believe it would be Gary's mother's car is what it was. I found out later. And they took and went up to the corner. As soon as the police officer was gone they turned back Baird Street and they set across on the corner of Baird and 10th and we had left and I went out through the back way. Then they had picked me up coming back down Baird Street and began follow- ing me from that point. At the request of the police, VanI)enBerghe and aVere left the store. When Burns got into his car and proceeded to leave. VanDenBerghe and LaVere in their car commenced following Burns' car again. Eckhardt, who had come to the store, also fiollowed VanDenBerghe and LaVere who were following Burns. At one point VanDenBerghe and LaVere's car was very close to Eckhardt's car. At such time VanDen- Berghe threw an empty beer can at Eckhardt's car but missed hitting Eckhardt's car with the beer can. On February 23, 1977. Respondent issued a notice of discharge to VanDenBerghe for "harassment of a visitor" to Employer's plant on February 9 1977. Conclusions Considering all of the foregoing. I conclude and find that Respondent discharged VanDenBerghe for his conduct re- lating to the following of Burns on February 9, 1977. 1 also conclude and find that VanDenBerghe's conduct consti- tuted serious misconduct removing him from the statutory and remedial protection of the Act. I note that VanDen- Berghe and LaVere testified in effect that they were merely following Burns to ascertain whether Respondent was ac- cepting applications for employment. Following Burns at a high rate of speed when Burns had indicated he didn't want to talk to VanDenBerghe and LaVere and following Burns after they had talked to Burns in the store reveals that this was not VanDenBerghe's and LaVere's real reason for fol- lowing Burns. On the contrary. the facts reveal an attempt to harass Burns. This and the throwing of a beer can at Eckhardt's car reveal VanDenBerghe's conduct to be out- side of conduct protected by the Act. Further, the facts and surrounding circumstances do not reveal a basis for belief that such conduct was that of animal exhuberance in re- sponse to the existing situation. Accordingly I conclude and find that the discharge of VanDenBerghe for his Feb- ruary 9. 1977, conduct was not violative of Section 8(a)(3) and (I) of the Act. It is so concluded and found. 8. The discharge of LaVere On February 15, 1977, Respondent discharged LaVere because of conduct on February I1I 1977, relating to the following of a company truck. It is sufficient to say that the evidence clearly establishes a basis for a good-faith belief by Respondent that LaVere had engaged in serious miscon- duct in attempting to force such truck off the road. This being so, the burden shifts to the General Counsel to estab- lish that LaVere had not engaged in the serious misconduct complained of. The General Counsel's witnesses testified in composite effect, and I so credit, that during the strike on February I 11, 1977, aVere followed the company truck and did not force or attempt to force said truck off the road. LaVere and other general counsel witnesses testified that they followed the truck and called the police because the truck was loaded improperly and was unsafe for operation, and LaVere did not attempt to force the truck off the road. I am not per- suaded that LaVere and the other General Counsel wit- nesses testified truthfully as to why they were following the truck. However, harassment of the truckdriver by virtue of calling the police and having the truck stopped, in my opin- ion, is not serious misconduct warranting a loss of Section 7 rights. The crucial issue is whether LaVere attempted to S10 GIBRALTAR SPROCKET CO. force the company truck off the road. Despite the foregoing disbelief of some of LaVere's and the other witnesses' testi- mony, their testimony that LaVere did not force the com- pany truck off the road is more believable than the testi- mony of Respondent's witness Hutchinson. Hutchinson testified in effect that he might not tell the truth under oath. and Hutchinson's pretrial affidavit was contradictory to his trial testimony on major points. Conclusions Considering all of the foregoing. I conclude and find that Respondent discharged LaVere on February 15. 1977. in violation of Section 8(a)( I) of the Act because of his pro- tected, concerted activity relating to the strike." IV. IHt I:FFl('t ()F IHFl UNFAIR ABOR PRA( l('tS I P)N ('()MMIR(EL The activities of Respondent set forth in section III. above, occurring in connection with the Respondent's op- erations described in section 1. above, have a close, inti- mate, and substantial relationship to trade, traffic. and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. TiF RMEI)DY Having found that Respondent has engaged in unfair la- bor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. It having been found that Respondent discharged Gerald Miller, Richard Palecki, William P. Taylor and Gary La- Vere in violation of Section 8(a)( ) of the Act, the recom- mended Order will provide that Respondent, upon uncon- ditional offers to return to work by Miller. Palecki, and LaVere, and immediately as to Taylor. offer each reinstate- ment to his job. and make each whole for his loss of earn- ings within the meaning and in accord with the Board's decisions in F W. Woolworth Companv,. 90 NLRB 289 (1950): Isis Plumbing & Heating Co., 138 NLRB 716(1962). and Florida Steel Corporation, 231 NLRB 651 (1977). ex- cept as specifically modified by the wording of such recom- mended Order.2' Because of the character of the unfair labor practices herein found, the recommended Order will provide that Re- spondent cease and desist from in any other manner inter- fering with, restraining, and coercing employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: 26 LaVere's conduct on February 9. 1977, obviously was considered by Respondent as not justifying failure to employ LaVere in the future. since no action was taken against him for such conduct when Respondent discharged Van DenBerghe. 27 Respondent's contention of surprise at the hackpay remedy request for Taylor is rejected. Such issue was clearly made known at the trial and rem- edy is warranted Backpay obligation as regards Miller. Palecki. and LaVere commences upon their unconditional offer to return to work. CON(CLUSIONS OF LAW I. Advance Pattern and Machine Corporation d/b/a (ii- braltar Sprocket Company, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 8220. United Steelworkers of America, AFL CIO-CLC, is, and has been at all times material herein. a labor organization within the meaning of Section 215) of the Act. 3. By discharging Gerald Miller, Richard Palecki, and Gary LaVere. Respondent has violated Section 8(a1(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact. conclusions of lay . and the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER'" Respondent, Advance Pattern and Machine Corporation d/b/a Gibraltar Sprocket Company. its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or otherwise discriminating against em- ployees in regard to hire or tenure of employ ment or an' term or condition of employment because of their union or protected. concerted activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which will effec- tuate the policies of the Act: (a) Upon unconditional offers to return to work bh Ger- ald Miller. Richard Palecki. and Gary LaVere, and immedi- ately as regards William P. Taylor, offer to Gerald Miller. Richard Palecki. William P. Taylor. and Gary LaVere im- mediate and full reinstatement to each their former posi- tions or, if such positions no longer exist, to a substantially equivalent position, without prejudice to their seniority, or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of the discrimination against them in the manner described above in the section entitled "The Remedy." (b) Preserve and. upon request. make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at Respondent's plant at Port Huron. Michigan. :' In the event no exceptions are filed as provided b Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, he adopted by the Board and become its findings. conclusions. and Order. and all objections thereto shall be deemed waived for all purposes. 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 7. after being duly signed by Respondent's rep- resentatives, shall be posted by it immediately upon eceipt thereof, and be maintained by Respondent for 60 consecu- 24 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dis- missed. 512