Ohio Power Co.

OHIO POWER COMPANY Ohio Power Company and Larry J. Greene, Larry C. Callen, and Joseph F. Campbell. Cases 8-CA-8164, 8-CA-8253, and 8-CA-8276 November 27, 1974 . DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 27, 1974, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceed- ing. Thereafter, General Counsel and Respondent filed exceptions and supporting briefs, and Respondent sub- mitted an answering brief. 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 only to the extent consistent herewith. We agree with the Administrative Law Judge's find- ings, for the reasons set forth by him, that Respondent violated Section 8(a)(3) and (1) of the Act by discharg- ing economic striker Larry Greene,' but that Re- 1 Respondent contends that the Administrative Law Judge's conduct at the hearing deprived it of a fair trial and evidenced his bias and prejudice, particularly on the issue of Campbell's discharge Respondent specifically asserts that the Administrative Law Judge acted improperly by (1) permit- ting Charging Party's counsel extensively and repetitiously to question Re- spondent's witnesses, (2) harassing witness Wright by asking accusatory questions, and (3) making on-the-record remarks about being one of the "new breed" of Administrative Law Judges Upon a careful review of the record as a whole, we do not find that the Administrative Law Judge acted improperly, abused his discretion, or evidenced that he had prejudged the case Thus, the Administrative Law Judge's questioning of Wright, while perhaps somewhat lacking in tact, was clearly permissible under Sec 102.35 of the Board's Rules and Regulations, Series 8, as amended, which makes it the duty of the trier "to inquire fully into the facts " As to the alleged repetitious questioning by Charging Party's counsel, Sec 102 38 of the Rules and Regulations provides that any party to an unfair labor practice proceeding "shall have the right" to appear and to participate fully in such proceeding Although the Administrative Law Judge may, in his discretion, limit such participation, we find no abuse of discretion here Finally, while the Board does not approve the Administrative Law Judge's characteriza- tion of himself or other Administrative Law Judge as members of a "new breed," the term is not in and of itself invidious nor does it suggest that his findings and conclusions are other than objective The Board draws no distinction among its Administrative Law Judges and requires all of them to comply with the Board's Rules and Regulations in conducting hearings in the same orderly and judicious manner 2 Chairman Miller would find that the discharge of economic striker Larry Greene violated Sec 8(a)(1) of the Act regardless of Respondent's motiva- tion Therefore, we would find it unnecessary to decide whether the dis- charge also violated Sec 8(a)(3) While he does not condone Greene's misconduct (i e , pulling a cigar from Foreman Cunningham's mouth while the latter was behind the wheel of a company truck which was stopped by a traffic light), he finds that it did not endanger Cunningham or constitute 165 spondent did not so violate the Act by discharging economic striker Callen. The facts and circumstances surrounding these discharges, as found by the Adminis- trative Law Judge, are fully supported by the record. The Administrative Law Judge also found that Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging economic striker Joseph Campbell, al- legedly for misconduct engaged in by him while away from the regular picket line at Respondent's premises. The Administrative Law Judge concluded that Re- spondent's assigned reason for the discharge-the al- leged misconduct-was pretextual, intended to conceal the true motive for the firing, namely, Campbell's par- ticipation in union activities; i.e., the strike. Alterna- tively, he found that Campbell's alleged misconduct, even if it occurred, was not sufficiently serious to justify his discharge. Finally, and also alternatively, he con- cluded on the basis of his credibility determinations that the alleged misconduct did not, in fact, occur. Respondent contends that the discharge of Campbell did not violate Section 8(a)(3) and (1) because at the time and place of the incident involved Campbell was not engaged in picketing or other strike activities. Therefore, Respondent argues, since the alleged mis- conduct of Campbell did not occur "in the course of protected activity," the principle of Burnup & Sims, Inc.,3 is not applicable and the discharge must be judged by the traditional "unlawful motivation" test. Alternatively, Respondent contends that Campbell's misconduct was of such serious nature as to warrant his discharge. Although we do not adopt the Administrative Law Judge's pretext theory, we find no merit in Respon- dent's primary contention and do not pass upon its alternative contention! Instead, we find that the cir- cumstances surrounding Campbell's activities on the early morning of October 21, 1973,5 in effect re- created the traditional picket line situation and that, therefore, the standards enunciated in Burn up & Sims, supra, are applicable. Based upon such standards, we find that Respondent's discharge of Campbell violated Section 8(a)(1) of the Act. In view of that finding, we need not reach the issues raised under Section 8(a)(3).' The undisputed facts, as established in the record and set forth in the Administrative Law Judge's Deci- sion, are as follows: Prior to his discharge on October a menace of other vehicles on the road Cf Capital Rubber & Specialty Co, Inc, 201 NLRB 715 (1973) 3 379 U S 21 (1964) 4 Because we accept the findings of the Administrative Law Judge, based upon his credibility resolutions, that Campbell did not in fact engage in the misconduct attributed to him by Respondent's witnesses, we deem it un- necessary to pass upon his alternative finding that the misconduct, even if it occurred, was not sufficiently serious to justify discharge 5 Unless otherwise indicated, all dates are in 1973 6 Burnup & Sims, Inc, supra at 22 215 NLRB No. 13 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 31, 1973, Campbell had been employed by Respondent for more than 16 years. He was classified as a "lineman A" which is the top skilled classification in the unit, ranking below only foremen. Campbell's normal job duties included, inter alia, repairing broken powerlines. On July 1, Campbell went out on strike with the other unit employees in support of the Union's bargaining demands against Respondent. A picket line was estab- lished at Respondent's Bellaire and East Liverpool of- fices, as well as at other locations where Respondent conducted its normal business. There was also roving picketing from place to place by strikers in automo- biles. During the strike, which lasted until December 4, Respondent continued to operate with replacements, as well as with supervisory and other nonunit personnel. On October 21, Campbell, who had been engaged in picketing at the Bellaire office, was at his home in the early morning hours when the electricity in his house and neighborhood went off., After discovering the source of the power failure (a truck had collided with a power pole severing the pole in half), Campbell con- tacted a union picket line captain named Larry Camp- bell. Both decided to go to'the source of the power failure and picket whatever activities Respondent's strike replacements might engage in to restore power. They put their picket signs in Joseph Campbell's car and, as he testified, Larry Campbell also went along to make sure the picketing was conducted in a lawful manner. The Campbells, who are not related to each other, arrived at the scene before Respondent's truck arrived, and did not picket. Instead, they and a third striker, Gabriel Basbarre, began talking to the people who were milling about the scene of the collision, tell- ing them that but for the strike the damage would have been repaired. Within a short period, Respondent's truck arrived carrying two supervisors who had been dispatched by Respondent to do the repairs: Alvin E. Mayer, a working foreman, and Kenneth Dawson, an area foreman. Joseph Campbell walked over to the truck as the two foremen alighted and engaged Mayer in a conversation about how long the power would be off. When Mayer replied that it wouldn't be off for long, Campbell said that his nerves were getting pretty thin. Mayer retorted that his nerves, too, were wearing thin and asked Campbell if he had seen a recent news- paper account of vandalism to his (Mayer's) home and car and to a company truck by unidentified persons. Campbell replied that he had not seen that news item. The testimony as to what happened immediately after this exchange was in sharp conflict, with Respondent's witnesses testifying that Campbell threw Mayer to the ground, and General Counsel's witnesses testifying that Mayer turned abruptly, collided with Campbell, lost his footing and fell to the ground. Thereafter, and on the strength of Dawson's and Mayer's versions of the events, Respondent, by letter dated October 31, noti- fied Campbell that he was being discharged for his "act of unprovoked aggression against a supervisor . . .." The principles of Burnup & Sims, supra, and its progeny,' as Respondent correctly points out, are in- tended to protect employees who are discharged for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred. There the Supreme Court approved the Board's repeated holdings that, despite the absence of union animus, an employer violates Sec- tion 8(a)(1) of the Act if he discharges an employee for suspected misconduct emanating from protected activi- ties and it is later shown that the misconduct did not in fact occur. One of the most recent Board pronounce- ments of the governing principles involved here appears in Huss & Schlieper Company, supra, the relevant por- tions of which are quoted in the attached Decision. Respondent argues, however, that these principles are inapplicable to the present situation because the asserted misconduct took place at a time and place removed from the picket line and, hence, did not ema- nate from a protected activity. We disagree. Although no picketing actually took place at the scene of the power-line breakdown, the circumstances under which the disputed incident occurred clearly involved con- certed activity intended to support the on going strike. Thus, a striking line repairman, Campbell, and a union picket line captain went to the scene of the power fail- ure, anticipating that strike replacements would arrive to repair the broken line. They came fully prepared to picket, having brought their picket signs to protest the performance of their work by strike replacements and to appeal to such replacements to support the strike effort. When the Campbells arrived at the scene, Re- spondent's repair truck and crew had not yet arrived and, hence, there was no reason to start picketing then. Instead, the employees engaged in conversation with members of the public, presenting their views as to why the damage was not being repaired-which conversa- tions were in themselves a form of concerted activity designed to elicit public sympathy for the strikers' cause. When the truck finally arrived, bearing two supervisors who had been dispatched to repair the broken line, Campbell engaged Supervisor Mayer in a conversation the substance of which again related di- rectly to the overall strike situation. It was at this time that the disputed incident or alleged misconduct oc- curred. These facts, in our view, amply demonstrate that, although the employees did not use their picket signs, they were nevertheless engaging in protected concerted activity in support of the strike. We therefore 7 J. H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB 1414, 1418 (1966), Terry Coach Industries, Inc, 166 NLRB 560, 563 ( 1967), and cases cited therein, Huss & Schlieper Company, 194 NLRB 572, 577 (1971) OHIO POWER COMPANY find that the alleged misconduct by Campbell occurred in the course of protected concerted activity, and that, therefore, the principles of Burnup & Sims are applica- ble. And, as we adopt the Administrative Law Judge's findings, based upon his credibility resolutions, that Campbell had not in fact engaged in the misconduct for which Respondent assertedly discharged him, we con- clude that Respondent's discharge of Campbell vi- olated Section 8(a)(1) of the Act.' The General Counsel excepted to the failure of the Administrative Law Judge to recommend a broad remedial order. We find merit to that exception because of the seriousness of the violations involved. In our view, the 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 532, 536 (C.A: 4, 1941). ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, an amended, the National Labor Relations Board hereby orders that the Respondent, Ohio Power Company, Steubenville, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminat- ing against, interfering with, restraining, or coercing employees because they have engaged in the protected activity of assisting Local 696, International Brother- hood of Electrical Workers. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights gua- ranteed 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 Larry J. Greene and Joseph F. Campbell immediate reinstatement to their former positions or, if those jobs no longer exist, 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 Re- spondent's unlawful conduct, in accordance with the provisions of the section of the Administrative Law Judge's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all 8 Member Fanning, in agreement with the Administrative Law Judge, would find that the discharge of Campbell also violated Sec 8(a)(3) of the Act. 167 payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its various locations within the Steuben- ville, Ohio, district, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 9 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against, interfere with, restrain, or coerce any em- ployee because he engages in the protected con- certed activity of assisting Local 696, Interna- tional Brotherhood of Electrical Workers. 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 collec- tively through representatives of their own choos- ing; to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL offer Larry J. Greene and Joseph F. Campbell full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharg- ing if necessary any replacements, and WE WILL make them whole for any earnings lost as a result of our unlawful conduct against them, plus inter- est as set forth in the Decision of the Administra- tive Law Judge. OHIO POWER COMPANY 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This pro- ceeding tried before me on May 21 and 22, 1974, at Steuben- ville, Ohio, involves consolidated complaints,' which allege respectively that Respondent violated Section 8(a)(3) and (1) of the Act, by discharging and refusing to reinstate Larry J. Greene, Larry C. Callen, and Joseph Campbell, because of their participation in an economic strike. Respondent duly filed answers to the respective complaints, denying that any unfair labor practices were committed. After close of the hearing, the General Counsel, the Charging Parties, and the Respondent filed briefs. Upon the entire record, including my observation of the demeanor of the witnesses while testifying, and after consid- eration of the post-hearing briefs, I hereby make the follow- ing: FINDINGS OF FACT 1. THE EMPLOYER INVOLVED Respondent is an Ohio corporation, with its principal of- fice and place of business located in Canton, Ohio, from which it is engaged as an electrical public utility company producing, generating, transmitting, and furnishing electrical power for public consumption. In the course of and from said operations, Respondent derives annual gross revenues ex- ceeding $500,000 and receives, at its various Ohio facilities, goods and products valued in excess of $50,000 from sources located outside the State of Ohio. The complaints allege, the answers admit, and I find that Respondent is an employer within the meaning of Section 2(2) of the Act, affecting commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION The complaints allege, the answers admit, and I find that Respondent Local 696, International Brotherhood of Electri- cal Workers, at all times material, is and has been a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background, and Controlling Principles On July 1, 1973, a strike commenced against Respondent's Steubenville Division among employees in the collective-bar- gaining unit represented by IBEW, Local 696. The strike ended on December 4, 1973, and at all times was of an eco- nomic nature. Respondent, during the course thereof, con- tinued operations apparently utilizing nonunit personnel and ' The complaint in Case 8-CA-8164 issued on March 15, 1974, on a charge filed on February 6, 1974. The complaint in Case 8-CA-8253 issued on March 28 , 1974, upon a charge filed on March 22, 1974 The order consolidating cases and complaint in Case 8 -CA-8276 issued on April 9, 1974, on a charge filed on March 29, 1974. replacements. Joseph Campbell, Larry C. Callen, and Larry J. Greene were strikers, who in the course of the strike, were discharged following confrontations each had with individu- als who were engaged in the performance of struck work. As indicated, it is the lawfulness of those discharges that is in issue here. The principles governing the right of employers to invoke the penalty of discharge with respect to misconduct by eco- nomic strikers are the subject of settled authority, and are succinctly 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 bar- ring them from a return to employment. An employer's honest belief that strikers did engage in picket line mis- conduct of a serious nature is not a defense if it affirma- tively appears that such misconduct did not, in fact, occur. See N.L.R.B. v. Burn up & 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 prece- dents. As has been held, the applicable test in determin- ing whether strikers accused of misconduct should be returned to work "is whether the misconduct 'is so vio- lent or of such serious character as to render the em- ployees unfit for further service,' or whether it merely constitutes 'a trival rough incident' occurring in 'a mo- ment of animal exuberance.' This distinction has been drawn on the theory that some types of 'impulsive behavior,' being 'normal outgrowths of the intense feel- ings developed in picket lines,' 'must have been within the contemplation of Congress when it provided' for the right to strike."' With these principles in mind, I turn to consideration of the factual issues underlying the separate circumstances sur- rounding the discharges of each of the alleged discriminatees. B. The Discharges 1. Joseph Campbell Joseph Campbell, prior to his discharge had been employed by the Company for more than 16 years. He was classified as a "lineman A" which is the top skilled unit classification, only ranking below those having the status of foremen. Dur- ing his employment, Campbell at no time received any form of reprimand and his uncontradicted testimony reveals that shortly before the strike he was offered a position as a work- ing foreman. Campbell was notified of his termination by letter dated October 31, 1973, over the signature of Clayton H. Wright, the Respondent's Steubenville division manager, which stated as follows: 2 Huss & Schheper Co, 194 NLRB 572, 577 (1971) Since the strike involved here was not shown' to have been caused or prolonged by unfair labor practices, the more stringent standards protecting unfair labor practice strikers against discharges, as Respondent points out in its brief, are inappos- ite here Cf. Coronet Casuals, inc., 207 NLRB 304 (1973), and cases cited at fn 15 thereof. OHIO POWER COMPANY This will notify you that you are discharged because of your conduct on October 21, 1973. Your act of unprovoked aggression against a supervisor cannot be tolerated, therefore, your employment with the Ohio Power Company is terminated effective Wednesday, October 31, 1973. The facts relative to Campbell's conduct on October 21, show that in the early morning hours, a truck collided with a power pole, severing it in half at a location just outside the corporate limits of Bellaire, Ohio. As a result, the power was shut off in the vicinity. Alvin E. Mayer, a working foreman, and Kenneth Dawson, an area foreman, were assigned by Respondent to cover this trouble call. The power failure was in Joe Campbell's neighborhood, and after Campbell discov- ered its source and contacted a fellow striker, Larry Camp- bell, both went to the scene of the accident.3 When they ar- rived the Ohio Power truck was still in route. The Campbells and a third striker, Gabriel Gasbarre, began talking to the people who were milling about the scene. When the Ohio Power truck arrived, Joseph Campbell apparently left the other strikers and headed towards the truck. Mayer and Dawson got out of the truck. Campbell then asked Dawson the identity of the dispatcher on duty that night, indicating that the dispatcher had given him a hard time. Dawson said he did not know and proceeded to the other side of the truck. Campbell and Mayer, with Dawson out of earshot, then be- gan a conversation. Campbell asked Mayer whether the power would be off very long, to which Mayer replied he didn't think so. Campbell then said my nerves are getting pretty thin. Mayer said you know mine are too and asked Campbell whether he noticed a newspaper article the other night.' Campbell denied having seen the article. This ended the dialogue between the two and what happened next is the subject of a sharp conflict in testimony. It is undisputed however, that Mayer wound up on the ground. The crucial question is how he got there. Dawson and Mayer testified that Campbell had placed his arms around Mayer, from Mayer's rear, in bearhug style, and shook him in a way that Dawson described as "not violent;" but which resulted in Mayer being thrown to the ground. This is contradicted by witnesses for the General Counsel, who testified that Joseph Campbell was leaning against the front of the truck and that Mayer veered towards Campbell sharply, and that when Campbell attempted to move away from the truck the two bumped at chest level with Mayer losing his footing and falling backwards onto the roadway. After Mayer regained his feet, Dawson advised Joseph Campbell that he would report the incident, and then Dawson and Campbell pro- ceeded to complete their duties with respect to the downed power pole. At the time of this incident, there was a State Highway Patrol cruiser and a Bellaire police cruiser in the vicinity, with at least three law enforcement officers present at the scene of the accident. I am satisfied based on the testimony 3 The testimony of Joseph Campbell and Larry Campbell, who are not related, indicates that they went to the scene with the intention of picketing and in order to determine the cause of the power failure Because of the circumstances that later developed, however, they elected not to picket The newspaper article referred to by Mayer concerned acts of vandalism directed towards Mayer 's home, a power truck and his car 169 of all witnesses concerning the lighting available from the police cruisers, the Ohio Power Truck, and other automo- biles, that the entire area was reasonably well lit. Mayer testified that he had known Joseph Campbell for about 16 years and described their relationship, in the past, as one of friendship. He also indicated that in the conversation that preceded his going to the ground, Campbell spoke in a nor- mal voice, that Campbell had made no threats, and that Mayer had no fear at all. According to Dawson, though he returned to the scene, seeing Campbell's arms around Mayer, with Mayer being thrown down, Dawson relates that Camp- bell did not have to be restrained. Dawson also testified that Joe Campbell did not appear to be angry. The decision to discharge Campbell was made by Clayton H. Wright, after clearing this recommendation with the com- pany's personnel director at company headquarters in Can- ton, Ohio. This recommendation, according to Wright, was based upon a "... personal discussion with both Mr. Mayer and with Mr. Dawson in regard to the activities which oc- curred on October 21." According to Wright, he acted on the same evidence that was presented by Mayer and Dawson in the instant hearing. No effort was made by Wright to contact Joseph Campbell, any other eye witnesses to the incident, or to pursue the matter beyond Mayer and Dawson. This despite the fact that the accounts of Dawson and Mayer, on their face, attribute highly improbable conduct to Campbell and, at the least, arouse curiosity. According to the sense of their testimony Campbell was neither angry nor violent either before or after Mayer met the ground and yet in the presence of witnesses, including police officers, they seemingly testify that Campbell engaged in an unprovoked attack on Mayer. Wright faced with this curious state of events, nonetheless was only concerned with the question of provocation. He states that he questioned them as to whether there was any provocation, and that he had no reason to disbelieve their denials. In this regard it should be apparent that Dawson was incapable of throwing any light on this question, since he concededly was not a witness to the events preceding Camp- bell's alleged assault on Mayer. Thus, the only evidence of provocation would have to come from Mayer, the accusing party, and one who, if there in fact had been provocation would I assume, be expected by Wright to come forward and admit his responsibility for the entire incident. This assump- tion is not without basis for Wright was satisfied and claims to have had no reason to disbelieve Mayer's response. I can hardly accept that if Campbell's innocence were a real consid- eration, Wright, whose own testimony discloses a reluctance on his part to invoke discipline in the form of discharge, would have terminated an employee with a good work record over a period spanning some 16 years on the basis of such a limited investigation. Indeed ordinary experience immedi- ately suggests that encounters of the type described by Mayer and Dawson, which erupt quickly and end as fast, are fre- quently the subject of varying perspectives, often depending on the interests of witnesses to such an incident. Fair judg- ment as to what actually occurred could hardly be predicated on the cursory investigation conducted by Wright. I am con- vinced, from observing Wright and from a consideration of the entirety of his testimony, that he was well aware of the procedures to be followed, if in good faith, he was interested in getting to the bottom of this matter. I am satisfied that the 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner in which he proceeded indicates a lack of concern for the innocence of Campbell, but an interest in ferreting out whatever facts were available which would tend to create a color of legitimacy to the striker's discharge . In the circum- stances I find that the investigation conducted by Wright, in the face of the facts reported to him, was neither reasonable, nor in good faith and it is my view that the evidence gained therefrom fails to furnish a reasonable basis for believing that the misconduct attributed to Joseph Campbell did in fact occur.' In any event, I am not satisfied that Respondent has demonstrated that Campbell's conduct was sufficiently seri- ous to justify the discharge in question . Even accepting, ar- guendo, Dawson and Mayer's version of the critical encoun- ter, Campbell's conduct was obviously limited to a spontaneous outburst which did not interfere with the work of the two foremen, did not result in mentionable injury to Mayer,' was not shown to have occurred in a context of vio- lence, and was an isolated incident not likely to trigger mis- conduct on the part of fellow strikers. Against this back- ground, considering the combined testimony of Dawson and Mayer, that Campbell's activities were neither fear inspiring, nor violent, and undertaken without apparent anger, I find that the alleged misconduct of Joseph Campbell falls within that category of trivial and inconsequential scuffles which do not deprive an employee of the protective mantle of the Act.' Finally, and also in the alternative , I find on the basis of the credited testimony of Joseph Campbell, as corroborated by fellow striker Larry Campbell, and Bellaire police officer, Glen Warnock, that Joseph Campbell did not assault Mayer and that Mayer's falling on the ground was attributable to other causes! I do so because not persuaded as to truthful- ness of the accounts related by Mayer and Dawson. They would have me believe that Campbell who impressed me as mild-mannered and of temperate , stable disposition, without provocation, and in the presence of witnesses, including law enforcement officers, after a conversation in which Campbell reflected no temperament, grabbed Mayer from the rear and shook him, throwing him to the ground with Mayer landing some 10 feet away from the point of confrontation on the rim of the road. Mayer and Dawson impressed me as uneasy in their role as witnesses against Campbell and the testimony of both shifts from what appears to be an exaggeration of Camp- bell's misconduct to what in other respects seems a mitigation of Campbell's role in the incident . The inability to assess 5 See, e g, Reidbord Bros. Co, 189 NLRB 158, 170 (1971), fn 54. 6 Mayer testified that he scraped his elbow and left middle finger as a result of falling to the roadway No treatment was necessary and his ability to work was not impaired 7 Buitoni Food Corp., 126 NLRB 767, 783 (1960), Huss & Schlieper Company, 194 NLRB 572, 577 (1971); BeaverBros. Baking Co., Inc., d/b/a American Beauty Baking Co., 171 NLRB 700, 719 (1968) 8 Much of the record herein is devoted to efforts by various counsel to elicit testimony as to contradicted minor matters such as distances and the location of various witnesses in relation to the Mayer-Campbell confronta- tion These matters are subsidiary to the critical question herein; i e, the cause of Mayer's failing to the ground; they too may be resolved only through an assessment of conflicting testimony As such, they raise purely collateral credibility issues which are of no aid in assessing the conflicting testimony on the critical issue presented Their resolution would serve no purpose other than to prolong the analysis and discussion of this phase of the case. which part of their testimony is truthful renders the entirety of their story both improbable and unreliable.' Although certain aspects of the accounts given by the General Coun- sel's witnesses are not entirely free from doubt, I find, as the more probable, considering the entire setting of the incident, that Mayer went to the ground after having lost his footing, following a collision with Campbell, of a type which hardly could be described as a deliberate act of aggression. In credit- ing Joseph Campbell and Larry Campbell in this regard, I was particularly impressed with the corroborating testimony of Police Officer Warnock. It is true that, like the Campbells, he was a native of Bellaire, and knew Larry Campbell and Gasbarre and had known of Joseph Campbell. I do not be- lieve he officiously would have lied in Joseph Campbell's behalf. Accordingly 1 find that Joseph Campbell did not en- gage in the misconduct attributed to him.10 For all of the above reasons I find that Respondent dis- charged economic striker Joseph Campbell in violation of Section 8(a)(3) and (1) of the Act." 2. Larry C. Callen Callen at the time of his discharge, was also a participant in the economic strike against Respondent's Steubenville dis- trict. He was initially hired on January 3, 1969. Prior to the strike he was classified as "meter man B." His superiors; namely, Donald E. Sayre, manager of the East Liverpool area of the Steubenville Division, and Division Manager Wright, concede that during his employment with Respondent, Callen had an above average work record and was regarded as a good employee. Callen was discharged in consequence of an altercation between himself and Roland Rice, which occurred on November 8, 1973 Rice and Callen had been friends, prior to this incident, for some 15 years. Rice was hired as a meter reader and initially reported for work on October 12, 1973, at the strike bound East Liverpool operation. It is undisputed that on November 8, 1973, Rice, after completing his last call for the day, was in route to his Ohio Power automobile, when he was confronted by Callen. A fight ensued, which resulted in injuries to Rice, calling for medical treatment, including stitches which were necessary to close a laceration on his ear. Subsequently, by letter dated November 10, 1973, over the signature of C. H. Wright, division manager, Callen was notified as follows: 9 As indicated heretofore I am persuaded that the District was interested in making an object lesson out of Campbell This may lend some explanation for the shifting nature of the testimony of Mayer and Dawson My observa- tion of Mayer and Dawson as well as the specifics of their testimony suggest that, having initially reported the incident to the Company, they subse- quently may well have been torn to conflict by virtue of their sense of loyalty to the Company, yet on the other hand their displeasure with the severe discipline ultimately meted out in Campbell's case 10 In assessing credibility, I have considered evidence adduced by Re- spondent in an attempt to show that Joseph Campbell on the evening of October 21, was subject to pressures which, perhaps, rendered him prone to a loss of self-control From my observation of Joseph Campbell, and from the description related by Dawson and Mayer of his composure both before and after his collision with Mayer, I am not persuaded that, in the circum- stance, these "pressures" would have triggered the type of impulsive assault attributed to him by Respondent's witnesses II See N.L.R.B. v. Burnup and Sims, Inc., 379 U.S 21, 23 (1964) OHIO POWER COMPANY This will notify you that you are discharged because of your conduct on November 8, 1973. Your act of unprovoked aggression against an employee of the Ohio Power Company cannot be tolerated, there- fore, your employment with the Ohio Power Company is terminated effective Friday, November 9, 1973. Callen claims that he was prodded into the fight by Rice and that his actions were in self-defense I find below that this was not the case at all The circumstances leading to the Callen-Rice altercation, as well as the sequence of events, and what was said in the course of this confrontation are the subject of conflicting testimony. According to Rice, whose testimony I credit in toto, at the end of the workday on November 8, as he was heading to- wards his car, he saw Callen driving down the street. As Callen's car neared Rice, Callen recognized Rice and Callen gave him "the finger."12 Callen ignored this and kept walk- ing towards his car. In the meantime Callen turned his car around and parked on the opposite side of the street from where Rice was walking. Callen got out of his car, ran across the street, and stopped Rice, stating "do you know that you are taking my job?" Callen accused Rice of giving him "the finger." After Rice denied that he had done so, Callen pushed him stating "go ahead and take a swing." Rice at that time told Callen that he didn't want to fight." Callen then shoved him again and Rice turned to walk off in the direction of his car. At that point Callen hit Rice on the back of the head, forcing Rice against a nearby wall. While Rice was backed up against the wall, Callen continued to hit him on the head. Rice was in a crouched position at that time and was swinging his meter book , " striking Callen in the legs with it. Finally, while continuing to receive the blows of Callen, Rice struck Callen on the head with the meter book. With this, Callen turned away and started walking back to his car stating "that ought to take care of you." In accepting Rice's version of this incident, I discredit Callen's testimony to the effect that (1) Rice gave Callen the finger, (2) Callen only landed the first blow in reaction to Rice's having raised the meter book as if to use it against Callen, (3) Callen did not impede Rice in the latter's efforts to return to his car, (4) Rice voluntarily delayed his-return to his car, (5) Rice did or said anything during the incident which indicated that Rice was prodding Callen into a fight, and (6) that Rice made any statements indicating that he was interested in anything but an avoidance of a fight. This credi- bility resolution is based in part on my observation of Callen and Rice while testifying and my decided impression there- from that Rice was the more truthful witness. Rice's tes- timony is also the more probable, for, certain undisputed facts persuasively indicate that Callen was primed for trouble when he approached Callen that day Thus, Callen, concedes that in his 15 years of knowing Rice, he regarded Rice as one who was not aggressive but sort 12 For reasons to be more fully stated later, I discredit Callen's testimony that it was Rice and not Callen who made "the finger" gesture 13 Callen's own testimony reveals that , before any blows were struck, Rice both asked to be left alone and told Callen that he didn't do anything 14 The meter book is a metal encasement in which the meter readers carry the paper materials used in the performance of their work It is approxi- mately 4 inches in width, 9 inches in length, and 1-1/2 inches in depth 171 of an introvert. Rice was 5' 6" tall, and weighed about 160 pounds. Callen was 5' 7" tall, but a husky 220 pounds. Rice also had a crippled left arm which, due to an industrial acci- dent in 1968, he could not bend at the elbow. Callen concedes that he harbored a resentment towards people, like Rice, who took jobs to perform work of the strikers. Indeed, consistent with such resentment, Callen on at least two previous occa- sions attempted to dissuade Rice from working for the Re- spondent during the strike by resorting to what might be described fairly as tactics of intimidation or harassment. In this latter regard, Callen acknowledges that a few days before Rice started working for the Respondent, he had a conversation with Rice's brother. Callen at that time in- formed Rice's brother that because of their friendship he couldn't believe that Rice would take a job with Ohio Power. He warned that people get hurt in a strike and went on to state that if someone broke Rice's other arm and made book ends out of him there was nothing he, Callen, could do about it. Callen told Rice's brother to be sure and pass this on to Rice. In a second incident, occurring sometime in late October after Rice began working for Respondent, as Rice was leaving work, four strikers including Callen confronted him. The four men proceeded to escort Rice as he walked to his car, with two in the front and two to his rear. Rice went into a store in an attempt to elude the strikers. Two of the men followed him through the store and the other two went around the store to the other door where Rice was intercepted. Then all four resumed the tailing of Rice to his car, calling him names such as "scab" and "son-of-a-bitch." When Rice arrived at his car where his wife and mother were waiting, the men apparently withdrew.15 Against the background, Callen would have me believe that Rice would provoke him. Quite to the contrary, I cannot even believe that under conditions existing on November 8, that Rice would even idle with Callen. From my observation of Rice it was not my impression that he was an aggressive individual, and I certainly am afforded no basis for assuming that he harbored any resentment towards Callen. Callen's greater physical stature, the threatening expression made to Rice's brother, and the other harassment Callen directed at Rice, would not dispose Rice to any kind of confrontation with Callen. On the other hand, the foregoing amply attests to Callen's propensity for provocation. Furthermore, Callen's activities immediately after the fight are strongly indicative of his own sense of guilt concerning that which had transpired. Thus according to Callen he re- turned to his mother's house after the fight and was very upset by what had happened. Therefore he returned to the scene, to see if Rice had called the police. Upon arriving, he saw Rice engaged in conversation with a police officer. After Callen himself had a conversation with the officer, he decided to go to the headquarters of Ohio Power in East Liverpool According to Callen he did this because he realized his job was in jeopardy; in Callen's words "Other people had gotten fired for a lot less." At the offices of Ohio Power, he met with Area Manager Sayre. Callen informed Sayre that he was sorry that the incident had occurred and that he felt that it 15 Based on the credited , uncontradicted testimony of Rice 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD probably would mean his job.16 Callen during this meeting also indicated that it wasn't his fault as Rice had given him the finger.17 In the circumstances I am satisfied that Cal- len's actions, as set forth above, following the fight, were prompted by his own sense of responsibility for the serious and violent encounter he had just had with Rice. Based on the foregoing, specifically the credited testimony of Roland Rice, I find that on November 8, 1973, Callen provoked and then engaged in a violent attack upon nonstrik- ing employee Rice and that such conduct was beyond the protective ambit of the Act Accordingly Respondent in dis- charging him for such misconduct did not violate Section 8(a)(3) and (1) of the Act.18 3. Larry J. Greene Green was initially hired in May 1963 and at the time of his discharge was in the top rated position of "lineman A." He was a participant in the strike and at the time of his discharge was the Union's Recording Secretary. Effective August 17, 1973, Greene was terminated by letter over signa- ture of C. H. Wright, which recited as follows: This will notify you that you are discharged because of your conduct on August 10, 1973. Your act of unprovoked aggression against a supervisor cannot be tolerated, therefore, your employment with the Ohio Power Company is terminated effective Friday, August 17, 1973. The incident to which the above letter makes reference in- volves an encounter between Greene and Line Foreman Ross Lee Cunningham and Working Foreman Walt Williams It is undisputed that Cunningham and Williams on August 10, 1973, departed from a worksite in a company truck and were headed West on North Street. As the truck approached the intersection of North and 4th Streets in Steubenville, strikers Greene, Huff, and Robson were located on the Southeast corner of that intersection. Because the traffic signal turned red, Cunningham who was driving the truck stopped at that intersection. The entire incident took place during the period in which the truck was stopped by the red light. The events opened with Greene, who was carrying a picket sign, shout- ing in the direction of the truck: "don't you know we're on strike?" Greene also made reference to the fact that Cunning- ham and Williams were not wearing hard hats and were in short sleeved shirts. In this regard, he asked "aren't you working within the safety rules?" Following these remarks Greene left the sidewalk and on a diagonal course from the 16 Based on the credited testimony of Sayre which is consistent with that of Callen insofar as Callen acknowledges that he indicated his regret of the incident Sayre's testimony as to Callen's expressed fear for his job is also consistent with Callen's admitted purpose in going to the offices of Ohio Power 17 Callen acknowledged that Sayre in no way at that time interfered with his ability to present his side of the incident. Nonetheless, in that interview, Callen did not inform Sayre that Rice had used the meter book in menacing fashion. 19 As I find that Callen actually engaged in the misconduct on which the discharge was based, my conclusion on the legitimacy of this discipline is not altered by the fact that Wnght's decision in this regard was based solely upon Rice's version of the incident. The nature of the investigation and other facts in no event are adequate to support an inference that this un- protected act of violence was seized on as a pretext to get nd of a striker corner, crossed the two lanes between the curb and the West- bound lane and grabbed a cigar from Cunningham's mouth and threw it to the ground. In the process of grabbing the cigar, it is asserted that Greene's hand brushed the face of Cunningham. In reaction, Cunningham stated "this was what I was waiting for." Cunningham then reached towards the glove compartment for the purpose of securing a camera19 to take pictures of the strikers. Williams suggested that they move on and the light turned green at that point. Cunningham drove off without getting the camera. Immediately after this incident, Cunningham and Wil- liams went to the offices of Ohio Power and reported their versions of what had happened to Clayton Wright. According to Clayton Wright he later decided to discharge Greene be- cause of the potential for danger created by Greene's action and also because he did not feel that supervisors should be exposed to such abuse. Furthermore Wright indicated that he saw a need for positive action in the interest of eliminating a recurrence of such conduct in the future. I find that Greene's activities on August 10, which are here in issue, were limited to what is set. forth above. I discredit Cunningham's testimony, as corroborated by Williams, to the effect that before the cigar was removed from his mouth, Greene, gesturing towards Cunningham, made a statement "we're planning a party for you." I also discredit his tes- timony that he did not see Greene approaching him to take the cigar, and that he was surprised or startled by Greene's having done so. I was not impressed with Cunningham's demeanor. His testimony was evasive and showed a tendency to fence with his questioners. Cunningham's possession of a camera for use against the strikers, and his remark to the effect that the cigar incident was all he needed, not only suggest his hostility towards the strikers but also reflects a predisposition to make a case against one or more of them. Indeed, in his zeal to get Greene, Cunningham admits to the fact that he reported to company officials that Greene in removing the cigar from his mouth, "hit" him. This was plainly not the case, and demonstrates that Cunningham was not above serious exaggeration in vindicating his hostility towards the strikers. Aside from my distrust of Cunning- ham's demeanor and his apparent bias I think it entirely unlikely that he would not have seen Greene approach him to grab the cigar. Considering the short time interval between this act and Cunningham's observation of Greene while he was making certain statements and gestures with the picket signs, I doubt that Cunningham would have shifted his atten- tion to the traffic signal with such a degree of concentration that he would not have noticed Greene's movements toward him along a diagonal line within the scope of Cunningham's normal vision. I regard it as entirely improbable that Cun- ningham would have indulged in a fixation upon the traffic light, which would interfere with his observation of the strik- ers, where Cunningham himself, had gone through the trou- ble of carrying a camera for the purpose of developing evi- dence which could be used against strikers. It is true that Cunningham's testimony with respect to the implied threat 19 Cunningham during the strike carried a camera in his glove compart- ment. It is plain from his testimony that he did so for the purpose of using it to gain evidence against strikers He conceded that he decided to go for the camera because he felt that with this evidence the Company might get an injunction against the strikers. OHIO POWER COMPANY attributed to Greene was corroborated by Williams. Nonetheless, I find the testimony of Huff and Robson, who are presently employed by Respondent, to the effect that they heard no such statement, as being the more reliable. Both Huff and Robson at times when Greene is alleged to have made that statement, were located more proximate to Greene than Williams, who was seated on the passenger seat at the far side of the truck, probably some 20 feet distant from Greene.20 Based,on the foregoing I find that Respondent discharged Greene on the basis of an exaggerated account of Greene's conduct on August 10. I find that Greene's activities were limited to his approaching Cunningham and lifting the cigar out of his mouth, then throwing it to the ground, while possi- bly brushing Cunningham's face gently and as an incident to the removal to the cigar from Cunningham's mouth. I cannot agree with Respondent that, on this record, it can be found that Greene's behavior created a safety hazard, potentially jeopardizing either company equipment or personnel. It was a single, isolated, expression and though, inconsequential, fits the category of outbursts to which many strikers are prone when confronted with the impassioned feelings inherent in strike action. To find that statutory protection is removed by virtue of such misconduct would clash with the right to strike as guaranteed by Section 13 of the Act. In sum, I find that the alleged misconduct of Larry Greene represented no more than a minor brush with a supervisor insufficient to remove the striker from statutory protection. Accordingly I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Larry Greene. 20 The truck was in the westbound lane which was the third lane away from the sidewalk on which the strikers were standing Williams testified that Greene when he made the alleged statement was off the curb about 15 feet distance from the truck The possibility that Williams might have heard such a statement, if it in fact were made, is not enhanced by the noise from the truck's motor, which was running, and that from passing traffic I also note that Williams, in contrast with Cunningham, assumed a more passive stance with respect to the strikers, and that it is quite possible that Greene's testimony was accurate insofar as he related that Williams seemed to be looking down and avoiding eye contact with Greene I credit Greene and find this to have been the case, thereby contributing further to the improba- bility of Williams' testimony in corroboration of Cunningham CONCLUSIONS OF LAW 173 1. The 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 economic strikers Larry J. Greene and Joseph F. Campbell, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 5. Respondent did not violate the Act by discharging eco- nomic striker Larry C. Callen. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- charged Larry J. Greene and Joseph F. Campbell, it will be recommended that Respondent offer each of these employees immediate reinstatement to his former position, or if such job no longer exists, to a substantially equivalent position, with- out loss of seniority or other rights or privileges, discharging if necessary any replacements hired, and make each of these employees whole for any loss of earnings they may have suffered by payment to each of them a sum of money equal to the amount he normally would have earned from the date of an unconditional application for reemployment made on behalf of these employees or strikers generally to the date of Respondent's offer of reinstatement, 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). 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: [Recommended Order omitted from publication.]