Ohio Power Co.

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio Power Company and Utility Workers Union of America, AFL-CIO, Local No. 116. Case 8-CA- 8091 January 29, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY On August 20, 1974, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, the Charging Party and General Counsel filed exceptions and supporting briefs, and Respondent filed an answer- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. For reasons stated by the Administrative Law Judge, we find that Respondent's discharge of Robert Gibson, James Wood, and Gary Alvarez was not violative of Section 8(a)(3) or (1) of the Act. Further, although we agree with the Administrative Law Judge's finding that Respondent's discharge of David Long and John Beckley was not violative of Section 8(a)(3) or (1), we disagree with her conclu- sion that by blocking Respondent's line truck, these striking employees had already taken themselves outside the area of protected activities, thereby obviating the determination of whether their conduct was serious -enough to justify the discharge. The facts are detailed in the Administrative Law Judge's Decision. Briefly, Respondent's Canton, Ohio, employees engaged in an economic strike from July 1 to December 17, 1973.1 Among the employees on strike were Long and Beckley. On August 6, six or seven strikers including Long and Beckley set up a picket line across a driveway at a site where Respondent was attempting to install an electric line to a new home. The strikers obtained the consent of the owners of the adjacent property. Admittedly, the primary purpose of the picketing was to block Respondent's line truck, thereby preventing comple- tion of the installation work. Later that day, as Foreman Welsh was taking pictures of the pickets, Long told him, "either you put the God damn camera away, or I am going to All dates herein are 1973. s This is according to Long's testimony 216 NLRB No. 70 shove it down your throat." Welsh proceeded to put the camera away. Long then turned to Respondent's area manager, Wolfe, and told him to "get in his God damn car and get out of there" or Long was "going to shove him in the gas tank." 2 The next morning, August 7, a larger group of strikers returned to the site, set up a picket line, and blocked Respondent's truck. Later in the day, Foreman Hughes began taking pictures and, accord- ing to Hughes' testimony, Long shouted at him, "Don't take any more pictures or I will break your God damned neck," and Long, "partly running" toward Hughes, said, "You will eat that God damned camera." Long added, "If you want trouble, I can get some help right away, quick."3 Wolfe then began taking pictures and Long shouted the same thing to him. Wolfe continued to take pictures and Beckley picked up a broken 2- by 3 1/2-inch piece of tile from the driveway and threw it at Wolfe. It landed about 10 to 15 feet from Wolfe.4 Division Manager Powell testified that he made the decision to terminate Long and Beckley. Powell's discharge letter to Long, dated August 17, stated: This will notify you that you are discharged because of your conduct on August 6 and 7, 1973. Your use of abusive, threatening, and profane language against other employees of the Compa- ny, and your intimidation of a supervisor cannot be tolerated. Your employment with Ohio Power Company therefore is terminated effective Friday, August 7, 1973. Powell's letter to Beckley dated August 16, 1973, stated: This will notify you that you are discharged because of your conduct on August 7, 1973. Your act of unprovoked aggression against your supervisor could have resulted in serious injury to that employee. This type of conduct cannot be tolerated and therefore your employ- ment with Ohio Power Company is terminated effective Friday, August 17, 1973. The Administrative Law Judge found that the group of strikers of which Long and Beckley were a part effectively took possession of Respondent's property, and thus Long and Beckley forfeited the protection afforded by the Act to them as strikers, without applying the serious-minor standard of judging their behavior. We disagree. It is well settled that a striking employee may disqualify himself for reinstatement by engaging in serious acts of miscon- duct during a strike, but that every act of impropriety 3 Hughes' version of the incident was not denied by Long. 4 The above is based on the credited testimony of Wolfe and Hughes. OHIO POWER COMPANY 349 on the part of a striking employee does not automatically deprive the employee of the protection of the National Labor Relations Act .5 It is clear that Long and Beckley participated in a picket line that effectively blocked Respondent's line truck, and, although seizure of company property may deprive a striker of the Act's protection,6 we need not decide that issue herein . Although Re- spondent's personnel manager, Powell, testified that the blocking of the line truck was a contributing factor in the discharge decision , the discharge letters from Powell belie that assertion, as does the testimony of Area Manager Wolfe, who was most directly involved in the incident. However, notwithstanding the above, we find that Respondent had just cause for discharging Long and Beckley. Long's threats to Supervisors Welsh, Wolfe, and Hughes, as well as his statement that he could get help quickly if Respondent wanted trouble, were plainly threats of personal physical violence and were intended by Long to be so. Similarly, Beckley's throwing of a large piece of tile at Wolfe was an overt act of violence, particularly since it was done in conjunction with Long's last threat. In our view, such conduct clearly justified Respondent's discharge of Long and Beckley.? Accordingly, in agreement with the Administrative Law Judge, we find that Respondent did not violate Section 8(aX3) or (1) of the Act by discharging Long and Beckley for their misconduct during the strike. 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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is an Ohio corporation principally located in Canton, Ohio, where it is engaged in business as an electrical utility. The Respondent annually receives goods valued in excess of $50,000 directly from points outside Ohio, and has an annual gross volume of business in excess of $500,000. The Respondent admits and I conclude that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The Respondent admits, and I conclude, that the Charging Party Union is a labor organization as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Canton employees of the Respondent engaged in an economic strike from July 1 to December 17, 1973. All five employees involved in this proceeding were strikers. They were discharged in the course of three separate incidents which occurred during the strike. The Respondent con- tends they were discharged because they engaged in misconduct. The General Counsel contends that Gibson, Wood, and Alvarez did not engage in the misconduct of which they were accused, that the so-called misconduct of Beckley and Long was not serious enough to justify the discharge of strikers, and that the Respondent used the alleged misconduct as an excuse to rid itself of these employees because they supported the strike. The facts surrounding the three incidents are as follows. Coronet Casuals, Inc., 207 NLRB 304 (1973). e N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939). 7 E.g., Pepsi Cola Bottling Company of Lumberton, Inc., 203 NLRB 183 ( 1973); Alabaster Lime Company, Inc., 194 NLRB 1116 (1972). DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: This case was heard at Canton, Ohio, June 4 and 5, 1974. The charge was filed January 2, and served on the Respondent January 4, 1974. The complaint was issued April 22, 1974. The issues are whether or not the Respondent 's discharge of five economic strikers during August and September 1973 constituted violations of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended. For the reasons fully explained below, I conclude that the complaint should be dismissed. B. Discharge of Gary Alvarez on August 7, 1973 Gary Alvarez, a dark-complexioned young man with long, straight, black hair and mustache, was vice president of the Union and a member of the negotiating committee during the strike. Mary Ellen Staley, a purchasing department clerk in the Respondent's Canton general offices, testified as follows: A few minutes before 1 p.m. on August 1, 1973 , she was sitting at a desk in front of a window facing down over Third Street. A venetian blind with slats 2 inches apart and wide open hung in the window. Staley observed a man with a lot of black hair lean out of the right rear window of a dark-colored Cadillac about 20 feet away in the street below and move his arm ; and immediately thereafter heard a loud cracking noise. Staley left her office and went outside and saw that a decorative glass panel next to her office window had been broken. When Staley reentered the building, a personnel office employee and the police, who 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had arrived, asked her if she would give a statement and she agreed to do so. Staley and Personnel Manager Johnson , who accompa- nied her to the police station a short time later , testified that Staley identified Alvarez, whom she had not previous- ly known, without hesitation in a lineup of three or four men. Staley denied being aware, until after these events, that the Respondent had offered a $35,000 reward for informa- tion on vandalism. Based on the above information supplied by Staley and Johnson, and without any direct contact with Alvarez, Division Manager J. L. Powell discharged Alvarez by letter effective August 7, 1973, "because of your conduct August 1, 1973. Your deliberate actions destroyed Company property and could have resulted in injury to other employees of the Company." Alvarez and two other strikers, Keith Fogle and Kenneth Goodrich, testified as follows : They had spent the morning of August 1 in the company of other union members drinking beer. Goodrich, a blond young man with medium-length curly hair and mustache, steward and picket captain, drank considerably more than the others. Around noon that day, these three and another, Brent Burton,' decided to go from the Shamrock Bar to the Respondent's northeast service building and pick up their picketing checks from the Union. Burton drove them in an old, black, Cadillac limousine . The others sat in the back seat, Alvarez on the right by a window which they said was broken and could not be lowered, Goodrich in the middle, and Fogle on the left. As they passed by the office building on Third Street, according to Alvarez and Fogle, Goodrich suddenly leaned forward and fired a slingshot out of the right front window at the building too fast for the other two to stop him.2 Fogle saw and heard the crash of the window breaking. Although he and Alvarez remonstrated with Goodrich, Goodrich nevertheless fired another shot at the next intersection. The slingshot was described as made of metal, and about 12 inches long. Although Alvarez and Fogle had seen it in Goodrich's possession early that day, both claimed they did not see the slingshot in the car before Goodrich suddenly fired it, although Goodrich said he was wearing only Levis and a short-sleeve shirt or tee- shirt that day. After the above incident, the four strikers proceeded to get their checks, and then started out in the Cadillac to return to their own automobiles, this time Burton again driving, with Alvarez in the right front seat and Fogle and Goodrich in the back, When waved over by a police car, Goodrich again leaned forward and this time threw the slingshot out the right front window , they said. The policeman retrieved it and all four men were escorted to the police station where they were put in a lineup.3 The four were then released, none of these three witnesses having been questioned by the police. Alvarez was arrested r Burton did not testify. 2 Goodrich testified that he did not see Alvarez fire the slingshot ; he then refused to answer additional questions on the ground that it might incriminate him. Goodrich probably did not see anything very clearly that day and doubtless remembers even leas. I place no reliance on his testimony. 2 1 do not credit Alvarez and Fogle's testimony that after the lineup, they later, but the record does not reveal whether he has been brought to trial. I credit the testimony of Mary Ellen Staley , and find that she identified Alvarez in a police lineup as she did in the hearing room. Staley's demeanor was that of a person harboring no doubts whatever about what she had seen. She could observe the incident clearly from where she was, and in view of the considerable difference in appearance of the two men involved-Alvarez and Goodrich-it is most unlikely that she would mistake one for the other. Moreover, the possibility of a reward, even if she had known about it, would not have caused her to deliberately identify the wrong man. By contrast, the General Counsel's witnesses told an unlikely tale. I refer chiefly to Alvarez and Fogle's insistence that they did not see the slingshot in the car, even though it was 12 inches long and Goodrich was wearing only light summer clothes with no apparent way to conceal it, and even though he would have had to insert a missile in the pocket of the slingshot at the time and that obviously had to be done within sight of the other passengers in the back seat. In addition, the upward trajectory of the missile was more consistent with its having been fired by someone leaning out of the rear window, as Staley said, than by someone leaning forward from the middle of the back seat and firing out of the front window, as Fogle and Alvarez said. I therefore find that it was Alvarez who fired the slingshot and broke the decorative panel on the Company's office building. C. Discharge of John Beckley and David Long on August 17, 1973 There is less dispute about the events surrounding this incident .4 The Respondent's area manager, Wilbur Wolfe, ordered the installation of an electric line to a new home near Midvale, Ohio, owned by one Daniels, located at the end of a driveway from the Midvale highway, and requiring the erection of four poles for stringing the wires. People named Stafford and Jewell owned property on either side of the driveway between Daniels and the highway. In accord with Manager Wolfe's order, a line truck was dispatched to the location early on the morning of August 6, 1973, apparently manned by supervisors and foremen. The work progressed normally until about noon when the supervisors left the site in their cars for lunch. Meanwhile, word of the installation work reached a group of strikers in Dennison, Ohio. According to Long, the group had understood that the Company was to perform only emergency work during the strike. As the strikers did not consider this emergency work, the group decided to proceed to the Daniels place and, as Long put it, prevent service from being installed. Six or seven were told by an unidentified person that no identification had been made but that the Company was pushing for arrests, which was vague self-serving hearsay. 4 Except as specifically discussed below, where accounts do vary, I have relied on what I consider to be admissions against interest and the probabilities in light of the entire record regarding this incident. O11IO POWER COMPANY 351 Dennison strikers, including Beckley and Long, went to the site, obtained the consent of property owners Stafford and Jewell, and about noon set up a picket line across the driveway between the line truck and the highway, and, Beckley testified, "told the foremen we were going to set a picket line up and block the truck." Shortly after the foreman-crew left for lunch, Manager Wolfe drove up the driveway in a company automobile to check on the progress of the work. Blocked by the pickets from proceeding farther, Wolfe brought his car to a stop and reversed to back out. At that point, however, Barry Oiler, a striker and union committeeman, drove his car into a position behind Wolfe's. Wolfe called to Oiler that he would like to proceed up the driveway to the Daniels residence and asked Oiler to request the pickets to move aside. Oiler replied that the pickets "were pretty hot about the construction taking place" and that they would not move for him. Wolfe then requested Oiler to move his car so Wolfe could back out. Another striker, Kapler, had pulled his car in behind Oiler's by that time, so Oiler told Wolfe that he could not oblige him because Oiler 's car was also blocked. Beckley testified that the pickets physically blocked the lane, their primary purpose being to pin the company truck in, and another objective being to pin Wolfe's car in. They thought they had a legal right to do this because the driveway was on private property and the pickets had the permission of Stafford and Jewell to be there. Prevented from driving in either direction, Wolfe locked his car and walked into Midvale . There he found Foremen Welch and Ray and sent them to the worksite. Wolfe also contacted company attorneys, who advised him to return to the site with witnesses and try to get his vehicle out, and to take pictures. When Foremen Welch and Ray arrived on the scene and approached Wolfe's car, the pickets called to them that Wolfe had better get a Hertz rental car because his car was there for the duration, as the only way he could get it out was to run over them . When Wolfe returned, Welch and Ray reported these remarks to him . Wolfe thereupon unlocked his car and got a camera out of it. Welch took pictures while Wolfe asked the pickets one by one to let him remove his car. Each of the pickets, however, either said no or did not respond. Long told Welch that he did not want his picture taken, but Welch continued to snap the camera. Long, admittedly angry, then told Welch, "Either you put the God damn camera away, or I am going to shove it down your throat." When Wolfe told Long he had not heard what Long said, Long then told Wolfe "to get his God damn car and get out of there" or Long was "going to shove him in the gas tank ," a remark which Long described on the witness stand as "just a figure of speech, I guess. It would be pretty hard to do." Wolfe and Welch then walked away. Wolfe returned with the Sheriff about 2:30 p.m. to fmd the pickets gone. He removed the line truck and the car. No work was done at the site after noon that day. The next morning, August 7, a larger group of about 14 strikers returned to see whether the Company would try to work at the site again. As the line truck was already there, another picket line was set up, and the pickets told the foremen they "were going to block the truck in the lane." Chairs were brought and the strikers sat and stood across the driveway between the line truck and the highway. Wolfe arrived about 8:30 a.m. The foremen continued their work of raising the poles. Two deputy sheriffs visited the scene, and the pickets asked them to tell the company representatives not to take their pictures; when the deputies spoke to the representatives, the camera was put out of sight. Although one or more of the pickets also had cameras that day, no objection was made to their taking pictures. After most of the foreman crew departed for lunch, Wolfe saw Long, Beckley, and another picket walk toward the line truck which had been left near the Daniels home. Wolfe followed, and discovered that the ground wire had been cut. Realizing that no more work could be done without a transformer, Wolfe summoned the foremen by radio to remove the truck. When they arrived, Wolfe showed Foreman Hughes how to operate the camera and instructed him to take pictures of Wolfe approaching the pickets! about getting the truck out. One of the foremen drove the truck down the driveway to within 20 feet of the picket line. Wolfe asked Burnhouse, recording secretary and only official of the Union present, and all the other pickets individually, for permission to remove the truck. All answered no or made no response. Wolfe summoned the truck closer, to within 6 to 8 feet of the picket line, and told the pickets, "I had no intention of running over them and would they please move." Beckley replied "that if, in fact, we did run over them, we better have a good attorney." Long observed Foreman Hughes start to take a picture from a point between the picket line and the highway, and called to Hughes not to do so. When Hughes ignored him, Long, admittedly angered, started toward Hughes shouting for him "to put the damn camera away [or] I was going to feed it to him." Wolfe left the picket line and joined Hughes near the highway. When Wolfe began to take pictures a few minutes later, Long shouted the same thing to him, but Wolfe failed to put the camera away. Beckley became angry and picked up a broken 2- by 3-1/2-inch piece of tile from the driveway and threw it at Wolfe. It landed about 10 to 15 feet from Wolfe, and Hughes retrieved it and brought it to the hearing.5 Although other pickets had idly tossed rocks around during the day, Beckley conceded that he threw this missile in Wolfe's direction and that he, Beckley, considered himself as "something of an athlete." Accord- ingly, while I do not believe Beckley intended actually to hit Wolfe, I fmd that he did intend to frighten, or at least startle, him. Based on my assessment of Wolfe, however, I am sure he was not frightened by that, or by anything else that happened in connection with this incident. Although two deputy sheriffs came to the scene at Wolfe's request, they were unsuccessful in persuading the 5 There was considerable dispute among the witnesses about whether the and Hughes, whose demeanor was favorable and whose testimony in this broken tile in evidence was the one Beckley threw and how far it landed regard appeared to be the most consistent with the probabilities based on from Wolfe. The facts as found are based chiefly on the testimony of Wolfe the whole record as to this incident. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pickets to release the line truck. They told Wolfe they were leaving to get advice from the county prosecutor and that he was not to take any more pictures. Unable to obtain any guards, Wolfe arranged for his supervisors to spell each other guarding the truck through- out the rest of the day and all night. The pickets apparently also spelled each other maintaining the road block. The next morning about 10:30, August 8, Wolfe returned once more to the scene. A deputy sheriff arrived and served a writ of replevin, which had been obtained by the county attorney, on the three pickets present. The line truck was removed, and impounded for 5 days thereafter. Division Manager Powell discharged Long and Beckley by letters dated August 17, 1973. His letter to Long gave as the reason for discharge "your conduct on August 6, and August 7, 1973. Your use of abusive, threatening and profane language against other employees of the Company, and your attempted intimidation of a supervisor can not be tolerated." The letter to Beckley gave as the reason "your conduct of August 7, 1973. Your act of unprovoked aggression against your supervisor could have resulted in serious injury to that employee. This type of conduct can not be tolerated." Powell testified that although these two strikers' participation in the blocking of the line truck was a factor in his decision to discharge them, it was not mentioned in the letters because he had decided that there were so many people involved in the blocking that he would not take disciplinary action based on that alone. D. Discharge of Robert Gibson and James Wood on September 13, 1973 During the late evening of July 29 and early morning of July 30, 1973, someone cut through the link chain fences surrounding five of the Respondent's power substations in the Canton area and removed the oil plugs from the transformers. Thirteen thousand gallons of oil, which serves as a coolant for the transformers, was spilled on the ground. Alarm systems at two of the transformers triggered an inspection of all five substations which prevented any of the transformers from burning up. There were, however, two brief interruptions of service to several thousand homes in the vicinity. The Respondent discharged Gibson and Wood, union members and strikers on September 13, 1973, for the asserted reason that they were the ones responsible for the vandalism. On December 13, 1973, after a jury trial in the Stark County Common Pleas Court, Gibson and Wood were acquitted of charges of malicious destruction of this property. The Respondent presented the following evidence in support of these charges. At 10:22 p.m. on July 29, 1973, the company dispatcher received an alarm from the Respondent's northeast substation. The dispatcher notified Substations Supervisor Ozzie Resler who sent maintenance men to investigate the cause of the alarm. They discovered the damage described above. At 11:35 p.m., employees sent to check on the other substations discovered similar vandalism at the Easton substation, which was not equipped with an alarm system. At 12:47 a.m. on July 30, 1973, an alarm was received from the West Canton substation. The vandalism at the Way View and Belden Village substations, neither of which had an alarm system, was discovered at undetermined times in the early hours of July 30. Similar cuts had been made in the link chain fences of all five substations, making an opening just big enough for a person to crawl through. Based on sample cuts he made with a pair of 9" lineman's wirecutters, also referred to as pliers, similar to those in evidence as Respondent's Exhibit 3, on all the fences, Supervisor Resler estimated it would take one man 10 to 15 minutes to get inside and do the damage done at each substation. Resler also testified that it would take at least 2 minutes for enough oil to drain out of the northeast substation transformer to trigger the alarm there. This testimony thus places the perpetrator at the northeast substation from 10:05 or 10:10 until 10:20 p.m. on July 29. The following testimony was received from Deputy Sheriff Charles Mason: At I a.m. on July 30, Mason received a message over his car radio to meet an Ohio Power representative at a place he understood to be the Company's northeast service building to investigate de- struction of company property. While waiting in the parking lot there where a motorcycle was also parked, he observed a 1964 white Plymouth Valiant approach, and about 1:10 a.m. he stopped the car. Gibson was the-driver and Wood the passenger. They told Mason they were Ohio Power employees on picket duty, that Wood's motorcycle had blown a fuse, and that they had just returned from North Canton with another fuse. Noticing a pair of wire cutters in the back seat, Mason asked to see them and Gibson handed them over. After looking over the cutters, Mason returned them to Gibson, took the names and addresses of the two men, and released them. Checking with the radio dispatcher, Mason discovered he was supposed to be at the Company's northeast substation, about a mile away from the northeast service building. When he arrived at the substation, Mason saw the damage. He then proceeded to the Company's Easton substation about 3- 1/2 miles farther on and saw the similar damage there. Remembering the wire cutters in Gibson's car, Mason picked up some pieces from the ground near each of the substations fence openings , and drove to Gibson's home, arriving about 2:20 a.m. He asked Gibson for the pliers, and Gibson gave them to him. Mason turned the fence cuttings and the 9-inch cutters in to the police station and they are in evidence, the cutters as Respond- ent's Exhibit 3. Meanwhile, Russell L. Aufrance, a private investigator employed by the Respondent from time to time, was alerted by the Company's security agent between 12:15 and 1:15. He proceeded to the Easton substation and, in the company of management representatives , visited all five substations. He picked up pieces near the openings found in the fences of the other three substations and took them to the police station; they are also in evidence. The Respondent placed in evidence a scale map of Canton showing the location of the northeast service building, the five substations, and the homes of Gibson and Wood. It also shows the route admittedly taken by Gibson and Wood from the northeast service building, where they did picket duty on the evening of July 29, past OHIO POWER COMPANY 353 the northeast and Easton substations to Wood's home that evening. The Respondent also presented the testimony of Henry Dombrowski, a laboratory chemist and supervisor em- ployed by the Bureau of Criminal Investigation of the State of Ohio. Dombrowski said he conducted tests similar in principle to ballistics tests used on firearms with the pliers on some of the link chain fence clippings in evidence. As a result of the tests, which Dombrowski described in considerable detail, he concluded that the wires had been cut by the pliers in evidence as Respondent's Exhibit 3. Division Manager Powell discharged Gibson and Wood by identical letters dated September 13, 1973, "because of your conduct on July 29 and July 30, 1973. Your actions destroyed Company property and could have resulted in equipment failure that would have caused a major interruption in electric service to our customers." Powell affirmed his reasons for deciding to discharge Gibson and Wood based on the evidence set forth above and without interviewing the employees to get their stories. The General Counsel presented the following evidence: Gibson and Wood flatly denied doing this damage. Both are linemen second class with over 6 years' experience. Their account of events was that Gibson arrived at the northeast service building to relieve Wood on picket duty in a 1964 white Plymouth Valiant about 8 p.m. on July 29. Wood's motorcycle would not start and he asked Gibson to drive him home to get a new fuse. Gibson said he would do so after he was relieved of picket duty, scheduled for 10 p.m. Terry Hanlin testified that he arrived at the northeast service building I or 2 minutes before 10 p.m. to relieve Gibson. The three of them talked a while, and Wood told Hanlin he could not get his motorcycle started and that Gibson was going to take him home to get a fuse. Hanlin said he thought the two left about 10:15, but that he could be wrong on the time by 5 or 10 minutes either way. Wood and Gibson placed their departure at 10:30 , within 5 minutes, Wood said, and within 15 minutes, Gibson said. They proceeded to Wood's home via the route marked on the Respondent's map in evidence, passing the two substations. Although there is another more direct route, Gibson explained that he took the longer route because his car is old and it is a better road and has fewer stop signs and stoplights. Their arrival at Wood's home at 10:45 p.m. was confirmed by Wood's wife who testified she looked at a clock when she was awakened by her husband's coming in with another person. Ms. Wood went back to sleep in about 5 minutes without hearing them leave. While Wood was getting a fuse, Gibson noticed a chess set in the living room, and asked Wood to play. They played a few games, and left Wood's house around 12:15 p.m. They returned to the northeast service building parking lot by the same route, arriving a little after 1 a.m. when they were stopped by Deputy Mason . The accounts of their interviews with Mason accord substantially with his. After Mason released them at the parking lot, Wood said he replaced the fuse on his cycle and rode it home by the shortest and most direct route . Gibson also went home, to be awakened about 2 p.m. by Mason who had come for the wire cutters. Gibson and Wood have not been employed at any substation, but testified they have a certain amount of knowledge of transformers and the effect on them of oil drainage. Gibson testified that about 100 employees, including linemen and other employees of the line department, have wirecutters similar to those in evidence as Respondent's Exh. 3. Gibson examined the cutters in evidence, which are 9 inches long, old and worn, with metal handles wrapped with black tape. When asked whether they are the pliers from the back seat of his car, Gibson said, I can't say for sure. I had a pair similar to that. I will say that I have used pliars [sic] of this type from time to time and kept them in the car for doing different types of electrical work for friends and relatives. To say that those are definitely my pliars, I would not know. When asked why he could not say whether the pliers in evidence are his, Gibson replied, These pliars [sic], I will say, look similar. They are older pliars. They are in pretty bad shape. Most generally, that's the type that the Power Company buys for the linemen and the groundmen, and these are rather common. Every lineman has a set of them. Some linemen have plastic handles and some have their handles taped. I don't remember if mine were taped or had plastic handles, but all these pliars are basically the same. On the basis of all the evidence set forth above, and the entire record, I find that Gibson and Wood did the damage of which they are accused. Critical to this result was the evidence of Dombrowski, who was a disinterested employ- ee of the State of Ohio and an established expert in his field. His opinion that the fences were cut by the pliers in evidence was backed by scientific details which remained unchallenged. I also consider Deputy Mason a disinterest- ed witness with nothing to gain by lying as far as the record shows. That Gibson and Wood could have committed the vandalism is established by their experience as linemen in the use of wirecutters and their knowledge of transformers. Resler's undisputed testimony regarding the amount of time required at each substation, the time factors given by Hanlin, and the distances as revealed by the scale map show they could have covered all the five substations between the time they left the picket line and the time they were accosted in the northeast service building parking lot. Ms. Wood's testimony is not necessarily inconsistent with this conclusion, particularly when one takes into account that her clock (as well as all times testified to) may have been less than exact. The conclusion is further supported by the roundabout route the two men concededly took when they allegedly were merely proceeding to Wood's house. The reason given for taking that route was undermined by Wood's admission that he took the more direct route when he did go straight home, even though he was on a motorcycle and making the trip much later at night. I have also taken into careful consideration the contrary conclusion of the jury in the criminal trial, but 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must disagrees The standard of proof is , of course, different in such cases. Most important, however, is my conviction that Gibson was not telling the truth when he hedged about his ownership of the wirecutters in evidence. That testimony being patently false destroyed Gibson's credibility and convinced me that he and Wood fabricated the tale about their movements on the evening in question. E. Conclusions Having found above that the five dischargees engaged in the misconduct with which they were charged by the Respondent, I find without support in the record the General Counsel's contention that the Respondent did not discharge them for that misconduct but seized on it as a pretext for ridding itself of these employees because they participated in the strike . The Respondent committed no unfair labor practices, and the record does not reveal that it harbored any animus against strikers or union members or officers. I credit the testimony of James P. Keller, a member of the negotiating committee, to the effect that Personnel Director Scales told him during the strike that, as far as Scales was concerned, Wood, Gibson, and Alvarez were guilty, and even if a jury found them innocent of criminal charges, they would remain fired. This only demonstrates the depth of Scales' belief that they engaged in misconduct, and not that he was discriminatori- ly motivated. Nor is there any basis for the General Counsel's charge that Manager Wolfe "instigated" Beckley and Long; or for his charge that the Respondent's failure to get these employees' own versions before deciding to discharge them is indicative of pretextual motive, particu- larly in view of my finding that they did in fact engage in the misconduct. In the above circumstances, I further find that the Respondent discharged these five strikers for the reasons given by Manager Powell. Remaining is the question as to whether the Respondent nevertheless violated the Act, because as economic strikers these employees were protected from being disciplined for what they did. The applicable rule of law is that Sections 7 and 13 of the Act grant employees the right to strike, picket, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. However, in deference to the rights of employ- ers and the public, the Board and courts agree that serious acts of misconduct which occur in the course of a strike may disqualify a striker from the protection of the Act, while minor acts of misconduct do not.7 After weighing all the factors relevant to the misconduct engaged in by Robert Gibson and James Wood , I find that it was serious enough to strip them of the protection of the Act. The facts show that in an otherwise peaceful strike setting, and without provocation by the Respondent by unfair labor practices or otherwise, these two men stealthly moved in the dead of night from substation to substation and deliberately vandalized them one after another. 6 See N.L. R. B. v. Kelco Corporation, 178 F.2d 578 (C.A. 4, 1949). r See Coronet Casuals, Inc., 207 NLRB 304 (1973). Capital Rubber & Specialty Co, Inc, 201 NLRB 715, 720-721 (1973), The Blair Process Company, Inc., 199 NLRB 194 (1972). 8 N.L.R.B. v. Perfect Circle Company, 162 F.2d 566 (C.A. 7, 194'1); The facts surrounding Alvarez' vandalism do not involve stealth. On the contrary, it appears to have been a more or less impulsive act. However, I do not believe it falls within the category of impulsive acts committed out of animal exhuberance upon which the law has looked with indul- gence. Alvarez' conduct had its genesis in no deed by the employer or by nonstrikers or anything which occurred at or near a picket line or in connection with his or others' exercise of protected rights . It therefore cannot reasonably be considered to have been an outgrowth of any intense feelings developed on the picket line. Rather , it was merely the culmination of a prolonged drinking bout. Although the weapon employed is generally associated with boys, Alvarez is not a boy. He is a man and a responsible union officer at that. Surely wanton and gratuitous property destruction of this kind was not so minor as to be within the contemplation of Congress when it provided for the right to strike. The misconduct of Long and Beckley falls within still another category. Their vague threats and the threatening gestures, although not serious in themselves , were uttered after these employees had already taken themselves outside the area of protected activities . Thus, the group of strikers to which Long and Beckley belonged went to the Daniels location for the specific purpose of preventing service from being installed, and once their their primary purpose became preventing the Respondent's representatives from removing its vehicles from the premises. They so informed the representatives and proceeded to carry out their expressed intention by blocking egress of the automobile assigned to Wolfe for several hours and of the line truck for more than a day. By this conduct they effectively took possession of the Respondent's property and retained effective possession until forced to release the truck by a court-issued writ of replevin.8 As these pickets thereby forfeited the protection afforded by the Act to them as strikers, the serious-minor standard of judging their behavior is not applicable. The Respondent was entitled, as it insists it was, to discharge them for any reason other than a discriminatory one. In my view of this matter, Manager Powell's decision not to discharge all the pickets who had blocked the Respondent's vehicles and not, therefore, to make specific reference to that conduct in his discharge letters neither was indicative of discriminatory motive nor deprived him of his right to select Long and Beckley for discharge because they additionally threatened his supervi- sors. Although it is clear that the threats made by these two employees were directed at preventing management from taking their pictures, it is also clear that management was interested only in recording unprotected activities of the pickets.9 In all the circumstances, therefore, I conclude that a preponderance of the evidence fails to establish that the Respondent's discharge of Gibson, Wood, Alvarez, Beck- ley, and Long was violative of Section 8(a)(3) or (1) of the Act, and I shall recommend that the complaint be dismissed. N LR B v. Clinchfield Coal Company, 145 F.2d 66 (C.A. 4, 1944). Accord. N L.R B. v. Fansteel Metallurgical Corp., 306 U.S. 240 ( 1939); American Tool Works Company, 116 NLRB 1681 (1956). 8 Alabaster Lime Company, 194 NLRB 1116 (1972); cf Sackett 's Welding, 207 NLRB 1030 (1973). Radio Industries, Inc., 101 NLRB 912, 925 (1952) OHIO POWER COMPANY 355 Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER to The complaint is dismissed in its entirety. 10 In the event no exceptions are filed as provided by Sec. 102 .46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board , the findings, its findings, conclusions, and Order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.