Totes Incorporated

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Totes Incorporated and James A. Stull and Letitia Beaumont. Cases 9-CA-14104 and 9-CA- 14172 August 11, 1981 DECISION AND ORDER On April 8, 1981, Administrative Law Judge Robert A. Gritta issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed limited exceptions and a brief in sup- port thereof. The National Labor Relations Board has consid- ered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recom- mended Order.2 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, Totes Incorpo- rated, Loveland, Ohio, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law juage's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products., Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Member Jenkins would compute the interest due on backpay in ac- cordance with his partial dissent in Olympic Medical Corporation. 250 NLRB 146 (1980). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT suspend or in any other manner penalize our employees for engaging in protected concerted activities for their mutual aid and protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make Letitia Beaumont whole for any loss of earnings, benefits, or seniority suf- fered by reason of her unlawful suspension, with interest on lost earnings. TOTES INCORPORATED DECISION STATEMENT OF THE CASE ROBERI A. GRITTA, Administrative Law Judge: This case was heard on March 12, 1980, in Cincinnati, Ohio, based on charges filed by James A. Stull and Letitia Beaumont, individual Charging Parties, on July 17 and August 3, 1979, respectively, and complaints issued by the Regional Director for Region 9 of the National Labor Relations Board on August 30 and September 18, 1979, respectively. An order consolidating cases issued on September 18, 1979.' The complaints alleged that Totes Incorporated (herein called Respondent) violated Section 8(a)(1) and (3) of the Act by refusing to reinstate the Charging Par- ties following the cessation of a strike in which both were engaged. Stull has not been reinstated; whereas, Beaumont was reinstated after a 6-week suspension. Re- spondent's timely answer denied the commission of any unfair labor practices. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence, and to argue orally. Briefs were submitted by General Counsel and Respondent. Both briefs were duly considered. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor on the wit- ness stand, and upon substantive, reliable evidence con- sidered along with the consistency and inherent probabil- ity of testimony, I make the following: ' All dates herein arc in 1979 unless otherwise specified. 257 NLRB No. 94 678 TOTES INCORPORATED FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Totes Incorporated is an Ohio corporation engaged in the manufacture of footwear in Loveland, Ohio. Juris- diction is not in issue. Respondent, in the past 12 months, in the course and conduct of its business operations shipped products from its Loveland facility, valued in excess of $50,000, directly to points located outside the State of Ohio. I conclude and find that Totes Incorporat- ed is an employer engaged in commerce and in oper- ations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaints allege, Respondent admits, and I con- clude and find that Local 501, International Chemical Workers Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND Respondent manufactures rubber footwear and rain- wear at its Loveland, Ohio, facility. The Union has rep- resented the production and maintenance employees at Loveland for a period of time. The latest contract be- tween the parties expired on April 27, and certain of Re- spondent's employees commenced a strike. Respondent continued to operate the plant, and during the strike hired approximately 75 replacement employees. The strike continued until June 17 at which time striking em- ployees made unconditional offers to return to work. Some striking employees were replaced, some were rein- stated, and some were denied reinstatement. This case in- volves two who were denied reinstatement. Respondents stated reason for the denial of reinstatement was that the employees had engaged in strike misconduct. Stull's rein- statement was denied entirely. Beaumont's was delayed for a period of 6 weeks. IlI. THE ALLEGED UNFAIR LABOR PRACTICES A. Conduct Attributed to Stull During the course of the strike, Respondent employed about 75 replacements and an undisclosed number of out- side security guards to augment its existing guard force. Although the plant operated only two shifts, between the hours of 7 a.m. and midnight, the picketing was conduct- ed around the clock. Stull picketed at various times and in various locations during the strike. On June 15, he picketed at the plant's main gate, starting about 11 p.m. He remained at the main gate until 12:30 a.m. the follow- ing morning, then joined a group of strikers gathered about a fire barrel. The barrel was on property across the public street from the plant. The strikers at the barrel included Jack Hafley, Margaret Lester, David Faulkner, Josephine Vance, and Jack Hayfield. 2 2Neither Faulkner nor Hayfield t.tified. About 7 a.m., Louis Kohus, one of the temporary se- curity guards, approached the strikers gathered at the fire barrel. Kohus and the group, including Stull, con- versed about topics unrelated to the strike.3 During the conversation, Vance, who was a picket captain, arrived on the scene and suggested to Kohus that since the strik- ers could not get on Respondent's property, it was unfair for him to be with the strikers, and she asked Kohus to leave. As a result of Vance's request, she and Kohus got in an argument. Vance, Lester, and Stull testified that Kohus said he would take Vance to jail if she did not shut her mouth, and Vance replied that Kohus could not do that. Kohus then stated that he could "provoke" Vance into doing or saying something which would give Kohus cause to arrest her. Hafley was questioned about the Vance-Kohus exchange, but failed to substantiate the testimony of Vance, Lester, or Stull. Hafley testified that Kohus said he would take Vance to jail because she had a "smart mouth," but did not include any threat by Kohus that he would "provoke" Vance into doing some- thing which could bring about her arrest. Hafley was a straightforward witness and impressed me as candid. Stull, Vance, and Lester on the other hand seemed intent on discrediting Kohus with the "provoke" incident more so than testifying to what occurred that night. Kohus' denial of the "provoke" remark coupled with the manner in which he testified convinces me that he and Hafley's version are the more accurate. I, therefore, find that Kohus did not suggest or attempt to provoke Vance.4 Betty Westerfelt, another temporary guard, testified that at 5 a.m. she was in an automobile in the parking lot on the south side of Respondent's warehouse when she heard the sound of breaking glass. She got out of the car and saw a man, who had been identified to her as Stull, running from one side of the warehouse to the other. He stopped beneath a window on the south side of the ware- house building and began throwing motions toward the building. She again heard the sound of breaking glass. Westerfelt observed this activity of Stull for several min- utes and then went to the guard shack also on the other side of the warehouse. At the guard shack, she informed Guard Supervisor Betty Rajewski that Stull was throw- ing rocks at the warehouse. She further testified that the man she saw had a full beard and a "floppy hat" and was easily seen in the floodlights around the warehouse. Kohus stated that about 5:30 a.m., while sitting in an automobile on Respondent's property, he heard laughter and commotion coming from the fire barrel. He looked in the direction of the street and saw a man making arm motions as if throwing something toward the warehouse. The man was clearly visible under the building's flood- :' During this conlersation Kohus wsould hase seen Stull in his usual garb. the -shirt, beard, and floppy hat. although there was no introduc- lion by name. ' This finding is rles anlt only for the purpose of assessing credibility o Kohus' account of subsequent exents s Westerfelt's testimony of Stull's identification from Elmer Erlel. the company guard. wsas received without objection in spite of its obvious hearsay nature. I, hovscscr, rely n the descriptise eidetice and Stull's admission that he at as the onil 5 striker present that ight who had a full beard and ore a brimmed hat ton determine that Still and the man seen are one ad the same 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lights. The man had a full beard and a floppy hat. Kohus did not see or hear glass being broken, but as he watched repetitive motions of the man, his guard supervisor, Ra- jewski, came out of the building and to his car. She told him she had been standing under a window when rocks and glass showered on top of her. She told him to get out of the car and asked him if he knew who threw the rocks. Kohus told her that he knew. They walked to the gathered strikers at the barrel. Rajewski asked the group, including Stull, Hafley, Vance, and Lester, if they knew who had been throwing rocks. Each denied knowing. Rajewski then went to the guard shack by the ware- house. Kohus said he stayed and talked to the strikers. Kohus confronted the strikers and then told Stull that he was the culprit. Kohus explained his waiting until Ra- jewski had left to accuse Stull of rock throwing by saying "she had taken control of the situation and when- ever there is a senior officer around, I always try to keep my mouth shut." Rajewski testified, "We [she and Ertel] were in that area, and we were standing there when rocks and glass came through the window which was approximately 22 feet high .... The glass and rocks fell around us." (The record shows these windows to be rather large.) Rajewski acknowledged that neither the rocks nor glass actually hit her, and there was no claim that Ertel was hit. Rajewski then lefted the warehouse and yelled to Kohus, who was in the parking lot. She and Kohus went to the fire barrel area. She did not recall asking any questions, only telling Kohus to come on, they are break- ing out windows. Rajewski told the strikers at the fire barrel that she was standing under the window when the rocks and glass came flying. She asked, "I don't suppose you know who threw the rocks." She got a negative re- sponse and left to call the local sheriff. Kohus lingered at the barrel then joined her in the guard shack where he told her that the rock thrower was the one with the full beard and floppy hat. Rajewski's report includes obser- vations of both Westerfelt and Kohus. Respondent's Ex- hibit F, in part, states: WEST ENTRANCE Officer Betty Westerfelt saw J. Stull make arm mo- tions as if throwing something at building. Officer Westerfelt heard something hitting building. I im- mediately went inside with Guard Elmer Ertel to shipping area. While there checking to see if any additional windows had been broken, a rock came through the window, shattering glass all around me. Patrolman Marty Kohus, stationed in the shipping area saw a bearded subject in a hat throw the rocks. Pickets in the West entrance area were: J. Stull, Dave Faulkner, Jack Hafley and Josephine Vance. Stull testified that Kohus asked Faulkner if he had been throwing rocks, and Faulkner denied it. Kohus then approached Stull and asked, "Wasn't you throwing rock?" When Stull denied it, the two got into a cursing match. Stull testified, "that is when Officer Kohus turned around and pointed his finger at me and told me that if I have to go into court and swear that I seen you throw a rock through the window to get you arrested, he said, I am going to do it." Vance, Lester, and Hafley testified on their recall of the same incident with Kohus. Hafley stated that Kohus asked each employee if they had thrown rocks, and then singled out Stull. "He told Jay Stull that he believed he threw the rock and he told Jay that he thought he was tough." Lester and Vance also acknowledged in their testimony that Kohus accused Stull of throwing a rock, although Lester did equivocate on that point. Stull denied throwing any rocks; and Hafley, Vance, and Lester testified on behalf of General Counsel that they were with Stull most of the night in question, that they did not see Stull throw any rocks and they did not know who, if anyone, did. Because Kohus appeared more credible, and the fact that he, not Stull, was corroborated on the essential point, I find that Kohus did, at that time, accuse Stull of being the person who, in fact, had thrown rocks at the windows. Such would be the only logical explanation for Stull and Kohus getting into a curse fight as Stull testified. To the extent Stull sought to convey the impression that Kohus was indicating that he would testify falsely about what he had observed, I discredit Stull. I further discredit Hafley, Lester, Vance, and Stull and find that Stull did throw rocks at the plant windows as observed by Kohus and reported by Westerfelt and Rajewski. I note in de- ciding that while Stull quibbled with the term "floppy" as a description for his hat, he did acknowledge that no other striker had a full beard and no other wore a hat, although one did wear a cap. Albeit the correct version of what occurred that night lies somewhere between the extremes and no one witness can be fully credited, I am convinced that windows were broken that night, by rocks thrown by a striker who was observed by plant security, and Stull is the culpable party. B. Conduct Attributed to Beaumont 1. The "club" incident The first alleged act of misconduct by Beaumont was her carrying a "club" on May 23 when she was across the street from the plant's main gate with Hafley, Stull, Faulkner, and Marden. Superintendent James testified that on May 23, at 8:15 a.m., he observed Hafley, Marden, and Stull with chains in their hands while Faulkner and Beaumont carried clubs. Beaumont's club was 18 to 24 inches in length and was big around as a hammer handle. (In addition, James' contemporaneous note was received in evidence.) James observed the group for 40 minutes that morning and Beaumont held the club the entire time. James stated that the club could have been half a pool cue. James ac- knowledged that the production employees start at 7 a.m. and he and other management people start work at 8 a.m. Beaumont denied having been at the picket line on May 23 before 3:10 p.m. Her usual hours of picketing were 3 p.m. until 7 a.m. the next day. Union records in- dicated that she was not paid for picketing between 7 a.m. and 3 p.m. on May 23. 680 TOTES INCORPORATED Beaumont admitted that on one occasion, during the strike, she did have the larger half of a screw-apart pool cue in her possession. She testified that she took the cue from Faulkner, telling him it would only get him in trou- ble, and walked with it one-half block and put it in Faulkner's car. Beaumont was the picket captain for her shift of picketing. I do not credit Beaumont's denial of her presence on the picket line on May 23 at 8:15 a.m. The bulk of her testimony only established that she was not actually on duty at the time James saw her, but did not rule out the possibility of her staying over as is the common practice with some pickets. It would be even more common for a picket captain to stay over shift. Beaumont's testimony of Faulkner's pool cue incident was too general and vague to be probative, and Faulkner was not called to testify. James' testimony was convincing and objectively sup- ported without James' actual identification of Beaumont being placed in issue. I credit James over Beaumont on the club incident and find that Beaumont was on the picket line on May 23, at 8:15 a.m., for approximately 40 minutes with the larger half of a pool cue in her hand. 2. The "following" incident The second act of strike misconduct attributed to Beaumont by Respondent is the alleged following on June 5 from the plant in her automobile of an automobile driven by Production Superintendent Carl Young. A brief description of the road pattern around the plant is helpful: The main parking lot of the plant exits onto Victor Avenue which runs generally north and south. The gateway of the parking lot on Victor is be- tween Adams Avenue on the north and Washington Avenue on the south. Adams and Washington run per- pendicular to and terminate to the east at Victor. The first street to the west parallel to Victor is Jefferson Avenue and the next is Twightee, both of which are in- tersected by Adams and Washington. Superintendents Young and James testified that it was their practice to escort, from the plant to a nearby free- way, the replacement employees whose shift ended at midnight. The automobiles would leave in file, one su- perintendent at the head of the line and one at the rear. The usual practice of Young and James was to return to the plant from the freeway entrance to confer with each other before going home for the night. About 2:30 a.m., on June 5, after they had escorted the employees to the freeway and returned, both left the plant in separate automobiles to go home. Young turned right out of the parking lot and took Adams to Twightee then right on Twightee for 2-1/2 blocks to Loveland-Madiera Road. Young testified that as he crossed Jefferson on Adams, he saw a black Gran Prix (Pontiac), which he knew to have then belonged to Beaumont. Young said the Gran Prix was sitting on Jefferson with its lights on. He said the Gran Prix picked him up and started tailing him. It tailed him to Twightee, then to Loveland-Madiera, then several miles down the road at speeds up to 65 miles per hour. Young turned off on a side road, and the Gran Prix "went whizzing by." He sat there a few minutes and then went home. James testified that he left that night going left on Victor and over to Twightee then north on Twightee. As he approached the intersection of Adams and Twightee, Young turned onto Twightee going north and was followed by Beaumont in her Gran Prix. Both Young and Beaumont turned left on Loveland-Madiera, but he turned right onto Loveland-Madiera and proceed- ed to his home. Beaumont does not deny it was she in her Gran Prix that night, but she denies any intent to "tail" Young. She stated that she, Betty Burton, and Vance were merely going to get hamburgers for the pickets. Beaumont stated that he did not see Young's car until she got to the corner of Adams and Twightee, and she saw him going north on Twightee coming from the Washington Avenue intersection. Young passed in front of her, and she turned right on Twightee behind him. Vance testified that the one occasion she was with Beaumont and behind Young's car, the two of them went to Frische's Restaurant. 6 While I credit Young's testimony that he drove the north route from the parking lot to Twightee, and not the south route which would be the implication if Beau- mont were credited, I do not believe Beaumont was waiting for Young, which is the implication of Young's testimony. The testimony of Young about speeds up to 65 miles per hour is not conclusive and certainly does not establish the speed of any other vehicle, especially one behind him. There is no evidence to suggest that Frische's Restaurant is not on the route taken by Young nor is there any suggestion that the Young route was not the usual or most expeditious route away from the plant. Based on all the evidence and the circumstances as shown in the record, I credit Beaumont's denial that she did not intend to follow Young anywhere on the night in question. I do note with particularity that Superintendent James thought nothing of Beaumont driving behind Young as far as Loveland-Madiera Road because when he got to Loveland-Madiera he turned the opposite di- rection and went home. 3. The "firecracker" incident About midnight, June 8, Young led another caravan of automobiles out of the plant after shift. It is undisputed that parked at the gate used by the caravan was the auto- mobile owned by Barbara Boyd who was in the driver's seat. With her were Beaumont, in front on the passenger side, and Marie McClendon, either in the front middle or the rear seat. Young testified that he turned right coming out of the driveway and saw parked on the right-of-way, facing traffic, a red 1965 Chevrolet. As he made his turn, he saw a "sparkler" being ignited and saw the face of the person who had apparently ignited it-Beaumont. Then, according to Young, "I saw an arm come out the window and throw a firecracker . . . . It went off right at the back wheel as I went by." As he continued on, he heard two more firecrackers explode behind him in the '; urlnl did nol testify 681 DECISIONS OF NATIONAL LABOR RELATIONS BOARD area in which the following automobiles would have been. Beaumont denied throwing a firecracker, and McClen- don and Boyd also denied that Beaumont had done such a thing. The General Counsel argues that there is absolutely no reason for McClendon and Boyd to falsify their testimo- ny and further that Young should be discredited because no employee in the caravan was called to testify and be- cause Young's identification of Boyd's car was faulty. It is undisputed that Boyd's car, at the time in question, was a 1972 red Dodge Demon. At the time they testified, Boyd and McClendon were employed by Respondent. While I fully appreciate that employees are less likely to fabricate testimony in oppo- sition to their employer's interest,7 I nevertheless found Young credible and accurate in his recall. Beaumont, however, made a decidedly unfavorable impression on me when testifying about the incident. While it is prob- able that whoever was in the second car could have tes- tified that a firecracker was, in fact, thrown, there is no reason to believe that they would have been able to iden- tify who had thrown it. I, therefore, draw no adverse in- ference from Respondent's failure to produce any other witness to the incident in addition to Young. In summary, I find that, as Young testified, Beaumont threw one firecracker at his automobile the night of June 8. C. Concluding Findings 1. Re: Stull It is undisputed that Stull until the morning of June 16 was engaged in a course of generally protected strike ac- tivity, that Respondent knew Stull was so engaged, and that at the end of the economic strike Respondent re- fused to reinstate Stull because of that activity. Thus, a prima facie case of a discharge in violation of Section 8(a)(l) has been made out. XL.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964). The General Counsel does not dispute that by the proof presented herein, Respondent has gone forward with probative evidence that it held an "honest belief' that Stull engaged in misconduct of such a serious character that he lost his Section 7 protection, thereby justifying denial of reinstatement. See Rubin Brothers Footwear, Inc., 99 NLRB 610 (1952). Where Re- spondent successfully presents evidence of such good- faith belief, the prima facie case is effectively rebutted, and the case will be dismissed unless the General Coun- sel then proves either the employee did not engage in the misconduct attributed to him or, in the alternative, that the conduct was not sufficiently grave as to warrant dis- charge or denial of reinstatement. The General Counsel has failed to prove by credible testimony that Stull did not throw the rocks (or objects) at the warehouse windows. Therefore, the question be- comes whether the "surrounding circumstances" compel the conclusion that Stull's conduct was of sufficient se- verity to remove from him the Act's protection. See 7Georgia Rug Ml, I31 NL RB 1304. 1305 ;1t Ir. 2 (1961) Alcan Cable West, a Division of Alcan Aluminum Corpora- tion, 214 NLRB 236 (1974), wherein the Board states: In determining whether a striker has, through his misconduct, forfeited his rights to preferential recall, the Board has, at all times, considered whether the alleged misconduct is of such gravity as to require, in the public interest, removal of the protective mantle which the Act affords striking employees. Not every impropriety committed in the course of events does, in fact, deprive the employee of that mantle. Our inquiry necessarily considers all surrounding circumstances to include analysis of the severity and frequency of the misconduct of the em- ployee involved and the quality of the evidence tending to establish that misconduct. Although windows in the plant had been broken before June 16 and required replacement anyway, there was some property damage caused by Stull. 8 Standing alone, the throwing of rocks may not disqualify Stull from reinstatement. The Board, in MP Industries, Inc. and its Subsidiaries, Micro Alloy of Missouri, Inc. and Mid- west Precision Castings Company, 227 NLRB 1709 (1977), as correctly noted by the General Counsel, held an iso- lated act of egg throwing, which resulted in no property damage and injured no one, would not disqualify the in- volved employee from reinstatement. The harder question is whether the conduct was ren- dered disqualifying because it imperiled any person. Re- spondent cites many cases in which the rock thrower knew, or had reason to know, that his activity would have imperiled persons who could have been hit by the rocks (or bricks) or could have been involved in an auto- mobile accident as a result of the missile activity.9 The Bromine case is the closest in point. Rocks were thrown through a restroom window and such conduct was held to justify discharge. Although the rock throw- ing was found to be a wanton act because a supervisor was inspecting the glass breakage when another rock was thrown, the initial inquiry was the foreseeability that any rock thrown through the window could have in- jured an occupant. Thus, a question arises in this case: Was it foreseeable that Stull's conduct could have in- jured any person? According to the record, there was no third-shift pro- duction and maintenance employees or supervisors. There were, however, 24-hour sentries just as there were 24-hour pickets, Was it foreseeable that a guard could have been injured? In my view it was. The windows were obviously broken to get the guards' attention or draw them to the particular area. Guards would be ex- pected to patrol plant premises, inside and out. Any ' The parties stipulated thal at the end of the strike the cost of replac- ing all broken glass in the plant sas $1,084 What portion could be attrib- uted to Stull is unknown.. 9 Gold Kist. Inc.. 245 NLRtB 1095 (1979) Giddings & Lewis. Inc., 240 NLRB 441 (1979); Carlron,. An Indian Head Company. Division of Indian lHead. Inc., 239 NLRB 495 (1978); Bryan Infants Wear Company. 235 NLRIB 13()5 (1978); Meilnaun Food Indu.tries. Inc., 234 NLRB 698 (1978): Bromine Division,. Drug Research Ine.. 233 NLRB 253 (1977); Ohio Power Comlpatny. 216 NLRB 348 (1975): .llkahn Silk Label Company. 193 NLRB 167 (1971) 682 TOTES INCORPORATED guard, on a routine round, could have been injured. Fi- nally, as in Bromine and the instant case, once the break- ing of glass is heard, it is not an unnatural reaction for those inside the building to go to the area under assault. The high windows could increase the likelihood of injury during inspection because one must look up, ex- posing the eyes to whatever is falling. I do not think the trajectory or the velocity of the missile must be measur- able such as a bullet. Cf. Ohio Power Co., supra, where a rock was propelled into an occupied building by using a 12-inch metal slingshot. I am not prepared to find that the projectile must be deadly, or readily identifiable as harmful. Such a finding places the burden on the among individual. I do not think the guards on patrol (or any person engaged in security of the property) should be re- quired to take such a chance. One cannot gainsay that shattered glass is a hazard no more than one can gainsay that rock throwing is not a natural consequence of peaceful picketing. It is true that no one was actually hurt by the rocks or glass. However, the foreseeable consequence of Stull's action was that actual or potential occupants of the warehouse could have been injured by the intentional act. Therefore, I conclude and find that Respondent's re- fusal to reinstate Stull did not violate the Act, even though only slight property damage occurred to Re- spondent's building. In the last analysis, the statutory protection for em- ployees striking and picketing is couched in terms of peaceful endeavors. In my view, Stull overstepped to the violent. 2. Re: Beaumont Albeit Beaumont was not discharged, the controlling considerations are the same. As stated in MP Industries, supra: Less severe discipline nonetheless affects an em- ployee's employment tenure and has the same pro- hibited effect of interfering with and jeopardizing an employee's protected right to strike and picket. In other words, the statutory protection is, or is not, removed because of the employee's conduct, and the extent of any discipline actually imposed is irrelevant. I have found that Beaumont did carry a section of a pool cue on the picket line on May 23, and that she did throw one firecracker at the automobile of Carl Young as he was leading a group of production employees from the plant on June 8. The larger half of a pool cue could be utilized to inflict a terrible beating and could, if simply wielded, intimidate others. However, no nonstrik- ing employee or employee applicants saw the cue in Beaumont's hands; therefore, a coercive impact could not be presumed. That is, there was no one there to in- timidate unless it could be argued that she intimidated other strikers. Cf. Alkahn Silk Label, supra, at p. 175. While having a lighted firecracker thrown at one's automobile would undoubtedly be temporarily upsetting, it is unlikely that it would cause, directly or indirectly, an accident. This is especially true where the incident occurred not on the open highway at higher speeds, but as Young was turning slowly out of Respondent's park- ing lot. Notwithstanding, Young testified that he heard similar reports after he passed Beaumont. There is no evidence that she threw more than the one firecracker. The record is likewise silent on any firecrackers at any other time. ° Therefore, while the throwing of one fire- cracker was indeed mischievous, it can hardly be said that it (alone or taken together with the pool cue inci- dent, which occurred 2 weeks before) was sufficient mis- conduct to have removed from Beaumont the statutory protection. Since no other disqualifying misconduct by Beaumont has been proven by Respondent, I conclude and find that Respondent's suspension of Beaumont for a period of 6 weeks violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent's action of refusing to reinstate James A. Stull because of his misconduct on the picket line did not violate Section 8(a)(1) of the Act. 2. By refusing to reinstate Letitia Beaumont upon her unconditional application to return to work and suspend- ing her for a period of 6 weeks, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act." 3. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. RMFME I)Y Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Respondent having suspended Letitia Beaumont for engaging in protected concerted activities, I find it nec- essary to order it to pay her backpay for the period of her unlawful suspension with her pay computed on a quarterly basis and interest thereon to be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977),12 from August 1, 1979, the date of her suspension, to the date she was reinstated following the suspension. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ' The witness did suggest a hippie house in the icinit .as doing some shooting of gunl. hut neither the noise nor the actlisit appears re- lated to the strikers "It is unnecess;ary to decide hether Respondenl's conduct also vio- lated Sec 8(a)(3) of the Act inllsmuch ils he remedy necessar 5 to effectu- a;te the policies f the Act ss ould he identical in either case liiveroal City Studios, Inc1. 253 NlRBt Il)3 (1981) 2 Sec. generally. I Pl/ulhinSg & lcing (o., 138 NI.RH 71h (19h21 683 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 13 The Respondent, Totes Incorporated, Loveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its em- ployees in the exercise of their right to engage in con- certed activities guaranteed by Section 7 of the Act, by refusal to reinstate them until after a disciplinary suspen- sion period of time. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make Letitia Beaumont whole for any loss of pay suffered by reason of her disciplinary suspension in the manner set forth in the section of this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all '3 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 by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections there- to shall be deemed waived for all purposes. 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 place of business in Loveland, Ohio, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Re- spondent's authorized representative, shall be posted by 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 customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaints be dismissed insofar as they allege violations of the Act not specifical- ly found herein. " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 684