Caron, an Indian Head Co.

CARLON, AN INDIAN HEAD COMPANY Carton, An Indian Head Company, Division of Indian Head, Inc. and Terry Copen, Kenneth Rarick, and John Brewer. Cases 8-CA- 10851-1, 8-CA- 10851- 2, and 8-CA-10851-3 November 28, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 7, 1978, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed a brief in support of the Decision. 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 conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect lo credibili- ty 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. DECISION MAX ROSENBERG. Administrative Law Judge: With all parties represented, this proceeding was heard before me in Cleveland, Ohio, on December 8, 1977, and January 10, 1978, on a complaint filed by the General Counsel of the National Labor Relations Board and an answer interposed thereto by Carlon, An Indian Head Company, Division of Indian Head, Inc., herein called Respondent.' At issue is The complaint. which issued on August 29, 1977. is based upon charges filed on March 8, 1977, and served on March 9, 1977. in Cases 8CA- 10851-1 and -CA-10851-2, and a charge filed on March 22, 1977. and served on March 24, 1977, in Case 8CA -10851 3. whether Respondent violated Section 8(aX3) of the Act by certain conduct to be detailed hereinafter. Briefs have been received from the General Counsel and Respondent which have been duly considered. Upon the entire record made in this proceeding, includ- ing my observation of the demeanor of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1 THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation with its principal office located in Beachwood, Ohio, has, at all times mate- rial herein, been engaged in the manufacture of polyvinyl chloride pipe at its plant in Aurora, Ohio, the only facility here involved. During the salient period, Respondent shipped goods valuded in excess of $50,000 from its place of business in Aurora directly to points located outside the State of Ohio. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that United Rubber, Cork, Linoleum and Plastic Workers of America, Local 583, AFL-CIO-CLC, herein called the Union, is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)3) of the Act by discharging employees Terry Copen, Kenneth Rarick, and John Brewer on or about March 3 or 4, 1977, 2 because they had, or Respondent believed that they had, joined or assisted the Union or had otherwise engaged in statutorily protected concerted activities. Re- spondent denies the commision of any labor practices pro- scribed by the statute, and therefore prays that the com- plaint will be dismissed in its entirety. Respondent manufactures polyvinyl chloride pipe at its plant with a complement of approximately 85 production and maintenance employees who are represented for the purposes of collective bargaining by the Union. The record discloses and I find that, since 1959, Respondent and the Union have been parties to successive labor compacts and, over the years, Respondent has experienced a number of economic strikes which were called by the Union in fur- therance of its bargaining demands. On March 1, at the expiration of the latest contract be- tween the parties, the Union embarked upon another eco- nomic work stoppage which was utlimately terminated on 2 Unless otherwise indicated, all dates herein fall in 1977. 3At the hearing and in its brief. Respondent contended that the com- plaint should be dismissed on the ground. inie, alia, that its issuance was predicated upon a senes of fatal, procedural irregularities. In view of the findings and conclusions hereinafter made, dismissing the affirmative plead- ings in their entirety on substantive ground I deem it unnecessary to rule upon this contention. 495 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 16 upon ratification of a new agreement. It is undis- puted and I find that this strike was punctuated by various incidents of violence and vandalism. These occurrences prompted Respondent to file a petition for an injunction with a local court which, on March 15, granted a tempo- rary restraining order proscribing this activity. However, with the exception of the episode which triggered this pro- ceeding, none of the miscreants were positively identified on the record made. When the strike began on March 1, the Union estab- lished picket stations outside the plant from which bases its members picketed. The patrolling was done by shifts, and each tour was supervised by a line captain who was gener- ally responsible for the conduct of the pickets while he was on duty. The line captain during the early hours of March 3 was employee Kenneth Rarick. Among the other strikers present at that time were employees Terry Copen and John Brewer. There is no essential dispute of fact and I find that, on the morning of March 3, Respondent's supervisors, Jess Dowdle, Lloyd Askew, and Richard Denny, were on duty in the plant. Since the commencement of the strike, these men had been working 12-hour shifts, which extended from 8 p.m. to 8 a.m., performing some general production work and making regular tours of the plant and property to insure security. About 3 a.m., while the supervisors were busily engaged in the warehouse, warning signals were heard. After an investigation, they noted that the air sys- tem which fed the entire plant was losing pressure. Denny and Dowdle immediately visited the boilerroom where they found the door unaccountably open and the boiler valve shut off, with the result that the boiler was over pressuriz- ing. While Denny proceeded to summon the plant engineer for assistance, Dowdle and Askew proceeded outside the building to inspect the premises. At approximately 3:30 a.m., they approached one of Respondent's trucks which was parked near the sewage disposal plant and discovered that it had been severely vandalized. Upon making a tour of inspection of the well house and a nearby fire well and finding no damage, Dowdle and Askew commenced to re- turn to the damaged truck. As they were doing so, they observed three men walking toward them along the rail- road tracks which immediately bordered on Respondent's property. Dowdle and Askew thereupon decided to move closer to the tracks to ascertain the identity of the three figures in light of the supervisors' discovery of the vandal- ized truck and the valve shut off. In their testimony, both supervisors unequivocally avowed that, as they neared the tracks, they recognized strikers Kenneth Rarick, Terry Co- pen, and John Brewer who, from a distance of less than 100 feet, began to pick up fist-size rocks from the rail bed and throw them at the company representatives. This at- tack continued for several seconds during which Dowdle and Askew dodged the missiles. While neither man was hit by the volley, the rocks struck the ground as close as 5 feet away, landing on all sides of them. At this juncture, Dow- dle exclaimed, "Come on, let's back off before we get hit," whereupon the men separated and hid behind stacks of pipes in the vicinity. According to Dowdle, he observed from his new vantage point that Rarick was crouched be- hind a transformer box panel situated near the railroad tracks. A few moments later, Dowdle circled over to Askew's refuge and, together, they started their retreat to the main plant building. However, Rarick, Copen, and Brewer kept pace with the supervisors and, as the latter proceeded to the plant, the strikers hurled additional vol- leys of rocks in their direction. Dowdle and Askew ran the remaining distance unharmed and, upon returning to the plant, they turned in a report of the incident to their plant manager. Pursuant to this report, Respondent mailed a let- ter to each of the strikers which recited that: This is to inform you, that effective this date, your employment with Carlon, An Indian Head Company is hereby terminated. The reason for this discharge is serious misconduct on your part while engaging in picket line activity during the early morning of March 3, 1977.4 As chronicled above, the work stoppage ended on April 16 at which time a contract settlement was reached. Of the 85 employees who participated in the strike and who had engaged in picketing activity, only Rarick, Copen, and Brewer were terminated. In light of the testimonial utterances of Rarick, Copen, and Brewer, there is no question but that these men were engaged in picket duty along the railroad tracks during the period from 3:30 and 4 a.m. on March 3 when the incident reported by the supervisors occurred. Thus, Rarick, the picket line captain during that period, testified that he, Co- pen, and Brewer walked down the railroad tracks adjacent to Respondent's yard on at least three occasions that morning for the purpose of checking the yard and the back door to observe what production activities were taking place. Rarick also admitted that, on one such journey with his cohorts, he noticed Dowdle and Askew in the yard and the supervisors had a clear view of the three pickets be- cause a pole at the fire well where the supervisors were standing illuminated the area with five lights. Indeed, Rar- ick corroborated Dowdle's testimony that the latter had seen Rarick crouch behind a transformer box panel at a time when Dowdle testimonially reported that rocks were cascading around Dowdle and Askew. During his direct examination, Rarick flatly denied that he had hurled rocks at the supervisors on the night in question, and further denied that he had observed Copen and Brewer do so, al- though he conceded that he had observed "a few [rocks] now and then," and even managed to describe them in detail. On cross-examination, Rarick also initially denied that he had seen either Dowdle or Askew near the railroad siding or behind the railroad cars which were parked on the siding, and denied that he had observed any truck in Respondent's yard. However, in an affidavit which Rarick gave to a Board agent in preparation for the hearing, Rar- ick swore that "During that morning [March 31 we were walking up the railroad tracks to observe any activity going on around the plant. As we were walking back along the railroad tracks-there were six or seven rail cars inside the Carlon Co. fence-the forman [sic] Lloyd Askew and Jess 4 The effective date of the discharge of Rarick and Brewer. as reflected in the letters sent to them. was March 3. Copen's termination was effective March 4. 496 CARLON, AN INDIAN HEAD COMPANY Dowdle came out between the railcars and the fence. Terry Copen, myself, and maybe John Brewer were the ones who walked down the railroad tracks. The foremen looked at us and we looked at them. I don't recall anything being said. I did see a company truck inside the fence." In an attempt to overcome the testimonial assertions of Dowdle and Askew that they had actually seen Rarick throw fist-size rocks in their direction from the railroad siding, the General Counsel adduced evidence from Rarick that the picket line captain was right-handed, that he had suffered an industrial injury to that limb, and that Rarick could not possibly have thrown any rocks on the morning in question. The record discloses that Rarick had filed an application for payment of medical benefits with the Bu- reau of Workers' Compensation of the State of Ohio due to an industrial accident which he sustained on February 10. The application and an accompanying medical certificate reflect that he visited a physician on February 16 and Feb- ruary 23. In his evaluation during the visit on February 23. the doctor advised Rarick to "continue present regimen [i.e., avoid strenuous use of arm, heat applications, medica- tion]" and to "return [in] I week if necessary." In a medi- cal note which he gave Rarick for submission to Respon- dent, the physician reported that "Kenneth Rarick may not use the [right] arm for any strenuous gripping, pulling, etc. and must avoid bumping the elbow for the next 5 days." By his own admission, Rarick did not have occasion to visit the doctor for a further checkup during the week fol- lowing February 23. In fact, he continued to work steadily at the plant until the strike was called on March 1, per- forming a wide range of movements using his throwing arm such as driving a truck and painting. Despite his claimed infirmity, Rarick openly acknowledged on the stand that he was physically able to hurl rocks on the morning of March 3. When called as a witness, Terry Copen also confessed that he had walked down the railroad right-of-way on two occasions on the morning of March 3 in company with Rarick and Brewer, and that he had spied Dowdle and Askew in Respondent's yard. However, he, too, denied that he had thrown any rocks at the supervisors, or that he had seen Rarick and Brewer do so. Under letter of March 4, Copen received word from Respondent that he had been discharged on that date for misconduct on the picket line on March 3. In his testimony, John Brewer acknowledged that he had travelled down the railroad siding with Rarick and Copen on the morning of March 3 on at least one occasion, and the record establishes that, on this occasion, he noticed Supervisors Dowdle and Askew walking around the rail- road cars. On direct examination, Brewer categorically de- nied that he had thrown any rocks at the supervisors or that he had seen Rarick or Copen do so. On cross-exami- nation, Brewer was asked whether he had picked up any objects on the railroad bed, and he responded in the nega- tive. However, in a sworn statement given to a Board agent during the investigation of these proceedings, Brewer re- lated that, during his picketing tour, he "may have picked up pieces of steel or railroad spikes just to play with them." He then claimed that this playful gesture occurred well before he walked along the railroad siding with Rarick and Copen. and he could not remember whether these men also indulged in the same pastime. On March 3. Respondent also mailed a letter to Brewer informing him of his dis- charge on that date for engaging in picket line misconduct. Rounding out his testimony, Brewer failed to deny Produc- tion Superintendent Richard Denny's averments that, on the evening of March 7. while stationed at the plant gate, Brewer warned Denny that "Before this thing is over with, there is going to be blood shed." Finally, Emanuel Hough testified on behalf of the Gen- eral Counsel that he served as a picket from midnight to 6 a.m. on March 3 along with Rarick, Copen, and Brewer. and that he did not observe these men throw rocks at su- pervisors at anytime that morning. Initially, Hough pro- claimed that any such actions of the three strikers could not have escaped him because "they were within my eye- sight the whole evening." However, he then acknowledged that, during the critical period from 3:30 to 4 a.m. on March 3. he was positioned at a picket station far removed from the railroad track site where Rarick. Copen. and Brewer accosted Dowdle and Askew. I do not credit the testimony of Rarick, Copen, and Brewer, not only because I was not impressed with either their demeanor or candor when they testified from the wit- ness stand, but also because their testimony was internally inconsistent. Thus, all three men admitted that, between 3:30 and 4 a.m. on March 3, they collectively travelled down the railroad siding adjacent to the plant yard, and that they observed Dowdle and Askew within 100 feet of their location. In his testimony, Rarick denied that he had seen the supervisors in the vicinity of the railroad cars or that any damaged truck was on the premises. He then con- ceded that, in a sworn statement given to the Board, he told the Government agent that he had, indeed, noticed the supervisors in close proximity to the railroad cars and the pickets, and that a company truck was positioned in the yard. Rarick next sought to convey the impression that he would have been physically unable to hurl rocks at Dowdle and Askew, even if he had so desired, because his throwing arm had been incapacitated as a result of an industrial accident. However, this attempt to shield his involvement in the rock throwing incident proved abortive on several counts. Thus, although the attending physician directed Rarick to return to his office within a week after his Febru- ary 23 appointment if necessary, Rarick felt no need to follow this direction and. in fact, continued to perform the physically demanding duties of driving a truck and paint- ing. Moreover, Rarick admitted on the stand that he would have been physically capable of throwing rocks on the morning of March 3. Furthermore, Rarick testified that, during his interview with the Board agent, he stated that he "thought I was fired because of my union activity and my longevity with the company." In this connection, Rarick recounted that he had been a member of the Union's con- tract negotiating team for 6 years and has also held the position of chief shop steward for 3 years. However. Rarick confessed that he had abandoned these positons long be- fore the current work stoppage, and that he held no union office on March 3. Moreover. Rarick further acknowl- edged that, during an earlier strike against Respondent which occurred in 1974. he was immediately recalled to 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work at the conclusion of the walkout despite the fact that, during this period, he had been both a union negotiator and a chief shop steward. Turning to the testimony of Copen and Brewer, both men admitted that they had walked down the railroad sid- ing with Rarick on the morning of March 3 and both men denied that they had indulged in any rock throwing, al- though they confirmed that they had spotted Supervisors Dowdle and Askew in the plant yard on that occasion. Brewer did admit that he seized some pieces of steel or railroad spikes from the road bed as a playful gesture, but claimed that this episode occurred long before he jour- neyed down the tracks with his fellow strikers. That Brew- er was not disinclined to indulge in picket line violence is best exemplified by the warning which he uttered to Pro- duction Superintendent Denny on March 7 that "Before this things is over with, there is going to be blood shed." In sum, I credit the testimony of Respondent's Supervi- sors Dowdle and Askew and find that, between 3:30 and 4 a.m. on March 3, as they were engaged in a security check in the plant yard, Rarick, Copen, and Brewer stationed themselves on a railroad siding less than 100 feet from where the supervisors stood and bombarded the latter with a barrage of fist-sized rocks which the strikers had gathered up from the railroad bed. Dowdle and Askew thereupon ran for cover behind some pipes located in the yard and hid behind these barricades while the missiles ricocheted off the pipes or fell within 5 feet of the men. Finally, the supervisors retreated to the confines of the plant where they reported the incident to their superior and positively identified the culprits as Rarick, Copen, and Brewer. As heretofore chronicled, Re- spondent discharged Rarick and Brewer on March 3, and Copen on March 4, because of this picket line misconduct. In his complaint, the General Counsel alleges that, on March 3 and 4, Respondent discharged Rarick, Copen, and Brewer for engaging in a protected, concerted activity, i.e., a privileged economic strike, and thereby offended the provisions of Section 8(aX3) of the Act. Respondent claims that it discharged these men, not because they embarked upon an economic work stoppage in furtherance of their Union's collective-bargaining demands, but solely because they took part in the serious, unprotected misconduct of hurling large rocks at their supervisors while on the picket line. As I have heretofore found that the evidence supports Respondent's claim that the three strikers had launched these objects and that they were discharged therefor, I find no merit in the General Counsel's contention in this re- gard. Reaching further into his arsenal, the General Counsel urges that, notwithstanding the three alleged discriminatees might be found to have indulged in the rock throwing inci- dent, this activity was not the type of "brutal violence" which the statute condemns. If I understand the General Counsel's legal thesis correctly, he seems to contend that, inasmuch as neither Dowdle nor Askew were struck by the volley of rocks which were thrown in their direction, the conduct of the strikers should be chalked up as mere "ani- mal exuberance" which falls within the protective ambit of Section 13 or 7 of the Act. To be sure, Section 13 of the Act prescribes that "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to inter- fere with or diminish in any way the right to strike, or to effect the limitations or qualifications on that right." And, of course, Section 7 of the statute invests employees with the right "to engage in ... concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion .... " But this is not to say that all forms of conduct which falls within the literal terms of these sections are entitled to statutory protection. In deference to the rights of employers and the public in general, the Board and other tribunals have made it abundantly clear that serious acts of misconduct which occur in the course of a strike may disqualify a striker from the protection of the Act.5 It is now established that, "Upon proof that strike mis- conduct on the part of a particular striker has occurred, the burden of proving the innocence of the striker shifts to the General Counsel who, in order to gain reinstatement for the striker, must show that the conduct was not sufficiently serious to justify the employer's refusal to reemploy the striker in question." 6 In assaying the misconduct of Rar- ick, Copen, and Brewer, it should be noted that the Union's strike was neither caused nor prolonged by the commission of any unfair labor practices on the part of Respondent, and, so far as appears, the rock-throwing inci- dent was not in response to the presence of nonstrikers or scabs at work in the plant. When viewed against the back- drop of the extensive vandalism and pellet-gun shootings which occurred during the work stoppage herein, which the state court found to be of sufficient gravity to enjoin, as well as Brewer's threat that blood would now before the labor hostilities ended, I am persuaded that the calculated misconduct of Rarick, Copen, and Brewer was of such se- verity under the circumstances as to warrant depriving them of the protection of the controlling legislation.7 From my reading of the Act and the interpretative decisions, I perceive no support therein for the General Counsel's apparent asser- tion that employees' rights under Sections 13 and 7 should depend upon the accuracy of their aim. Finally, the General Counsel argues that, even though Rarick, Copen, and Brewer could have been lawfully dis- charged for having hurled rocks at the supervisors, Re- spondent selected these men for termination for the alter- nate reason that they occupied prominent positions in the Union's infrastructure, and thus violated Section 8 (aX3 ) of the Act on this ground. I find this argument totally lacking in substance. As I have heretofore found, although Rarick had served as a member of the Union's negotiating team and as the chief shop steward during the Union's strike in 1974, he held no office in that labor organization at the times material herein. Moreover, despite his participation 5See, e.g.. Hedstrom Company, a subsidiary of Brown Group, Inc., 235 NLRB 1198 (1978); N.L.R.B v. Illinois Tool Works, 153 F.2d 811, 815-816 (7th Cir. 1946). 6See Coronet Casuals, Inc., 207 NLRB 304, 305 (1973). 7Compare N.LR.B. v. Otsego Ski Club-Hidden Valley, Inc., 542 F.2d 18 (6th Cir. 1976) (throwing eggs at vehicles); W J. Ruscoe Company v. N.L.R.B., 406 F.2d 725 (6th Cir. 1969) (throwing gravel at nonstrikers); Larand Leisurelies, Inc., 222 NLRB 838 (19 76) (throwing beer bottles at cars) with N.LR.B. v. Illinois Tool Works, supra (publishing inaccurate in- formation about employer); Terry CoacI Industries, Inc.. 166 NLRB 560 (1967), enfd. 411 F.2d 612 (9th Cir. 196%9) (using obscene language); Coronet Casuals, Inc., 207 NLRB 304 (1973) (throwing gravel underhanded). 498 CARLON, AN INDIAN HEAD COMPANY in the work stoppage which occurred in 1974, Rarick was immediately recalled to work when the strike terminated. Brewer testified without contradiction and I find that he held no position on the Union's official roster when he was discharged on March 3 and that, although he participated in the 1974 strike, he, too, was recalled by Respondent. Furthermore, Copen testified that he had occupied the role of shop steward when the current strike began on March 1, but revealed that there were six or eight other shop stew- ards who participated in the strike and none of them were discharged by Respondent. Finally, Emanuel Hough, who held the office of president of the Union during the March 1 strike and who also engaged in picketing, was not termi- nated. In short, I am not convinced that Respondent was motivated in severing Rarick, Copen, and Brewer from its employment rolls for reasons connected with their union membership or the offices which they held in that labor organization. Having found that Rarick, Copen, and Brewer had en- gaged in picket line misconduct on the morning of March 3 which was unprotected by the Act, I therefore conclude that Respondent was legally privileged to discharge them for this activity. Accordingly, I conclude that the General Counsel has failed to sustain his burden of proof that Re- spondent violated Section 8(a)(3) of the Act by terminating these men. Consequently, I shall order that the complaint be dismissed in its entirety. ORDER 8 IT IS HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed in its entirety. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations fo the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 499