International Harvester Co.

166 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD International Harvester Company, Solar Division and International Association of Machinists and Aero- space Workers, Silvergate District Lodge 50 and Aeronautical Mechanics Lodge 685. Case 21-CA- 13931 September 28, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On June 17, 1976, Administrative Law- Judge Jer- rold H., Shapiro issued the attached Decision in this proceeding. Thereafter, the Charging Party- filed ex- ceptions and a supporting brief, and the Respondent filed a brief in support of the Administrative- Law Judge's Decision. Pursuant to the provisions of Section, 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board-,has delegated its au- thority in this proceeding to a-three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the, rulings, findings, -and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case held April 13 through April 15, 1976, is based upon an unfair labor practice charge filed by Inter- national Association of Machinists and Aerospace Work- ers, Silvergate District Lodge 50 and Aeronautical Me- chamcs Lodge 685, herein called the Union, on August 25, 1975, and a complaint issued October 23, 1975, as amend- ed January 21, 1976, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 21, alleging that International Harvester Company, Solar Division, herein called Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. Respondent filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record,'-from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINDINGS OF FACT I. JURISDICTION In Harvester Company, Solar Division manu- factures gas turbine engines in San Diego, California. Re- spondent annually sells- and- ships goods valued in excess of $50,000 directly to customers located outside the State of California. Respondent admits, and I find, it is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the -Act. - II. THE -LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, Silvergate' District Lodge_ 5.0and Aeronautical Mechanics Lodge 685, is admittedly a labor, organization within the meaning of Section 2(5) of the Act. III. THE QUESTIONS PRESENTED The essential questions presented for decision are wheth- er Respondent discharged employees James Beltz, Steve Atanasoff, and Willie Clark' for strike' misconduct -suffi- ciently serious ^as to deprive them of the Act's protection. IV. THE ALLEGED UNFAIR-LABOR PRACTICES A. Background and the Applicable Legal Principles Respondent at its three principal facilities in San Diego, California, employs approximately 3,600 persons of whom approximately 1,600 are represented by the Union. On July 14, 1975,3 the Union struck Respondent's San Diego facili- ties in what was admittedly a lawful-economic strike over negotiations for a new collective-bargaining agreement. The strike lasted until November 15 when a new contract was signed and the strikers returned to work. On August 20 Respondent had notified the three named discriminatees they were discharged for engaging in strike-related miscon- duct. The law is settled that the Act is violated if ah employee i General Counsel's motion to correct transcript is granted. 2 Counsel for the General Counsel at the start of the hearing stated, in substance, that the participation of the three discriminatees in the Union's strike constituted the union and concerted activities alleged in the com- plaint The Charging Party's attorney agreed that the discnminatees "were fired for alleged picket line misconduct which constituted their union activi- ties" but added that the Union "feels that the background of their prior activities may be significant to determine if this was really the true motiva- tion for the discharge" In view of this contention, I have carefully consid- ered the entire record, including the Charging Party's offers of proof, and find that the evidence does not preponderate in favor of a finding that when Respondent notified the disciminatees they were discharged for engaging in certain strike related misconduct this was a pretext used by Respondent to cloak a desire to discharge them for engaging in union activities other than the strike-related misconduct. 3 All dates herein, unless otherwise specified, refer to 1975. 226 NLRB No. 32 INTERNATIONAL HARVESTER COMPANY 167 who is engaged in an economic •strike, is discharged for misconduct arising out of the strike, despite the employer's honest belief, when it is shown that the misconduct never occurred. However, if the- employer establishes that it held an honest belief that the, misconduct occurred, the General Counsel must go forward with evidence to prove that the employee did not, in fact, engage in such misconduct. See Rubin Bros. Footwear Inc., 99 NLRB 610, 611 (1952), cited with approval in_N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, 22-23 (1964). The General Counsel and the Charging Party in their posthearing briefs do not urge that Respon- dent lacked an honest belief that the discriminatees had engaged in strike misconduct. Nevertheless I have carefully, considered this matter and conclude that the record estab- lishes such an honest belief. Respondent, hard on the heels of the named discriminatees alleged strike-related miscon- duct, notified them that they were discharged for engaging in such misconduct. And, before it discharged them, Re- spondent had conducted a thorough investigation-Respon- dent's representatives interviewed and took written decla- rations from witnesses and took photographs of the events which they showed to witnesses, All of the evidence -was carefully evaluated before Respondent reached its decision to discharge the alleged discriminatees:a Since there is sufficient evidence in the record to estab- lish Respondent's honest-belief that each of the named dis- criminatees engaged in misconduct, it was the General Counsel's burden to prove they were not guilty. The Gen- eral Counsel presented several witnesses to demonstrate their innocence and the Respondent countered by calling additional witnesses to demonstrate their guilt. I shall first set out my ultimate findings on the question of what type of conduct the alleged discriminatees engaged in and, then, determine whether their conduct was of a kind sufficiently serious to remove the protection of the Act. B. The Material Facts 1. Steve Atanasoff On Friday, August 15, Respondent for the first time em- ployed strike replacements at its Glen Canyon facility. The replacements were bused to the plant. At approximately 7 a.m., when the first two buses approached the main gate, the lead bus was stopped momentarily by pickets and ob- jects were thrown at the bus. Leroy Judkins, employed by the Company's industrial relations department, was sta- tioned at the gate to observe the picket line. Judkins credi- bly testified that he observed Atanasoff, whom he knew by name, among the strikers at the main gate.5 Judkins took a A review of the evidence considered by Respondent reveals that when the decision was reached to discharge the named discriminatees Respondent had reason to believe that each one had engaged in substantially all of the strike-related misconduct for which they were discharged I recognize that Respondent erroneously attributed certain misconduct to discriminatee Beltz. This does not, however, detract from Respondent's good-faith belief that Beltz committed the other misconduct described in the discharge letter 5 Judkms' testimony that he personally observed Atanasoff is corroborat- ed by the photographs of the scene, infra, and by the testimony of Ron Martin who knew Atanasoff by "face" and observed him at the main gate during the time material herein dozen photographs of the scene. Several of the pho- tographs show that Atanasoff was present.6 Based on the foregoing I find that Atanasoff was present on August 15 at the main gate of the Company's Glen Canyon plant at about 7 a.m. when the buses entered. In so concluding I have carefully considered the testimony of Atanasoff and his wife to the effect that he was home in bed on August 15 at 7 a.m., not at the main gate of the Glen Canyon plant. However, the evidence presented by Respondent on this issue, considered in its entirety, im- presses me as more reliable than the Atanasoffs' denials. Atanasoff did not impress me as a particularly convincing witness.? In addition, his testimony about significant mat- ters such as his whereabouts on the morning of August 15, and the dates he performed picket line duty was im- peached. The alibi Atanasoff submitted to the Board in his prehearing affidavit of August 29 differs from his testimo- ny. Likewise, his testimony concerning the days he was on picket duty is not consistent with what he stated- in his affidavit and both his affidavit and testimony are not con- sistent with the Union's picket log signed by Atanasoff whenever he picketed. When the first bus transporting employees into the Glen Canyon facility was stopped by pickets on August 15, it is undisputed that at least one hard object and one egg were thrown at the bus and at least one window was shattered. Respondent conducted an investigation to determine the identity of the person or persons who threw the objects. Several of the employees who were riding on this bus were questioned and two-George Brakeall- and Eric Magnu- son-informed Respondent's representatives they observed a person throw a hard object at the bus which shattered a window.- Brakeall and Magnuson were shown the,pho- tographs taken by Judkins and asked if the person they observed was in the pictures. They both identified Atana- soff's picture. Brakeall and Magnuson testified at the hear- mg and once again identified Atanasoff as the person who threw the hard object which shattered a window of the bus. Additionally, Magnuson, as he had previously told Re- spondent, testified that he observed Atanasoff also throw an egg at the bus.8 Based on the foregoing, I find that on August 15 Atana- 6 The conclusion that the person in the picture identified as Atanasoff is in reality Atanasoff is based upon (1) Judkins' testimony that he personally observed Atanasoff, (2) Atanasoffs admission that the person pictured "looks like me", (3) my personal observation which convinces me that Ata- nasoff and the person pictured are one and the same, (4) the failure of the General Counsel to call a single person who was picketing on August 15, during the time material, to testify that the person shown in the photographs was not Atanasoff 7 He was especially unconvincing when he testified that the picture of the person who looked like him was in reality another person Atanasoff testi- fied he had observed this person "working on the line in packaging" but later testified that he had never observed him doing any work but just walking around the plant 8 Magnuson, no longer employed by Respondent, is a twice convicted felon who lied about his criminal record on his employment application I have, nevertheless, credited his testimony. He impressed me in manner and demeanor as a reliable witness Moreover, his testimony in its most signifi- cant respects was corroborated by Brakeall's and there is nothing in the record which indicates that he had any ulterior motive for identifying Ata- nasoff The fact that he mistakenly thought Atanasoff was wearing "green coveralls" does not detract from his identification inasmuch as he credibly testified that in the few seconds involved in the throwing incident his eyes were primarily focused on Atanasoff's face rather than his clothing 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD soff threw a hard object and an egg at a bus as it transport- ed employees into the Company's Glen Canyon plant and that the hard object shattered a window. 2. Willie Clark On August 19 at the end of the first shift, about 3:30 p.m., as strike replacement Bates left the Glen Canyon plant his auto was struck by a stone thrown by striker Sporl. Bates got into an argument over this with Sporl. One of the Company's industrial relations personnel, Martin, stationed as a picket line observer, witnessed the stone throwing incident: He went to where Bates and Sporl were arguing and told Bates to report the incident the next day when he came to work and,,if he desired to file a complaint against Sporl with the-police department, a police officer was directing traffic around the corner on Morena Boule- vard across from the plant's main gate. Bates drove around the corner to the main gate and parked across from the gate in front of the patrol car of Police Officer' Testa who was directing traffic. Sporl followed on foot .9 When Sporl, who had followed Bates, arrived at the area of the main gate-he pointed out Bates to striker King. King went over and told Bates to "move on." Bates refused, instead, he walked toward the back of his auto in the direc- tion of Police Officer Testa and indicated he wanted to speak to Testa. Testa told him to wait until he was done directing traffic. Bates returned to his auto and leaned against the trunk compartment to wait for Testa. King, who had remained, criticized Bates for being a strikebreak- er and they argued about this. King and Bates were joined immediately by strikers Clark and Deacon. The three strik- ers virtually surrounded Bates who had his back to the trunk compartment of his auto.10 The tempo of the argument between King and Bates increased. King lost his temper and pushed Bates back into the rear of the auto whereupon, Police Officer Testa, hear- ing the commotion, came over and calmed things down. However, as soon as he left, King again pushed Bates. Bates was not able to retain his balance and was pushed back and forth like a volleyball by King and Clark. Bates eventually fell to the ground at which time he opened the trunk compartment and lunged at King with a hammer he had gotten out of the trunk but was hit over the head with a baseball bat by Sporl and collapsed. tt 9 The facts set out in this paragraph are based upon a synthesis of the credible testimony of Ray Bates , Ron Martin, and Ray Matthews. 10 The facts set out in this paragraph are based upon a synthesis of the credible testimony of Ray Matthews, Ray Bates, and Robbie Elkins. 11 The facts set out in this paragraph are based upon a synthesis of the credible testimony of Ray Bates, Keith Hawk, Ray Matthews, and William Burns. In crediting Matthews I considered that his August 20 written decla- ration submitted to the superior court falls to mention that Clark pushed Bates, rather it only declares that Matthews observed King push Bates Nevertheless, Matthews impressed me as an honest witness and since his testimony was essentially corroborated by Bates and Hawk, I have credited him Regarding Burns, I have only relied on that part of his testimony which is corroborated by other witnesses, that Bates grabbed a hammer from the trunk of his auto. Finally in evaluating the evidence I rejected the testimony of striker Trujillo that Bates triggered the above-described melee by striking King. Trujillo, in general, did not impress me as a reliable witness and this testimony was not corroborated by one other witness. I do find, however, Police Officer Testa returned to the- scene,and grabbed Sporl and dragged him toward the -front of Bates' auto. A number of the strikers in the vicinity converged upon Testa and Sporl and some of them attempted to free Sporl from Testa's arms. -Trujillo grabbed- Testa and Clark grabbed Sporl. The result was that Testa lost his balance and in trying to regain it released Sporl. Testa then used his porta- ble radio transmitter to call for help.12 - Based on the foregoing, I find that on August 19r while waiting at the Glen Canyon facility's- main gate to file a complaint with ,a police officer about striker Sporl's mis- conduct, Bates was pushed by striker Clark, that Bates was thereafter assaulted by Sporl,13 and that Clark interfered with the police officer's effort to take Sporl into custody- Clark helped Sporl get free from the officer' s arms. 3.-James Beltz On August 19 about 3:30 p.m. Judkins, Martin,' Hawk, and Matthews, employed-by-Respondent's industrial rela- tions department, witnessed the commotion described su- pra, which took place across from the main gate at the Glen-Canyon plant on Morena Boulevard and, when they observed Police Officer Testa lose his footing, started across the street to assist Testa. The Union's picket captain at the main gate, James ' Beltz, intercepted them. Beltz blocked their way. He placed his hand on Martin's chest and told them to remain on their side of the "white line." 14 Martin stated they intended to `cross the street to assist the police officer: Beltz continued to block their way. The three-Martin, Hawk, and Matthews- 15 went around Beltz who, in the process of trying to stop them, struck Martin in the face with his fist which bruised Martin's mouth severely.16 that after the pushing of Bates commenced that Bates, as Elkins testified, quite naturally hit King in self-defense 12 The description of the events in this paragraph is based on a synthesis of the credible testimony of Leroy Judkins, Keith Hawk, Ray Matthews, and Robbie Elkins plus photographs of the incident I have not relied on William Bums' testimony because I am convinced his recollection of Clark's participation in the above episode is faulty. His testimony that he observed Clark grab and scuffle with Police Officer Testa is uncorroborated and contradicted by witnesses who identified striker Trujillo as the one who grabbed and then scuffled with Testa. In relying on Elkins' and Judkins' testimony I recognize they testified they did not observe Clark physically touch Sporl but I am convinced that Judkins did not observe this because he was busy at the time taking photographs of the incident and that Elkins' recollection is not reliable on this point inasmuch as the credible testimony of Hawk and the photographs of the incident establish that Clark was much more than a passive bystander in the strikers' efforts to free Sporl. 13 Sporl assaulted Bates only after Bates lunged at striker King with a hammer, however, King, aided by Clark, provoked Bates' conduct i'0. The "white line" is a line between Morena Boulevard and the Company's parking lot. Beltz took the position that all of the territory be- hind the line in the direction of the parking lot was company territory and the territory on the other side, toward the street, was the pickets' territory from which management was barred The record does not establish that this was the purpose of this line or that the parties had an agreement which reasonably led Beltz to believe that this line separated the Company's terri- tor1y from the strikers' 5 Judkins was slightly to the rear 16 In making the findings set forth in this paragraph I have carefully considered and rejected the testimony of General Counsel's witnesses James Beltz, Lee Thomas, and Gerald Dice. The findings are based upon a synthe- sis of the testimony of Respondent's witnesses William Burns, Ray Mat- thews, Ron Martin, Keith Hawk, and Dennis Ashley, who impressed me as the more reliable witnesses In crediting Bums' account I recognize that his INTERNATIONAL HARVESTER COMPANY Shortly after Beltz assaulted Martin additional police units arrived at the scene and Martin told a police sergeant that he wanted to press charges against Beltz, explaining, "he hit me." Beltz, who observed this exchange, walked toward Martin with a clinched fist at his side and, using his chest and stomach, pushed Martin back a distance of about 8 to 10 feet all the while daring Martin to hit him.17 Martin in order to restrain Beltz placed both of his hands on Beltz' chest and in the ensuing scuffle ended up with a part of the picket sign Beltz had been holding which Mar- tin broke and threw to the ground.18 Based on the foregoing, I find that on August 19 Beltz physically attempted to prevent three of the Company's industrial relations personnel from coming to the assis- tance of a police officer and in the process struck one of them, Martin, in the face with his fist severely bruising Martin's mouth, and shortly thereafter bumped Martin with his body and attempted to provoke a fight with Mar- tin. C. Conclusions Respondent, as found supra, discharged Beltz, Clark, and Atanasoff because it honestly believed they had en- gaged in strike-related misconduct. Likewise, the record, as found supra, establishes that they had in fact engaged in such misconduct. However, my finding that Respondent's discharge action was prompted by the strikers excesses does not necessarily operate to relieve Respondent of un- fair labor practice liability. The applicable legal principle which governs this aspect of the case was recently succinct- ly stated by the Board in W. C. McQuaide Inc., 220 NLRB 593, 594 (1975): Sections 7 and 13 of the Act grant employees the right to strike, picket, and engage in other concerted activi- ty for their mutual aid or protection. It is well estab- lished, however, that not all conduct which occurs in the course of a labor dispute is within the purview of Sections 7 and 13. A striking employee who engages in serious acts of misconduct may lose the protection of the Act and subject himself to discharge. But, as has long been recognized by Board and court decisions, August 21 superior court declaration makes no mention of Beltz striking Martin and that Burns' time sequence of the incident is incorrect Nonethe- less, I have credited his testimony since he impressed me as a sincere witness on this point and his testimony on the significant question of whether Beltz assaulted Martin was corroborated by Martin, Hawk, Matthews, and Ash- ley. I have not, however, credited the testimony of Leroy Judkms that when Beltz initially blocked Martin, and the others, he struck Martin with a picket sign. This testimony was uncorroborated. I am convinced that Judkms' rec- ollection on this point is not reliable inasmuch as the record indicates that he was concentrating a substantial amount of his attention on the events across the street. This is apparently why Judkms failed to observe Beltz strike Martin with his fist. 17 Robbie Elkins, a witness called by the General Counsel, testified Beltz taunted Martin, "so I hit ' you ... well come on hit me " is In making the findings set out in this paragraph I have carefully consid- ered and rejected the testimony of General Counsel's witnesses James Beltz, Gerald Dice, Ronald Trujillo,' and Lee Thomas. The findings are based upon a synthesis of the credible testimony of Respondent's witnesses Leroy Judkins, Ron Martin, Ray Matthews, Dennis Ashley, Keith Hawk, and General Counsel's witness Robbie Elkins , who impressed use as the more reliable witnesses. 169 undue strictures on the exercise of Sections 7 and 13 rights could be imposed if every act of impropriety committed by a striking employee is deemed sufficient to place that employee outside the protection of the Act. In a situation such as that here involved, the Board has therefore evaluated the character of the im- proper acts committed by striking employees and has drawn certain distinctions. Thus, the Board has differ- entiated between those cases in which employees have arguably exceeded the bounds of lawful conduct dur- ing a strike in a "moment of animal exuberance" [case cited] from those cases in which the misconduct is so flagrant or egregious so as to require subordination of the employee's protected rights in order to vindicate the broader interests of society as a whole. With this principle in mind, I have evaluated the conduct engaged in by the three persons involved and agree with Respondent that it was sufficiently grave to warrant their discharge. Atanasoff threw a hard object at a bus as it transported employees into the Company's plant. The hard object was thrown with sufficient force to shatter a window. There is no evidence that Atanasoff threw the object impulsively, rather I can only infer that the object was aimed at the window of the bus and was reasonably intended to cause personal injury as well as property damage and to intimi- date the strike replacements riding in the bus from continu- ing to work for Respondent. Clark and striker King physically pushed striker replace- ment Bates back and forth between them like a volley- ball ,19 and shortly thereafter Clark helped striker Sporl get free from the arms of a police officer who was attempting to take him into custody for assaulting Bates 20 Beltz physically attempted to prevent three representa- tives of management from coming to the aid of Police Offi- cer Testa and in the process deliberately hit one of them, Martin, in the face with his fist which severely bruised Martin's mouth and, shortly thereafter, bumped Martin with his body and attempted to provoke a fight with Mar- tin. Based on the foregoing I find that the conduct of ' Beltz, Atanasoff, and Clark went beyond the normal give and take of a labor dispute and extended into the area of un- protected conduct and for this reason I find that Respon- dent was justified in discharging them. Upon the foregoing findings, of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER21 The complaint is dismissed in its entirety. 19 Clark's conduct was deliberate-it was unprovoked 20 Although Clark may have been concerned that Sporl was being choked by the police officer, this did not give him a license to interfere with the police officer 2' 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 recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes