The Firestone Tire & Rubber Co.

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Firestone Tire & Rubber Company and Oil, Chemical and Atomic Workers International Un- ion, AFL-CIO, Local No 4-23 Case 23-CA-2904 December 8, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On January 14, 1969, Trial Examiner Benjamin B Lipton issued his Decision in the above-entitled proceeding, finding that Respondent had violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discriminatorily refusing to reinstate 13 named strikers at the conclu- sion of an economic strike Accordingly, he recom- mended that Respondent cease and desist from such conduct and take certain affirmative action, as set forth in the attached Trial Examiner's Decision The Trial Examiner also found that Respondent had not engaged in any unfair labor practices with respect to its refusal to rehire two other named strikers, and he recommended that the allegations of the complaint pertaining to these individuals be dismissed Thereaft- er, Respondent filed exceptions, and the Charging Party cross-exceptions, to the Trial Examiner's Decision with briefs in support thereof The Charging Party also filed a reply brief On June 20, 1969, by Executive Secretary's Order, the Board remanded the proceeding to the Trial Examiner with instructions to admit into evidence and consider certain exhibits which had been rejected at the hearing The Order further provided that upon the motion of any party to the proceeding or on the Trial Examiner's own motion, the record would be reopened for receipt of further testimony or evidence Thereafter, at the request of all parties, the record was reopened and the hearing before Trial Examiner Lipton was reconvened on January 27, 1970 At the reopened hearing, the General Counsel acting pursuant to an agreement of the parties moved to amend the complaint by deleting therefrom the names of 121 of the 13 individuals who had been found to be discriminatees in the Trial Examiner's Decision The Trial Examiner granted the General Counsel's motion2 after being satisfied that with respect to these 12 individuals Respondent had substantially complied with the terms of the Trial Examiner's Recommended Order As amended the complaint lists three individuals as alleged discrimina- tees, employee Richard Broussard whom the Trial Examiner had found to be a discriminatee in his Decision and employees Thomas McCorkle and I Charles N Bailey Sr Gene Cordeaux Burford Curtiss Donald J Fowler Steve Henderson Glyn Howell Frank A McLeod Donald Moore Claude S Peveto Sidney A Patterson Tommy J Swift and V R Jerald Whitehead whom the Trial Examiner had found were not refused rehire for unlawful reasons Also during the hearing, the Trial Examiner granted Respondent's motion to withdraw its offer of all the exhibits which were the subject of the Board's Order except those pertaining to employee Broussard Thus, by agreement of the parties, the scope of the hearing on remand was limited to the issues raised with respect to Respondent's alleged unlawful refusal to rehire Broussard On March 26, 1970, Trial Examiner Lipton issued his Supplemental Decision, attached hereto, in which he reaffirmed his finding that Respondent violated Section 8(a)(3) and (1) of the Act by its refusal to reinstate employee Broussard at the conclusion of the economic strike The Trial Examiner also reaffirmed his earlier finding that Respondent did not engage in any unfair labor practices by reason of its refusal to reinstate employees McCorkle and Whitehead Ac- cordingly on the basis of these findings, the Trial Examiner recommended that the Board adopt, with certain modifications, the Order set forth in his prior Decision Thereafter, Respondent filed exceptions, and the Charging Party cross-examinations, to the Trial Examiner's Supplemental Decision together with supporting briefs Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel The Board has reviewed the rulings of the Trial Examiner made at both the original and supplemental hearings and except as previously noted, finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision and Supplemental Decision together with the entire record in this case, including the exceptions, cross-exceptions, and briefs filed with respect to both the Trial Examiner's Decision and Supplemental Decision, and hereby adopts the Trial Examiner's findings, conclusions, and recommenda- tions to the extent they are consistent with the following We agree with the Trial Examiner that Respondent was justified in refusing to reinstate employee Thomas McCorkle based upon McCorkle's serious misconduct in threatening to put a bullet in employee Netting's back, if he (Netting) did not leave town that night However, we do not agree with the Trial Examiner's finding of a violation in connection with Respondent's refusal to reinstate employee Richard Broussard or his dismissal of the allegations relating Walden 2 The Trial Examiner also granted a motion by the Charging Party to delete from the charge the names of these 12 individuals 187 NLRB No 8 FIRESTONE TIRE & RUBBER CO. 55 to the unlawful refusal to reinstate employee Jerald Whitehead. Our conclusion with respect to employee Broussard is based upon Broussard's participation and involve- ment in a threat delivered by employee McCorkle to R. W. Krajicek, the president of Cesco, Inc. Cesco, Inc., was under contract with Respondent to perform certain equipment cleaning functions at Respondent's plant, and at various times during the strike, its drivers crossed the picket lines at Respondent's plant in order to perform its regular services. Evidencing concern over this situation, employee McCorkle contacted Marion J. Palermo, an official of Cesco, Inc., and a personal friend of McCorkle, and arranged a meeting to discuss that company's refusal to honor the strikers' picket lines. When McCorkle arrived at the offices of Cesco, Inc., he was accompanied by employees Broussard and Fowler, and after a brief conversation with Palermo, they were taken to see Company President Krajicek. In the ensuing conversation in President Krajicek's office, McCorkle served as the spokesman of his group, and although there is some testimonial conflict as to the precise nature of the remarks passed, the Trial Examiner inferentially credited McCorkle's version of the conversation over that of Palermo and Krajicek. According to McCor- kle's testimony, he told Krajicek the reason for the visit was to discuss their crossing of the Union's picket line. McCorkle added that they were strictly repre- senting the Union and that they had made other calls similar to this and the response had been very good. After asking Krajicek to remain neutral until the dispute was settled, McCorkle made the following remark: And I said, . . . in past strikes over the nation, there has been lots of violence, cars and trucks turned over, burned, people beat up, and my intentions of going out and seeking these people out that are crossing our picket lines were just, we don't want anything like this to happen. And we certainly don't want any of your drivers to get their heads peeled or anything of this sort.3 According to McCorkle, Krajicek responded to this comment by dumping out of his chair and asking whether he was being threatened. McCorkle respond- ed with the following statement: No sir, I said. If I were threatening you, I would come over there and pull you out away from the chair, but this is not our intentions of [sic] coming over here. We don't want any violence. And I dust 3 The essential difference between the testimony of McCorkle and that of Palermo and Krajicek was that according to the latter , McCorkle made a direct threat to pull the driver out and peel his head back and to do damage to company equipment and personnel 4 McCorkle's right to reinstatement is not at issue here because of our previous adoption of the Trial Examiner's finding that McCorkle forfeited his right to reinstatement as a result of his threat to put a bullet in the back want you to understand that there is a possibility that the position you are putting your drivers in, something could happen to them. In our judgment, the foregoing remarks of McCor- kle are nothing but a thinly veiled threat to cause serious injury to Cresco, Inc.'s drivers and damage to their equipment, if that company persisted in crossing the picket lines at Respondent's plant. Due to the serious nature of this threat, it would appear that Respondent was unquestionably within its rights in denying reinstatement on this basis. However, the Trial Examiner reasoned that whatever justification Respondent might have for denying reinstatement to McCorkle because of this incident,4 the considera- tions do not hold true for employees Broussard and Fowlers because they were merely on the "side lines" and took no active part in the conversation between McCorkle and Krajicek. We do not agree. Broussard was aware of the purpose of McCorkle's visit to Cresco, Inc., and willingly lent his presence to this activity. If Broussard had any question about his status as a participant, any doubt surely must have been dispelled when McCorkle introduced the group to Krajicek as representatives of the Union, there for the purpose of discussing Krajicek's failure to observe the Union's picket line. While Broussard may or may not have known the remarks McCorkle would make, Broussard did nothing to disassociate himself from these remarks. This together with the McCorkle's use of the collective form in making such remarks could only cause Krajicek to believe that in making the threat, McCorkle was speaking on behalf of the group. In such circumstances, Broussard must also bear responsibility for the threat even though he did not personally utter it. Accordingly, we find that Respondent was justified in refusing reinstatement to Broussard because of his involvement in the threat made to Krajicek.6 With respect to employee Whitehead, the Trial Examiner found that Respondent was justified in refusing to reinstate Whitehead based upon his conduct during the so-called "Moncrief Incident." The incident is described in the Trial Examiner's Decision as follows. On June 16,7 about 7:30 p.m., David Moncrief left the plant accompanied by his wife and child. As they were leaving the access road to the plant, they saw two men standing on the side of the road. When the Moncrief's car approached the men, they made "vulgar" hand signs and cursed, e.g., "S.O.B." and "scabbing bastard." Moncrief returned of employee Netting 5 As a result of the informal settlement agreement of the parties, Fowler's rights are not in issue 6 Cf Joseph H Bliss, d/b/a Aricraft Mantel and Fireplace Co, 174 NLRB No 110 7 1967 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the plant to find out the identity of these men, and after describing them to plant guard Herbert Roberts, Moncrief was told by Roberts that the names of these two individuals were Broussard and Whitehead. The Moncriefs then left the plant for a second time that evening and as they passed the individual identified as Whitehead, he approached their car and said that if Moncrief did anything, "he was going to get his ass." In passing upon this incident, the Trial Examiner found that the name calling and vague hand gestures were insufficient to justify discharge. However, the Trial Examiner also found that Moncrief could have reasonably construed the rough vernacular of White- head's remark as a threat of physical harm, and as the remark was neither denied nor explained, he conclud- ed that Whitehead's statement was a threat which constituted serious misconduct sufficient to justify Respondent's action in terminating his employment. While we agree with the Trial Examiner that the name calling and vague hand gestures, described above, do not constitute misconduct serious enough to justify termination, we reach the same conclusion with respect to Whitehead's remark to Moncrief. Although vulgar in content, the expression used by Whitehead is not without recognition in common parlance where the remark is understood to be a vague threat to avenge a real or imagined injustice. Because of the vague and ambiguous nature of the remark, we do not think it can be reasonably interpreted as a direct threat of physical harm. Accordingly, as we do not view Whitehead's remark to Moncrief as serious misconduct, we find that Respondent violated Section 8(a)(3) and (1) of the Act when it terminated Whitehead for this reason.8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent, The Firestone Tire & Rubber Company, Orange, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications: 1. Delete paragraph 2(a) and its accompanying list of named individuals from the Trial Examiner's Recommended Order and in lieu thereof substitute the following: (a) Offer to employee Jerald Whitehead immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings in the manner set forth in "The Remedy" section of the Trial Examiner's Decision. 2. Substitute the following for paragraph 2(b) of the Trial Examiner's Recommended Order: (b) Notify the above-named individual if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 3. Delete the last indented paragraph and its accompanying list of named individuals from the Trial Examiner's "Notice to All Employees," and in lieu thereof, substitute the following: WE WILL offer to employee Jerald Whitehead immediate and full reinstatement to his former position, or, if that position no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. 4. Substitute the following for the paragraph immediately below the signature line in the Trial Examiner's notice: Note: We will notify the above-named individu- al if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. B In making this finding , we have not overlooked the fact that the Trial Examiner found it unnecessary to pass upon two incidents relied upon by Respondent as grounds for Whitehead's termination We have considered both "Ayres-Parker" and "Drake Highway" incidents and conclude that even if Respondent's version of these incidents were credited, the conduct attributed to Whitehead is not of sufficient gravity to serve as justification for his termination TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Trial Examiner: Upon a complaint issued by the General Counsel of the Board,' alleging that the above-captioned Respondent 2 violated Section 8(a)(1) and (3) of the Act, a hearing was held before me in Orange, Texas, on March 12 through 15, 1968. All parties were represented at the hearing, and were afforded full opportunity to present relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. After the close, briefs were received from each of the parties, and were given careful consideration. Upon the entire record in the case, and from my observation of the demeanor of the witnesses on the stand, I make the following: i The charge by the Union was filed on December 6 and served by registered mail on or about December 13, 1967 2 Company name appears as amended at the hearing. FIRESTONE TIRE & RUBBER CO. 57 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Firestone Tire & Rubber Company is engaged in the manufacture of synthetic rubber products at a plant in Orange, Texas, which is the sole facility involved in this proceeding. During the year preceding issuance of the complaint, Respondent had a direct outflow and a direct inflow in interstate commerce of products and materials, in each instance, valued in excess of $50,000. It is admitted, and I find, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local No. 4-23, herein called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Essential Issues In substance, the complaint alleges that Respondent independently violated each of the Sections 8(a)(1) and (3) of the Act, by refusing to reinstate, upon their uncondition- al application, 15 named employees3 who had participated in a general strike against Respondent.4 In defense, Respondent denies the alleged violations, and affirmatively answers that each of the named employees, during or closely connected to the strike, engaged in various acts of misconduct which justifiably brought about their "discharge," excepting one striker who resigned. B. Allegation of Unfair Labor taken only of the final action of the Board on these issues. The Board has since handed down its decisions dismissing the refusal to bargain complaints and specifically holding that the strike remained at all times an economic strike 6 C. Pertinent Legal Principles 1. Burden of Proof N.L.R.B. v. Burnup & Sims, 379 U.S. 21, provides the basic authority on certain of the questions raised herein relating to the nature and burden of proof necessary on either side. The accepted facts, for purpose of decision by the Supreme Court, were that the employer discharged two employees in good-faith, but mistaken, belief that they had threatened to dynamite company property while soliciting an employee to join the union. Resolving a conflict among the Circuits,7 the Court sustained the Board's finding of an employer violation. Key portions of the brief court opinion are quoted: We find it unnecessary to reach the questions raised under Section 8(a)(3) for we are of the view that in the context of this record Section 8(a)(l) was plainly violated, whatever the employer's motive . . . . Defeat of [Section 71 rights by employer action does not necessarily depend on the existence of an antiunion bias. Over and again the Board has ruled that Section 8(a)(1) is violated if an employee is discharged for misconduct arising out of a protected activity despite the employer's good faith, when it is shown that the misconduct never occurred. See, e.g., Mid-Continent Petroleum Corp., 54 N.L.R.B. 912, 932-934 . . , Standard Oil Co., 91 N.L.R.B. 783, 790-791 ...; Rubin Bros. Footwear, Inc., 99 N.L.R.B. 610,611.3 Practice Strike On or about January 20, 1967,5 all of the approximately 376 employees in a certified production and maintenance unit commenced a strike, which related to a certain issue involved in the Union's contract negotiations with Respondent. On or about November 20, the strike came to a conclusion . The present complaint alleges in explicit detail that Respondent engaged in unlawful refusals to bargain in certain respects and that the strike was caused and prolonged by such unfair labor practices-all of which were subjects of litigation in prior complaint proceedings before a Trial Examiner. At the instant hearing, it was further disclosed that the allegations herein of refusals to bargain and existence of an unfair labor practice strike are identical with those involved in the previous cases, as to which Trial Examiner Decisions had, as of then, been rendered adverse to Respondent and were pending on exceptions filed before the Board. It was thereupon ruled that relitigation of any of the issues in the prior cases was barred and that official notice would appropriately be 3 Charles N Bailey, Sr, Richard J Broussard, Burford Curtiss, Gene Cordeaux, Donald J Fowler, Steve Henderson , Glyn Howell, Thomas W McCorkle, Frank A McLeod, Donald Moore, Sidney A Patterson, Claude S Peveto, Tommy J Swift, V R Walden, and Jerald L Whitehead 4 The Union's charge specified 21 sinkers unlawfully refused reinstatement That rule seems to us to be in conformity with the policy behind Section 8(a)(1). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees. Union activity often engenders strong emotions and gives rise to active rumors. A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the Section 8(a)(1) right that is controlling. We are not in the realm of managerial prerogatives .. . . See Garment Workers v. Labor Board, 366 U.S. 731, 738-739 . . Labor Board v. Erie Resistor Corp., 373 U.S. 221, 228-229. 3 The Rubin Bros case made a qualification as to burden of proof. Prior thereto the burden was on the employer to prove that the discharged employees was in fact guilty of the misconduct Rubin Bros said that "once such an honest belief is established, the General Counsel must go 5 All dates are in 1967, unless otherwise indicated 6 173 NLRB No 178 and No 179 (December 12, 1968). ' The Court compared the opinion below in Fifth Circuit (322 F 2d 57) which it reversed with N L R B v Cambria Clay Products Co, 215 F.2d 48 (C.A 6), N L R B v Industrial Cotton Mills, 208 F.2d 87 (C.A 4), cert denied, 347 U S 935; and Cusano v. N LR B, 190 F.2d 898 (C.A 3) 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forward with evidence to prove that the employees did not, in fact. engage in such misconduct " In the Mid-Continent case, where a large number of strikers were discharged for allegedly engaging in a sitdown in the plant, the Board held in substance that- ... once it is pleaded, as in the case here, that the discharge was made for unlawful conduct inseparably connected with the strike, the burden was on the respondents to show that all the striking employees discharged therefore had, in fact, been guilty of unlawful conduct. The rule was reaffirmed in Standard Oil, where the Board said that- ... to hold otherwise would be to place employees who engaged in lawful strike activities with the hope of returning to their jobs at the end of the economic struggle at the mercy of an employer who may sincerely regard their conduct as unlawful . . . [a]n employer who discharges a striker on the ground that he has engaged in unlawful strike activities, does so at the peril of deciding wrongly. Subsequently, in Rubin Bros., the Board modified the rule in the following manner: ... we are now of the opinion that the honest belief of an employer that striking employees have engaged in misconduct provided an adequate defense to a charge of discrimination in refusing to reinstate such employ- ees, unless it affirmatively appears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established, the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct. The employer then, of course, may rebut the General Counsel's case with evidence that the unlawful conduct actually did occur. At all times, the burden of proving discrimination is that of the General Counsel. This modification of the Mid-Continent rule does no more than recognize the true nature of the General Counsel's obligation to establish all the essential elements of a charge that discrimination has occurred when a striking employee is refused his job. It merely places an employer's honestly asserted belief in its true setting by crediting it with prima facie validity. Manifestly, the General Counsel's prima facie case of a violation is fully made out upon the showing that employees were terminated for conduct arising out of a protected activity. More directly in point, as the Supreme Court has stated: If, after conclusion of the strike, the employer refuses to reinstate striking employees, the effect is to discourage employees from exercising their rights to organize and to strike guaranteed by Section 7 and 13 of the Act.. . Under Section 8(a)(1) and (3), . . it is an unfair labor practice to interfere with the exercise of these rights. Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to `legitimate and substantial business justifications,' he is guilty of an unfair labor practice. N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 34. The burden of proving justification is on the employer. Ibid [Emphasis supplied.]8 Such business justification would include acts of serious "misconduct" by which the strikers may be deemed to have forfeited the protection to their activities afforded under the Act. Unquestionably, in the entire line of cases, an employer's contention of striker misconduct constitutes an affirmative defense and, as such, requires the employer to carry the overall burden of proof to sustain this position. In the litigation, the employer may plead or otherwise specifically rely on the Rubin Bros. theory that he had a good-faith belief that the alleged misconduct was in fact committed. Or, as it often is the case, the employer may proceed to produce his evidence to show that the asserted misconduct did occur. However, in none of the decisions is there any intimation that such a "good faith belief," whether or not articulated by the employer, can be established by other than competent evidence. Once "established," the General Counsel must go forward successfully to rebut such evidence. As a practical matter, in the litigation of many such cases, it is determined only upon an analysis of the total record whether either adversary has sustained his respective burden of the evidence .9 In Burnup & Sims, the narrow distinctions of the Rubin Bros. case, as such, were not actually before the Supreme Court or decided by it. Under the accepted facts there, the issue had been litigated and the finding made that the alleged misconduct had not occurred. Burden of proof was not in question. The Board doctrine that the employer's good faith belief was immaterial in these circumstances was shown by the Court's reference to the cases in Mid- Continent, Standard Oil and, as continued pro lanto, Rubin Bros. io The Supreme Court in Burnup & Sims also referred to the cases in the conflicting Circuits. In Industrial Cotton Mills, the Fourth Circuit stated: .. the statutory protection extended to a blameless employee is a firm and clear guarantee, not one which constantly varies with the correctness of the employer's opinion or with accuracy or his sources of information. Nor does the Act expose the innocent employee to the hazard of his employer's mistake where the conse- quence of this mistake is to divest the employee of a right guaranteed by the Act. # n • 3 f It is true that where denial of reinstatement results from s N L.R B v Fleetwood Trailer Co, 389 US 375, 378 And see, Laidlaw Corp, 171 NLRB No 75, Lamb Weston, Inc, 170 NLRB No 186 " As we generally observed in Kohler Co, 128 NLRB 1062, 1194-"Though the parties start with a pleaded issue of honest belief, the practical result is that what they litigate is the issue whether the striker actually engaged in the alleged misconduct " 10 The Court's citation and footnote discnption of Rubin Bros should not, in my view, be construed as an endorsement Also cited were Mid- Continent and Standard Oil, which are at variance with the Rubin Bros modification Indeed, certain essential language of the Court could arguably be interpreted as favoring the former cases to the extent of the distinction (e g ,-"A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith ") For example, it may still be questioned whether the exercise of Section 7 rights would not be equally deterred where innocent employees, long after the events, are not available to establish their lack of guilt FIRESTONE TIRE & RUBBER CO. 59 the employer's reasonable and sincere mistake, there is no evil intention behind the harm suffered by the employee. While the employer's attitude may not be censurable, the employee too is free of blame. As between the victim of the mistake and the person who made the mistake, it seems just that the perpetrator bear the onus of his own error rather than that the burden of this error should be shifted to the employee who cannot guard against it. The views we have expressed seem to find support in the decided cases [including `Rubin Brothers']. From the opinion . . . in Salt River Valley Users Association v. N.L.R.B., 9 Cir. 206 F.2d 325, 329, we quote: `That the (employer) may have acted in good faith believing itself justified in discharging (the employee) is not material where the activity for which he was discharged was actually protected by the Act.' (Emphasis supplied and quotations from other cases, including Cusano in the Third Circuit, are omitted.)11 Additionally, the Supreme Court adverted to its holding in the Garment Workers case: We find nothing in the statutory language prescribing scienter as an element of the unfair labor practice here involved. . . . more need not be shown, for, even if mistakenly, the employees' rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith. [Citations include Industrial Cotton Mills, supra.]12 However, there is no question that Board and court decisions subsequent to Burnup & Sims have indicated approval of Rubin Bros., and th -a it is,binding upon me as the law in this case.13 2. Proof of Good Faith Belief Board experience with the element of good faith is, of course, abundant under various sections of the Act. Where, as here, good faith must be affirmatively established by the contending party, it is fundamental in the cases that mere testimonial assertions, or the subjective test, cannot suffice. Clearly, it is a fact question which must be determined upon probative evidence, reasonability of the bases, and objective considerations derived from the total record.14 11 208 F.2d 87, 91-92. 12 International Ladies' Garment Workers Union, AFL-CIO (Bernhard- Altmann) v. N.L.R.B., 366 U.S. 731, 739. And in N. L.R.B. v . Erie Resistor Corp., 373 U.S. 21, 29, The Supreme Court, after pointing out that conduct which is inherently discriminatory may be found unlawful despite the employer's "good" motive, cited, inter alia, Cusano and Industrial Cotton Mills, supra . See also, Welch Scientific Co. v. N. L. R. B., 340 F.2d 199, 203 (C.A. 2 stating-"The cases clearly demonstrate that it is the tendency of an employer's conduct to interfere with the rights of employees protected by Section 8(a)(1), rather than his motives, that is controlling." (Citing cases.) 13 E.g., N. L.R.B. v . Plastic Applicators, Inc., 369 F.2d 495 (C.A. 5). And in Dallas General Drivers et al. v. N.L.R.B., 389 F.2d 553, 555 (C.A.D.C.)- 3. General Criteria of Misconduct in Economic Strike In Republic Steel Corporation v. N.L.R.B., the Third Circuit early expressed the broad problem in language which has since become classic in its wide acceptance: A strike is essentially a battle waged with economic weapons. Engaged in it are human beings whose feelings are stirred to the depths. Rising passions call forth hot words. Hot words lead to blows on the picket line. The transformation from economic to physical combat by those engaged in the contest is difficult to prevent even when cool heads direct the fight. Violence of this nature, however much it is to be regretted, must have been in the contemplation of Congress when it provided in Sec. 13 of the Act that nothing therein should be construed as to interfere with or impede or diminish in any way the right to strike. If this were not so, the rights afforded to employees by the Act would be indeed illusory.15 Similarly, in Longview Furniture Company,16 the realistic considerations were aptly described as follows: Although the Board does not condone the use of abusive and intemperate language, it is common knowledge that in a strike where vital economic issues are at stake, striking employees resent those who cross the picket line and will express their sentiments in language not altogether suited to the pleasantries of the drawing room or even to the courtesies of parliamentary disputation. And in Illinois Tool Works, the Seventh Circuit's opinion, frequently invoked, represents a clear statement of the tests, viz.: We believe . . . that courts have recognized that a distinction is to be drawn between cases where employees engaged in concerted activities to exceed the bounds of lawful conduct in `a moment of animal exuberance' ( Milk Wagon Drivers Union,v. Meadow- moor Dairies, Inc., 312 U.S. 287, 293 ...) or in a manner not activated by improper motives, and those flagrant cases in which the misconduct is so violent or of such serious character as to render the employee unfit for further service, [citation omitted) and that it is only in the latter type of cases that the courts find that the protection of the right of employees to full freedom of self-organizational activities should be subordinated to the vindication of the interests of society as a whole.17 Finally, it is pertinent to note the well-settled proposition that "unauthorized acts of violence on the part of individual strikers are not chargeable to other union " ..the burden of proving innocence of strike misconduct shifted to the general counsel upon proof of a good-faith belief by the employer that such misconduct had occurred" [Emphasis added.] 14 E.g., The Coachman's Inn, 147 NLRB 278, 304; Shattuck Den Mining Corporation, etc., 151 NLRB 1328, 1339; American Coach Company, 158 NLRB 415, 420 Stewart Hog Ring Company, Inc., 131 NLRB 310, 336; Lock Joint Tube Company, 127 NLRB 1146, 1150. 15 107 F.2d 472, 479, cert. denied, 309 U.S. 684. 16 100 NLRB 301, 304, enfd. as mod., 206 F.2d 274 (C.A. 4). 11 N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 815-816. See also, e.g, Montgomery Ward & Co. v. N.L.R.B., 374 F.2d 608, 610 (C.A. 10). 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members in the absence of proof that identified them as participating in such violence." 18 D. General Counsel's Prima Facie Case At the outset of the hearing, Respondent submitted an amended answer to the complaint, which was accepted in evidence. Answering the allegations that it failed and refused to reinstate 15 named strikers who made uncondi- tional offer to return to work on or about November 20, Respondent "admits" that, prior to November 20, it terminated the employment of all the named employees, except McLeod, who resigned.19 It also asserted certain "affirmative defenses," inter aha: Second Defense The employees referred to in paragraph 14 of the Complaint committed and engaged in various acts of misconduct and violence before, during and after the strike which conduct arose out of, was developed by and was closely connected to the strike, which brought about their discharge... . Fifth Defense The discharges of the employees named in paragraph 14 of the Complaint were based on various acts of misconduct and violence as follows: 1. T. W. McCorkle and Don Fowler engaged in acts of misconduct and violence before January 20, 1967, which was prior to the time when the strike had commenced. 2. T. W. McCorkle, Don Fowler, C. S. Peveto and V. R. Walden engaged in acts of misconduct and violence between January 20 and February 15, 1967. 3. T. W. McCorkle, Don Fowler, R. J. Broussard, Sidney Patterson and Gerald Whitehead engaged in acts of misconduct and violence between February 15 and June 12, 1967... . 4. T. W. McCorkle, R. J. Broussard, Steve Hender- son, Glyn Howell, Donald Moore, Tommy J. Swift, Gerald Whitehead, Sidney Patterson, Burford Curtiss, Gene Cordeaux and Charles Bailey, committed acts of misconduct and violence between June 12 and October 16, 1967, at which time the said employees were advised that they had been terminated. 5. T. W. McCorkle and Don Fowler have commit- ted acts of misconduct and violence between October 17, 1967, and the date hereof, which are further grounds for refusing to reinstate them. Sixth Defense The employees named in paragraph 14 of the complaint, and other persons acting in concert with 18 N.L R B v. Deena Artware, Inc, 198 F 2d 645, 650 (C.A. 6), and cases cited therein. To the same effect, see, e g, N L R B v. Cambria Clay Products Co, 215 F.2d 48, 53 (C A. 6); B.V D Company 110 NLRB 1412. 19 At the hearing Respondent stipulated that on October 16, discharge notices were sent to all these employees, except Fowler and McLeod them, were guilty of misconduct, violence, the use of threatening and obscene language, mass picketing, and other conduct which was calculated to interfere with, hinder, obstruct, and intimidate employees of Fire- stone, both supervisory and hourly, in the exercise of their lawful right to work and enter upon the performance of their work, and to prevent them from freely entering or leaving the premises of the Firestone plant at Orange and other places, contrary to the provisions of TEX. REV. CIV. STAT. ANN. art. 5154d. Further, Respondent stipulated at the hearing that, with the exception of McLeod, all employees named in the complaint engaged in a strike beginning on January 20, that they made an unconditional offer to return to work about November 20, and that Respondent refused to reinstate them. General Counsel introduced testimony, treated infra, sufficient to establish that Respondent refused to accept McLeod's unconditional application for reinstatement on November 20, and that McLeod had not resigned. Thereupon, General Counsel rested his case in chief, plainly having sustained the burden of the complaint, prima facie.20 E. Exhibits on Misconduct Offered By Respondent Greely R. Sanders, manager of industrial relations for the Gulf Coast plants and chief bargaining negotiator 'for Respondent, testified as its first witness, in substance: He personally made the decision to discharge all of the employees in question based upon his "review of the cases," consisting "mostly" of affidavits given to him by other people. He had asked "that these people report to him anything that was of a misconduct nature and to so stipulate or swear to this as being a fact." At this point, Respondent offered in evidence a great number of exhibits in bulk, as information "gleaned by Mr. Sanders in his capacity as personnel officer," and upon which he relied in his decision to terminate these employees.21 Respondent's counsel stated that most of these exhibits are affidavits, point affidavits, or signed statements, that all of the newspaper articles referring to these people were cleaned out, and that some of the documents are criminal complaints and memorandums for the file "of an interview with an employee or something like that." Counsel also indicated, upon inquiry, that Respondent was going to have most of the "affiants" (and presumably those who gave unsworn statements) in each case available as witnesses, but that one or two are in the Army and some are unavailable. As initially offered these exhibits were not marked, properly identified, assembled or organized in any orderly form relating to the discharged employees. The hearing was recessed for a period of time while Respondent assembled and marked for identification (R4 a-s) the exhibits pertaining to one of the dischargees, McCorkle. While all the exhibits were to be available in the hearing room, in the interest of time the same ruling made regarding the 20 Respondent's repeated argument, in its brief, that its motion to dismiss the complaint at this juncture should have been granted needs no particular discussion. The essential legal principles are covered supra. 21 Sanders himself averred that these documents were "very useful" and a "basis" for his final decision. FIRESTONE TIRE & RUBBER CO. 61 McCorkle would apply to the remainder, as to which Respondent was under specific instruction, and agreed, to have them properly assembled, marked, and in the hands of the official reporter by the next morning.22 On the broad offer of all these exhibits (with only R4 a-s presently assembled and marked), General Counsel objected to their admission in view of the nature of these documents, and insisted on the testimony of individual witnesses so that they could be cross-examined. In light of the purpose indicated and the form of Respondent's offer, all the exhibits (R4-20) were rejected and ordered to be preserved in the rejected exhibit file. There were manifold reasons for rejection of these documents, as offered en masse. Included are some 96 exhibits in copy form, and the major portion is in handwriting difficult to read or virtually illegible. For example, one is an affidavit from Sanders himself given to a Board agent on January 10, 1968, which consisted of 23 legal size pages and 34 paragraphs. (Although he was then on the witness stand, he did not testify to many of the matters contained in this affidavit.) Particular documents involve McLeod, although Respondent took the position that he resigned. Most of the exhibits are in fact unsworn statements (despite Sander's purported instructions to informants, supra). Some are undated; one is just initialed by an unknown person; and in single documents there are mentioned the names of several employees, whether as bystanders or participants in an alleged incident. Also included are, e.g., a newspaper article, photographs almost indecipherable, a list of pickets on a particular day, timecards, a fire report, and copies of a purported taped television interview of Henderson, spokesman for the strikers. Numerous statements and affidavits recite details of events and subjective reactions of the narrator without any clear indication of the nature of the offense and the probative circumstances. In general, it may fairly be said that, in large part, it was impossible to determine from the exhibits on their face, with no foundation laid, either their purpose at this stage in the proceeding, orjust what conduct in the course of a 10-month strike Sanders relied upon for the discharge of specific strikers. As shown, Respondent's affirmative defenses filed on the very day of the hearing, asserted as reasons for the discharge that various types of misconduct were committed, with no indication of a position resting on "good faith belief." It offered the mass of exhibits as a package merely upon Sanders' testimony that he alone made the decision 22 In actuality, despite repeated instructions, Respondent did not furnish these remaining exhibits in assembled form until late afternoon on the third day of the hearing, or the day before it was finally concluded 23 See, e.g, The Coachman's Inn, 147 NLRB 278, 304-5, In 93 "Where 'good faith belief' is material to the issue of the true motive for a discharge, the basis thereof may be searchingly explored. It must be remembered that 'good faith belief' is a legalism, at the very least connoting that it is the trier's province to determine its existence This in turn presupposes inquiry by the trier into the asserted basis for the belief and whether it was or was not sufficient to result in 'good faith belief' of what was assertedly believed." 24 Id at 296, In. 60, where a hearsay report based upon a Rubin Bros contention was similarly rejected. Cf Ohio Associated Telephone Co v. N L R.B, 192 F.2d 664 (C.A. 6), rev 91 NLRB 932, which presented no issue of admissibility of exhibits, was otherwise distinguishable on the facts, and was decided before Burnup & Sims 25 "Since the plaintiff must apprise the defendant in the beginning as to for Respondent upon his "review" of all the cases. Nevertheless, Respondent's obvious trial strategy (as further revealed by its positions throughout the hearing and in its brief) was to rely on such simple testimony of Sanders and the introduction of the whole bulk of exhibits as automatically fulfilling its supposed burden under Rubin Bros. of establishing Respondent's good-faith belief that the dischargees engaged in strike misconduct, thereby shifting to the General Counsel the burden of going forward with evidence to disprove the misconduct. In these circum- stances, admission of the exhibits would have required the General Counsel to take an indeterminate length of time in an effort to distill all the appearances of "misconduct" from the multitude of subjective narrations, suppositions, vague semblance, and miscellany in the exhibits; conduct an extensive investigation anew; assemble additional available witnesses; and reprepare his case on the basis of speculative judgements as to which of the many reported incidents there might ultimately be findings of "good faith belief," and in which particulars it was incumbent upon him to "go forward" with refuting evidence. Nor merely upon Sanders' summary testimony and the file of exhibits, could any ruling at such time conceivably be made by the Trial Examiner whether "good faith belief" was established as to specific misconduct by particular dischargees. More especially in the light of this whole background, such determinations of good faith would require an analysis of the full and final record, based upon substantive evidence and objective considerations.23 Although Respondent's apparent position was that the exhibits were being offered to establish the basis upon which Sanders relied in effecting the discharges, "it would in any event not be the [hearsay exhibits] but proof from Respondent which would establish such a contention...." 24 As a matter of pleading, the allegations of misconduct in Respondent's affirmative defenses are expressed in vague generalities and do not furnish minimal particulars which would enable General Counsel fairly to prepare counter- vailing proof.25 Nor was such information provided with any degree of clarity by Sanders or Respondent's counsel at the hearing.26 Additionally, it is fairly apparent in the record that essentially Respondent was concerned throughout the 10- month strike in collecting materials in a file from sources on only one side of the picture, and in some instances nothing further was done beyond receiving an informant's state- ment. As brought to the hearing, the file (which presumably what he relies upon for a recovery, it is only right that the defendant should be required also to inform the plaintiff of any special or affirmative defenses he expects to make by pleading the facts constituting such defenses." 41 Am Jur., Sec. 155. And see, e.g., Electric Storage Battery Co. v. Shimadzu, 307 U S 5 26 Indeed, as later revealed , Respondent's counsel repeatedly refused requests during the hearing to state whether certain grounds of misconduct were relied upon, and persisted in resting its position upon the state of the "record," i e., with the rejected exhibits . Counsel had represented that available witnesses would be produced on the misconduct issues; while certain witnesses testified for Respondent, no attempt was made to corroborate by testimony much of the hearsay content of the exhibits. In its brief, Respondent now specifies incidents of misconduct derived entirely from the exhibits, as having in fact been committed by dischargees. And in doing so, these post facto interpretations and arguments of counsel are somehow to be ascribed to Sanders, without his testimony, as the basis for his subjective "good faith belief." 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD included other matters, such as newspaper articles,) was in an amorphous condition; it is not described how it was kept and how it was finally "reviewed" by Sanders as the basis for his decision to effect the discharges. From the evidence, it must be concluded that generally Respondent made no effort to conduct an independent, objective investigation before such decision was reached.27 The dischargees were not informed of the charges against them and not given the opportunity to refute or explain.28 In all but two instances (where just the copies of a complaint by a nonstriker appear among the exhibits), there is a complete lack of evidence of any prosecutions, much less of convictions, for alleged offenses of an apparent criminal character. 29 The Rubin Bros. rule on burden of evidence is available (for reasons explicated in the cases, supra) to provide a fair balancing between the rights of employees engaged in statutorily protected activities, and the proper interests of management. It was not conceivably intended to furnish respondents with a strategy of gamesmanship by which, in such a simple maneuver as reflected herein, the hearing can be immediately transformed and the onus neatly placed upon the discharged strikers to prove their innocence to a vast compilation of vaguely defined accusations of misconduct (including such heinous offenses as dynamit- ing, sabotage, or attempted manslaughter). Much as violence is to be deplored and punished, all the more is it deplorable to punish the innocent.30 It is not compatible with American jurisprudence to compel a person, in his own defense, to answer questions of wrongdoing, except in response to specific charges. Respondent cannot rely on a conclusory and omnibus assertion that it believed the claimed misconduct to be the truth. It must commit itself with sufficient detail in advance so that the General Counsel and the accused will not be surprised at the hearing. Such an affirmative defense, under Rubin Bros., of a good-faith belief that misconduct was committed in the 27 Sanders testified that he had talked only to Fowler and McLeod This was contradicted by Fowler, and as to McLeod , misconduct is not in issue See, e g , Tyler Pipe & Foundry Company, 171 NLRB No 38, Orleans Mfg Co, Inc. 170 NLRB No 9 28 Testimony of Broussard, Whitehead, Peveto, Patterson, Fowler, and McCorkle 29 See N L R B v Industrial Cotton Mills, 208 F.2d 87, 90 (C A 4) While a factor to be considered, convictions would not be controlling upon the Board. N L R B v Thayer Company, et at, 213 F 2d 748, 754 (C A 1), cert denied 348 U S 883 30 Even beyond the discharge itself , it is common knowledge that frequently the involved employee is stigmatized on his employment records and in the community 31 My holdings are necessarily confined to the circumstances of this case. It is for the Board to consider any clarification of the Rubin Bros rule for general application in the type of situation evident herein 32 Respondent, in its brief, strenuously argues that a comment of the Trial Examiner during the hearing constitutes fatal error, requiring dismissal of the complaint Subsequent to the ruling rejecting the exhibits, the Trial Examiner briefly remarked on his opinion of the law, e g. "Let me state, I am sure you are aware of the law, that the burden is on the Respondent here to establish by competent evidence the basis for its discharge, as you put it, of the strikers, And the law, I think , is already well described in a number of cases, including Burnup & Sims, that good faith plays no part in the matter You have to establish as actual evidence the fact that these employees engaged in the very misconduct on which you rely " Of course, the cases speak for themselves And the Trial Examiner's findings on the law are made in this formal decision The term "good faith" is a "legalism" (fin 23, supra), and perhaps it should have been course of a protected activity-must be shown by clear and specific evidence as to each affected employee and each alleged offense, and provide the probative factors upon which respondent predicated such belief.31 Particularly, it is found that Respondent has failed in such basic requirement in the respect of any purported misconduct reflected solely in the exhibits which were rejected.32 Furthermore, as to such purported misconduct stemming from the exhibits, I cannot accept or credit Sanders' testimony, considering its character and the broadside manner in which it was presented,33 as establishing a reasonable basis for a good- faith belief under the Rubin Bros. case.34 F. McLeod The facts concerning his alleged resignation need only be stated briefly. On November 20, as he testified, McLeod was among the strikers who reported at the plant for resumption of work. He was not reinstated, but at the guardshack near the main gate, he signed a list, as requested by Respondent. The next day, upon being summoned, he met with Sanders and John Utley, the plant industrial relations manager. He was interrogated as to whether he was the owner of a car ostensibly connected with certain acts of misconduct, and he denied any involvement in such incidents. He was then told that before he could return to work these incidents had to be cleared up. Finally, he signed a form agreeing to take a lie detector test. After leaving the plant, he changed his mind about the test and telephoned Utley. At first he spoke with Mrs. Harris, secretary to Utley, and informed her of his decision, as a message for Utley. Shortly thereafter, he called again and talked to Utley. He explained that he was innocent of the charges and did not have to prove it by taking such a test. He said he was going back to Grand Chenfer to work and could be reached at his mother's address in Starks, Louisiana. Asked by Utley if he was going to keep in touch, he said no-that they should call him when they thought preceded in the comment by the word "subjective" and followed by the words "on the entire record " The reasons for the exclusion of the exhibits have already amply been shown Respondent was in no way prejudiced In the course of the hearing, it was not precluded, through Sanders or other witnesses, from reoffering for material purposes any particular document in the preserved rejected exhibit file, upon proper foundation laid Moreover, it is a well known and settled rule that where the right result is reached, even if a wrong reason is used, there is no prejudicial error E g, N LR B v Miami Coca Cola Bottling Co, 69 LRRM 2785 (C A 5), November 26, 1968, N L R B v Safeway Steel Scaffolds Company of Georgia, 283 F 2d 273 (CA 5) 33 Purely on an objective evaluation of "good faith belief," I do not regard Sanders as a reliable and unbiased witness, in view of his own intimate involvement with the conduct of the strike (infra) Moreover, he was distinctly prone to testify in terms of generalizations and conclusions 3* In this conclusion, I have also taken into account the overall nature of the proof actually adduced by Respondent, its positions and reliances stated in its affirmative defenses, at the hearing, and in its brief, and the entire record in this case Inter aba, it is noted that Sanders averred in his 23 page affidavit, among the rejected exhibits , to the truth of all the detailed incidents described therein as had been taken from information gathered by Respondent, and that in major respects substantial variations and conflicts exist between his affidavit and the testimony given by Respondent's other witnesses To the extent that Respondent produced witnesses concerning alleged misconduct, the hearsay exhibits could not stand as substitute or even as corroboration for their free testimony, subject to cross-examination Thus, the results hereinafter reached based upon such testimony would, in any event, be the same apart from the exhibits FIRESTONE TIRE & RUBBER CO. 63 the matter was settled. On November 22, McLeod called Sanders concerning information he heard that Respondent reported him as having voluntarily resigned. Sanders told him he had terminated himself when he said he was going to Louisiana to work until the matter was cleared up. That same day, he wrote Sanders, disputing that he had resigned, and stating his desire at all times to work for Respondent, his availability, and various places where he could be reached. Respondent's evidence consists of Mrs. Harris' testimo- ny- which offers no material conflicts. She indicated that, later in the day on November 21, she informed Sanders of her telephone conversation with McLeod and then told him she was going to issue a "removal notice," as it was her "assumption" that McLeod was resigning because he was leaving town. In its brief, Respondent adheres to the position that McLeod resigned and adds that, on the basis of misconduct, the "discharge might be proper" had he not quit. It is unclear whether Respondent is relying on Sanders "good-faith belief" in the report of Mrs. Harris (also contained as an affidavit in the rejected exhibits). On all grounds, Respondent's defense is rejected, as obviously without color of merit, and the violation as to McLeod is sustained. G. The Alleged "Mass Picketing" Sanders testified that, after January 20, he was in and around the Orange plant practically every day, during which he had occasion to observe the pickets and their conduct. The picketing took place at the intersection of Farm Road 1006 and a black top road, about 47 feet wide, leading into the plant property and to a main gate about 300 yards from the intersection.35 On January 20, at the morning shift change, Sanders observed through binoculars at the main gate some 170 people (salaried and technical personnel) who crossed the picket line into the plant. On January 21, about 8 a.m., he estimates there were between 60 and 80 people within a radius of 50 to 60 feet of the entrance. They congregated at the intersection "in such a number" that it was difficult for anyone to enter or exit. Specifically, he saw Henderson, McCorkle, Whitehead, Walden, and Bailey "milling around in the black top part of the road." Cars seeking entry to the plant were slowed down or halted for a moment until the crowd moved out from in front of the car, but nobody was "completely" prevented from going in. Asked if any particular employee posted himself in the path and refused to move aside, he answered,- "Not on that date." On January 22, he observed the picketing, but named only Walden. It was in the evening, after dark. With his binoculars at the main gate, he saw "flashes and explosive-type noises" in the area of the picketing. But he could not see anyone who did it. During the strike, Respondent employed 8 "additional" private detectives to reinforce plant security personnel, and some were placed in the vicinity of the picket line for observation, but not for maintaining order.36 Elsewhere in the record it also appears that State police were present at various times in the picketing locality. As earlier shown, Respondent asserts in its sixth affirmative defense that an unspecified number of the strikers named in the complaint engaged in "mass picketing" in violation of a cited Texas statute. There is no evidence that Respondent made any attempt to invoke the State law as to mass picketing in general or as to any particular striker. And the issue, at most, was sketchily litigated. Sanders, using binoculars from 300 yards away, was certainly not the best witness available as to what actually happened. He chose to assume that all the "people" he observed were involved in "mass picketing," and then proceeded broadly to implicate five specified strikers on the basis of a group or collective identification. However, on such testimony, the picketing activity as a whole cannot be held unlawful or constituting general misconduct. More especially, Sanders failed to describe in a probative manner what alleged misconduct he personally saw committed by each of these discharged strikers. The 60 to 80 people he observed were on a section of a public highway at the beginning stage of the strike. The evident circumstances more accurately depict a confused "milling around" across the road at shift changes, and density of traffic, rather than any design or result in effectively obstructing ingress or egress at the plant. This situation was clearly not the formation of a solid unyielding mass, nor forceful interference of any cognizable character attributable to the named dischargees.37 In Respondent's brief, it is further contended that "mass picketing" occurred "on June 27 and June 28, as well as other days," and that seven named strikers (Broussard, Whitehead, Walden, Moore, Howell, Curtiss, and Patter- son) were "identified with the picketing" in the testimony. As to Broussard, the testimony cited was given by James T. Taylor (discussed infra) on the subject that the misconduct involved the throwing of a rock on June 27. Taylor described a large crowd of men (about 200) on FM 1006 at the intersection leading to the plant, and "a lot of noise and hollering directed at his car and every car that turned in." As to Whitehead, the cited testimony is actually that of his own, on rebuttal, and is utterly void of anything resembling mass picketing. As to Walden, the cited testimony was that of John L. Riggs (infra). As Riggs was leaving the plant on June 28, his car had "stalled" or momentarily stopped at the intersection of FM 1006; there was a crowd of people; a picket, Doug Pence, had fallen in front of one of the cars; and Walden motioned with his hands for Riggs' car not to move in view of the danger to Pence.38 As to Moore, the cited testimony was given by Riggs and Roosevelt Davenport (infra) on the subject of name-calling. The Riggs incident took place in the same circumstances as related immediately above. The Davenport incident occurred on June 28 at the same shift change, which he estimated at 7:45 p.m. He briefly described a large crowd, and traffic tied up "bumper to bumper." As to Howell, the cited testimony was as Sanders said it was about 200 yards, Respondent's witness Read Atlas Linen and Industrial Supply, 130 NLRB 761, 778, Stewart Hog Ring estimated a quarter or half mile, a plat in evidence appears to show in Co, 131 NLRB 310, 312 excess of 300 yards. 38 Elsewhere in the record it was testified that Pence was then hit by a 36 None was called to testify car and "tensions were pretty high " 37 See, e g, Terry Coach Industries Inc, 166 NLRB No 76, TXD, 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that of Gerald B. Stelly (infra) relating to an alleged assault. Stelly similarly made reference to a large crowd on FM 1006 in the evening of June 28 as he was coming to work. As to Curtiss, the cited testimony is that of Milton Green, Jr., (infra) concerning an incident in which a car window was shattered as he was leaving work in the evening of June 27. He vaguely described a bunch of people near the intersection of FM 1006 and the traffic of cars slowly moving stop-and-go. As to Patterson, the cited testimony was that of Kenneth Book (infra) and involved alleged name-calling. The incident occurred about the same time as related by Green, above. Book said that a large group of people (about 200-300 within his range of vision in front of the car) deliberately stood out there on the road and refused to make way for the cars to come through 39 The only one he could recall was Patterson. Book said that his car (containing three other employees) was "probably held up" about three or four minutes, and that there were police on the scene at the time. He also stated that there was "something special" two or three days in a row when a large group of people was present. In none of these additional instances do I find that the evidence establishes misconduct stemming from any "mass picketing" as would justify discharge.40 G. Walden William J. Read testified to an incident at the intersection of FM 1006 as he was leaving work on January 21 at the 8 p.m. shift change. He heard sounds like firecrackers around and on his car; but he actually saw only small flashes of light. There was no damage. He observed Walden lighting something with his cigarette and "throw one." In addition to the alleged "mass picketing," above, the asserted ground for Walden's discharge was "throwing explosives." The finding is made that Walden did not engage in conduct warranting denial of reinstatement, and that his termina- tion was violative of the Act. H. McCorkle Robert L. Netting was one of the employees Respondent brought in from its Akron, Ohio, plant to work at Orange during the strike. He testified to an incident at the Jack Tar Hotel on March 23. Netting, Dilts, and Jones came into the coffee shop and occupied a booth along an outer wall. Six or seven men came over and stood in a half circle near their booth, calling them S.O.B.'s, scabs and, strikebreakers. Then one of the men, McCorkle, sat down in the booth next to Netting. McCorkle continued the name-calling while questioning the three nonstrikers. He asked Netting when he was leaving, and the reply was- "probably in a week or so." McCorkle said that wasn't soon enough, he had better get his bags packed and be out of town either that night or the following day or he would put a bullet in his back. Netting reported the incident to Utley at the plant. sa Book, in my opinion, was exaggerating in his impression of the events so far as any concerted and deliberate purpose could be inferred of strikers blocking egress from the plant 40 Moreover, it cannot be assumed merely on the basis of these contentions in the brief that Sanders relied upon such further alleged misconduct in reaching his decision to terminate the specified strikers 41 However, it is emphasized that the failure to make findings Thereafter, he, Dilts, and Jones filed a sworn statement and complaint against McCorkle with a justice of the peace, but he (Netting) was never called. McCorkle testified that, in the booth, he asked them what they were doing down there, when they came, how they came, when they were going back, and why they were doing this, i.e., strikebreaking. He told them they could stand up as men or go back as they came, but denied making the specific threats related by Netting. However, he volun- teered the possibility that he could have said something about their being "a good chance of violence or something of this sort that could happen." On the character of the testimony, as well as the demeanor of the witnesses, I credit and accept the account given by Netting. Away from the picket line, in the context described, the serious threat of violence made to Netting, and impliedly to Dilts and Jones, exceeded the bounds of protection afforded by the Act and justified Respondent's refusal to reinstate McCorkle. McCorkle was active as the picket major throughout the strike. His own testimony here and elsewhere reveals a sharply aggressive disposition toward the strike. This much found, it is unnecessary to pass upon the numerous other incidents of alleged misconduct in this proceeding insofar as they solely involve McCorkle.41 1. The Palermo Incidents Marion J. Palermo is a salesman and official in Cesco, Inc., which was under contract with Respondent during the strike to clean by chemical process certain equipment at the Orange plant. Palermo had been a classmate and long time friend of McCorkle. Sometime in March, McCorkle called Palermo and arranged to come to the Cesco office. McCorkle arrived with Broussard and Fowler and were taken by Palermo to see the company president, R. W. Krajicek. The material conversation was conducted entirely between McCorkle and Krajicek. McCorkle indicated that he had previously talked to Palermo about not crossing the picket line and was assured it would stop,42 that it had stopped for a couple of months but has resumed, and that this was the reason for the visit. According to Palermo, the following ensued: Krajicek initially responded that Cesco had the obligation to fulfill its contract with Respondent, that it was not involved with the strike, and that the Union was "putting" a secondary boycott on Cesco. Finally, "things got pretty hot" between Krajicek and McCorkle (but not Fowler and Broussard). McCorkle stated that if any Cesco trucks cross the picket line, they would "pull the driver out and peel his head back," and would also do damage to company equipment and personnel. Krajicek said he did not have to put up with these threats in his office, and asked them to leave. "They left like gentlemen." Cesco's equipment and employees continued to cross the picket line after mid-March without incident. concerning these other incidents is not to be construed as an implication of further misconduct by McCorkle or contributing to the conclusion reached on Netting's testimony. 42 Palermo testified that, a couple of months before this meeting, McCorkle had asked him to honor the picket line, and he answered that Cesco would- "if there was any possible way " FIRESTONE TIRE & RUBBER CO. 65 The essential variation in McCorkle's account was that he was merely describing the incidence of violence during strikes across the country, and then he added that- "we certainly don't want any of your drivers to get their heads peeled or anything of this sort." Fowler and Broussard generally corroborated McCorkle, specifically denying that any threats were made as to employees or property of Cesco. Fowler testified that he and Broussard, while traveling with McCorkle, were only aware that he wanted to make a stop to speak to Cesco about not crossing the picket line. Palermo wrongly identified Henderson as one of the three visitors, and sought to obtain a "peace bond" against McCorkle, Broussard, and Henderson, apparently without success. During a meeting on November 27, Sanders informed the Union that Henderson was discharged by reason of his presence at the Cesco incident, as identified by Palermo.43 I do not credit Palermo. As to either version, however, it is clear that Broussard and Fowler44 were only on the side lines and free of any implication of misconduct by reason of what McCorkle might have said 45 Palermo further testified to an incident a month or two later. While driving on a highway, he was signaled to stop by McCorkle in a car with two other men. At the hearing, he identified Whitehead and Broussard, but was not sure of the latter.46 Broussard got in the back, and McCorkle sat in the front seat with him, while the other man stood outside. The other two men said nothing. His testimony, which was denied, was that McCorkle told him- "I am at the point right now to where I could kill you. But we have been friends; it's taken everything in my power to keep my hands off of you." Respondent's brief, though meticulously detailing all the purported misdeeds of the dischargees,47 does not specifically cite this incident as to Whitehead or Broussard. The finding is made, in any case, that there is no justifiable basis for associating them with such an alleged threat. J. Henderson The sole evidence adduced by Respondent relating to any purported misconduct by Henderson involved his mistaken identification by Palermo as one of the visitors to the Cesco office in March, supra. Accordingly, Henderson's discharge is a patent violation. K. The Riggs and Davenport Incidents Riggs was initially a striker and union committeeman, but returned to work during the strike. As earlier shown, he testified that on January 28 he was leaving the plant (in Wilmer Daniels' car) and was momentarily stopped in traffic at the intersection of FM 1006. Broussard came up, "kind of pushed on the window," called him "Brutus-Judas," and Riggs shook his head at him.48 Moore, who was group chairman of the union committee, called him "Judas" and nigger committeeman," and said, "Why, don't you get a rope and hang yourself?" Several others around the car "chanted" at him. Broussard testified that he heard Riggs called "Judas" many times at the picket line and credibly denied that he did so himself. Davenport, who had also been on the union committee, related that, on June 28, while he was in a car with three other persons stopped at the intersection, Moore called him a "dirty black rat." In all these incidents at the picket line, I am constrained to find the alleged misconduct was not so egregious49 as to provide reasonable support for the discharge of the strikers involved. L. Moore As no other misconduct allegations are raised against Moore, above, Respondent's violation as to him is fully established. M. The Buckley Phone Calls James Buckley had been on strike but resumed work on June 13. Buckley's wife (Mary Buckley) testified substan- tially as follows: About 11 p.m. on June 13, she received an anonymous phone call at home. She and her husband were called S.O.B.'s and told they would be sorry that Buckley had gone back to work. On the night of June 14, she was again called allegedly by the same person, who said in effect that if her husband wouldn't stay home to protect her, he (the caller) was coming down to rape her. This person said he would call some more. Several times she just let the telephone ring at odd hours through the day and night. About 2 weeks later, at 1:30 a.m., she and her husband (on an extension) answered the phone. The party, who did not identify himself, asked for Jim Buckley, and receiving no response, hung up. Both Buckleys testified they thought they recognized the voice of McCorkle. On October 12, during a hearing involving a Section 10(j) injunction at the Federal District Court in Beaumont, she recognized a voice in the corridor as that of the person who had been calling her on the phone. Her companion at the time identified this person to her as Bailey. She did not know Bailey and had never spoken to him on the phone with awareness of his identity. Additionally, she testified that, along the last of June, an arrangement was made with the telephone company to put a tap on her phone. The next call she received was at 1:30 a.m., and she just heard a 43 It is noted that Respondent states in its brief that, on November 20, Fowler came and told Sanders that it was he, and not Henderson, who was present at the Cesco visit. (This admission is also indicated in Sanders' affidavit among the rejected exhibits) Nonetheless, Respondent did not clarify until it filed its brief that it was no longer relying upon such charge against Henderson 44 At the hearing, Respondent indicated that it was not relying on this incident as to Fowler, but in its brief it stated that "Broussard and Fowler, as silent partners in the gangland style visit are equally culpable " 45 See American Beauty Baking Co, 171 NLRB No 98, TXD 46 McCorkle testified the other two men were Whitehead and Calhoun. 47 Including references to the rejected exhibits. 48 The pushing, the calling, and the head shaking are alleged against Broussard in Respondent's brief. 49 Respondent states in its brief that "Moore's vituperative remarks bore overtones of a racial prejudice which cannot be tolerated " However much it is obnoxious, I am unable to hold that the addition of ethnic or racial adjectives in name-calling during a strike essentially alters the conclusion as to whether or not the intrinsic offense constituted unprotected conduct 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heavy breathing in the phone. She contacted Sanders and the phone company, and the call was traced. A phone company representative testified for Respon- dent that a "called party hold" was installed on the Buckley phone following a complaint about June 14, that one call was trapped on June 18, and that he conveyed the information to the Sheriff's office at 1:30 a.m. on that date. He was able to trace the phone number from which the call was made, and it was that listed for Charles Bailey. For a period of several weeks, this was the only call that was successfully traced "to this number." Prior to the testimony of the Buckleys, Respondent called Bailey as an adverse witness, and he denied ever having made any phone calls to the Buckley home. The apprehension of the Buckleys on receiving these phone calls is understandable, particularly in the circum- stances of the strike. It was certainly not shown that all the calls were made by the same person; indeed, one is ascribed to McCorkle. Possibly, one or more of the calls was the work of a prankster, and others intended for legitimate reasons. On October 12, Mrs. Buckley had already been advised that the tapped call had come from Bailey's phone. I do not credit her testimony that, 4 months later, she recognized Bailey's voice in the corridor of a courthouse. It is far more plausible that she had previously learned or was then told that this was Bailey before she allegedly recognized his voice . In itself, the tapped call on June 18 was intrinsically innocuous; particularly it was the call on June 14 which was flagrant. Respondent's apparent purpose is to identify, by sequence and association, the caller on June 18 as the same person who made the earlier calls. Assuming that the June 18 call was made from Bailey's number, this does not probatively establish that it was he who made this call, much less any of the earlier calls. On the evidence, such a conclusion is highly speculative and unwarranted; and no reasonable basis was provided for a "good-faith belief" that Bailey was the culprit on June 13 or 14. I credit Bailey's denial. N. The Meadows Highway Incident On October 12, about 8 a.m., Benjamin Meadows was driving on Interstate Highway 10 at 70 miles per hour in the left lane. He testified that he passed a car with McCorkle and Cordeaux and another car in front of McCorkle containing Whitehead and Bailey. The occupants of the latter car waved to him and pointed fingers. He "read their lips" as saying "rat" and "scab." 50 Whitehead turned and told McCorkle "it's a scab." McCorkle crossed in front of Meadows, causing him to slow down to 60 miles an hour. Meadows drove to the right lane to allow traffic to go through, and McCorkle pulled in front of him, slowed down, and both McCorkle and Cordeaux pointed to the side of the road, which Meadows "assumed" was a motion for him to stop. Meadows, now going 15-20 miles an hour, shook his head negatively, turned back to the left lane and took the next exit from the highway. 50 The windows of Meadows' car were rolled up and he did not hear anything. 51 The hearing involved a petition for injunction against Respondent for an alleged refusal to bargain 52 So implied in Respondent 's brief in relation to Bailey Meadows indicated that he was on his way to meet at Attorney Brown's office prior to the Section 10(j) hearing at Beaumont scheduled that day.51 After he turned off the interstate highway, he drove to a police station and had the police chief call Attorney Brown to tell him why Meadows would be late. At the Federal Courthouse, Meadows made a complaint concerning the incident on the highway. In October, a contempt hearing was held on a charge against McCorkle and was postponed indefinitely. Whitehead testified that Meadows waved at him and he waved back, that McCorkle pulled alongside Bailey's car and asked who this was, and that Whitehead said it was "one of those ninety-day wonders that had crossed the picket line, Talbert Meadows." Whitehead and McCorkle credibly denied that any attempt was made forcibly to stop or impede Meadows' car. I reject any implication by Respondent that the discharged strikers knew that Meadows was enroute as a witness in the Federal proceeding or that they planned any interference therewith.52 Further, the alleged name-calling ("scab" and "rat") by Whitehead and Bailey furnishes no reasonable basis for their discharge. 0. Bailey and Cordeaux The foregoing consists of the only alleged misconduct as to Cordeaux, i.e., his assumed motioning for Meadows to stop. And it is the only charge against Bailey in addition to the Buckley anonymous phone calls, supra. I find both were entitled to reinstatement after the strike. P. Fowler Meadows further testified that, in mid-October, he and his wife were seated in a movie theater, when Fowler and his wife walked by and Fowler "tried to give me a bad face." The next morning, Meadows noticed at a service station that the gas cap on his car was missing and that "sugar was all around the gas nozzle." He returned to where his car had been parked the night before and there was about a cup of sugar on the ground. (He did not indicate that sugar was in fact found in his gas tank or that, as a result, there was anything wrong with his car.) Fowler recalled that he gave Meadows a "bad look" that night and credibly denied putting sugar in Meadows' car, or even knowing that Meadows had a car. It is concluded that Respondent had no foundation for discharging Fowler on the basis of the foregoing, and of his mere presence at the Cesco visit, supra.53 The violation is clearly sustained. Q. The Moncrief Incident On June 16, about 7:30 p.m., David Moncrief left the plant, accompanied by his wife and child. He testified, viz.: At the highway intersection, they saw two men on the side of the access road, not carrying picket signs. As the car 53 At the hearing, Respondent stated that the Cesco incident had no bearing on the Fowler case, but it nevertheless relies thereon in its brief Fowler testified he made an unconditional offer to return on November 20 Respondent's brief states that Fowler was discharged by letter from Sanders on December 8 FIRESTONE TIRE & RUBBER CO. 67 approached, these men made a "vulgar" hand signs and cursed, e.g., "S.O.B." and "scabbing bastard."54 After driving a distance, they returned to the plant to find out the identity of these men. At an office with Sanders and Utley, Moncrief telephoned a guard, Herbert Roberts, and described the two men. From the description, Roberts gave him the names of Broussard and Whitehead. As the Moncriefs left the second time, Whitehead approached the car and said that, if Moncrief did anything, he was going to get his ass . The following day, Moncrief was shown pictures of Broussard and Whitehead, and he thus identified them. At the hearing, Moncrief pointed out Broussard but indicated the wrong person as Whitehead.55 Broussard and Whitehead were not questioned as to this incident. In my opinion, therefore, enough has been shown to establish identification. While by no means condoned, I find the name calling and the vague hand gestures insufficient to justify discharge.56 R. Whitehead front of the truck to the right side and, with the "back of his fist," hit the glass window causing it to shatter. Asked how Curtiss struck the glass, Spears testified- "he just .. . walked by and bumped it with his fist." The truck was apparently moving slowly, as Spears indicated this took place "before we could stop." Green obtained an estimate of the damage as $25. Curtiss did not testify. From the entire description of the event, it is not, in my view, plausible or reasonable to infer that Curtiss had any purpose, while walking by a car in motion, of breaking or shattering the glass with the back of his bare fist. Indeed, the shattering was done, whatever the condition of the glass at the time on a 17-year old truck. Although even such "bumping" on a car window is certainly not condoned, I find in all the circumstances that Curtiss had not committed misconduct of such seriousness as to render him unfit for further service with Respondent at the conclusion of the strike.59 However, Moncrief could reasonably construe the rough vernacular of Whitehead as a threat of physical harm. This was neither denied nor explained. In the circumstances, I find that the threat constituted serious misconduct, and that Whitehead's termination therefor was not unlawful.57 S. Broussard James M. Taylor testified that, at shift change in the evening on June 27, he and Philip Mortimer were in a station wagon driven by Dick Underwood. On FM 1006 approaching the intersection to enter the plant, he observed a large crowd of men on all three sides of the road. A rock, about "the size of a half a dollar," struck the roof of the car, chipping the paint. He did not actually see the rock except as it came toward the car, and he was ducking his head. He was sitting in the left rear seat. Broussard was on the left side of the road, about 30 feet away, with "lots of people" in that area. All he saw was Broussard "cocking his arm" and then appearing to throw at the time the rock hit the car. Broussard credibly denied that he threw a rock on this occasion or on any occasion during the strike in the vicinity of the plant.58 The Cesco, Riggs and Moncrief incidents have earlier been considered. It is found and concluded that the discharge of Broussard was not based upon valid or reasonable grounds, and was therefore a violation. T. Curtiss In the evening on June 27, Milton Green, Jr., Otis Lazenby, and Johnnie Spears were driving from work in Green's 1950 Chevrolet pickup truck and "had to momentarily stop" on FM 1006 because people were crossing the road. Lazenby and Spears saw Curtiss cross in 54 Written down by the witness as an exhibit 55 There were other wrong identifications at the hearing 56 Eg, Terry Coach Industries, Inc, 166 NLRB No. 76, with full discussion and cases cited therein. 57 While it is needless to consider other allegations against Whitehead, as indicative of existent provocations , note is taken of an incident involving Wiley F. Ayres on June 27, at the evening change of shift, when Ayres U. Howell Gerald B. Stelly testified that, on June 28 about 7:30 p.m., he and Ray LeBlanc were driving to work when their car stalled on FM 1006, "pretty far back" from the intersection of the plant entrance. They tried to push the car to the side of the road. At a distance, he saw about 150-200 people. Some of them noticed the car and started running toward it. One man grabbed LeBlanc around the neck. Stelly saw Howell coming toward him. Then someone hit him from the back. In Stelly's words, he "went forward and Glyn Howell hit me and knocked me down, and then Duff and Howell both started kicking me." After he was down, he did try to strike them back. Police officers arrived and Howell "backed into the crowd," while Duff kept on trying to kick him. One of the police grabbed Duff and "hauled him off." About 50 people were around, but 10 to 15 feet away. Stelly told a police officer about Howell, but nothing was done. At the plant, he was advised he could file a complaint against Howell, but he did not do so. Stelly did not know Howell at the time of the incident. On cross-examination, he testified that "LeBlanc had seen him come towards me . . . so we assumed he was the one, so we went and looked in the files and identified his picture .. . the next day." Howell testified he was on FM 1006 that night in a crowd of 200-300 men, with about 70 police officers present. Stelly's car was seen about 100 yards from the plant entrance, being pushed. Someone said they were strike- breakers and the crowd moved toward the car. The closest he got to the car was 10 feet. He did not know Stelly, did not hit or kick him, and saw no one who did. Howell is credited 60 The violation as to Howell is, accordingly, found. within his car menacingly brandished an open knife at Whitehead It is apparent that Respondent , aware of this fact, took no action against Ayres. 58 And cf, e g , American Beauty Baking Co, 171 NLRB No. 98, pp 25, 26 5s Ibid 60 LeBlanc did not testify 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. Patterson Relating to the incident above, Stelly also testified that, "after it was all over," Patterson told him "it was just going to be me and him and he would get me, among other things." Patterson testified that, after the fight, in the presence of police officers, Stelly turned toward the crowd, "gave us a finger and said that the law would "take care of you bunch of S.O.B.'s." Stelly appeared to be looking directly at Patterson. He then told Stelly that if he still wanted to fight, he was right there for him to come on over. He did not say "from now on it will be just you and me." I find the facts as stated by Patterson, and that no threat was made by him. Alfred P. Devers came to Orange on March 20 from Respondent's Virginia plant, where he is regularly a supervisor. He testified that, three or four times in April and May, while he and two other employees were riding together, they were subjected to "abusive language" at the picket line by the pickets-usually two to five men, including Patterson. By reference, he indicated that the abuse was on the same order as "scabs" and "S.O.B.'s." On June 27, at shift change about 7:45 p.m., Leach was leaving in his car with Book, Monte L. Turley, and Harvey Dubose. Four or five other cars were directly ahead. Book testified that, at the intersection, a large group of people were "deliberately" blocking the road, and that Patterson was one of them. Findings have earlier been made on this and other testimony rejecting the contention of deliberate obstruction to ingress and egress. The car doors were locked and the windows rolled up. Patterson came to the driver's side and said, "Get out of the car, you rat, you [S.O.B.]. . . ." Book "assumed" the "cursing" was directed at Leach 6i A very loud noise was coming from the crowd. He heard the words "S.O.B." very often and a lot of people saying, "get out." As already found, such name-calling does not entitle Respondent to refuse reinstatement to strikers. Patterson's termination was thus a clear violation. W. Swift At the same incident with Book, above, it was testified by Turley that Swift "laid on the roof of the car and was pounding on the windshield and threatening me, but I couldn't hear what he was saying. He was shaking his finger at me." Leach testified that Swift stood at the front end of the car, "leaned over the hood" and was shouting - "come on out of the car and I will show you . . . who don't have a backbone like a jellyfish." Leach added that Swift stood there "probably . . . a minute" and then came around, grabbed the fender and "started shaking the car." Turley stated that a deputy sheriff told them (in the car) to move on, and when they started to move, the car was "rocked" by a "bunch of them" outside; he did not know who, but "some of them had to be rocking it." Book did not mention Swift at all. The variations in the testimony by these three witnesses to the same events strongly reflect confusion, exaggeration, 61 In the testimony of Leach and Turley, no reference was made to Patterson and vague memories of what actually happened. No damage of any kind was shown that resulted from Swift's conduct. "Something special" was apparently arousing the strikers at the evening shift changes on June 27 and 28. At most, Swift was indulging in a "moment of animal exuberance" as to which the substantive content cannot be regarded as exceeding the limits of lawful conduct or as rendering him unsuitable for further employment. This being the only evidence of alleged misconduct as to Swift, it is found that Respondent's failure to reinstate him after the strike was unlawful. X. Peveto In its brief, Respondent states that "Peveto was discharged for causing damage to equipment and creating a hazardous situation which could have resulted in the death of Firestone's nonstriking personnel and extensive damage to the plant," and that he "either caused the damage to the plant intentionally by opening the valve and breaking the wires or, being in charge of the equipment, he knowingly left it in a dangerous condition and went out on strike." The latter contention was not raised at or prior to the hearing, but is now injected by Respondent. Considerable testimony by a number of witnesses was put in by Respondent, much of it remote, internally or mutually conflicting, and containing extraordinary conjectures and assumptions. It is unnecessary to treat this evidence in full detail, as it is abundantly clear that no probative, reasonable support has been shown for this dire accusation against Peveto. It appears that a fire broke out on dryer 502 about midnight on January 20, resulting from the escape of hexane at the location of a valve under the dryer. The fire was quickly put out, and the damage consisted of the loss of one "take-off belt." The strike was scheduled for midnight, at the expiration of the existing contract. As stated by Respondent, the represented employees "reported for work on the midnight shift as usual, because they did not know for certain that the strike would be called." Elsewhere it contends that "the controls on all of the dryers had been turned up to `wide open' 62 . . . in an obvious attempt on the part of the striking employees, including Peveto, to cause serious damage to the plant." There are five dryers in the dryer room, which also contains conveyor belts, catwalks, control instrument consoles, and an office. Production Superintendent C. G. Henderson testified that normally one and a half dryers are assigned to each operator. In anticipation of the strike, Respondent had instructed various nonunit personnel to report early at the dryer room and receive their specific duty at midnight. Hyden G. Capps, regularly a plant protection employee, testified that he arrived at 8:30 p.m. and remained in the area of the dryers until he started work as an operator at midnight. Peveto was on the 12 to 8 a.m. shift, assigned to dryer 501 and half of 502. Normally the new men came in 20 minutes before shift change to consult with the previous operator concerning the condition of the equipment. On January 20, 62 A plain distortion of the evidence. FIRESTONE TIRE & RUBBER CO. 69 Peveto reported to work at 11:45 p.m., and left at midnight upon notice of the strike 63 Peveto gave specific testimony that he did not open the valve, or in any way adjust or touch the controls on dryer 502. At midnight, he asked Foreman Bordelon64 if he wanted the operators to stay or go on, and Bordelon told him they could go. Peveto also denied, as alleged by Respondent, that he and other strikers were "running" when they left the dryer room together that night. He was not given any reason for his discharge, nor questioned in any manner by Respondent. Peveto is fully credited. While this resolution should finally settle the matter herein, the following factors are informative: (1) No witness has testified, from being at the valve itself, that it was not already opened prior to Peveto's arrival on duty.65 (2) There were numerous personnel in the dryer room and the area of 50266 at the critical time, anyone of whom could just as well have perpetrated such an act, if indeed it was deliberate-which would be incredible to find on this evidence. (3) No one witnessed anyone opening the valve, and there was no appearance of expert opinion on the subject, merely the vaguest kind of speculations. (4) Anyone who attempted to open the valve would be in fairly open view and easily seen.67 (5) Anyone with such an outrageous plot deliberately to cause fire and explosion in the manner hypothesized by Respondent would gravely endanger himself. As stated by the plant superintendent, it "could have been instantaneous." (6) It is wholly unrealistic to entertain even a suspicion of sabotage, without firm proof, as timed before or at the start of such an economic strike by a recognized union. (7) Numerous fires in the dryer room, caused by hexane fumes and static electricity, had occurred before and after this incident.68 (8) The men recruited to replace the strikers in the dryer room were largely inexperienced and untrained. (9) An "abnormal condition" was found at the same time on dryer 506, also implied by Respondent as a deliberate act 69 (10) Capps testified that dryer 502 was down for repairs on January 20, that al 8:30 p.m. one of the maintenance men said they "have to get that thing back on line before they went" on strike, that at 10:55 p.m. the dryer was activated, and that it takes 4 hours for the dryer to warm up before going into operation. Henderson said there was major overhaul on 502 the day before, and Shift Foreman L. B. Magness said the overhaul took place several days before January 20. In addition, cleanup men work around each dryer for 1 hour on each shift. (11) Witnesses of Respondent testified that it 63 It was not disclosed who shared with Peveto the assignment on dryer 502 The alleged "responsibility" of operation would fall equally on such person General Counsel requested that Respondent produce the schedule of operators working in the dryer room on January 20, and Respondent's counsel represented that Sanders would later testify on this subject from company records However, Sanders failed to do so, and the information was not revealed 64 Not called by Respondent 65 Luther Street, who was stated to have closed the valve after the fire, did not testify 66 The operators did not have to stay at their assigned dryers, they walk up and down the catwalks and "do a lot of going downstairs" at the ground level 67 Such person would have to descend 5 feet from the catwalk and crawl on knees and elbows about 7 feet under the dryer to reach the valve The whole process, including manipulation of the controls, would consume about 1 minute is possible for the dryer to operate with the valve left open by negligence, and to continue in such manner for an indefinite time (a vacuum balance) without the escape of hexane. (12) Considering the gravity of the question, there was no effort made by Respondent to investigate the true facts.70 Nor was there any criminal charge or prosecution. (13) Although it was customary to maintain logs, written reports, and work orders, none were kept of this incident or made available at the hearing. (14) Capps had supposedly seen Peveto (identified by photo) and four other men "running" from the dryer room. There is no indication any of these men were questioned or discharged as accomplices. About midnight, immediately after the fire, Magness saw Peveto, Hudson, and Gunstream walking from the dryer room toward the gate.71 Other substantial conflicts exist in Respondent's testimony. In sum, it is found that Peveto, involved in no other alleged offense, was unlawfully terminated. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct described in section III, above, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By the above conduct, Respondent discriminated against employees in regard to their hire and tenure of employment, thereby discouraging membership in the Union, and has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act.72 5. The aforesaid unfair labor practices are unfair labor 68 Since August 1953, it was estimated there were 50 to 100 such fires 69 Apropos of Respondent's contention of a general striker conspiracy, it is noted that Jack E . Reeves testified for Respondent that Bradley reported to him an "awful lot of vapors" on dryer 502, before Bradley went off on strike 70 Sanders purportedly discharged Peveto on the report of the safety supervisor, R N Whitehead, Jr., but Whitehead himself was not put on to testify 71 Henderson saw Peveto, McGann, and Bradley leave at midnight 72 N L R B v Fleetwood Trailer Co, 389 U S 375, 378, supra Concerning substantially all of the 15 named strikers who were discharged and refused reinstatement at the conclusion of the strike, excepting McCorkle and Whitehead , Respondent failed to "establish " that it had a good-faith belief they had engaged in serious misconduct relating to the strike, and has otherwise failed to show "legitimate and substantial business justifications" for the termination of these employees 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not engaged in unfair labor practices alleged in the complaint which are not specifically found herein. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In my opinion, a broad cease and desist order is warranted, particularly by reason of the discriminatory discharges.73 It has been found that Respondent, in violation of Section 8(a)(1) and (3), terminated 13 named strikers in the complaint, excluding McCorkle and Whitehead. It will therefore be recommended that Respondent offer to these individuals immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their unlawful termination, by payment to them of a sum of money equal to that which they normally would have earned from the date of their discrimination to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As the 13 named employees remained on strike until November 20, 1967, their backpay will run from the date of their unconditional request for reemployment at the plant on November 20, 1967, and not from the date of their earlier discharge. Accordingly, Respondent shall discharge any new employees hired on or after November 20, 1967, if necessary, in order to make room for the reinstatement of the discriminatees. Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of these recommendations. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Firestone Tire & Rubber Company, Orange, Texas, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Oil , Chemical and Atomic Workers International Union, AFL-CIO, Local No. 4-23, or in any labor organization , by discharging or refusing to reinstate employees because of their union or concerted activities, or in any other manner discriminating against them in regard to hire or tenure of employment, or any term or condition of employment. (b) In any other manner interfering with , restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to the employees listed below immediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings, as set forth in "The Remedy" section of the Trial Examiner's Decision. Charles N. Bailey, Sr. Richard J. Broussard Burford Curtiss Donald J. Fowler Steve Henderson Glyn Howell Frank A. McLeod Donald Moore Claude S. Peveto Sidney A. Patterson Tommy J. Swift V. R. Walden Gene Cordeaux (b) Notify the above-named individuals if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section of the Trial Examiner's Decision. (d) Post at its Orange, Texas, plants and facilities, copies of the notice attached hereto as "Appendix." 74 Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Trial Examiner's Decision and Recommended Order what steps Respondent has taken to comply herewith.75 73 N LR B v. Express Publishing Co, 312 U.S 426, N L R B v Entwistle Mfg, Co, 120 F.2d 532 (C A 4) 74 If these Recommendations are adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommendations of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order " 75 If these Recommendations are adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " SUPPLEMENTAL TRIAL EXAMINER'S DECISION BENJAMIN B. LIPTON, Trial Examiner: On January 14, 1969, the Trial Examiner herein issued his Trial Examiner's Decision in this proceeding finding that Respondent had FIRESTONE TIRE & RUBBER CO. 71 violated Section 8(a)(3) and (1) of the Act in refusing to reinstate 13 specified strikers' upon the conclusion of an economic strike, and that Respondent had justifiably terminated Thomas W. McCorkle and Jerald L. Whitehead for engaging in misconduct during the strike. Following exceptions and briefs by the parties, on June 20, 1969, the Board issued an Order Remanding Proceeding to Trial[ Examiner, in essential part, viz. Respondent based its refusal on its alleged good faith belief that the individuals denied reinstatement had engaged in picket-line misconduct serious enough to justify such denial. The record shows that all decisions to deny reinstatement were made by Respondent's manager of industrial relations, G. R. Sanders. He passed judgment in each case on the basis of statements and affidavits of employees who continued working during the strike, plant guards, police officers, private detectives, etc.2 These statements and affidavits, and various supporting documents were submitted by Respondent to show Sanders' good faith belief. It was Respondent's contention before the Trial Examiner that, where an employer refuses to reinstate a striker on the basis of picket-line misconduct, the employer need only show evidence of its good faith belief that such misconduct was engaged in, and the General Counsel then has the burden of showing that the alleged misconduct was not in fact engaged in by the respective employee. The Board is satisfied that such is the present state of the law, and the Trial Examiner clearly and correctly stated that law in his Decision. However, at the hearing the Trial Examiner stated to Respondent that, once the General Counsel had made out his prima facie case, it was Respondent's burden to go forward and make an affirmative showing that the employees in question did in fact engage in misconduct sufficient to deny them reinstatement. In keeping with his ruling that Respondent must go forward with affirmative proof, the Trial Examiner rejected all the affidavits, statements, etc., offered by Respondent, and in making his decision considered only those that were corroborated by record testimony. The Board finds that the Trial Examiner erred. He should have accepted and considered the offered exhibits. Mr. Sanders made his decisions on the basis of the facts presented by the exhibits, and Respondent was entitled to have these exhibits considered in support of its defense of good faith belief. While we agree with the Trial Examiner's insistence that the material offered be presented in some reasonable semblance of order, the admissibility of the materials on the limited issue involved does not necessarily turn on their form, purported vagueness, or lack of a date. Rather, these are factors to be considered in deciding what weight to accord the exhibits vis-a-vis the nature and extent of the General Counsel's evidence. Record testimony was offered by Respondent to 1 Charles N Bailey, Sr, Richard J Broussard, Gene Cordeaux, Burford Curtiss , Donald J Fowler, Steve Henderson , Glyn Howell, Frank A McLeod, Donald Moore, Claude S Peveto, Sidney A Patterson, Tommy J Swift, V R Walden. 2 With one exception Regarding McLeod, Respondent claimed that he had quit (Footnote as quoted from the Board's Order ) corroborate some but not all of the matters presented by the proffered exhibits. Had the Trial Examiner considered the exhibits as to each individual with an eye to deciding if Mr. Sanders' good faith belief in each case was based upon reasonably objective facts, he may have reached a different conclusion as to some of the individual cases. The Board, having considered the matter, finds it advisable to remand the case to the Trial Examiner to consider the rejected exhibits and the entire record in that light. As either or both parties may have proceeded differently had the Trial Examiner accepted the exhibits in question, and properly ruled on the burden of proof issue at the hearing, either party may request a reopening of the record, or the Trial Examiner if he sees fit may reopen on his own motion. Thereafter, the Trial Examiner granted motions filed by each of the parties to reopen the record. Also granted were repeated joint requests of the parties to postpone hearing, e.g., "for the purpose of endeavoring to comply with the Trial Examiner's Decision and to continue settlement efforts." On January 27, 1970, pursuant to the Board's Order, a further hearing was held before me in Orange, Texas. All parties were represented and were afforded a wide latitude to adduce evidence relevant to the prescribed purpose and issues of the reopened hearing, and to file briefs. General Counsel and Respondent submitted briefs, and the Charging Party filed a letter in lieu of a brief, all of which has been given due consideration. Upon the entire record in the case, I hereby make the following additional and supplemental findings of fact and conclusions of law: A. Motions at the Hearing As to 12 of the 13 discriminatees named above, i.e., all except Broussard, the Union moved to withdraw charges, and the General Counsel moved to dismiss the complaint on the grounds that there was substantial compliance by Respondent with the Trial Examiner's recommended order-by the payment of backpay and in certain cases by reinstatement. The motions were granted by the Trial Examiner, upon his satisfaction that the policies of the Act will be effectuated by approval of such compliance and settlement.3 Further, Respondent's motion was granted to withdraw its offer of all the exhibits, which are the subject of the Board's remand order, excepting those pertaining to Broussard. Pursuant to the Board's Order, these remaining exhibits relating to Broussard were admitted in evidence. Thus, the parties themselves effectively reduced the issues at the remand hearing to those involving only Broussard. On this state of the record, General Counsel and Charging Party had no further evidence to adduce. Respondent thereupon proceeded further, in essential part as follows: 3 General Counsel indicated, inter a/a, that the regular Board procedures were followed in determining the amounts of backpay, less interim earnings Respondent's offers of reinstatement were either accepted or waived by the affected employees, with the final result that three of the employees were reinstated 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Evidence on Remand Without objection, Respondent introduced certain documents. On January 23, 1967, it had obtained from the county court a temporary restraining order, and on July 6, 1967, a temporary injunction, both relating to the picketing at Respondent's plant. Broussard, nor any other striker, is named in the documents. The court's disposition of these matters upon hearing on the merits is not shown. In its brief, Respondent states the purpose of seeking to rebut the negative finding of the Trial Examiner-that there was "no evidence that Respondent made any attempts to invoke the State law as to mass picketing in general or as to any particular striker." The relevance of these documents in the remand hearing is dubious. However, the original decision of the Trial Examiner is herein modified to reflect the foregoing efforts of Respondent to obtain temporary restraint of the picketing. Also "in response to the findings in the original decision," Respondent showed that it filed with the Board certain charges against the Union in 1967, relating to the strike and picketing. These charges, which were withdrawn or settled, in no cognizable respect pertained to the instant issues regarding Broussard. Respondent adduced testimony from R W. Krajicek, president of Cesco, and of the receptionist. The Cesco incident, concerning McCorkle's visit to that firm, accom- panied by Fowler and Broussard, was fully described in the previous decision. The receptionist added nothing. Krajicek in net effect corroborated Palermo's version of a threat conveyed by McCorkle, that if Cesco's trucks cross the picket line, McCorkle was going to "pull the man out" of the truck and "skin his head back." Insofar as such additional testimony relates to Broussard, I find no evidence or basis to alter the findings already made. The exhibits, previously rejected and now admitted, consist of six affidavits and one unsworn statement concerning alleged misconduct involving Broussard. As to * Broussard denied that he had addressed any curse words to Buckley or Delcambre on this date or on any occasion during the strike 5 While one such exhibit, Palermo's affidavit, is dated January 3, 1968, all the exhibits, except that of Walter L. Delcambre, each informant gave actual testimony at the original hearing on the particular incident. In the affidavits of both Delcambre and James E. Buckley, the same incident was covered. And testimony on the subject was previously taken from Buckley, in substance as follows: On July 20, 1967, Buckley and Delcambre were riding home from work when they approached an intersection at which Broussard was engaged in picketing. Broussard looked at Delcambre and said "S.O.B." a couple of times, plus another word of profanity which Buckley did not hear distinctly.4 Even assuming, as I do not find, that the events occurred as Buckley testified, the same conclusion is reached, as indicated in the original decision, that such name calling does not constitute a valid ground for refusal to reinstate a striker. G. R. Sanders gave further testimony that these admitted exhibits "all influenced the decision making" as to "whether or not Mr. Broussard would become a good employee for Firestone. " 5 Each of the allegations, in the testimony as well as the exhibits, has been fully considered from the standpoint of Respondent's asserted good faith belief that Broussard engaged in strike misconduct. On objective criteria, it has been found that these incidents fail to provide a reasonable basis for a good faith belief that misconduct was committed, or that the alleged misconduct did not in fact occur, or that it did not in any event render Broussard unfit for reinstatement. CONCLUSIONS As supplemented and modified herein, the same findings of fact and conclusions of law are reached as contained in the original decision, except that the violation of Section 8(a)(3) and (1) is found only as to Richard J. Broussard, and only his name shall appropriately appear in the recom- mended order and notice, instead of the 13 strikers originally specified. Sanders stated he was nevertheless aware of the events described therein when he made the decision in November 1967 not to reinstate Broussard