Moore Business Forms, Inc.

MOORE BUSINESS FORMS Moore Business Forms, Inc. and International Print- ing and Graphic Communications Union, AFL-CIO and Robert P Johnson. Cases 10-CA-10917 and 10-CA-10919 June 7, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 26, 1975, Administrative Law Judge Michael 0 Miller issued the attached Decision in this proceeding Thereafter, Respondent and alleged discriminatees Melvin Ervin and James Noel Wil- liams filed exceptions and supporting briefs Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs I and has decided to affirm the rulings, findings,' and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Moore Business Forms, Inc, Heflin, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order i The requests of Respondent and of alleged discriminatees Melvin Ervin and James Noel Williams for oral argument are hereby denied inasmuch as the record and briefs adequately present the positions of the parties 2 Respondent and alleged discriminatees Melvin Ervin and James Noel Williams have excepted to certain credibility findings made by the Adminis trative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 3 Chairman Murphy does not agree with the majority that Respondent's retention of fixed shifts, which were instituted following commencement of the strike on March 25, 1974, violated Sec 8(a)(1) and (3) of the Act As the Administrative Law Judge recognized the initial implementation of fixed shuts was clearly justified by the reduction in personnel during the strike and, in her view, the strikers' return to work did not obligate Respondent to change its lawfully instituted policy There is nothing inherently detrimental in a change from rotating to fixed shifts Thus contrary to the view of the majority, this situation is not analogous to that in N L R B v Erie Resistor Corp et al 373 U S 221 (1963), in that superseniority implicitly and natu- rally has a potentially deleterious impact on the job retention rights of others Thus the benefit there was unlawfully granted in the first instance and hence its continuation was also unlawful The rationale of that decision 393 therefore cannot be controlling here Accordingly, Chairman Murphy dis- sents from her colleagues' adoption of the Administrative Law Judge's find- ings on this issue Additionally, Chairman Murphy does not adopt the Administrative Law Judge's findings in fn 5, sec II, A, of his Decision, that (1) Respondent's failure to specify the alleged misconduct of the employees discharged on April 11, 1974, indicates that the announcement of the discharges was moti- vated in part by a desire to discourage participation in the strike and (2) one purpose of the surveillance of strikers by guards and supervisors was to collect information to be used against the pickets Chairman Murphy con- cludes that these findings are not supported by the record but did not preju- dice Respondent as they are unnecessary to the findings that certain em- ployees were unlawfully discharged Members Fanning and Penello in agreement with the Administrative Law Judge, find that the elimination of Respondents practice of rotating shifts and the institution of a fixed-shift system after the commencement of the strike and over the expressed opposition of the Union were inherently destructive of the rights of the striking employees and therefore violated Sec 8(a)(3) and (I) of the Act N L R B v Erie Resistor Corp, supra As there was no overriding business justification for continuing the fixed shifts beyond the training period for strike replacements, this change, like the award of superseniority in Erie Resistor operated to discriminate between strikers and nonstrikers, particularly as the returning strikers got the second and third shifts, both during and after the strike, and had a destructive impact upon the strike and union activity DECISION STATEMENT OF THE CASE MICHAEL 0 MILLER, Administrative Law Judge These consolidated cases were heard by me in Anniston, Ala- bama, on 12 days between March 31 and April 23, 1975 The charge in Case 10-CA-10917 was filed by Internation- al Printing ana Graphic Communications Union, AFL- CIO, herein the Union, on September 13, 1974, and com- plaint, based upon this charge, issued on November 4, 1974 The charge in Case 10-CA-10919 was also filed on September 13, 1974, by Robert P Johnson, an individual, and complaint thereon issued on February 27, 1975, to- gether with an order consolidating cases Amendments to the complaints were received prior to and at the opening of the hearing The consolidated complaints, as amended, allege in sub- stance that Moore Business Forms, Inc, herein Respon- dent, discriminatorily discharged and has failed to rein- state 31 employees because of their participation in a strike against it, thereby prolonging the strike, and converting it to an unfair labor practice strike, that it discriminatorily discontinued its practice of rotating work shifts and insti- tuted fixed shifts, and that it discriminatorily required em- ployees who had participated in the strike to undergo a 90-day waiting period prior to resumption of their health insurance coverage, in violation of Section 8(a)(3) and (1) of the Act In its answers to the complaints and amendments there- to, Respondent admitted the procedural and jurisdictional allegations but denied all allegations that it had committed unfair labor practices At the hearing, the General Counsel, Respondent, and the alleged discriminatees were all represented by counsel All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence, to argue orally, and to file 224 NLRB No 50 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD briefs Briefs were timely filed by the General Counsel and Respondent Throughout the hearing , I carefully observed the wit- nesses and their demeanor on and off the witness stand Based upon my observation of these witnesses and their demeanor, and my consideration of the entire record in this case, including the briefs, I make the following FINDINGS OF FACT I RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS The complaint alleges, Respondent admits, and I find that it is a Delaware corporation with an office and plant in Heflin, Alabama, where it is engaged in the manufacture and sale of business forms During the past calendar year, a representative period, it sold and shipped finished prod- ucts valued in excess of $50,000 directly to customers locat- ed outside the State of Alabama Respondent is an employ- er within the meaning of Section 2(2) of the Act, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act The complaint alleges, Respondent concedes, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background-The Factual Setting The Union was certified as the collective-bargaining rep- resentative of Respondent's employees at its Heflin, Ala- bama, plant in November 1973 The parties met, thereafter, on five or six occasions prior to March 25, 1974' On that date, at the conclusion of the second shift, most of Respondent's employees concertedly ceased working in support of the Union's contract demands 2 According to "The Cleburne News," a local weekly newspaper, this was the first union strike activity in Cleburne County, Ala- bama Tae initial strike activity, particularly through the first week, was attended by large numbers of pickets and other employees gathering in the area of the plant and was largely unstructured Professional representatives of the Union were not on hand when the strike began, they ar- rived in the course of the next few days 3 i All dates hereinafter are 1974, unless otherwise specified 2 The number of employees participating varied throughout the strike as employees joined or forsook the strike At the relevant times, more than three-quarters of Respondent's employees either participated actively in the strike or refrained from crossing the picket lines 3 Charles Moss, secretary-treasurer of the Union, arrived on the first morning, March 26 Newell Wickham, the Union's international representa- tive, who had been in charge of the campaign and bargaining, arrived, I find, on March 28 In regard to this latter fact there was much conflicting evidence General Counsel's witnesses recalled that Wickham did not arrive until Tuesday of the second week of the strike Respondent's witnesses re- called Wickham's presence at the picket line on March 28 and that testimo- ny was corroborated by films taken and identified by an employee of the guard agency hired by Respondent It was further corroborated by the testi- mony of Lynwood Williamson chairman of the negotiating committee, who testified that Wickham had stated, in a bargaining meeting, that he had been unable to get to the plant until 2 or 3 days after the strike began I At the outset of the strike, the pickets believed that they had the right to stop traffic entering the plant in order to solicit support for their action, their conduct reflected this understanding Within a few days, however, they were ad- vised by law enforcement officials that they should not stop automotive traffic The strike, with large numbers of employees, new to such activity, was less than a model of decorum At the picket line itself there were verbal con- frontations, shouting, the shining of spotlights and mirrors at supervision, the throwing of various objects, and the strewing of nails and glass From March 25 until the strike petered out around August 1, approximately 95 pounds of nails were swept up by Respondent Respondent spent $371 43 for automobile tire repairs at a cost of between $1 and $10 per tire, about one-half of which was incurred in the first week and one-half of the strike It also incurred expenses of approximately $300 during the entire strike for the repair of glass on cars and trucks Pursuant to the instructions of Franklin Sears, Re- spondent's chief labor relations counsel (and both coun- sel and a witness in the instant proceeding), Respondent hired a guard service, Pinkerton, and had both this guard service and its own supervision continually observing the picket line areas and employee gathering points, noting who was present and recording what it deemed to be acts of misconduct Nonstriking employees were directed to keep their automobile windows rolled up as they entered the parking lot, avoid discussions with the pickets, and re- port acts of misconduct The reports of the guards, supervi- sors, and nonstriking employees were placed in a "strike file" maintained by J C Pope, the plant manager, and turned over to Sears for decision as to disciplinary action Additionally, a guard service photographer was on duty continuously to take motion picture films of wrongdoing on the picket line Throughout the strike, and not just limited to the period prior to the discharges in question, local newspapers (re- ceived into evidence on the question of Respondent's hon- est belief that misconduct had been engaged in and in re- gard to the question of prolongation of the strike, but not as evidence probative of misconduct) reported acts of vio- lence in the community at large The acts included the fir- ing of shots into building and electrical equipment owned or used by Moore, the burning of buildings owned by non- striking employees or their relatives, the cutting of electri- cal power poles, and similar acts These acts were attribut- ed by the press, management representatives, or the victims to the strike No proof thereof was adduced before me or, apparently, before the appropriate representatives of the Alabama criminal justice system Union representatives denied involvement in, or knowledge of, such acts On April 5, on complaint of Respondent but by agree- ment of the parties, a writ of injunction was issued in the circuit court of Cleburne County, Alabama The Union and those acting in concert with it were enjoined from mass picketing, having more than four pickets at an en- trance or interfering with egress or ingress, shining lights or note also, in so finding, that local newspapers, admitted for other and very limited purposes, quote Wickham in Heflin, on March 28 Wickham, though subpenaed by General Counsel, did not appear at the hearing The Union was represented at the hearing by Moss MOORE BUSINESS FORMS 395 mirrors to blind occupants of vehicles, throwing nails, tacks and similar substances which might damage automo- bile tires, trespassing or throwing missiles onto the Respondent's place of business, threatening or harassing employees or their families or others seeking to do business with Respondent, and from parking in certain areas near the plant Respondent and its agents were also enjoined from interfering with the picketing activities, making ver- bal or physical assaults on pickets, strikers or members of their families, or threatening or harassing the pickets, their families, or persons doing business with them The record does not reflect what, if any, evidence was adduced before the court to warrant these injunctions The strike files maintained by Pope at Sears' direction were forwarded to Sears On April 11, using the reports of activity through April 9, Sears determined that 31 employ- ees should be discharged for misconduct in the course of the strike 4 Identical letters were sent to each of the 31 and the Union, informing them of the discharge Beyond stat- ing that the discharge was occasioned by "one or more acts of strike misconduct," Respondent did not specify, either then or when pressed later in negotiations, of what miscon- duct it deemed the employee guilty Sears testified that he announced the discharges then, rather than waiting to re- ject offers to return to work, to show that the Respondent did not intend to tolerate this type of conduct 5 B The Legal Setting Respondent argued on brief that a "unique feature of this case is the element of the strike atmosphere created by violence and destruction of Company and employee prop- erty Such an atmosphere places liability on each and every striking employee for the forseeable results " Such is not the law As the Board stated in Coronet Casuals, Inc, 207 NLRB 304, 305 (1973) Each striker's eligibility for reinstatement must be judged solely upon incidents in which the striker in question is alleged to have participated Unauthorized acts of violence on the part of individual strikers are not chargeable to other union members in the absence of proof that identifies them as participating in such violence 13 13 Sea Land Services, Inc, 146 NLRB 931, 949, enfd 356 F 2d 955, 966 (C A 1, 1966) cert denied 385 U S 900 (1966) Wichita Television Corporation d/b/a KARD TV, 122 NLRB 222, 226-227, enfd 277 F 2d 579 585 (C A 10 1960), cert denied 364 U S 871 (1960) 4 It is coincidental that the co nplamt in Case 10-CA-10917 names 31 employees Included in the 31 nan ed in the complaint are 7 who were terminated following a shooting incident on April 25, discussed infra Gen- eral Counsel refused to issue complaint as to 7 of the original 31 terminated on April 11 5 I deem Sears refusal to specify the acts of misconduct to be somewhat inconsisten' with this stated objective If one wanted certain conduct to cease, it would be logical to specify the conduct considered objectionable This inconsistency, I believe, is some evidence that Respondent's motive, at least in part, in announcing the April 11 discharges was to discourage parti- cipation in the strike itself Similarly , I deem the constant surveillance by supervisors and guards to possess at least , a mixed purpose to collect infor- mation to be used against the pickets as well as a means of preventing or discouraging damage to the plant , interference with nonstriking employees To hold individual striking employees subject to discipline, including the loss of reinstatement rights, for the wrongful acts of persons unknown and unidentified would do seri- ous harm to the right, now embedded so deeply in our legal system by Section 7 and 13 of the Act, to strike and picket N L R B v Washington Aluminum Company, 370 U S 9 (1962), NLRB v Fleetwood Trailer Co, 389 U S 375, 378 (1967), United Steelworkers [Carrier Corp ] v N L R B, 376 U S 492, 499 (1964) Such a rule would permit strang- ers, pranksters, disgruntled former employees , dissident or irresponsible union members, or even particularly perverse employers to bring discipline down upon strikers, making the risk of striking too great for the individual striker to bear, and render the right to strike nugatory Moreover, while the violence which occurred in and around the Respondent's plant at Heflin, Alabama, during this strike is not to be condoned, it was not so great or unusual as to warrant the imposition of new and destructive rules of law 6 The principles governing the right of employers to in- voke the penalty of discharge with respect to misconduct by economic strikers are the subject of settled authority, and are succintly stated in the quotation set forth below It is, of course, recognized that an employer has the burden of proving that strikers engaged in conduct barring them from a return to employment An employer's honest belief that strikers did engage in picket line misconduct of a serious nature is not a de- fense if it affirmatively appears that such misconduct did not, in fact, occur See N L R B v Burnup & Sims, Inc, 379 U S 21 and J H Rutter-Rex Manufacturing Company, Inc, 158 NLRB 1414, 1418 The question, then, is whether the conduct of [strikers] was of a nature requiring that they be disqualified for reemployment under the precedents As has been held, the applicable test in determining whether strikers ac- cused of misconduct should be returned to work "is whether the misconduct `is so violent or of such seri- ous character as to render the employees unfit for fur- ther service,' or whether it merely constitutes `a trivial rough incident' occurring in `a moment of animal exu- berance ' 117 As the Board has more recently stated in Coronet Casu- als, Inc, supra, 304, 305 or other acts of misconduct I note , in so concluding, that neither the guards nor the supervisors told the pickets that they should stop the misconduct or that by such conduct they might be jeopardizing their reinstatement rights 6 I note, in so concluding, the following there was no evidence of physi cal violence at the picket lines , no nonstriking employees or supervisors sustained any injuries , law enforcement officials present during shift changes , the high points of picket line activity, observed no conduct war- ranting arrest and no arrest warrants for strike misconduct issued prior to the April II discharges , supervisors , such as Vernon Sanders who was pres- ent at the main employee entrance at the start of the first shift each morning throughout the early part of the strike , observed and reported few incidents of conduct which they deemed improper, and although a photographer was present throughout the critical period and regularly took films of picket line activity (thirty-six 50-foot rolls in the first couple of weeks), no films of picket line misconduct warranting discharge were adduced or alluded to in the course of the hearing 7 Huss & Schlieper Company, 194 NLRB 572, 577 (1971) 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers have been deemed to lose the Act's pro- tection when they seized the employer's property,4 or engaged in acts of `brutal violence' against a nonstnk- er 5 At the same time it is true that not every impro- priety committed in the course of a strike deprives an employee of the protective mantle of the Act Thus, absent violence, the Board and the courts have held that a picket is not disqualified from reinstatement de- spite participation in various incidents of misconduct which include using obscene language,6 making abu- sive threats against nonstrikers,7 engaging in minor scuffles and disorderly arguments,8 momentarily blocking cars by mass picketing,9 and engaging in other minor incidents of misconduct 10 Consistent with these cases, the Board and the courts have long held that minor acts of misconduct must have been in the contemplation of Congress when it provided for the right to strike and that this right would be unduly jeopardized if any misconduct, without regard for the seriousness of the act, would deprive the employee of the protective mantle of the Act 11 4 N L R B v Fansteel Metallurgical Corp, 306 U S 240 (1939) 5 N L R B v Kelco Corp, 178 F 2d 578 (C A 4, 1950) 6 See, e g , Terry Coach Industries, Inc, 166 NLRB 560, 562-563, enfd 411 F 2d 612, 613 (C A 9, 1969), and see Linn v United Plant Guard Workers, 383 U S 53, 60-61 (1966) 7 See, e g, Terry Coach Industries, 166 NLRB 560, 563, and cases cited therein, enfd 411 F 2d 612, 613 C A 9, 1969), and N L R B v Efco Manufacturing, Inc, 108 NLRB 245, 250, 261 (employee Arnold), enfd 227 F 2d 675 676 (C A 1, 1955), cert denied 350 US 1007 (1955) 'See, e g, Buitoni Foods Corporation 126 NLRB 767, 782-783, enfd 298 F 2d 169, 174-175 (C A 3, 1962) 9 See, e g , Terry Coach Industries, supra, 562-564, Golay & Compa ny, Inc 156 NLRB 1252, 1260, 1263-64, enfd in pertinent part 371 F 2d 259, 262-263 (C A 7, 1966), cert denied 387 U S 944, Elmira Machine and Speciality Works, Inc, 148 NLRB 1695, 1699, 1707-8 (1964) 10 See, e g, Thayer Company and H N Thayer Co, 99 NLRB 1122, 1133, 1212 (employee Leger), remanded on other grounds 213 F 2d 748, 752-757 (C A 1, 1954), Kansas Milling Company, 86 NLRB 925 927-928, remanded on other grounds 185 F 2d 413 (C A 10, 1950), cert denied 348 U S 883 (1954), Berkshire Knitting Mills 46 NLRB 955, 1002-03, enfd as modified 139 F 2d 134 (C A 3, 1943) 11 See, e g , Republic Steel Corporation v N L R B 107 F 2d 472, 479 (CA 3, 1939) See also N L R B v Hartmann Luggage Co, 453 F 2d 178, 183-184 (C A 6, 1971), Kayser-Roth Hosiery Co, Inc v NLRB, 447 F 2d 396, 400 (CA 6, 1971), Montgomery Ward & Co v NLRB , 374 F 2d 606, 608 (C A 10, 1967), NLRB v Thor Power Tool Co, 351 F 2d 584,587 (C A 7, 1965), Crown Central Petroleum Corp v N L R B, 430 F 2d 724, 730-731 (CA 5, 1970), Alcan Cable West, 214 NLRB 836 (1974) Furthermore, it is well settled that an employer violates Section 8(a)(1) by discharging an employee for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred N L R B v Burnup & Sims, Inc, 379 US 21 (1964) See also Kayser-Roth Hosiery Co, Inc v N L R B, supra, United Aircraft Corp v N L R B, 440 F 2d 85, 92 (C A 2, 1971), Huss & Schlieper Co, supra As the Supreme Court stated in Burnup & Sims, supra, 379 U S at 23 In sum, §8(a)(1) is violated if it is shown that the dis- charged employee was at the time engaged in a pro- tected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct The burden of going forward with evidence to establish an honest belief that the employee engaged in such miscon- duct, as would be a defense to a charge of an unlawful refusal to reinstate, is upon Respondent Once that burden has been met, it becomes the General Counsel's burden to prove that the employee did not, in fact, engage in such misconduct Respondent may, of course, seek to rebut General Counsel's evidence Rubin Bros Footwear, Inc, 99 NLRB 610 (1952) See also Ohio Power Company, 215 NLRB 862 (1974) C The April 11 Discharges With the foregoing factual and legal setting, we turn now to the individuals who were terminated for alleged strike misconduct and the actions attributed to them Nelda Morrow Respondent contended that it dis- charged Morrow because of her involvement in incidents occurring on the mornings of March 27 and 28 About 7 15 a in on March 27, Ronald Skinner, a non- striking employee, turned his truck into the rear gate of the plant, where Morrow was picketing She had her back to the incoming traffic and did not see him approaching Turning in time to jump out of his way, she was startled and frightened She pulled an egg (intended for her lunch) from her pocket and threw it at Skinner's truck, hitting the window on the driver's side Skinner continued into the parking lot No damage was done to the vehicle On the following morning, Delores Brimer, a nonstriking employ- ee who had formerly been secretary of the Union, drove up to the plant's rear gate about 7 15 a in with several other nonstrikers in the car They stopped as the pickets walked in front of the gate One of the pickets asked Brimer to roll her window down so that they could speak with her Mor- row and another picket, Kay Estes, asked her to come out and join them Brimer declined, citing her financial obliga- tions and responsibilities Morrow told her that financial arrangements could be made to help her during the strike and then stated, according to Brimer and her passengers, Bachus and Criswell, that Brimer "would be safer out there than she would be inside " Morrow recalled that it was Kay Estes who made the allegedly threatening statement I credit Brimer, Bachus, and Criswell The foregoing conduct was not, I find, so serious as to render Morrow, an employee since 1969,8 unfit for further service The "threat" to Brimer, even if this ambiguous re- mark were to be so construed, is less serious than clear threats made by employees for whom the Board has or- dered reinstatement See, for example, Burlington Road- builders, Inc, 149 NLRB 791, 805 (1964) (threat to employ- ee and prediction that plant would be damaged), National Packing Company, Inc, 147 NLRB 446, 447, 456-457 8 Respondent did not consider the tenure or work history of the disci- plined strikers MOORE BUSINESS FORMS 397 (1964), remanded on other grounds 352 F 2d 482 (C A 10, 1965) (threats of physical violence), Stewart Hog Ring Company, Inc, 131 NLRB 310, 313 ( 1961) ("Don't go in there or I will get you," "I would like to take you back behind the building"), Schott Metal Products Company, 128 NLRB 415 , 416 (1960) ("I'm going to get you one of these days", threat to "whip" a nonstriker) Similarly, Morrow's egg-throwing incident is typical of the impulsive or exuber- ant behavior which the Board has held insufficiently sen- ous to warrant the ultimate disciplinary weapon in management's arsenal Otsego Ski Club-Hidden Valley, Inc, 217 NLRB 408 (1975) (O'Rourke) See also Montgom- ery Ward & Co v N L R B, supra, 608 Unlike the egg- throwing incidents involved in Oneita Knitting Mills, Inc v N L R B, 375 F 2d 385 (C A 4, 1967), Morrow's isolated act appears totally spontaneous and solely a reaction to having been frightened by a close approaching moving ve- hicle Accordingly, I find that Respondent violated Section 8(a)(1) by discharging Morrow 9 Leon Daniel About 7 20 a in on March 27, nonstriking employee Artice Albright drove his car through the picket line at the rear gate Leon Daniel, walking picket and car- rying a sign of lightweight cardboard mounted on a piece of molding lumber, approximately 3 feet long, one-half inch wide and one-quarter inch thick, held the sign out in front of Albright's moving car, from the passenger side, and it became entangled in Albright's moving windshield wipers There was no indication that Daniel was attempt- ing to block Albright's vision or cause any harm to him Albright drove in to the parking lot with the sign stuck under the windshield wiper He removed it after he parked, no harm was done to his car This incident, the only mis- conduct attributed to Daniel in the course of the strike, does not approach the type of serious misconduct which would warrant termination See Alcan Cable West, 214 NLRB 236 (1974) (Baldwin-not denied reinstatement even though he ripped a mirror off the automobile of the employer's chief negotiator as the car went through the picket line) But cf Otsego Ski Club-Hidden Valley, Inc, supra (Manowski thrust a picket stake into an automobile of a nonstriking employee and threatened to "beat his ass ") Ronald Craft Respondent's decision to discharge Craft was based upon written reports made by guard service em- ployees Isom and Waldrop, to the effect that they spotted Craft and another striker, Forrest Johnson, throwing nails and eggs over the fence at the rear of the plant in the early morning hours of April 4, prior to the arrival of any non- striking employees Craft and Johnson were allegedly iden- tified for the guards by Supervisors Meadors and Rollins Isom and Waldrop did not testify Meadors testified that he identified Craft and Johnson for the guards b.it did not see Craft or any identifiable individual (he said there were about four persons present in the area from which the nails came) throw nails Rollins testified, but not in regard to this incident Craft, an employee since 1966, testified that he was on the picket line for substantial portions of each 9It is not necessary to reach the issue of whether the discharges herein violated Sec 8(a)(3) of the Act as they were violative of Sec 8(a)(1), whatev- er Respondent's motive may have been N L R B v Burnup & Sims supra, 22 Ohio Power Company, 215 NLRB 165, In 6 (i974) day, he could well have been present at the time in ques- tion However, he specifically denied throwing eggs or nails at any time on the picket line or seeing others do so The guard reports and other written reports of strike ac- tivity formed the basis for Sears ' decision to discharge em- ployees They were offered into evidence with the express understanding that they were probative only on the ques- tion of Respondent's honest belief that employees had en- gaged in misconduct (Rubin Bros Footwear, Inc, supra) Respondent did not offer them, and I did not receive them, as evidence probative of actual misconduct They were re- ceived over General Counsel's strenuous objections The guard reports, I conclude , are generally sufficient to sustain Respondent's burden of going forward to establish its honest belief of misconduct Ohio Power Company, 215 NLRB 862 (1974) In the fact of Craft's denials, which I do not deem mcredible, 10 neither the reports nor Meadors' hearsay testimony of what Isom told him establishes Craft's wrongdoing General Counsel has sustained his burden of proving that Craft did not engage in the miscon- duct attributed to him See Otsego Ski Club, supra, (Sam- kowiak) Rayford Parker, Melvin Ervin, Noel Williams, and Billy Joe McGinnis Respondent sought to justify its discharge of Rayford Parker with evidence of several acts of miscon- duct, alone and in conjunction with other striking employ- ees, including Melvin Ervin, Williams, and McGinnis On the morning of March 26, the first full day of the strike, Vernon Sanders, manager of estimating , observed Rayford Parker rake roofing nails under the rear tire of a vehicle being driven into the parking lot by a nonstriking employee Parker denied involvement in this incident and claimed that he sometimes used his foot to remove nails from the picket line On the following evening, Parker ad- mittedly was caught by Sheriff Dryden placing a row of nails across the highway near the front of the plant He was directed to remove them and did so Sanders also heard Rayford Parker ask Sheriff Dryden whether the pickets could "get" a Pinkerton guard who had crossed to the outside of the picket line to clean up strewn nails Parker alleged that he only protested that since the pickets could not cross the line it was not fair for the guard to do so Parker's version makes little sense and I credit Sanders On the morning of March 28 , Rayford Parker told Assistant Managers Clarence Owens and Bobby Moore "Don't y'all run those presses today or you will get some dirt " I credit this version as against Parker whose claim that he only said they would "get dirty" lacked plausibility Nonstriker Bill Swafford testified that Rayford Parker and Jerry Prater approached him in front of a store in Heflin on March 30, Parker asked him not to go to work Monday, 10 Craft's denial and those of other alleged discriminatees who testuted similarly, that he did not observe fellow strikers throwing nails , or with nails in their possession is less than fully plausible (though not totally improba- ble) in light of the amount of the nails found at the scene However, while I do not approve of this apparent lack of complete candor , I can understand its motivation and do not consider it sufficient to warrant discrediting other- wise credible denials of personal wrongdoing Moreover, as Chief Judge Learned Hand stated in N L R B v Universal Camera Corp, 179 F 2d 749 754 (C A 2 , 1950), `It is no reason for refusing to accept everything a witness says because you do not believe all of it, nothing is more common in all kinds of judicial decisions than to believe some and not all 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and stated that things were going to get rough in a few days and that they would "hate to see him go home and find a stump over there " I credit Parker's assertion that he did no more than solicit Swafford's support for the strike, noting that Swafford kept expanding on what he was allegedly told and that Parker was corroborated by Prater, a witness I deem credible I further find that the allegedly threaten- ing statements attributed to Parker by Sanders, Moore, and Owens are ambiguous, innocuous, and, in any event, not so serious as tojustify a discharge Cf Firestone Tire & Rubber Co, 187 NLRB 54 (1970) (Whitehead), enforcement de- nied 449 F 2d 511 (C A 5, 1971) On Sunday, March 31, Rayford Parker, in the company of Larry Smith in Parker's car, followed J C Pope, the plant manager, to Pope's home According to Pope, they tailgated his vehicle all the way home, along a curvy road Parker and Smith claimed that they were merely driving in the same direction in order to pick up Parker's children who were visiting relatives living in Pope's neighborhood I am inclined to credit the mutually corroborative statement of Parker and Smith Even, however, were I to credit Pope, I would not find this incident serious enough to justify discharge of the employees involved There was no claim that the following was anything more than annoying Parker's car did not touch Pope's or attempt to force it from the road No potentiality for harm was presented Otsego Ski Club, supra (Prusakiewicz and Slesmski) Cf Capital Rubber & Speciality Co, Inc, 201 NLRB 715 (1973), Alcan Cable West, supra (Coon) Howard Shockley and Bobby Moore, manager and as- sistant manager of the press department, respectively, testi- fied that on April 1, dust prior to 6 a in , they observed Noel Williams, Melvin Ervin, Billy Joe McGinnis, and Rayford Parker throw several handfuls of roofing nails over the fence at the front entrance to the plant According to Moore, Parker secured the nails from his car and shook them from a sack, over the fence Reports of this activity were made by Shockley and a guard, and were signed by Moore McGinnis and Ervin denied that they were at the picket line on April 1, McGinnis stated that he was not at the line at all after March 30 (and denied throwing nails then or at any other time) and Ervin stated that he arrived at the line around 9 a in each morning and only once was there as early as 7 a in Williams and Parker, who admitted being at the plant at that time, corroborated McGinnis' denial Parker, however, placed Ervin at the scene, along with Williams Parker denied throwing nails at that time and testified that he was merely playing an "April Fool" joke, pretend- ing to throw nails Williams denied involvement in any nail-tossing incident and made no mention of any joke On the basis of the foregoing testimony, noting particu- larly that Shockley and Moore's observations are consis- tent one with the other and are supported by Parker's ad- mission, I conclude that Parker, Williams, and Ervin were throwing nails over the front gate on April I Parker's joke, if it was one, backfired, for it left me no alternative but to credit Shockley and Moore, at least to the foregoing ex- tent 11 I note also Williams' admission that he offered to u Except where corroborated by other, more credible, testimony, I would buy the nails being swept up by Shockley, and Parker's subsequent statement to Moore, as Moore was picking up nails, which I credit, that they had a whole keg full of such nails These statements, although probably made in jest, indicate an attitude consistent with the throwing of nails I also conclude that Rayford Parker did rake nails under the tire of a car, as observed by Sanders on March 26, noting that Parker admittedly set up nails on the highway on March 28 Nail strewing is a common form of picket line harass- ment and has frequently been considered by the Board Flattened tires present substantial inconvenience for those subjected to them More importantly, however, such con- duct tends to provoke violent outbursts at the picket line, and create driving hazards The Board has consistently found that nail strewing is such serious misconduct that it justifies the discharge of strikers so engaged Otsego Ski Club, supra (C Prusakiewicz and Koronka), Borman's Inc, 199 NLRB 1250 (1972) Accordingly, I find no violation of the Act in the discharges of Noel Williams, Melvin Ervin, and Rayford Parker Inasmuch as McGinnis engaged in no such misconduct, I find that his discharge violated Section 8(a)(1) of the Act Dorris Junior Payne On the first morning of the strike, striking employee Dorris Payne had a brief conversation with William Rollins, assistant manager of the materials department According to Rollins, "Payne said something to this effect Are your wife and kids safe " Rollins replied, "Yes," and Payne "said something to the effect that I thought you had more sense or something like that " Payne, in a version corroborated by Jerry Prater and Wil- liam Vaughn, stated that he merely asked how Rollins' family was, to which Rollins replied that they were at home, safe Payne and Rollins were well acquainted for several years and had socialized together and Payne knew Rollins' wife and children I credit Payne's corroborated version of the conversation as against Rollins' less than positive recollection, finding it plausible that he would have made such an inquiry early in the strike before ani- mosities grew, and finding it similarly plausible that Rol- lins, viewing his friend through the perspective of a picket line, might have heard the inquiry as a threat although no threat was made or intended In view of their prior rela- tionship, a threat against Rollins' family by Payne was im- probable Moreover, even Rollins' version of the statement was too ambiguous to constitute a threat sufficiently seri- ous to warrant discharge On March 28, according to the testimony of Leon Bru- ton, a truckdriver employed by Respondent, as he was bringing a load of materials to the struck plant, a group of men in a pickup truck stopped him on the highway They asked him not to go up to the plant He left his truck and called the plant manager While he was gone, someone, he did not see whom, threw a heavy iron bolt through the windshield When he returned to the tractor-trailer, the men who had stopped him permitted him to drive to the plant At the gate, he was again stopped by a large number not credit Shockley, noting particularly, in addition to his general demean- or, his reluctance to answer as to why he made out the reports or who instructed the supervisors to maintain surveillance and records of picket line activity MOORE BUSINESS FORMS 399 of pickets When he attempted to back away from the gate, his truck's air hose was cut by an unseen person, locking up the transmission and preventing him from taking the truck out of the area or into Respondent's parking lot Both pickets and supervisors were in the area of the truck when the lines were cut After these incidents , Bruton went into the plant where he perused photographs of the em- ployees taken from company personnel records He picked out the pictures of Dorris Payne , Larry Smith, Melvin Er- vin, Larry Turner, and Eddie Waldrop as people who had been at the tractor-trailer when it was initially stopped Payne denied being in any group of employees who stopped Bruton's truck on the highway and I am persuaded that Bruton's identification was in error Bruton, a highly suggestible witness, made his identification after the inci- dent at the gate That incident, he testified, made him so nervous that he "didn't care what happened " In such cir- cumstances, it is probable that he recalled Payne's face from the scene at the gate and thus identified him Moreover, even assuming that Payne and the others identified by Bruton had stopped the truck on the highway, the evidence was not sufficient to form a belief that any given individual threw or participated in throwing the bolt Accordingly, I find that General Counsel has sustained his burden of proof as to Dorris Payne's innocence of pick- et line misconduct Jerry Prater Respondent contends that Prater's partici- pation in two alleged threats and his involvement in nail throwing justified his discharge One alleged threat, in the conversation between Rayford Parker and Billy Swafford, has previously been considered and it was concluded that no threat warranting a refusal to reinstate employees had been uttered Moreover, even assuming that a threat was made, Prater's presence was not such as would make him a participant in it 12 Similarly, it appears from Respondent's brief that it con- tended that Prater must bear responsibility for a threat al- legedly made by Dorris Payne to William Rollins, assistant manager of the materials department , on the first day of the strike Rollins did not even recall Prater being present when the alleged threat was made Moreover, I have found that no threat was made (See discussion of Dorris Payne, supra ) Further, even assuming a threat had been uttered, I would not find Prater's mere presence within earshot dis- tance, along with other strikers, adequate to place responsi- bility for the alleged threat upon him Shockley testified that he observed Prater, together with Mike Campbell, Ralph Johnson, Tommy Ervin, and Leroy Brown, throwing nails over the rear gate, on March 27 or 28, between 11 a in and noon Prater and Brown acknowl- edged seeing nails in the picket line area, but all five em- ployees denied involvement in any nail throwing For the reasons previously set forth in regard to Shockley 's testi- mony, upon observation of the amplification of his testi- 12 Cf Firestone Tire & Rubber Co, supra , wherein employee BroLssard was held to bear responsibility for a threat made in his presence where he voluntarily accompanied other employees to a contractor of the struck em- ployer, was introduced with them as representatives of the Union there to discuss the failure to observe the picket line, and failed to disassociate him- self from thinly veiled threats of serious injury to persons and damage to property mony between direct and cross -examination, 13 and noting that Shockley's observations occurred at a distance of 75 to 100 feet, I am constrained to credit the corroborated d°m- als of the five employees The incident either did not occur or, if it did, these employees were not involved I thus con- clude that Respondent's discharge of Prater was not Justi- fied and was violative of Section 8(a)(1) of the Act Leroy Brown As noted in the discussion regarding Jerry Prater, Respondent contended that Leroy Brown was in- volved in a nail-throwing incident on March 27 or 28 I have credited the testimony of Prater, Brown, and the other employees as against that of Shockley and concluded that they were not involved This was the only incident involving nails to which Brown was linked by testimony before me He credibly denied throwing or setting up nails at the picket line During the second week of the strike , according to the testimony of Shirley Reeves, a nonstriking employee, as she was leaving work with Gladys Lett and three other employees in an automobile, Leroy Brown sh.,ok a stick in the air and "told us we better not come back the next day or that could be used on us," and M T Mitchell, standing nearby, stated that they had plenty of them Gladys Lett testified that she distinctly heard Brown say not to come in the next morning but did not recall him saying anything else She did not hear Mitchell say anything Both Brown and Mitchell denied involvement in any such incident, Mitchell stated that he was seldom at the plant when the day shift left at 4 p in because he had to pick up his wife at that hour at a plant some distance away Both testified that there were sticks at the line, which were whittled upon by the strikers and used for firewood Each of the witnesses to this alleged incident testified with credible demeanor On balance, and particularly considering Lett's inability to re- call a threat to use the stick on them or Mitchell saying anything, I conclude that Brown and Mitchell were at the line at that time, had sticks upon which they had been whittling, and that, as Lett recalled, Brown told them not to come in the next day I note that there was no contact between the pickets and the closed-up automobile in which the nonstrikers were riding The sticks were not beaten on or thrust into the car I therefore find that the statement attributed to Brown and Mitchell, like the threat attributed to Nelda Morrow, was, at most, an isolated incident in- volving these individuals , presented no real or direct threat of harm, and, thus, was not so serious as to render them unfit for further service See Firestone Tire & Rubber Co, supra (Whitehead), Terry Coach Industries, supra (The Lunch Truck Incident-"You better not come back tomor- row "), N L R B v Hartmann Luggage Co, supra (Taylor) Accordingly, I find that Leroy Brown's discharge violated Section 8 (a)(1) of the Act M T Mitchell Respondent discharged Mitchell for his involvement, with Leroy Brown, in the alleged threat to Shirley Reeves, Gladys Lett, and others, previously de- scribed As Mitchell's involvement therein was less than Brown's, Mitchell's discharge for this conduct would simi- larly be unjustified 13 His testimony on direct examination only identified Prater and John- son See, also the discussion in regard to Mike Campbell and Lynn Payne concerning the unreliability of the guard report of this incident 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Additionally, Respondent alleged that it discharged Mit- chell because he threw a rock at a truck According to the testimony of Jack Holley, an assistant manager, on March 28 while he was "spotting" (parking) a truck just inside the fence at the gate to the new warehouse , Mitchell, in the company of other pickets , threw a rock at the truck from a distance of 35 or 40 feet The rock hit the fence separating them Holley stated that no damage was done or intended Mitchell recalled the incident but denied throwing a rock at the truck If anything , he stated, gravel and paper cores were being thrown into and at the barrel which stood be- tween the pickets and the fence I credit Mitchell over Hol- ley, whose preoccupation with the difficulties he was hav- ing spotting the truck and impaired vision made his testimony less reliable than that of Mitchell Moreover, even crediting Holley's observations , this incident would not justify a discharge I therefore find that Respondent's discharge of Mitchell violated Section 8(a)(1) of the Act See Coronet Casuals, Inc, supra (Whitfield, Waldrop) Tommy Ervin, Mike Campbell, and Lynn Payne Respon- dent contended that Tommy Ervin and Mike Campbell were discharged for their involvement , with Jerry Prater, Leroy Brown, and Ralph Johnson in a nail-throwing inci- dent between 11 a in and noon on March 27 As previous- ly noted in the discussions regarding Prater and Brown, I have discredited Shockley's testimony as to this incident and as noted below, in the discussion regarding Mike Campbell and Lynn Payne, I have found Guard Parker's report thereon unreliable General Counsel has sustained his burden of proof in regard to the innocence of Tommy Ervin and Mike Campbell as to that alleged incident As that was the only incident attributed to Tommy Ervin upon which there was testimony, and as Respondent stipu- lated that it was only the alleged incident of March 27 which it considered in discharging Tommy Ervin, and as he had denied all involvement in nail throwing, I find that he was discharged in violation of Section 8(a)(1) of the Act However, Mike Campbell and Lynn Payne were also al- legedly observed , at about 10 30 a in on March 27, placing nails across a driveway This observation was made, re- ported, and testified to by Jacob Parker, a guard employed by the Pinkerton Agency According to Parker, who had little recollection of the incidents he described independent of his reports, at the time he made his observation, he could not identify the striking employees by name, but asked a member of supervision to provide the names for him He did not recall which supervisor gave him Campbell's name but stated that most names were given to him by a Clarence Mason No Clarence Mason was called to testify , Charles Mason, a supervisor, did testify, but made no mention of identifying strikers for Jacob Parker or of observing Campbell and Payne strewing nails Camp- bell and Payne denied that they handled or placed nails as alleged I am constrained to credit their denials as against Parker's testimony The guards ' procedures, generally, in relying upon supervisors to identify those engaged in mis- conduct, were sufficient to provide reports upon which Re- spondent might form an honest belief that an employee had committed conduct warranting discharge I note, how- ever, that Parker's report of this incident also reflected what appears to be the incident attributed to Tommy Er- vin, Prater, Brown, Ralph Johnson, and Lindsey involving the placing of nails Parker did not testify about that inci- dent on direct examination and, when questioned on cross- examination, acknowledged that he saw but two of those actually place nails His report on that incident was thus more detailed than his observation would warrant Parker's reports, from which he drew his testimony, his recollection of the incidents and the hearsay manner of his identifica- tions, I must therefore conclude, are not sufficiently reli- able to overcome the express denials of the employees in- volved Respondent also alleged that Lynn Payne's discharge was justified by the observations of Elton Couch, manager of maintenance, and Shockley, who testified that they saw Payne throwing nails on the morning of March 27 I have previously discredited the testimony of Shockley as to such incidents In regard to Couch, I find his testimony in re- gard to this incident to be unreliable His initial testimony identified only four employees , Vaughn, Hanson, Breed, and Barnett (the latter three not alleged in the complaint to have been discriminatorily discharged) as involved in the incident He repeated those same names when the question was asked again His notes for the strike file, made shortly after the incident, did not mention Lynn Payne as having been involved He only added Payne's name to his testimo- ny after it was suggested to him by counsel In fact, his testimony on direct examination only included an affirma- tive answer to a question as to whether or not he knew Lynn Payne was present on March 27 In regard to his notes, he stated, "I put down the ones that I saw throwing nails " He could not explain why he had not included Payne in his notes Testimony of this character, even when coupled with evidence that Payne was present when nails appeared on the picket line and has access to such nails in the employment he took some weeks after the strike began, is, like Parker's reports , insufficient to overcome Lynn Payne's express denials Accordingly, I find that General Counsel has sustained his burden of proof in regard to both Mike Campbell and Lynn Payne I conclude that their discharges violated Sec- tion 8(a)(1) of the Act James McCormick Respondent contended that McCor- mick was discharged for his involvement in nail throwing and an alleged threat to Couch on the morning of March 27 Respondent offered no testimony in regard to Mc- Cormick's alleged involvement in nail throwing and, as I have previously found, the hearsay reports of such conduct are insufficient to overcome the employee's express deni- al 14 On the same morning as the alleged nail-throwing inci- dent, McCormick called across the picket line to Couch, 14 Respondent asserted in brief that McCormick should be found incredi- ble because he testified that he only saw nails on the picket line on one occasion , a "notorious denial " Respondent misstated the record Mc Cormick never made such a denial He was only asked whether he saw them on March 27 and he replied `I saw some in the road , I mean drive I don t know whether it was that morning or what morning I credit McCormick's denial that he was involved in the throwing of nails, noting in addition to general demeanor observations that McCormick admitted , on General Counsels direct examination the full substance of the alleged threat to Couch attributed to him The free admission of potentially damaging facts evinces an honest frame of mind MOORE BUSINESS FORMS who was inside the fence, and "told him to get the mean look off of his face if he would come outside I would get it off for him " As previously discussed, not every threat made by an employee on the picket line is deemed serious enough to render that employee unfit for further employment As previously noted, the Board has held that stronger threats than this were insufficient to cause a loss of reinstatement rights McCormick's braggadocio, through a fence, to a man larger than himself, hardly pre- sented a real threat of physical harm I therefore find that Respondent's discharge of James McCormick violated Section 8(a)(1) of the Act Ralph Junior Johnson Ralph Johnson was discharged, according to Respondent, for shooting missiles into the plant with a slingshot, throwing eggs, and strewing nails As to the first two incidents, shooting and throwing things into the plant area, no testimony was offered and Ralph Johnson dewed guilt in regard to them Respondent introduced reports submitted by guards Waldrop and Isom describing these occurrences, without calling them as wit- nesses subject to cross-examination I have previously found such reports, while sufficient to meet Respondent's burden of going forward to show an honest belief of mis- conduct, insufficient to overcome testimonial denials These particular reports provide good examples of why such a ruling is required Respondent's Exhibit 58 is the guard report of Thomas H Waldrop for April 4 It states that two men, "identified by Mr Rawlins, as Johnson and Kraft" threw eggs and nails over the fence A supervisor named "Rollins" testified only that he identified Dorris Payne and Forrest Johnson (a different employee, not al- leged as a discriminatee) for another guard, Isom, as peo- ple observed by Isom throwing nails The reports in evi- dence as Respondent's Exhibits 45 and 92, and relied upon by Respondent in support of this discharge, are photoco- pied duplicates of a single report submitted by guard Don G Isom Exhibit 45 contains, in relevant part, the follow- ing Also the 3 men at picket area shot into parking area with flip and was identified by Mr Carl Thompson (1) Johnson (2) Barnett (3) Lamonack However, on Respondent's Exhibit 92, the same entry reads (1) R Johnson (2) Barnett (3) Lamonack 15 The inconsistencies in those documents render them total- ly unreliable, even to sustain Respondent's lesser burden of showing its honest belief of wrongdoing Moreover, even within the narrow confines of this case, "Johnson" was a common name, at least four persons with that name were 15 (Emphasis supplied) Tr at the `R' was added to Resp Exh 92 subse- quent to the copying of the original of this document could be determined by mere eye examination and the sense of touch The "R' was written with what appears to be both pencil and ballpoint pen The raised impression of that writing can be both seen and felt on the reverse side of the paper The other writing on the copy, i e, that which was photocopied, left no such impressions The `R" also obliterates part of the circle around the number I before Johnson's name on Resp Exh 92, not obliterated on Resp Exh 45 401 involved, including the charging party in Case 10-CA- 10919, whose first initial is also "R " Guard reports merely identifying "Johnson" or "R Johnson" are without proba- tive weight As previously discussed, Ralph Johnson was one of the group of individuals identified by Shockley as throwing nails between 11 a in and noon on March 27 or 28 Ralph Johnson credibly denied engaging in this conduct I have, earlier in this Decision, discredited Shockley in regard to the same incident (See discussions involving Jerry Prater, Leroy Brown, Tommy Ervin, and Michael Campbell) Vernon Sanders, manager of estimating , testified that on March 27 he observed a number of pickets walking along the back gate Nails appeared as they passed One of these, he said, was Ralph Johnson, and he observed Johnson's hand come out of his pocket like a "reflex action," as if he had stuck his hand with a nail This movement strew nails around Ralph Johnson denied throwing, placing, or strew- ing nails, then or at any other time I credit Johnson, not- ing in addition to demeanor that Sanders, though present at the time to observe just that kind of conduct, recalled only Johnson out of a group of about 12 pickets Finally, Respondent alleged that Ralph Johnson was ob- served by guard Jacob Parker throwing nails over the fence at 9 10 am on Sunday, March 31 Parker testified that Johnson was identified for him by a supervisor, whom he could not name Johnson testified that he did not go to the picket line on Sundays because of his wife's objections thereto I credit Johnson He impressed me as an honest witness, endeavoring to tell what happened as truthfully as possible Moreover, it was obvious that Parker had little or no recall independent of his report, at least as to this inci- dent, and his identification of Johnson, based on the hear- say statement of an unnamed supervisor, carries little weight against a credible denial Accordingly, I find that General Counsel has sustained his burden of establishing that Ralph Johnson did not en- gage in the acts of misconduct attributed to him and I conclude that his discharge violated Section 8(a)(1) of the Act Stanley Bragg Respondent contended that Stanley Bragg threatened a nonstriking employee, Artice Albright, justifying his discharge Albright testified that on April 1, as he was driving to work on U S Highway 78, he was overtaken by Bragg, in a passing zone, Bragg pulled in front of him and, for a couple of miles, prevented Albright from passing At one point, as Albright rounded a curve, he found Bragg stopped across the highway blocking his forward progress Albright pulled up to within 5 or 10 feet of Bragg, who was motioning him to turn around and go back Albright motioned Bragg to let him pass, waited briefly, made a U-turn and took a different road to the plant 16 This incident, if threatening at all, presented no 16 Bragg's version was slightly different He stated that he was driving on Highway 78, his normal route to the plant, recognized Albright as he passed his car, motioned him to pull over so that he could speak to him , and made a slow left turn in front of Albright, into a driveway, again motioning him to pull over However, Albright made a U-turn and drove off in the opposite direction Albright impressed me as a more candid witness , with less at stake in the outcome of the proceeding I am therefore inclined to credit him Continued 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat of a magnitude sufficient to warrant discharge There was no physical contact between Bragg tnd Albright or their vehicles, no words were exchanged, no threatening gestures made, and even as described by Albright, no dan- ger of physical harm was presented Bragg's conduct was not unlike the following of vehicles frequently considered by the Board, and previously discussed in this Decision in regard to Rayford Parker and Larry Smith Annoying as such conduct may be, the absence of danger to the non- striker or others on the highway renders it insufficiently serious to warrant discharge See Otsego Ski Club, supra (Prusakiewicz and Slesinski), Federal Prescription Service, Inc, 203 NLRB 975, 993 (1973) (Edwards and McCor- mick) Firestone Tire & Rubber Co v N L R B, supra, cited by Respondent, presented a far more serious situation In that case, the striker, Whitehead, vulgarly threatened an employee who was accompanied by his wife and child both verbally and by hand signs He also forced a nonstriking employee's car off the road in such a way that an accident was narrowly avoided, swerved in front of a car at high rates of speed and, on two occasions, ordered and tried to force drivers out of their cars Bragg's conduct is not com- parable to Whitehead's Accordingly, I find that Respondent's discharge of Stan- ley Bragg for this isolated and less-than-serious incident violated the Act n Mike Lindsey Respondent contended that observations of Lindsey engaging in two incidents of setting up nails in the roadway supported its decision to discharge him Testi- mony, however, was only offered as to one incident The other was contained in the guard report of Jacob Parker for March 26 and 27 18 Respondent's manager of estimating, Vernon Sanders, testified that on March 27 I was on the back gate and I noticed the pickets start- ing toward the rail gate a Georgia Highway truck was entering up the road They used various methods of blocking this truck One, Michael Lindsey was stooping or got something out of his pocket and was stooping across the road This was, I would estimate a 150, 200 feet, I could not see what he was placing 19 Lindsey admitted being present at the time described by However, Highway 78 is a major route in the area and there was evidence of other traffic on the highway at that time, and noting that estimates of time spent in waiting tend to become exaggerated, I find it difficult to believe that Bragg blocked Albright and the highway for as much as 2 to 3 minutes The truth, as it frequently does, lies somewhere between the two versions n It was not clear from Respondent's brief as to whether it was also relying upon an incident on March 27 where Bragg tapped on the window of J C Pope's car and asked him whether he had seen Homer Bible's car strike Larry Smith Whether this "accident" was real or staged, as Respon- dent argues, Bragg's limited involvement and his query to Pope would not justify his discharge is Resp Exh 96, wherein Parker described Lindsey, with Ralph Johnson, Jerry Prater, and Leroy Brown as setting up nails As noted in the course of the discussion regarding Payne and Campbell, Parker acknowledged that he did not see but two of the named individuals placing nails He did not say which two he saw Based upon this testimony and his inability to name the supervisors who identified the pickets, I found that his report was not suffi- ciently reliable to overcome express denials by the involved employees That ruling is applicable herein 19 Cross-examination of Sanders revealed that the distance was closer to 400 feet Sanders acknowledged that he was not a good judge of distance Sanders He stated that the pickets held up their signs, the driver stopped the truck, and they asked him to respect the picket line A passenger in the truck pointed out nails across the roadway and commented on how sharp they looked Lindsey saw the nails He denied seeing who placed them there He stated that he stooped down, picked some of them up, and threw them into the underbush He denied throwing or placing nails at any time Sanders' observations, even if fully credited, established a bare basis for Respondent's belief that Lindsey engaged in picket line misconduct Lindsey's denial of personal wrongdoing was credibly offered 20 and overcomes any ad- verse inference which might otherwise be drawn from San- ders' observation Accordingly, I find that Respondent's discharge of Mike Lindsey violated Section 8(a)(1) of the Act Earl Reaves Reaves' discharge, Respondent contended, was brought about by his involvement in incidents of rock and egg throwing, scattering of nails, a slingshot attack on the plant, and a threat to a nonstriking employee Reaves denied all misconduct No testimony concerning Reaves' alleged throwing of rocks and eggs or his scattering, throwing, or kicking nails was adduced by Respondent As noted, its written reports were not introduced or received as probative of such con- duct, and even if they were to be deemed to have some probative weight, are not sufficient to overcome Reaves' express denials 2i Shockley and guard Jacob Parker, however, both testi- fied that they observed Reaves, with two other strikers, Barnett and Breed (not alleged as discrimmatees) shooting at the building and a parked waste truck with a slingshot at around 6 p in on March 27 Marbles and ball bearings were the ammunition It was clear from Parker's testimony that he had little, if any, independent recollection of the event He had difficulty recalling whether it occurred in the early evening hours or after midnight, before or after dark He did not know the names of the employees involved, they were identified to him by a supervisor whose name he could not recall He made his observation from inside the building Parker did not observe any damage to the build- ing or vehicles as a result of the slingshot activity at the time it occurred Such damage as he observed on his rounds after midnight, he was unable to connect with any individual Shockley testified that he observed the same three employees shooting a slingshot and throwing rocks from the same vantage point as Parker Neither mentioned the other as being present According to Shockley, he ob- served this activity going on for 15 or 20 minutes or longer and saw them break the windshield of the truck, at which point, he testified, the activity ceased He did not, however, call the police or attempt to get them to stop this activity 20 As with other General Counsel witnesses, I have some difficulty believ- ing that Lindsey did not observe someone throwing or placing nails at some point in the strike I do not however deem this a sufficient basis upon which to totally discredit him particularly where, as here there was not direct or probative evidence of wrongdoing 2i I note that although a report dated March 27 purports to establish that Reaves and others kicked nails under tires the signatories of that report (Supervisor Meadors and two nonstriking employees, Criswell and Bachus) did not testify in regard thereto even though they were called as Respondent's witnesses on other matters MOORE BUSINESS FORMS while it was going on When he called the police later that evening in regard to an alleged subsequent rock-throwing incident wherein a glass door was broken, he did not report the earlier activity of Reaves, Barnett, and Breed His re- port to the strike file, while mentioning the glass door bro- ken by an unknown assailant, made no mention of the breaking of the windshield of the truck Reaves admitted being at the picket line at 6 p in and throughout the night of March 27 He recalled seeing Breed there, but not Barnett He recalled observing the trash truck but not seeing a broken windshield on it until March 29 He denied using a slingshot on the picket line or seeing anyone else do so On balance, I am constrained to credit Reaves' denial over the assertions of Shockley (whom I have previously discredited) and Parker Parker's identification of Reaves is based on hearsay and his recollection of the events is scanty Shockley's testimony is implausible and inconsis- tent with both his own report and with the testimony of Parker On the third day of the strike, as he was leaving the plant, nonstriker Dennis Green testified, Reaves spoke to him He asked me why I wasn't out there working He said I ought to be out there with them, supporting them, supporting the strike and I told him that I couldn't make it on what they were doing and they told me they were getting commodities and stuff like that to eat, they didn't have to buy any groceries I told him I had to work, I had doctor bills I had to pay he said, we can come over to your house and do more there than you're doing here and I said I might do it On cross-examination, Green said that Reaves told him that they could come over at his house and "do more than we're doing here " He also acknowledged, and then retract- ed, that Reaves could have been offering help Reaves ad- mitted soliciting Green to join them on the picket line He denied saying anything about going to Green's house Reaves' testimony was corroborated by strikers Danny White and Eddie Waldrop While I am inclined to credit Reaves' corroborated ver- sion of the conversation with Green, I find that it makes no significant difference The statement, as testified to by Green viewed in the light most favorable to Respondent, was not a threat of harm to Green, his family, or his home At most, it was ambiguous and vague (See cases cited in regard to Nelda Morrow) Accordingly, I find that General Counsel has sustained his burden of establishing that Earl Reaves did not engage in the acts of misconduct attributed to him His discharge violated Section 8(a)(1) of the Act Danny White According to the testimony of nonstriking employee Dennis Green, Danny White spoke to him at a stop sign in front of the Cleburne Hospital one morning as he was driving to the plant, about a week after the strike began They were in separate vehicles White asked him why he was going to work, Green replied that he had to White, with a laugh, then said, "There's ways to keep you from it," and Green answered, "Now's the time " Green alleged that White was in a vehicle being driven by Eddie 403 Waldrop Waldrop testified that he was in another car be- hind White Both White and Waldrop denied that anything was said when they passed Green that morning The de- meanor of each of these witnesses impressed me favorably and provided no basis for resolving the conflict herein I am inclined to credit Green, a witness subpenaed by Re- spondent, who had little to gain by fabrication, and who testified that he considered himself a friend of White's both before and since the incident I note, also, that he made a report of this incident shortly after it occurred, subsequent to telling his uncle, a supervisor, about it The credibility resolution, however, makes little difference, for I find that, like the alleged threats by Nelda Morrow and Earl Reaves, the statement by White to Green, a much larger man than White, was ambiguous, and not a serious threat of harm It was nothing more than picket line braggadocio and Green's reply was in a similar tone Accordingly, I find that Danny White did not commit such serious picket line misconduct as would warrant his discharge 22 Eddie Waldrop Waldrop was present, either in the same car, or in a car immediately behind Danny White, at the Cleburne Hospital when White allegedly made the state- ment to Green, discussed immediately above White's al- leged statement was nonthreatening, Waldrop's role there- in was passive or nonexistent On April 8, in the late afternoon, Jimmy Jones, quality control manager was informed that someone had shot into two trucks on Respondent's parking lot As he was looking at a place on the ground where a bullet seemed to have struck, he heard Waldrop say, "Watch out, the same thing could happen to you that happened to that truck " Repeat- ing what he had heard, he asked Waldrop if that was what he had said Waldrop told him, "I said watch out, you might hurt your back " Waldrop, who was aware of a back condition which Jones had, denied that he ever made the first statement The demeanor of these witnesses provided no basis for resolving the credibility question However, it was, I believe, unlikely that Waldrop would have been so solicitous of Jones' health at this point in this divisive strike as to merely advise him to take care of his back Based upon this implausibility, I credit Jones Moreover, while I do not deem the question free from doubt, I believe that Waldrop's threat, even though immediately retracted, was serious enough to warrant discharge A strike is an eco- nomic, not a military, battle Republic Steel Corporation v N L R B, 107 F 2d 472 (C A 3, 1939) The use of lethal weapons or statements threatening or condoning such use have no place on the picket line Respondent further contended that Waldrop was, in part, responsible for the incident on March 28, previously related, when a group of pickets stopped one of the compa- ny trucks on its way toward the plant and an iron bolt was 22 It would appear from the record and Respondent's brief that Respon- dent also contends that White's discharge was justified because he was pres- ent with 15 or 20 others in the general area on March 27, when Rayford Parker asked Sheriff Dryden if they could `get a Pinkerton guard who had crossed the line I have already found that statement to be insufficient to support the discharge of the declarant Perforce, White s virtual noninvolve meat therein (he did not even hear the statement made) would not support an honest belief of misconduct 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thrown through the windshield The driver, Bruton, alleged that Waldrop was one of the group which stopped him, a fact denied by Waldrop 23 Even if Waldrop had been in the group which stopped Bruton's truck, the evidence was in- sufficient to connect Waldrop or any of the other pickets who may have been present when the bolt was thrown Malcolm Meadors, material department manager, testi- fied that he observed Waldrop throw nails under the tires of cars stopped by the pickets, on the morning of March 27 Waldrop denied engaging in this conduct Meadors' testimony, and his identification of Waldrop, whom he had hired about 2 years earlier, was positive and specific I do not believe that it was a fabrication As previously noted, nail throwing on the picket line is conduct sufficiently seri- ous to warrant discharge Based upon the threat to Jimmy Jones and the nail throwing as observed by Meadors, I find that General Counsel has failed to sustain his burden of proof that Ed- die,Waldrop did not engage in the acts of serious picket line misconduct attributed to him His discharge did not violate the Act Larry Smith On the morning of March 27, a car being driven through the picket line by Homer Bible came into contact with striking employee Larry Smith Smith fell to the ground He subsequently accused Bible of assault Re- spondent contended that the incident was staged I need not resolve the issue Assuming, arguendo, its contrivance, it was horseplay, not so serious an act of misconduct as to warrant discharge On the following morning, March 28, as they were sweeping up nails from the gate area, Larry Smith told both Shockley and Plant Controller Nelson, "there goes two in your driveway at home, for every nail you pick up there'll be two in your driveway at home " 24 While the Board has found nail throwing itself to be misconduct of a magnitude warranting discharge, the threat to engage in nail throwing stands on a different footing Not every threat will justify discharge I find Smith's threat herein to be no more serious than other threats which the Board has considered to be insufficient as a basis for discharge or denial of reinstatement (See discussion of Nelda Morrow, supra, and cases there cited ) On April 1, Jacob Parker observed Larry Smith back his pickup truck into a steel fencepost, bending it, while turn- ing around When Smith's truck came back, Parker went over to get the tag number, Smith observed him and volun- teered the number Allegedly, he also told Parker, "I see I am going to have to give you something hot " Smith had no recollection of hitting the post The hitting of the fencepost was not shown to be other than a common, innocent, and 23 Bruton s identification was not reliable It was based upon a company photo of Waldrop, showing him with a moustache and sideburns Waldrop wore a full beard at the time of the strike, as shown in a picture of Waldrop in the March 28 edition of The Cleburne News, taken, according to Wal- drop, about a week earlier Respondents assertion in brief that the picture was "undoubtedly" taken much earlier is without support in this record See also the discussion regarding Dorris Payne, supra insofar as it pertains to Bruton's identification of strikers 24 Smith denied making this statement I credit mutually corroborative testimony of Shockley and Nelson, noting that Smith displayed a naivete about permissible picket line conduct consistent with the uttering of such a statement accidental occurrence, the statement to Parker was vague and ambiguous Respondent, in brief, argued that the observations of Houston Jones and guard Don Isom, as reported in the strike file, established that Smith shot at the plant building with a slingshot or "flip " Smith and Earl Reaves, also al- leged to be present, denied the allegations As previously discussed, I would generally deem the guard reports suffi- cient to raise an honest belief of misconduct, although in- sufficient to overcome credible denials by the employees alleged to be involved Additionally, in this instance, I note an inconsistency between the reports of Isom and Jones which indicates that neither person could have seen Smith in the act of shooting the slingshot 25 Accordingly, I find that as to all of the above-described incidents, Respondent has failed to meet its burden of es- tablishing an honest belief that Larry Smith engaged in picket line misconduct 26 Larry Turner Jacob Parker, the guard, testified that around March 28, as he was walking on the company park- mg lot, Larry Turner threw a small wooden block in his direction It did not strike him Shockley testified that he observed Turner and William Vaughn throwing nails and glass over the fence into the parking area, one morning in the beginning of April, at about 6 am Turner denied throwing anything from the picket line toward the plant The Parker incident, the throwing of a single small block of wood, even if it occurred, was insignificant picket line horseplay not meant to inflict harm In regard to the nail and glass throwing incident, I do not credit Shockley In addition to the reasons previously stated in this Decision, I note that this allegedly occurred in the very early morning hours, at a distance of 200 feet, circumstances hardly con- ducive to accurate observation Respondent, in its brief, included Larry Turner among those employees whose discharges, it contended, were par- tially based upon "threats and obscene or derogatory re- marks " Turner spent most of his time at the line, it was a major event for him Respondent's strike file (Resp Exh 83) contains a number of remarks attributed to Turner For example "the [nails] cost us 300 per lb at the hardware store," "I am as mad as I can be I am just so mad," "Why don't you take a running start & kiss my ass," and "Shock [Shockley] I wish I could think of something to say to you 25 Isom's report stated I seen a man dressed in Blue Jeans, Denim Jacket, red shirt & red cap shoot another rock that also hit glass The man was identified by Mr Houston Jones as being Larry Smith A few mini.tes later I seen Smith pass the flip to Earl Reaves Jones' report stated 2 rocks or something hit the glass on front of the building Since Smith was sitting down couldn t actually see him shooting the flip but when he got up he passed something to Reaves which looked to be about 15-18 inches long [Emphasis supplied } 26 Respondent also contended that Smith s discharge was warranted by his presence in Rayford Parker's car when Parker allegedly followed Pope home, and by his presence in the group which stopped the truce driven by Leon Bruton I have previously found that the alleged following , even if it occurred did not warrant discharge , and that the evidence was insufficient to connect any employees with the bolt thrown through the windshield of Bruton's truck (See discussion regarding Rayford Parker and Dorris Payne) Those conclusions are also applicable to Smith s alleged involve- ment MOORE BUSINESS FORMS 405 that would not be a threat " These alleged statements 27 are not sufficiently serious to deny a striking employee the pro- tection of the Act The Board, in dealing with the subject of abusive language on the picket line, stated in Longview Furniture Company, 100 NLRB 301, 304 (1952), enfd as modified 206 F 2d 214 (C A 4, 1953), on remand 110 NLRB 1734 (1954) Although the Board does not condone the use of abu- sive and intemperate language , it is common knowl- edge 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 lan- guage not altogether suited to the pleasantries of the drawing room or even to courtesies of parliamentary disputation Thus, we believe that to suggest that em- ployees in the heat of picket line animosity must trim their expression of dissapproval to some point short of the utterances here in question, would be to ignore the industrial realities of speech in a workaday world and to impose a serious stricture upon employees in the exercise of their rights under the Act And see Republic Steel Corp v N L R B, 107 F 2d 472, 479 (C A 3, 1939), cert denied 309 U S 684 , Firestone Tire & Rubber Company, supra, Terry Coach Industries, supra, Cap- ital Rubber & Specialty Co, supra William Vaughn Among the acts of misconduct attri- buted to Vaughn were loud, derogatory, or obscene re- marks, including "it was a long way back to Texas" (to truckdriver Leon Bruton-undenied), to nonstriking em- ployee Ellis Lett (the basis of a report by Jimmy Jones, not testified to) "Lett you got no business out here, get back on company property, you better get back inside ' (Essentially admitted-Vaughn stated that he told Lett that he should not be picking up nails outside the company property and solicited Lett to join the strikers), telling Shockley that it was poor management (Shockley's report states that he said "piss poor management") to employ as many people as they had before the strike if the company statements about running at full capacity with a much reduced work force were true (admitted), and shaking the fence and shouting obscenities ("damn scab"-admitted) The cases cited above, in the discussion regarding Larry Turner's picket line remarks, are applicable here See also Oneita Knitting Mills, Inc v NLRB , 375 F 2d 385, 391, fn 7 (C A 4, 1967) Vaughn's vocal enthusiasm was not suffi- ciently serious to warrant his discharge 28 Respondent also contended that Vaughn was guilty of throwing nails in the driveway, conduct denied by him Elton Couch's testimony 29 was ambiguous and did not 27 No testimony as to these statements was offered and Turner denied uttering them Thus, even if deemed serious, General Counsel has sustained his burden of proof Similarly General Counsel has met his burden of es- tablishing Turner s innocence m regard to the incident at the truck driven by Bruton (See discussion regarding Dorris Payne ) 2s Neither were the allegations of lock tampering and attempts to step or the hands of Elton Couch, both of which appear to have been picket line horseplay See Ohio Power Company 215 NLRB 165 (1974) (Greene-pull- in^ cigar from foreman's mouth) 9 I have previously considered and discredited the testimony of Shockley which would similarly implicate Vaughn See discussions regarding Parker clearly state that he observed Vaughn throw nails 30 The inference to be drawn from Couch's testimony, however, is consistent with his report thereon and with the reported observations of three other individuals who d.d not testify in regard to this incident Respondent thus established its honest belief of Vaughn's misconduct Vaughn's denial thereof I cannot credit 3' General Counsel has thus failed to establish Vaughn's lack of responsibility for nail throw- ing and I find Respondent's discharge of him did not vio- late the Act D April 25, 1974-Shooting and Resultant Discharges On the night of April 25, Charles Mason, planning de- partment manager, Pledger Gossage, order processing de- partment manager, and Bobby McBay, Pinkerton Agency lieutenant, were on duty in the reception lobby, continu- ously observing the area in front of the plant The Union's strike headquarters were located in a building across from the front gate, and a barrel, where a fire was kept burning and where employees and others gathered, was located at the street According to the diagrams and testimony, there were at least five ways to approach or leave the area, not all of which could be observed from the plant's lobby At about 11 05 p in , several of the vehicles outside the gate were moved and from one of them, a "Bronco" alleg- edly owned by Scott Lammeck (not alleged as a discrimi- natee), a light was shined into the lobby 32 McBay told Gossage to move away from the door because, in his expe- rience, according to Gossage's testimony, "when they be- gan shining the spotlight this is when they started throwing and shooting things at the door " As Gossage followed McBay's advice, a series of gun shots were fired through the door At that moment, Mason was on his way to the rear of the plant to open the gate to admit a deputy sheriff who had been called at about 10 50 p in because of rocks being thrown at the plant He heard glass breaking, but neither Mason nor Gossage heard the shots fired Nei- ther they, nor the police, who were called immediately after the shooting, determined the exact direction from which the shots were fired Deputy Sheriff Parker came over to the area where the Melvin Ervin, Noel Williams, Bill Joe McGinnis, Prater, Lynn Payne, and Turner supra 30 He testified as follows Q (By Mr Sears) I call your attention to the date of March the 27th What if anything did you observe by way of activities from the striking employees? A (By Couch) Nails in the rear entrance of the plant Q Would you please state the names of the individuals whom you observed throwing nails, or whatever they were domg9 A Bill Vaughn 31 While I am reluctant to discredit a witness based upon one aspect of demeanor the drop in the level of Vaughn's voice when questioned with regard to nail throwing was so obvious as to indicate a desire to avoid answering such questions at all and constrains me to discredit his testimony in this regard I note , also, a conflict in his testimony on direct examination, once answering that he first saw the nails on the morning of March 26 and then in response to a leading question stating that he first saw the nails on March 27 32 Such activity was not unusual, the strikers had frequently shined lights at the plant 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers had been gathered and looked around for spent shells and guns He spoke to some of the people present but did not ask for vehicles to be opened Some strikers volunteered to open their vehicles for inspection He did not search inside strike headquarters The record reflects that no further investigation of the incident was made Pursuant to instructions from Sears, since the first week in April, a nightly log had been maintained recording all identifiable persons in the area of strike headquarters The April 25 log was based upon observations by Mason, Gos- sage, and McBay, made with ordinary binoculars It identi- fied 16 individuals as being at the scene and not observed to have left prior to the shooting Of the 16, 1 is Union Representative Moss, 1 is neither a striker nor an employ- ee, and 11 are strikers alleged as discriminatees in the com- plaint Donald Brown (observed, according to the log, at 7 40 p in and again at 10 10 p in ), Roger Gibson (ob- served at 7 40 p in), B C Hightower (observed at 7 40 p in ), Curtis Hiett (observed at 7 40 and 8 30 p in ), Lyn- wood Williamson (observed at 7 40 p in ), Mike Lindsey (observed at 8 10 p in), James Burrows (observed at 8 30 p in ), Larry Smith (observed at 10 05 p in ), Jackie Gaines (observed at 10 20 p in ), William Vaughn (observed at 10 22 p in ), and Earl Reaves (observed at 10 30 p m) 33 The log reflected that at 9 25 p in Roy Barnett and Charles Porter left with someone else who could not be identified It also records Scott Lamineck as being present at 7 40 p in and as arriving at the same time as Jackie Gaines, 10 20 p in , with no indication that he left between times On June 21, on the instructions of Sears, Gossage and Mason swore out criminal complaints charging the 16 indi- viduals recorded in their report with conspiracy "unlawful- ly, and with malice aforethought to assault Pledger Gos- sage, Charles Mason and Bobby McBay with the intent to murder them contrary to law " 34 The complaints were filed solely on the basis of the foregoing information Respon- dent has never learned who fired the shots or from which direction, other than the front of the plant within the range of a rifle bullet, they were fired The striking employees among the 16 so charged were discharged 31 33 Of these, Lindsey, Smith, Vaughn, and Reaves had been discharged on April 11, and were so alleged in the complaint 34 The delay, according to Sears, was caused by his waiting for local coun- sel to advise him as to the the nature of the complaint which could be filed, and to see what, if any, additional evidence might be developed 35 Respondent by its counsel, Sears, contended that they were merely suspended, pursuant to a company practice in regard to persons charged with felonies, pending resolution of the complaints W L Murrell, industri- al relations manager for Resnondent s southern division, testified that these employees were terminated rather than suspended because of the nature of the conduct involved His testimony is consistent with the information given Lynwood Williamson on July 25 and with the letter Williamson received stating that `The attorneys advise that your employment with the company has been ternunated " James Burrows received similar information from Pope on July 26 The criminal complaints, it was stipulated, were no-billed" by the grand jury around February 8, 1975 Prior to that date, Earl Reaves was employed as a deputy sheriff in Cleburne County after being informed that he would be hired when the complaint against him was no-billed He was told that it had been no-billed when he was hired on August 15, 1974 A letter from the district attorney, dated April 15, 1975, stated that Williamson Lindsey, Brown, Vaughn, Reaves, Gaines, Hiett, Burrows, Hightower, Smith, and Gibson would not be investigated by the Cleburne County grand jury Fol- All of the employees involved disclaimed responsibility for the shooting At the time of the shooting, Moss and Donald Brown had been standing near the barrel, on hear- mg the shots they ran in opposite directions Brown stepped on the sleeping bag of either Mike Lindsey or Scott Lamineck, both of whom were asleep among the pines Vaughn was in the area between the barrel and the sleeping bags and described the sounds of the shots as coming from behind strike headquarters and passing over his head, be- tween the barrel and himself He hit the ground Vaughn stated that on April 25, as on other evenings, people came and left from the picket headquarters area Williamson had been there all day, left at 6 p in and re- turned around 7 30 p in to pass out strike benefit checks He remained until about 8 p in and did not return until the following morning He testified that he drove straight out Foster Street, which runs approximately perpendicular to the plant Roger Gibson dewed that he had been in the area at any time that night or for several weeks before or after it None of the other employees placed him there Larry Smith and Earl Reaves were both present prior to the shooting but left at around 10 30 p in , going to Smith's home where Reaves helped Smith to rotate the tires on his tractor They returned after the shooting Curtis Hiett and B C Hightower were in the area until approximately 8 45 p in, when they both left in order to get some sleep They hadjust taken jobs in Georgia which required them to arise at 4 o'clock the next morning Both approached and left the area from the front of strike headquarters, which is the side of the building facing away from Respondent's plant Burrows was in the area for approximately 1 hour, leaving around 9 p in from the front of strike headquarters Gaines was also present at around 10 30 p in, but left with another employee, Sherman Ginn (not reflected on the log as having been observed) They did not return until after the shooting Based upon the foregoing, and noting particularly the lack of precision in the log, the fact that persons could enter and leave from several points without being ob- served, the lighting conditions (after dark-identification could only be made if someone were near the barrel or seen in the headlights of a car), that at least one unidentified person left at 9 25 p in and noting the absence of any meaningful investigation at any time prior to the filing of the complaints, and without condoning, in any way, the serious act which occurred, I conclude that Respondent lacked a basis for an honest belief that the named employ- ees engaged in the act charged to them Moreover, even assuming that the Mason-Gossage log provided a basis for meeting Respondent's burden of going forward, I find General Counsel has met his burden and affirmatively es- tablished that the employees discharged because of the April 25 shooting were not guilty of that offense nor of conspiring to commit it Accordingly, I find that Respondent violated Section 8(a)(1) of the Act when it discharged Donald Brown, James Burrows, Jackie Gaines, Roger Gibson, Curtis Hiett, lowing introduction of this letter, Respondent s counsel stated that Respon- dent no longer considered them to be suspended but to possess the same rights as other striking employees MOORE BUSINESS FORMS 407 B C Hightower, and Lynwood Williamson 36 I further find that Mike Lindsey, Larry Smith, and Earl Reaves, dis- criminatorily discharged on April 11 , are not barred from reinstatement because of any alleged involvement in the April 25 shooting But for his misconduct prior to his April II discharge, William Vaughn would have been similarly entitled to reinstatement E Alleged Discriminatory Changes in Regard to Health Insurance and Rotating Shifts Respondent and General Counsel stipulated as follows (1) Prior to March 25, 1974, the Respondent oper- ated a rotating shift system of employment [Employ- ees changed shifts weekly ] (2) Following the strike which commenced on March 25, 1974, the Respondent operated a single shift of employment until on or about June 10, 1974, and this became a fixed shift of employment when a second shift was created on said date Strikers return- ing to work on or after June 10th were offered em- ployment on the second and third shift fobs, and the third shift began operations on or about July the 15, 1974 This offer was without regard to their seniority except to the extent that two striking employees who made application to return to work on or about the 10th of June, 1974, the most senior employee was giv- en the last remaining job available on the first shift of employment (3) On or about June 14, 1974, the Respondent and the Union engaged in negotiations and the subject of fixed shifts was discussed The Respondent proposed the fixed shift system of employment Respondent, both prior to and since the strike, provided its employees with fully paid hospitalization, medical-surgi- cal, and major medical supplementary insurance During the strike, Respondent ceased payments on behalf of the striking employees, so advised those employees, and in- formed them that, if they wished, they could continue cov- erage as individuals Eighty-one striking employees were removed from the insurance coverage as of April 30 31 It was stipulated that upon their return to work strikers were treated as new employees in regard to their health insurance in that their insurance was not reinstated for 90 days 38 This was true even as to any employees who may have converted to individual insurance coverage 36 Assuming that the employees had been merely suspended pending reso- lution of the criminal complaints , I would reach no different result and the remedy would remain unchanged The record reflects that Respondent's practice of suspending employees charged with felonies was discretionary and that the discretion had been exercised in regard to at least one nonstrik- er so charged (Homer Bible) because Respondent did not believe that the charges against him had merit Thus , suspension was not required by any set or inviolable company policy Moreover, even if company policy required suspension, it would be "bootstrapping" for Respondent to rely on criminal charges it caused to be filed as a basis for suspension and then to argue that it was bound by its policy 37 It was not contended that the cancellation of benefits during the strike was unlawful The record does not reflect whether any employees converted to individual coverage 38 Pursuant to the terms agreed upon between Respondent and the insur- ers, Group Life and Health Insurance Company (Blue Cross) and Group Respondent contended that the returning strikers were accorded advantageous treatment in regard to their insur- ance in that, had they merely been treated as terminations, they would have had to await the anniversary date of the insurance policies, January 1, in order to renew coverage 39 Respondent's industrial relations manager, Murrell , testi- fied that the requirement that an individual who dropped his insurance coverage while remaining an employee wait until the policy's anniversary date to resume coverage was a matter of Respondent's personnel policies and practices, not mandated by the insurers As to both of the foregoing acts, I find that Respondent has violated Section 8 (a)(3) of the Act The institution of fixed shifts placed essentially all returning strikers perma- nently on the less desirable second and third shifts while strike replacements, whom Respondent began to hire in the last week of April, and those who gave up their strike activ- ity early, were permanently assigned to the first or second shift While the change from rotating to fixed shifts may well have been justified as a temporary exigency by the reduced number of employees and the need to train replacements during the strike, there was no showing that , once the work force was stabilized and trained , the continuation of the fixed shifts over the expressed opposition of the Union was required Thus, I conclude, the institution of fixed shifts was comparable to the award of superseniority considered by the Supreme Court in N L R B v Erie Resistor Corp, 375 U S 221 (1963) The institution of fixed shifts, like the superseniority, operated to discriminate between strikers and nonstrikers, both during and after the strike , and had a Hospital Service, Inc (Blue Shield), new employees were permitted to enroll in the insurance program within 45 days of employment and coverage be- came effective after 90 days The 90 day eligibility requirement was set by Respondent , the insurers had no such requirement 3' The contract provisions referred to by Respondent are as follows ARTICLE I-DEFINITIONS A EMPLOYEE means a person directly employed on a full time basis in the regular business of and compensated for services by the Employer ARTICLE II-EMPLOYEES ELIGIBLE The following employees are eligible for insurance under this policy B Any employee not eligible on the policy date but who subse- quently to that date shall have been continuously employed by the employer for the period of time specified in the application , [90 days] or in a written notice from the Employer changing such period of time provided however , that such change shall apply only to those employees employed on or after the effective date of the change C An employee heretofore insured under this policy, whose insur- ance terminated for any reasons, shall be eligible for new coverage hereunder in accordance with the provisions of Article III, below ARTICLE III-EFFECTIVE DATES OF INSURANCE B For employees becoming eligible subsequently to the policy date who submit application for coverage within thirty days following the date of eligibility the coverage shall become effective on the Insurer's regular business day immediately preceding the date such application is delivered to the Home Office of the Insurer [as amended] C For employees who become eligible subsequently to the poll- cy date but who make application for coverage more than thirty days after becoming eligible, the insurance shall become effective on the next succeeding policy anniversary 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD destructive impact upon the strike and union activity As such, it carried its own indicia of intent and, as there was no overriding business justification for continuing the fixed shifts beyond the hiring and training period for strike re- placements, the business purpose asserted by Respondent was insufficient to insulate the change from the reach of Section 8(a)(1) and (3) of the Act Similarly, I conclude, Respondent's characterization of returning strikers as new employees for insurance purpos- es, with its resultant 90-day delay in the resumption of cov- erage, falls into what the Court has referred to as the "in- herently destructive category" placing upon the employer "the burden of explaining away, justifying or characteriz- ing `his actions as something different than they appear on their face"' and permitting the Board to find an unfair labor practice even if the employer introduced evidence that the conduct was motivated by business considerations N L R B v Great Dane Trailers, Inc, 388 U S 26, 34 (1967), N L R B v Erie Resistor Corp, supra at 228 Respondent's explanation that the 90-day waiting period was a benefit to employees who would otherwise have had to wait until January 1, 1975, falls in light of Murrell's testimony that it was only a matter of Respondent's per- sonnel policy to require employees whose coverage termi- nated to wait until the anniversary date Whatever the mer- its of that policy when in the unlikely event an employee voluntarily terminated the cost-free coverage, it was inher- ently destructive of the right to strike as applied herein I note, as set forth above, that it was even applied to any employee who converted to individual coverage and no ex- planation therefore was offered I also note, moreover, that it would appear that returning strikers could have been considered under article III(B) of the insurance plans, pro- viding for coverage effective on the business day preceding receipt of the application at the insurer's home office, as well as under the subsection (C) which required a delay until the anniversary date for certain eligible employees The record does not reflect that Respondent attempted to have the insurers resume coverage immediately or that the insurers would have refused to do so if requested 40 F Unfair Labor Practice Strike General Counsel, by amendment to the complaint, con- tended that Respondent's unfair labor practices of April 11 prolonged the economic strike which had begun on March 25, and converted it to an unfair labor practice strike 41 Respondent argued that even assuming that some of its 31 discharges on April 11 violated the Act, at least 7 of them were valid, the General Counsel having refused to issue complaint thereon Thus, it asserted, conversion of the strike based upon these discharges and upon Respondent's 40 Art X-"General Provisions," sec D, "Reinstatement," states that ac- ceptance of the premium by the insurer fully reinstates a policy terminated by default, and indicates, at least, that reinstatement of the strikers' cover- age was possible While Respondent s action herein was a cancellation rath- er than a default, this provision provides some insight into the insurer's policies 41 It would appear from General Counsel s argument on the record and in brief that it does not contend that the April 25 discharges converted the strike maintenance of its legal position in regard to them would not be automatic As noted above, I have found that of the remaining 24 discharges of that date 19 were violative and 5 were justified No meeting of the employees was held, or vote taken, wherein it could be said that a determination was made to continue the strike until the discriminatory discharges were remedied However, at each of the negotiating meetings conducted after April 11 (April 17, June 14, and August 1) the Union made an issue of all of the discharges and sought reinstatement for the discharged employees I have no doubt that factors in addition to 19 discriminatory dis- charges contributed to the prolongation of the strike Some of the prestrike economic issues were still unresolved, some of the discharges with which the Union was concerned were lawful, and, it must be noted, there was serious mis- conduct by some pickets and/or other persons whose iden- tities were unknown Each of these factors contributed to the strikes' prolongation Nonetheless, the law is clear "if an unfair labor practice had anything to do with causing the strike, it was an unfair labor practice strike " General Drivers and Helpers, Local 662 [Rice Lake Creamery Co ] v NLRB , 302 F 2d 908, 911 (C A D C, 1962), citing N L R B v Stackpole Carbon Co, 105 F 2d 167, 176 (C A 3, 1939), cert denied 308 U S 605, N L R B v Birmingham Publishing Co, 262 F 2d 2 (C A 5, 1958) See also Colonial Lincoln Mercury Sales, Inc, 197 NLRB 54 (1972) The same rule pertains where a strike which initially involved no unfair labor practice is prolonged or aggravated by an employer's unfair labor practice Rice Lake Creamery Co, supra Such is the case here The strike, initially economic, took on a mixed character after April 11 and the employer was bound to reinstate the striking employees upon appli- cation even if the discharge of their replacements was re- quired in order to do so G Offers To Return To Work General Counsel contended that an unconditional offer to return to work had been made on behalf of all striking employees, including those who had been discharged, on July 23, and that, even assuming arguendo that no blanket offer was made, after April 17 it would have been a futile gesture for any of the discharged employees to request re- instatement Respondent disputed both contentions The record reflects three formal meetings subsequent to the commencement of the strike and the initial discharges At the first meeting, April 17, Union Representative Wick- ham told Sears that Respondent had created 31 new issues Sears stated that the employees were terminated Wickham disputed the validity of the discharges, in general, and Sears, referring to a file, stated that Respondent had the evidence to support them He rejected Wickham's request to examine the evidence and stated that he would present it to the Labor Board Sears questioned Wickham as to whether or not he was making it a condition for settlement that the 31 be reinstated and Wickham stated that he was Respondent presented a package proposal to settle the strike which included a provision that discharged employ- ees could file charges with the Board to determine their employment status Wickham rejected this "On account of MOORE BUSINESS FORMS 409 the 31 people " When Respondent and the Union met again on June 14, Wickham again sought consideration for the reinstatement of the discharged strikers He asked Sears whether Respondent would agree to a disciplinary layoff in lieu of discharge , which Sears rejected Sears also rejected a proposal to submit each discharge to individual arbitration and reiterated his position that the NLRB was the only forum to resolve those issues 42 At the meeting of August 1, Wickham stated that he wanted to get the entire matter settled and everyone back to work He sought reinstatement for the 31 dischargees of April 11 and the dropping of criminal charges filed in re- gard to the shooting on April 25 Sears stated that he would recommend that the criminal charges be dropped, that the persons so charged would be eligible to return to work if the charges were no-billed , but stood on his position that reinstatement of the 31 would have to be based upon a disposition by the NLRB A tentative agreement for the return of the remaining strikers who had not been dis- charged was reached Final agreement , however, was never concluded As of August 1, offers to return to work had been made by or on behalf of virtually all nondischarged strikers and all picketing activity had ceased On August 6, in a private meeting, Wickham told Sears that the membership would not abandon the 31 At the end of August, Sears received an unsigned "Strike Settlement Agreement" which he identified as coming from Wickham It stated that the Union terminated the strike and offered on behalf of all eligible employees to return to work Proce- dures for their return were proposed, as were the dropping of all criminal charges and the Union's agreement not to pursue unfair labor practice charges for the 31 The docu- ment was never executed by either party On July 23, at least some of the striking and discharged employees personally sought reinstatement Jerry Prater, Earl Reaves, Stanley Bragg, Ronald Craft (all alleged dis- crimmatees), Curtis Mayo, Donald Breed (both discharged but not alleged as discrirninatees), and Johnny White crossed the picket line, entered the reception lobby, and told Supervisors Jones, Rollins, and Whiten that they wanted to sign the sheet to go back to work 43 Jones, who could not imagine them coming over to apply for work and thought they were joking, told them that he thought they were all on the list of people who had been terminated, "which means that you're not eligible to sign the sheet " He 42 The foregoing is based on the mutually corroborative testimony of Sears and Lynwood Williamson, chairman of the negotiating committee As previously noted , Wickham did not appear at the hearing 43 Prater testified that he went in to the plant at the direction of Wickham, who had instructed him to make application for all of the striking employ- ees, which , he stated, he did I am constrained to credit the mutually consis- tent testimony of Jones, Rollins , and Whiten, as corroborated by employee White, to the effect that the request was made only for the employees then present I note that Craft s testimony that Prater made a request on behalf of all the terminated' employees is inconsistent with Prater's testimony that his offer was for all "striking employees ' I note , more importantly that Wickham, although present, did not make the offer himself and the alleged offer was made orally Even if a blanket offer was intended , the circum- stances made the offer ambiguous and the ambiguity must be construed against the party responsible for it Further , the alleged instructions to Pra- ter to make a blanket offer were somewhat inconsistent with Wickham's instructions to individual employees, such as Gerald Turner, to make their own efforts to get their jobs back stated that he would check with Pope and attempted, un- successfully, to locate him He then checked his list of the employees who had been terminated Determining that all of these employees, except White, had been discharged, he told them that none but White could sign the list He or- dered them to leave the plant premises On July 24, B C Hightower returned to the plant and asked Pope what his job status was Pope told him that he had been terminated In response to a question , Pope told Hightower that he could return to work when the criminal charges were favorably resolved Hightower told Wil- liamson and Burrows of this conversation Williamson and Burrows, however, made individual applications on July 25 and 26, respectively Donald Brown requested reinstate- ment on August 1 and was told what Hightower had been told Roger Gibson requested reinstatement on November I1 The record does not reflect that any of the discharged employees, whether in the April I1 or April 25 group, had been reinstated by the time this case was heard Based upon the foregoing, I find that offers-in-fact to return to work were made by Prater , Reaves, Bragg, and Craft on July 23, Hightower on July 23, Williamson on July 25, Burrows on July 26, Brown on August 1, and Rog- er Gibson on November 11 I do not find that any uncon- ditional offer on behalf of all strikers was made However, in agreement with the General Counsel, I conclude that the absence of applications for reinstatement by the dis- charged strikers is irrelevant because the making of such applications would have been futile See Penzel Construc- tion Co, 185 NLRB 544 (1970), affd 449 F 2d 148 (C A 8, 1971) Most significantly, this conclusion is borne out by the record of such requests herein, not only were the re- quests of employees who requested reinstatement rejected, but the employees' mere presence was received with incre- dulity, they were not permitted even to sign the return-to- work list, and they were summarily directed to leave the plant The union representatives and committee were re- peatedly told that only by recourse to the Board might employees be reemployed I note also that the striking em- ployees talked to one another about the rejections of their offers Thus, the rejection of one application would tend to discourage other discharged strikers from applying More- over, while Respondent could have silently awaited the end of the strike and then rejected offers to return of those it believed had engaged in misconduct, it chose to follow a different route The employees were told once by letter from Respondent, and repeatedly thereafter by local news- paper articles and advertisements setting forth Re- spondent's position, that they had been discharged 44 In these circumstances , the submission of requests to return to work would have been meaningless and the striking em- ployees knew it General Counsel argued that the futility of application arose on April 17 and that it was from that date that Re- spondent was obligated to reinstate the discharged employ- ees I cannot agree While it may have been futile for these employees to seek reemployment at any time, the strike 44 One newspaper article, in "The Cleburne News of June 13, self-pro- claimed as The Most Widely Read Newspaper in Northeast Ala," went so far as to quote ` plant officials and attorneys as stating that the employees who had lost their jobs would ` never be rehired " 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was very much alive on April 17 and would not have termi- nated upon revocation of the 31 discharges of April 11 To paraphrase T S Eliot, the strike herein died "not with a bang but a whimper " 45 By August 1, picketing had ceased and requests for reemployment had been made by substantially all nondischarged strikers and by some who had been discharged The Union, by then, was urging em- ployees to seek reemployment General Counsel initially pleaded August 1 as the date on which the refusal to rein- state began I believe that date more accurately reflected the facts as developed by the lengthy hearing herein and I so find CONCLUSIONS OF LAW 1 Respondent is an employer 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 discharging the following named economic strik- ers on April 11, 1974, Respondent violated Section 8(a)(1) of the Act Stanley Bragg Billy Joe McGinnis Leroy Brown Martin T Mitchell Mike Campbell Nelda Morrow Ronald Craft Dorris Junior Payne Leon Daniel Lynn Payne Tommy Ervin Jerry Prater Ralph Johnson, Jr Earl E Reaves Mike Lindsey Larry Smith James McCormick Larry Turner Danny White 4 The strike which began on March 25, 1974, was an economic strike at its inception but was prolonged and ag- gravated by Respondent's unfair labor practice, described in paragraph 3, above, and became an unfair labor practice strike as of April 11, 1974 5 By discharging the following named unfair labor practice strikers on April 25, 1974, Respondent violated Section 8(a)(1) of the Act Donald Brown B C Hightower James Burrows Lynwood Williamson Jackie Gaines Roger Gibson Curtis Hiett 6 Respondent did not violate Section 8(a)(1) or (3) of the Act by discharging the following named economic strikers on April 11, 1974 Melvin Ervin Eddie Waldrop Rayford Parker Noel Williams William Vaughn 7 By discontinuing its practice of rotating work shifts and instituting fixed work shifts, Respondent violated Sec- tion 8(a)(1) and (3) of the Act 8 By requiring striking employees, when they returned to work, to undergo a new 90-day waiting period before their hospitalization, medical-surgical, and major medical 4'T S Eliot, "The Hollow Men , V (1925) supplementary insurance coverage was resumed, Respon- dent violated Section 8(a)(1) and (3) of the Act 9 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act It having been found that Respondent unlawfully dis- charged Stanley Bragg, Leroy Brown, Mike Campbell, Ronald Craft, Leon Daniel, Tommy Ervin, Ralph Johnson, Jr, Mike Lindsey, James McCormick, Billy Joe McGinnis, Martin T Mitchell, Nelda Morrow, Dorris Junior Payne, Lynn Payne, Jerry Prater, Earl E Reaves, Larry Smith, Larry Turner, Danny White, Donald Brown, James Bur- rows, Jackie Gaines, Roger Gibson, Curtis Hiett, B C Hightower, and Lynwood Williamson, I shall recommend that Respondent offer each of these employees immediate reinstatement to his or her former position, or, if such job no longer exists, to a substantially equivalent position, without loss of seniority or other rights or privileges, dis- charging if necessary any replacements hired,46 and make each of these employees whole for any loss of earnings he or she would normally have earned from the earlier of a date 5 days after the employee actually made an uncon- ditional offer of reinstatement or 5 days after August 1, 1974,47 the date by which I have found the strike in sub- stance ended and by which the striking employees would have made unconditional offers of reinstatement had Re- spondent not made the making of such offers futile by its earlier conduct, to the date of Respondent's offer of rein- statement, in accordance with the Board's formula set forth in F W Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) It having also been found that Respondent unlawfully required strikers who returned to work to undergo a 90-day waiting period before their hospitalization, medical-surgi- cal, and major medical supplementary insurance coverage was resumed, I shall recommend that they be made whole for any losses they may have suffered as a result thereof subsequent to the date they returned to work or would have returned to work but for Respondent's unlawful dis- charge of them, together with 6-percent interest per an- num Ramona's Mexican Food Products, Inc, supra Further, it having been found that Respondent unlaw- fully terminated its practice of rotating shifts and institut- ing a fixed-shift system, I shall recommend that it be re- quired to reinstitute its rotating-shift system In view of the seriousness of the violations involved, I shall recommend a broad remedial order As the Board recently stated in Ohio Power Company, 215 NLRB 165 (1974) 46 The record reflects that strike replacements were not hired prior to the discharges herein 47 Ramona s Mexican Food Products Inc 203 NLRB 663 (1973) MOORE BUSINESS FORMS 411 [T]he ultimate penalty of discharge, as retaliation for employees exercising their Section 7 rights, strikes at the very heart of the Act From such conduct we find it reasonable to infer that similar interference with those rights likely will recur Therefore, we deem it appropriate to issue a broad remedial order in this case N L R B v Entwistle Manufacturing Company, 120 F 2d 523, 536 (C A 4, 1941) Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended ORDER48 The Respondent, Moore Business Forms, Inc, its offi- cers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging striking employees who do not engage in disqualifying strike misconduct (b) Discouraging membership in International Printing and Graphic Communications Union, AFL-CIO, or any other union, or discouraging the free exercise of rights guaranteed by Section 7 of the Act, by discriminating against strikers by requiring them to undergo waiting peri- ods for the resumption of their hospitalization, medical- surgical, and major medical supplementary insurance cov- erage or by eliminating the practice of rotating shifts, or in regard to hire or tenure or other terms or conditions of employment (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action which it is found will effectuate the purposes of the Act (a) Offer Stanley Bragg, Leroy Brown, Mike Campbell, Ronald Craft, Leon Daniel, Tommy Ervin, Ralph Johnson, Jr, Mike Lindsey, James McCormick, Billy Joe McGinnis, Martin T Mitchell, Nelda Morrow, Dorris Junior Payne, Lynn Payne, Jerry Prater, Earl E Reaves, Larry Smith, Larry Turner, Danny White, Donald Brown, James Bur- rows, Jackie Gaines, Roger Gibson, Curtis Hiett, B C Hightower, and Lynwood Williamson immediate reinstate- ment to their former positions or, if those jobs are no lon- ger available, to substantially equivalent positions, without loss of seniority or other rights or privileges, discharging if necessary any replacements for these employees, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in accor- dance with the provisions of the section of this Decision entitled "The Remedy " (b) Make whole all striking employees for any losses they may have suffered for lack of fully paid hospitaliza- tion, medical-surgical, or major medical supplementary in- surance coverage subsequent to the date they returned to work or would have returned to work but for Respondent's unlawful discharge of them, in accordance with the provi- sions of the section of this Decision entitled "The Reme- dy 11 (c) Reinstate the practice of rotating shifts (d) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order (e) Post at its plant in Heflin, Alabama, copies of the attached notice marked "Appendix " 49 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 10, after being duly signed by Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material (f) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 48 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recorimendea Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 49 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals th- words in the notice reading ` Posted by Order of the National Labor Relations Board' shall read "Posted Pursuant to a Judgment of the Unued States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LP B0R RELATIONS BOARD An Agency of the United States Government WE WILL NOT dischaige striking employees who do not engage in disqual fying strike misconduct WE WILL NOT discourage membership in Internation- al Printing ana Graphic Communications Union, AFL-CIO, or any other union, or the free exercise of rights guaranteed by the National Labor Relations Act by requiring striking employees to undergo wait- ing periods for the resumption of their health insur- ance coverage or by eliminating the practice of rotat- ing shifts or by discriminating against them in any other manner in regard to hire or tenure or other terms or conditions of employment WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to bargain collectively through representatives of their own choosing, to en- gage in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities WE WILL offer the following employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights and privileges, discharging if necessary any re- Jackie Gaines Larry Smith placements, and WE WILL make them whole for any Roger Gibson Larry Turner earnings lost as a result of our unlawful conduct Curtis Hiett Danny White against them, plus interest at 6 percent per annum B C Hightower Lynwood Williamson Stanley Bragg James McCormick Ralph Johnson, Jr Mike Lindsey Donald Brown Billy Joe McGinnis WE WILL make the striking employees whole for any Leroy Brown Martin T Mitchell losses they may have suffered because we made them Jimmy Burrows Nelda Morrow wait 90 days before resuming their health insurance Mike Campbell Dorris Junior Payne coverage and WE WILL reinstitute the rotating-shift Ronald Craft Lynn Payne practice which we had before the strike began Leon Daniel Jerry Prater Tommy Ervin Earl E Reaves MOORE BUSINESS FORMS, INC