National Steel Corp.

I)tI('ISI()NS () NA IONAI. I.ABOR REI.A' IONS BOARI) National Aluminumn l)ivision of National Steel Corpo- ration and Aluminii Workers International Union, I!)cal Union 132, AFL-CIO. Case 9 ('A 12329 May 16. 1979 )ECISI()N AND ORDER BY MIMBI RS P Nt :I 1.() MIRPIIIY, ANI) TRt I :S)AI.I On January 3. 1979, Administrative aw Judge Robert W. I.einer issued the attached I)ecision in this proceeding. Thereafter, Respondent filed exceptions and a supporting hrief and the GCeneral ('ounsel filed a brief in opposition to the exceptions and in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(h) of' the National abor Relations Act, as amended, the Na- tional labor Relations Board has delegated its au- thority in this proceeding to a three-membner panel. The Board has considered the record and the at- tached [)ecision in light of the exceptions and briefk and has decided to affirm the rulings, findings, and conclusions2 of the Administrative L.aw Judge anc to adopt his recommended Order. ORDER Pursuant to Section 10(c) ofi the National l.ahor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recom iiended Or- der of' the Administrative Law Judge and hereby or- ders that the Respondent, Nationial /Alli num Division of National Steel ('orporation. lawesviille, Kentuckv. its officers, agents, successors, and assigns. shall take the action set flrth i the said recommentd- ed Order. I Respondent hla excepted to certain crcdIilih tilndings made h hc Ad- mninrisr:lie .;a Juidge. It is the Bard's estabhlished polic\ nolt to i, err ulc In Adnillitrall i I aw Judge's resolutioinl s itih respect Ii credthhii iles the clear preponderance if al l of the rele*it cevidence cninces l' that lile rcoltition' ale itncorrectl .iandlrd Dr IIll Prodwls . Inc. 9 N R1t 544 (I1950), enld. 188 I .2d 32 3d (ir. 195 1. We have carelulls earnlled the record and find nol ha sis ir r ersilng his firdings 2 're agree With the Admnlrl trativc l.ai lg. dge r llhe reasi l net ilth hx him. thai Reponndent liled tl eslablish tha.t it had ;i hilesi belie Ihall eniplyccs Hrlown nt lv, lrd had en;laged hll nli11llitucIl idiiilg tilhe trlke xwhich disqualificd hem Ir reilnst.tement. ItIc Ci coIctis conchlded t RC- spondenls relflual. i these circumstnances. to, ristte these srikers uprll Iheir unconditiona l ofier, lo return io xiork iolated Sec 8(al)( ) olit tie Act without inlqulirN as t whclhcr r not Br own itlld 1owU lrdl in dlfct engaged in the alleged mlisconducr t the di\dmlirstraiie I.an Judge. while Ickno Iniedg ing the G(eneral ( uinel did not have the hurden r o elahllishing halt lri, i and lHi ward did nlt. in act. engag i the alleged nlisl rndultl. ietrlheles, conclude d tIhlt the (iGenerl Co( unsel also met this hburden. Although Ihe limnter linding m: he deemed gratitius under lie clIfcrntlmsalleC here, we adopl ii [)1('ISION SIAIMINI t)' t lili ( I S R(lBIR I W. I.INI R, Adlliistra;ltixe I.aw .JtldgC: The original charge in this matter was filed h Alunminum Workers International Inion. Local Union No. 132 AFl. ('10. herein called the Union. on March 21. 1978; the amended charge was filed on April 12. 1978. 'Ihe com- plaint, alleging violations of Section 8(a( I) and (3) of the National I.abor Relations Act, as amended, herein called the Act, together with the notice of' hearing, issued on May 5, 1978. The hearing, with all parties represented hby coun- sel, was held on September 11 13, 1978. in Hawesville, Kentucky. Subsequent to the close of' the hearing, briefs were duly filed by all parties. all of which were carefulls considered. The principal issue raised bh the pleadings and proof re- lates to Respondent's alleged violation of' Section 8(a)( ) and (3) of the Act in ftiling and refusing to reinstate two of' its emploees who, having engaged in an otherwise lawful economic strike. allegedl\ committed acts of serious picket line violence against the property of Respondent. At the hearing, all counsel were afforded fulll opp(ortunity to present oral and written cvidence. and to examine and cross-examine the witnesses. l'he parties s aived oral argu- mnent ater the presentation of the eidence. l:pon the entire record. together v\ith m\ careful obser- vation of the ritlnesses alnd ilh due consideration of the hriet's I make the fllowin: INDIN(iS () IA( IS 1. 1111: 11 SINISS ()I RtSP(INI)IN[ Ihe complal;tit lleges. Responidenit admits. and I find, thial Respondent i a l)li;lare corporation enigaged in the manufacture and sale of aluminm products at its plant in l Iawesvill le. Kentuclks. )urirg the 12-month period preced- ing the issuianice of, the complaint, a representatixe period, Respondent sold anid shipped goods and materials valued in excess of $50.(IK) from its l awesville filit? directly to points outside the State of Kenltucky. Respondent admits and I find thiat it is a etiploser engaged in commerce and in aln industrs! allecting commerce within the meaning of Section 2(2) ((). alid (7) of the Act. It. tilt I tIR ()RAt(i\/AII() , INVi() AiM I lie complaint alleges Respondent admits. and I find. that the abhove-captioned union, herein called the Union has hbeen. antd is. labor organilzation within the meaning of Section 2(5) o(f the Act. Ill. 1Il \1 I I tll) N1 AIR I Ai)R PRA(t tI( I S A. Bhlcgron,ld ()O July 3. 1974, a majorit of Respondent's employees in the production and maintenance unit employed at its ltawesville plant voted in a Board-conducted election in faxor of' represeni tation h the nion. which v as thereafter diulx certified as collective-hbargaining representative in that unit Respondent a;tnd the nion then entered into a 3->ear collectie hbargaining agreement (Aith ;a 30-day uliioll-secu- rit, clause) which expired at midnight, February 15, 1978. B\ midnight on that dte, the parties failed to conclude flurther collective-hargaining agreement: and at strike by the 242 NL.RB No. 63 294 NATIONAI. STEEI. CORPORAI ION Union commenced with its pickets picketing at or near Re- spondent's premises at two locations: the first being the en- trance at thejunction of a road leading perpendicularl into Respondent's factorN from KentuckN Route No. 334 (known as the River Road). that perpendicular road being called the "Access Road": the second picketing point being at Respondent's Hot Metal Gate at its juncture with Ken- tucky Route No. 271.1 The picketing at these two locations was conducted pursuant to a schedule wvhereh' usuallN three members of the Union (employees of Respondent) picketed at each location at one time. The focus of the al- leged picket line violence occurred at or near the Access Road Junction at about 8:40 p.m. on February 22, 1978. when about 20 pickets gathered to prevent (whether law- fully or otherwise is unknown) the alleged continued pas- sage of commercial traffic through the picket line. Ihe tin- contradicted testimony of an alleged perpetrator of the violence, Richard Brown, indicated that the purpose of the 20 pickets at the picket site was to attempt to intimidate hb a show of numbers any truckdrivers from passing through the entrance point. The strike continued (with picketing) until March 8. 1978, when negotiations led to a tentative agreement. B I10 a.m., Saturday. March I I. 1978, the agreement was ratified hb the unit employees. Immediately after ratification and notification thereof to Respondent, on March I I. nion President Mark Fulkerson spoke to Respondent's Industrial Relations Director, E. H. ("Pete") Gritton.: lie asked Grit- ton when the employees should return to work. and (iritton I According to a map of the area (Resp. Exh II. these two plant rea entrances are not less than 2.0(0 feet apart i connected h direct hne Actu- ally, they are at the t'xt of a right trl;lngle the Iw.o exiernal coinnecting legs of which are Kentucky ighwaNs 334 and 271. he map t the area indldicaic that these two points are about 3.300 feet apart i. as is the case, those low highways are used o travel from one entrance t the other In addition. the parties stipulated certain distances friom the more sgnilicant poini it' pickel- ing herein (the junction of Kentucky State tighw a No 334 and the Access Road). Ixooking north along Route 334 from a point south of the lunctiion of the Access Road and Roule 334. there is a residence on which was moiunted a porch light under an overhanging porch of some 8 to 10 feet. his porch light was approximately 90 feet from the midpoint line of the unction of the Access Road and Route 334. Route 334 (the River Road) is a blacktop road some 22 feet in width. From a midpoint in that road to the rear window a a certain red Chevrolet pickup truck (the "security truck"). the parties al irst attempted to stipulate, at the time the ehicle was attacked. that the dstance was approximately 54 feet from that midpoint on Route 334 to the hack window of the Respondent's truck Notwithstanding the withdrawal of (;en- eral Counsel from this part of the stipulation. since all parties slsited the site and various distances were measured ofl. and in the absence of contradictory evidence notwithstanding the truck was moving at about I1) I miles per hour) I find that the distance, at that time. from that midpioint line in the Junction on Route 334 to the rear window ot the security truck w hich w:as then proceeding perpendicularly away from the aforesaid unction. was ap- proximateli 54 feet. I also conclude on the basis ot the stipulation that the distance from a certain fire barrel to the rear window of the ecurts truck. which fire barrel as on the west side of Route 334 some 8 to I0 e est of the road itself. was 82 feet. astly the parties stipulated. and. in addill. the evidence showed, that there were I I- to 12-foot high bushes r trees pliillel to the Access Road on the property of the above residence The eldernce also shows that there were no leaves on the bushes or trees at the tlnie ot the alleged iolence on February 22, 1978 II as also stipulaled that one ot the alleged perpetrators of picket line violence. Hienry tov ard. was tried and consicted, pursuant to a 1971 indictment. of armed a;ssault uith inltent to rh for which he was sentenced to 10 ears Iin the cuslodN ot the State ot Ken lucky te served 13 months of that sentence. A the hearing. Respondent admitted that it knew of the conviction at the time it hired him 2 Respondent conceded that (iriltmn and J nles Russelburg. Its ( Ist lt Hlouse foreman. ere supervisors and agents I Respondent within the mean ing t the Act. told him that the, should return to ork starting with the midnight shift on Sunmdai-MoNinda. March 13, 1978. Grit- ton also stated that all the emplo,ees could return to work except Richard Brown. lenrs Howard. and Rohbert Smith.' Ihereafter. on March 13. all 196 employees in the unit re- turned to work except Richard Brown and Ilenr, Ihloard, though both of them were ready and illing to returrt on Mlarch 13 when all the striking emplo ees returned to em- plox ment. ulkerson informed Brow n and I loward oft rit- ton's further direction: that lowardl and Brown he at his office thie tfolloing Mlonda nlorlllng. Otn Mondas. March 13, 1978, at separate morning meet- ings. (iritt on to l Blo uni n alld llor ar. it l ulkerson's pres- ence, that the, erer not being reinstated because of their picket liie assault on ithe securits truck on :ebhruair 22, for ,hich Respondeint h an ewitness: I-orellani Jaies Russelburg. Bron i ad Howard denied the allegatioln. When Huliward later the same das attempted to return to work, he was urned av\. bh Respondent. Oil the basis tf [:ulIkerson's unconditionil ofter. oln behalf of all triking eplosees to return to w rk. m ade to and accepted h Gritton on March II, I cnclude that the linion, on behalf t all emplo sNees inclIttling Brown and Ilow ard. made atn effectlie nconditional on ier to return which Respondent rejected at the same time with regard to Brov n and I w ard, and which Respondent accepted for all otlher unit employees comntencing March 13 . .R.B. . I1. (. l Qtiilt, Initi., 552 .2dl 519. 29 (3d Cir. 1977). Ihe Rslpndent's obligation to reitistate the striking em- plo ees. including Brown ,ind How ard. depends in the first inLstance upon ani uniccitional offer b h e strikers, or the n tli[ (,on their behallf. lcric(n Aachitntrr (' 1. v. .1 RH., 424 .2d 1321. 1328. 5th (Cir. 197(1): V. RB. v. 1. Pncer, Io , Pww'r )tihtingi' Corp., atd lI'otc'r Btlicai ,17d Barlz, NSql/i (Cor/i 304 F.2d 773 (2d (ir. 1962) cf. N.L R.B. (; I)lllt 7troilc/rs. lt . 388 .S. 26 (1967). 1his wa t done. Moreo er. in ie\ tof(irittions explicit state- menit thilt Br\\ n and Howard should not report. any tfur- ther attemlpt to offer themsel es ftr reinstatement ould ha e been futile. as was indeed the case with Houward. The record shoskNs that tiward had filed about 15 ries- ances durinig the 3 ears of the expired contract and Brown had filed about 7 In all. some 22(1 grievances were filed hb the I nion in 1977. about 185 in 1976 and 2() in 1975. On the tither hand. Fulkerson himseltf had tiled l) rtevances in 1977 on his o n ehalf. It is also uncontested that several other enpltees ho were at the picket site here the alleged itolence occurred had each iled seven to eight ritevances in 1977. A Richard Brow n gries ance. still pendilng at the time of this hearing, related to an improper lastitl. IIenr loHuward had been through arbitration with Respondent regardilng it 5-da. suspensiin. w thlch arbhitratin tcctlrredl alter trnlinat- tion o the strike. It is undisputed that '"lust causc" \\asi tiun d hb the arhitralttr totr I loward's -das suspension.l B. lt' Pil ttoinx on ethriari 22. / ',' Riclhardi Brtolln, enlplo , el hbs R esponldent siice Matrc h 1972. first picketed on I hrurs 21 ftr 3 ti 4 hours at the ' Ihe tailturc io reeriplos Rhert Sith s iii Il ll ssue hi i, 1se 295 DECISIONS OF NA)IONA I.ABOR R ELATIONS BOARD [lot Metal Gate entrance 6 da s after the strike started. On February 22, 1978, Richard Brown, with employees Burch. Pate. and Potts. drove to the Access Road entrance at about 8:30 p.m.. not because they had been assigned to picket that night. hut to join with other unit employees so that b their show of numbers they would tend to coerce the truckdrivers and to cause them to refrain from passing through the picket line. Brown recalled seeing Howard arrive at 9 p.m. Sometime after 6:30 p.m. on February 22. Jim Tipmore. employed by Respondent for 7 1/2 years. telephoned Hen- ry Howard and asked him to come out to the picket site to have a show of people. because Respondent was moing trucks in and out of the premises. After various detours and meetings, they ultimately arrived at the picket site about 8:50 p.m.. according to Tipmore and Howard. The mea- sured this time of arrival particularly on the arrival. alleg- edly 5 minutes thereafter, of the State police who arrived at about 9 p.m. I conclude, on the basis of the credited lesti- mony of Gritton and James Russelburg. ilt. and the cir- cumstances herein, contrary to their testimony, that the arrived at the picket site at or immediately prior to 8:40 p.m.. and that the Kentucky State troopers arrived there about 15 minutes after Tipmore and Howard arrived. Whereas Gritton's and Russelburg's testimony on the point had some basis of actual timing. Howard's and Tipmore's testimony was essentially sequential. I conclude that Rus- selburg's and Gritton's testimony on this point was more reliable. I do not credit Brown's recollection on the point. In any case, the 20 unit employees at this picket site were standing. at that time, near a fire drum' waring them- selves. The fire drum had wood on fire within it. and it is sharply disputed just how high the flames showed above the rim. Some of Respondent's witnesses testified that the flames were 3 feet beyond the height of the 4-foot high drum. General Counsel's witnesses testified that the tire. when it showed above the rim at all, varied in its height above the rim of the drum. Some oGeneral Counsel's wit- nesses testified that the fire did not rise above the rim and was hardly smoldering. I conclude. on the testimony of Re- spondent's witness, Marsha Morrison. whose observation related to the height of' the fire about the time of the alleged violence. that the flames. at that time. were no greater than 15 inches above the rim. The height of the fire obviously could and did vary from moment to moment depending upon the amount of fuel placed in the drum. I credit Mar- sha Morrison's observation and place the height of' the flame above the rim, at 8:40 p.m.. at 15 inches. The only other light mentioned in the record was a porch light some 90 feet away on a house standing at the junclion of Route 334 and the Access Road. That porch light gave off no illumination significant to this case. On this point. I credit the testimony of James Russelburg. il. Assuming. as Respondent asserts, that there was a full moon on Febru- ary 22. there was no proof concerning when the moon set or concerning the cloud cover at that time and place. I con- clude, therefore, that the sole source of' light was from the fire and that that source swas variable both in intensitN and stabilits. I find the evidence inconclusive on the flact. as 'The fire drum was a 4-foot high. 55-ga;llol steel drum in hilch tlhe pick- ets placed ood and set the wood afire far purposes lf w.rrming themel ,es Respondent asserts. that there was additional reflective light from the fire barrel on snow on the ground at that tirme. 5 At about 9 p.m.. a Kentuck State trooper told the em- ploecs that there had been some trouble and asked them to disperse. lie employees then lett. The evidence shows that the trouble l It, hlch the State trooper referred consisted of his assertio that lass had been broken in Respondent's administration building. In fact, however, the Respondent's security truck had been damaged at about 8:40 p.m. at this picket area: and. as above-noted. Russelburg had identified Hokard and Brown as the perpetrators. as a result of which the were denied reinstatement. Both Howard and Brown not only denied attacking the truck but also testified that there was no bad blood or ill teeling between either of them and Foreman Russelburg. Russelburg and Bro n attended high school together and, i' not friends in a social sense. knew each other foir 20 years. Ihere is therefore no basis on which to infer that Russel- burg's accusation was based on personal retaliation. Russel- burg often saw lolard, employed by Respondent since 1973. while Russelburg often saw Howard. employed by Respondent since 1973, while Russelburg was shop stew- ard. In Januar 1978. when Russelburg was promoted to super isor in the Cast louse. he as foreman over Henry Howard, his only black subordinate. Russelburg. emploed when Respondent's aluminum plant opened in September 1970. worked or 7 ears as a urnit emplo ee before becoming (ase Htouse foreman in J.anuar 1978. At all imes since 1974. he was a member of the nion and Wi as elected shop steward by Cast House employees for the final 2 ears of the collective-bargaining agreement. rhich epired FebruarN 1978. He was shop steNs ard s hen promoted out o the unit to become fboreman. ( . t, i. tlcgd I olct ( ol Febr'll2, .22, ]978 Respondent retained. as its security guards. persons em- ploed by (lark Secu-it Agency. On the night of February 22. 1978. because o an apparent strike by employees of the security agenc. Richard Morrison. a Clark Security guard employed b Respondent, became the assistant chief of se- curit at National Aluminum. He was never an employee of Respondent. At ahout 8 p.m.. he drove off in Respondent's security truck on his inspection rounds. About 10 minutes later. as Morrison drove down Access Road toward Kentucky Route 334. and while he was about 30 to 40 feet from the juncture of these two roads, his windshield was struck b a missile. alter identified a aa steel ball bearing. With the truck's CB radio. he contacted the guardchouse where guard KelI and Foreman Russelburg were present and told them that the vehicle had been struck." He then turned the truck around and. within 2 or 3 minutes. returned to the guard- house around 8:15 p.in., rhere he found Kells and Russel- ' I he light luom the tire hbarrel cnlstiluted the sole source oit light until the .rrlisl 1 Respondenli's secutrit truck. he truck's headlighls ere the other ,ignli an l ,n surce hile the truck wai present. s ill he seen helov,. t B1 8:20 p ill . Speruisor (iritiln called the State police hecause 1 Ithis Itic ltlc i 296 NATIONAL STEEL (ORPORATION burg. Because Kelly was afraid to undertake his subsequent guard duties alone. Russelburg agreed to accompany him on his rounds. Thus with Kelly in the truck with him, and with a cracked front windshield. KellN and Russelburg drove off on Kelly's rounds with Kelly driving and Russel- burg seated at his right. Russelburg testified that theN drove off on the rounds within 2 or 3 minutes after Morrison returned and took a circuitous route within Respondent's propertN before the truck stopped at about 8:40 p.m. at the junction of Access Road and Kentucky Route 334. Richard Morrison. however, testified that he saw the truck leave at about 8:30 p.m. and go directly to junction. I credit Morri- son. except I conclude that Kelly and Russelburg departed at about 8:15 or 8:20 p.m. I further conclude that the truck arrived at and stopped at the junction before 8:40 pm. In any event, after stopping at the junction. before 8:40 p.m.. though it was pitch black darkness. Russelburg testi- fied that he saw Richard Morrison's wife. Mlarsha Mlorri- son, approaching the junction in a white van wherein Mrs. Morrison customarily brought guard Morrison his lunch. General Counsel's witnesses could not recall ans such white van. As Mrs. Morrison approached the junction in the white van. Russelburg said that Kelly drove the pickup truck out into River Road and U-turned around in a right- hand turn so that the driver's seat faced out into River Road and then. completing the turn. started back up the Access Road. following Mrs. Morrison's white an. which was proceeding ahead of their securit, truck. In the turn. with the truck headlights swiveling on the pickets. Russel- burg was within 20 to 30 feet of the pickets who ere warming themselves 8 feet off the road at the fire barrel. He recognized. he testified. onlI to pickets who were patrol- ing the area nearer the road. and he did not recognize the faces at the fire barrel because he was concentratinlg on the patroling pickets immediately near the turning truck. Trav- eling up the Access Road while the truck was moving at 10 to 15 miles an hour returning toward Respondent's plant. Russelburg said something hit the back of the truck in the truck bed. Russelburg said that he looked out of the rear window of the truck and that saw that two persons had left the pickets. had stepped out toward the junction (about 54 feet from the rear window) in front of the fire barrel. He identified the two persons as Richard Brown and HenrN Howard. He said he saw them in the light of the fire and with the aid of the moonlight shining on the snow. lie said that the porch light of the nearbv house offered no helpful illumination. In subsequent testimon Russelburg dis- counted the effect of the moonlight shining on the snot but testified that it was the reflected light from the fire barrel that was shining on the snow and aiding in overall illiumina- tion. Russelburg said that he not only saw their faces in full but also saw their hands, extended in front of them. holding a certain tpe of slingshot which he described as a "Wrist Rocket" slingshot.7 Thus. Russelburg testified that at the time the missiles hit the bed of his truck. the truck was about 25 feet inside the Access Road. with Brown and Howard allegedly standing at a distance of something in excess of 50 feet from his view 25 feet up Access Road: 22 feet (the width of Route 334) plus some 6 or 8 feet hexsond ' No phsical descriptiin ol this tnstirumenil as. ch icted except ithu 11 'LI' not shaped in Ihe clal . r -hape ,tf he , -,d silngI.li the edge of the road where Browni and H o, ard w*ere stand- Ing in ront of the fire bharrel. Russelburg then testified that immediatel following his momentarN sighting of Howard and Brown, missiles hit the rear window. completely shat- tering it. and he immediatel ell to the floor and asked guard Kell, how to use the (B radio. Russelburg testified he could not remember i1' either Brown or [Io, alrd wore hats or hoods hut recalls that he saw their tfaces not ItIhstaiding that their hbacks were to the firelight coming rorm the fire drum. Burch and lipniore testified the, ,ere present hile Hloward and Brown were at the fi drum iand did not see them launch ans missiles at anx truck. nor did the' see an3 other emplobee launch such missiles. Hlo ard testified that at the picket line that night he wore a black cap. a denim jacket, and blue coveralls. lie testified that he did not see Richard BroAn that night. Brovn testified he sa, HloAard arrive at around 9 p.m.i Brown did not testit concerning what he was earing that night. and the record i silent on the point. In anN event. when Russelburg Icll to the floor of the truck and poke on the (B radio. he called guard \lorrison. told him that the\ were hit and to call Planlt Manager Jim Neelh aind tell him that the securit, truck had been hit again. It took ahout 2 or 3 minutes ftr Keltl to drise back to the guardhouse. In the drive hack to the ualrdhouse. Russelburg did not tell KellN tile nIimle (of the assailanis or that he had indentified them or that thes had slingshot: and when he arri ed hack at the guardhouse, he did not tell Richard Molrrison a of this imtorrmation. Kelkl did not testifs at the hearing. Russelburg at tirst testitied that he did not speak to Plant Mlanager Neel, helore he identitied the perpetrators al an inter eIe v ith the State police at 9:30 p.m. He then testified that his testiilOns \, is incorrect a;nd that the first time lie told an one uho h;ald been responsible for breakilg the real ,,indos 1 tile truck as hen he told Plant Manlgel Neei on the w\a\ to see tle State police. G(ritton and seel, had first telephoned the State police al 8:20 p.m.. a aho. e noted. after guard Morrison retiurlned from his inspection round aid (iritton saA the cr.Lcked windshield. Nee anid Gritton remained together in Nee 's office in the administration building. Some minutes latel Morrison called them to tell of the second assault on tlht truck after Russelhurg had used the CB radio. Neek agaiti called the State police (A,:)lo had not responded to the firs telephone call) at 8:45 pn. 1 he police meanwhile had ar rived at the other (Hot Metal Giate) picket site at about 8:45 p.m. Neelv and Giritton drove to the police at the I lo! Metal Gate aid then folloled the police car arouiind to the Access Road picketing location. Neel and (ritton there- after separated wlhen lorrison ca;me up and told that someone as hreaking glass back at the Admllinistration Buildinl. Neel returned Io tile Administration Building. and Critton renlained iat the Access Road picket line. g\hell (ritton ettirned to the A\dnlinlistrtlOn Building t ahout 9:30 p.m., Necl,, was at the A\dillllistlrtion Building. ,\l- thougIh (Grittlon had a con ersati( n t that tlle ilth Neel. regardiing the daillage t the gla.s i the ecurts, tIuck. llhere is, no uggestion that Neel told hlim that Rulsselhurg. 297 ' I d,, wt red i thi, t,:,tnw;i\ See, -,,,u DECISIONS OF NATIONAL LABOR RELATIONS BOARD who had returned by 8:50 p.m., had mentioned to him that he had identified the persons who had smashed the rear window of the truck. Respondent's Plant Manager Neely did not testify at the hearing, nor was it asserted-as was the case with guard Kelly- that Neely was unlocatable or no longer in Respondent's control. Discussion and Conclusions The General Counsel and Respondent appear to agree that the failure to reinstate economic strikers who have re- quested reinstatement, as here, for picket line misconduct is governed by the rule in N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964); Rubin Bros. Footwear, Inc. et al., 99 NLRB 610, enforcement denied, 203 F.2d 486 (5th Cir. 1953). See: Ohio Power Company, 215 NLRB 165 (1974). In N.L.R.B. v. Burnup & Sims, supra at 22--23 the Su- preme Court (Justice Harlan, dissenting) stated: We find it unnecessary to reach the questions raised under §8(a)(3) for we are of the view that in the con- text of this record §8(a)(1) was plainly violated, what- ever the employer's motive. Section 7 grants employ- ees, inter alia, "the right to self-organization, to form, join, or assist labor organizations." Defeat of those rights by employer action does not necessarily depend on the existence of an anit-union bias. Over and again the Board has ruled that §8(a)(1) is violated if an em- ployee is discharged for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred. See, e.g., Mid-Continent Petroleum Corp., 54 NLRB 912, 932-934; Standard Oil Co., 91 NLRB 783, 790- 791; Rubin Bros. Footwear, Inc., 99 NLRB 610-611. In sum §8(a)(1) is violated if it is shown that the dis- charged employee was at the time engaged in a pro- tected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. That rule seems t us to be in conformity with the policy behind §8(a)(i). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees. Union activity often engenders strong emotions and gives rise to active rumors. A protected activity ac- quires a precarious status if innocent employees can be discharged while engaging in it, even though the em- ployer acts in good faith.... In the instant case, notwithstanding the allegations of the complaint, there was no proof adduced to support any dis- criminatory or pretextual Respondent motive in the refusals to reinstate the strikers; nor was this case presented on any such theory. The sole issue was whether Respondent's re- fusal to reinstate Brown and Howard violated Section 8(a)(1) of the Act, proof of which requires no showing of discriminatory motivation.9 In short, General Counsel, to prevail here, must first es- 9 It is unnecessary as in Burnup & Sims, supra, to reach or decide whether Respondent's conduct also violated Sec. 8(a(3) of the Act. tablish a prima facie case of violation of Section 8(a)(1) consisting of (a) the employees, to Respondent's knowledge, were engaged in the protected concerted activity of a lawful economic strike; (b) an unconditional offer by (or on behalf of) the employees was made to return to work at the con- clusion of the strike, N.L.R.B. v. W. C. McQuaide, Inc., supra; and (c) Respondent's refusal to reinstate the erst- while striking employees. N.L. R.B. v. Burnup & Sims, supra at 22-23. Here, Respondent does not contest the above three factors: that Brown and Howard were known to it as ecomonic strikers; that in the morning of March 11, Super- visor Gritton agreed to permit all strikers to return to work commencing with the early morning (midnight) shift Mon- day, March 13, 1978, except as here pertinent, Howard and Brown, who were excluded from employment by Respon- dent (Gritton); and that Brown and Howard were then and thereafter denied reinstatement by Respondent (Resp. Br. p. 4). I conclude, on the above uncontested findings, that Gen- eral Counsel proved a prima facie case of violation of Sec- tion 8(a)(1) of the Act. The parties further appear to agree that, in this type of case, pursuant to the Rubin Bro's. Footwear, Inc., supra. qualification on the burden of proof, N.L.R.B. v. Burnup & Sims, supra at 23, fn. 2, the burden of going forward with the evidence then shifts to Respondent to establish that it held an "honest belief' that the striking employees who were denied reinstatement engaged in misconduct of such a serious character as to justify Respondent in denying them their jobs. Rubin Bros. Footwear, Inc., supra at 61 1; Huss & Schlieper Company, 194 NLRB 572, 577 (1971). Once hav- ing established such an "honest belief" that the employees engaged in the strike misconduct, and were refused rein- statement therefor, Respondent is absolved from liability except where General Counsel successfully then shoulders the further burden of affirmatively proving that the dis- charged employees did not, in fact, engage in the conduct for which they were denied further employment. Rubin Bros. Footwear, Inc., supra at 611. The sole support in this record for Respondent's conclu- sion that Brown and Howard launched the steel ball bear- ings which struck the guard truck is the testimony of Rus- selburg. General Counsel (and the Charging Party) and Respondent, respectively, disagree on Russelburg's honesty and his ability to have made the identification and on the honesty and credibility of Brown's and Howard's explana- tions and alibis and of their corroborating witnesses. A. Respondent Did Not Have an "Honest Belief' that Howard and Brown Engaged in the Asserted Misconduct I do not credit substantial, and sometimes dispositive, elements in the testimony of Respondent's witnesses Russel- burg, Richard Morrison, and Marsha Morrison. As seen below, some of the testimony (Richard Morrison) is dis- credited whether or not contradicted by General Counsel's (or Respondent's) witnesses. Other testimony (Marsha Mor- rison) is discredited because it is inconsistent with the cred- ited testimony of other of Respondent's witnesses (Richard Morrison, E. H. Gritton, and James Russelburg) and, if credited, would necessarily have undermined Respondent's defense. Lastly, I have discredited Russelburg on the 298 NATIONAIl STEEI. CORPORA rlIO)N grounds of his interest. his inconsistent testimony nll critical facts, and the seeral circumstances which convince me that his identification of Hioward and Brown as the perpetrators of the picket line violence was not onl' mistaken but so recklessly groundless as to he false. 1. Richard Mlorrison Morrison testified that, in addition to hearing Russelburg state on the CB radio. "we a being hit" and "we are coming back," he also not only heard glass breaking. but heard that the vehicle was "being struck by something." I am supremely skeptical of Morrison's testimony that. especially in such a short, unexpected conversation. under such circumstances, he could identify glass breaking. much less that the vehicle was being struck by missiles. In an event, it should be noted that Russelburg testified that the ball bearings had first struck the flatbed in the rear of the truckis prior to other missiles subsequently striking the rear window, that he then fell to the floor. asked the driver (Kel- ly) how to use the CB radio. and then radioed Richard Morrison of the event, asking Morrison to then contact Plant Managerr Jim Neely. In short, there is no suggestion in any of Russelburg's testimonyv or in ans other evidence. that at the time Russelburg's radioed to Morrison, missiles were still striking the vehicle. I regard this part of Morri- son's testimony as invention. 2 On the other hand, he credibly testified that he saw Rus- selburg and Kelly leave the guardhouse in the guard truck at 8:30 p.m." (I conclude it was about 8:15 to 8:20 p.m.) and proceed direcdtl from the guardhouse to the point where it was eventually struck by the missiles the intersec- tion of River Road and the Access Road. This \was the same route that Morrison had himself earlier taken. Since Morri- son's further testimony is credited, that it takes onl 3 min- utes to get to the intersection from the guardhouse. Russel- burg and Kelly would have been there well before 8:40 p.m., the time Russelburg testified he arrived there. More important. Morrison's testimonys of Russelburg'S direct route to the intersection particularly contradicts Russel- burg's own testimony about his route. Not onl. did Morri- son: therefore, testify that Russelburg started at about 8:30 p.m.. whereas Russelburg said he started out at 2 or 3 min- t0 Russelburg admitted that no steel balls were found in the rear of the truck If nto missiles struck the truck before the rear uindow was shattered. there would have been no justification for Russelburg to glance out of the rear window. Once the missiles struck the rear window. it was 9so hattered that no identification could have reasonably been mande through it In spile of the act that Respondent found ball bearings in the cab and none In the bed of the truck. I credit. with reluctance. Russelburg's sersion " Guard Kelly did not testifv. as noted aboIe. His testimony could hase been dispositive. Counsel for Respondent's assertion that Respondent could not locate Kelly is sufficienl. for me. to nol draw an adverse nterence from Kelly's absence as a witness. 3' Indeed. Morrison testified not only that he heard glass breaking but also that he heard that the glass was ".. crashing n on the people in he truck. Such testimony is rejected as imaginatlln 13 Because of an apparent wildcat strike it guard serice enrploees. Mor- rison was late starting his inspection runds and credibls testlfied that he did not even return to the guardshack from his earlier inspection n the guard truck until 8:15 p.m. This conflicts with Russelburg's estimate .il " hen he left but appears to be supported by Grittn's testimony that. ha'sing seen he damage to the truck. he called the police at 8:20 pm I conclude that Mor- rison returned. as Morrison testified. at about 8 15 p m and halit Russelburg then departed with Kelly in the truck 2 or 3 minutes therealfter utiles al r 8:00 p.m. but Russelburg also testified he did notl go direetl to the intersection, hut took a it ircuitous irnpec- tion trip arriving at the intersection of Riv er Road and the Access Road at about 8:4) p.m.. In short, to credit Morrison , uld be to undiermine Rus- selhurg. For. it Morrison saw Russelburg go directly to the intersection. and it', as Marsha Morrison testitied. the truck. xwhen she arrived. was parked at the mouth of the Access Road. Russelhurg would have had the pickets at. and arriv- ing at. the ire barrel under his direct observation for some- time. It is unnecessary to resol e the dispute between Rich- ard Morrison and Russelburg. both Respondent AXlitnescs. for I conclude. crediting Marsha 1 Morrison. that the truck was parked on Access Road at 8:40 and that. therefore. Russelburg had the pickets at the fire barrel under his oh- servation for some minutes betfore 8:40 p.m. Needless to add. however. the internal contradictiotn anmong Respon- dent's own witnesses on this crucial point is not helpful In supportitng the credibility of Russelburg or the detltse. 2. Marsha Morrison MNarsha Morrison. witle of guard Richard lMorrison, testi- fied that she brought lunch t her hushband at ariltnd 6:t1) p.m. in ai red Caprice ('he rolet. turned int the .\ccss Roa d trom1 Hliglisha 334. and ohsersed the guard truck parked near the intersectioi. Ihe guard truck. I -turnitng around behind her. followed her up Access Road t a dis- tance of 10 to 15 feet. As she was proceeding u Access Road. her car windows being rolled dlown. she testified site heard glass breaking in the truck behind her. W\hen. a minute or so later. ha, ing delivered the ullch to her hushband. he again turned dos n Access Road tow ard the intersection. she sas the tlame fromr the tire harrel about IS inches above the rim and could identitl tieC ol the pickets when confronting ti e pickets blocking her was at the junction of Access Road and Route 334. She siste d she returned home no later than 7:3() p.m. I credit Mrs. \lorrtsitn's testiorn, that the tluiae. ait the time of her return to the intersection. ai "nnnute aillte she delivered her hushandl's lunch. was 15 inches high nd that she cotld idenltifs the hlocking pickets controlting her at the mouth of Access Road. who were apprarcltl no more than 10 feet in ront of her at the time. I also credit her insistan testimony that she Aas dri ing a red Chevrolet Caprice rather than her white ;arn aind that she heard lass breaking in the truck behind her. I di) not credit her testi- mons. which contradicts (iritton's, Russelburg's. ;i l her husband's that the incidentt inol ing the glass breakiig in the truck occurred betore 73() p.m. lecr testimony. Itliugh insistanit on the point, and in error, does not bear on otherl testimony herein which clearls establishes that the incident occurred at or about 8:4( p.m. Hiavine credited testimon b Mrs. Morrisonl and Russel- burg. and although the resolution of the issue is not directly necessary to resoltluti n of the issues nIi this case. I relect (jeneral (Counsel's assertion that the e idence lails to l oxs that tile trutck's rearll- lltlos \las itot brokel n b'1 the pickets notwithstandiing that the eviience i uholl circumlstanttl. Circunmstantial eidence i sufficient. ()n the other haind, conclude that Russelburg's errouneous idelntiticationl ot the color (red erSxs hite) aid cInttigluraritOn (\an tt ,ersus car) 299 I)1('ISI()NS () NAIIO()NAI. ABOR RLATIONS BOARD of thie vehicle driven hb Mrs. Morrison is itself a matter of' almost dispositive signiticance' 4 hoth as to Russelhurg's credihility (as an observer) and his veracity (willingness to tfabricate). For if' he ,as unable to identif' and recall accu- rately an eent of this critical naltlre, when the Morrison vehicle was within 10 15 feet of' him ftr a length> period while he irst saw it approach and then trailed it. how call one reasonahbly credit his identification of idividuals at a distance of at least 50() teet where the individuals' fbrimis were cast in shadow and were admittedly visible onls for a fleetin second. Furthermore having heen unable to iden- tift' the Morrison vehicle in his headlights. Russelburg's misidenlification of the vehicle is so patentl' wrong that, as will he seen herealfter together with other circumstIances, it raises and helps answer the questions whether Russelburg was not only in error in his identification. hut also wahether he was dishonest in his testilnony, and, through him. whether Respondent. had aln "honest belief" concerning the identity of the perpetrators. In an event. I do not credit Russelburg's identification of the ehicle. aid I colnclude that his lack of credibilit? in identiflin g distant objects. such as Howsarid and Brown. in the availlble light in a brief glance, was established hy virtue of' the aboe testlinon. 3. Testimons of' Richard Russelhburg Russelbur testified. in substatnce, that all a distance of about 54 eet. while his vehicle was traveling al abo(ut 1 to 15 miles an hour and while he was looking out the rear window of' the guard truck, after the truck was hit bh a series of missiles in the rear bed. he sa, Browi and ow a I,,rd standing with arms up raised their hainds holding "\risl Rocket" slingshots. (a) Russelburg testitied that the night was "pitch hlack" and he could identitf Brown and Howaird standing between him and the fire barrel. e thereafter identilied another light source hb which he identified the faces of the perpetra- tors the firelight reflected on the snow. Ill tis real-J. as above noted. hIe retreated from the position that the moon- light was reflecting on the snow and olerin a source of illumination. lie also testified that the truck was then pro- ceeding at the rate of about 10 to 15 miles an hour for about minute (commencineg with the l;-turn. ftllo ing Mrs. Morrison's ehicle) befre being struck with the first missiles. When the General ('ounsel caultiolned himi that even at that relativels slow rale of speed. his truck ,would he further than 54 feet from the pickets. he changed his testi- monv so that the time in which lie was traveling s ts less than a minule. Again, he testified that al'ter arri\vin back lit the guIard shack and then drivinig with Plani M ianagler Jarnmes Neel, to see the State police at about 9:30. he had no conversation with Neelk before speaking to tle State police (where and ,lien he. tor the first time. identiied Browin anid Howard as the perpetrators). Russelburg then changed his testimoin_ slating that he told Neel o their identit, on the way to see the State police. Such selfcontradictions necessairilN detract from Russel- r Mrs lOrrlIsi nS contradiction 1 Russelhul-g as firs CIIrIted h, .rl1CI tir R splidnl lt In diretl ex iinatiln. ( insel's \idenll dcLti-l1 ll llt i1 c\- plirc the pinl lie not gi uLinntiiced hs Itic ( iirging Part o, n liirs-c.ili1i- natlon Rcspondent hereaiter failed to inquire ille or tihcruie claril\ the rnater. Its bricl i 1millh silent in the pollt hurg's overall credibility. In an) event I conclude, on the bhasis of this contradiction and Respondent's falilure to call (or explain the failure to all) Plant Manager Neely to cor- roborate RKusselburg's testimony that he identified the per- petrators to Neely. that Russelburg made no such identifi- cation. (b) Both Kelly and Richard Morrison. on the uncontra- dicted testimony of' Richard Morrison. made written re- ports of the incident of February 22 to Respondent. Neither report was produced or ofTered in evidence. Such reports together with each guard's written log, would at least show the time the securits vehicle was at a particular place. If the guard vehicle was not at the place indicated b\ testimonn of' the witnesses as shown in the reports. the alihies of at least Hlenrs Howard might be supported. Since Russelburg testi- fied that he saw Howard and Brown together when the,, launched the steel ball bearings at the truck. Howard's ah- sence from this event would substantially eliminate Brown's presence as well. Further, such reports might support Rich- ard Morrison's testimon and demonstrate that the securit truck was parked on Access Road. opposite the pickets. for a half-hour. permitting extensive direct observation of' the arrivals. Respondent's failure to produce the reports and the logs prevents comparing the written documents with the testimon of all witnesses at the hearing and detracts from the credibilit of Russelburg's testimon anid Respondent's defense. That Gieneral Counsel ailed to subpena the logs iand reports is not crucial: Respondent was under an affir- ma'ive oligatioln to support its defense b the best avail- lh!e e videlnce within its control. It'lrriolll iwl. l l,/itcd J IlltrioItlit'. ' t'l pil( t dillrid Imoi 'co vclil ft oA cr I/ t rt i(a¢. ;i;iihd t I 10 (/)i/t, Ill ;oA ct ((;itrjud 1tR' (Io /)msi) v. I.. RB. 459 F.2d 1329 (D.C. ('ir. 1972). There was no suggesMiolll a the hearing or thelreaftler that Respondent did not hale control o\er these reports. Respondent's failure to produce ile reports especiall K ell's s upports the infer- ence. uvhich I drawk. that something ! in those reports or logs would detract f'rom Respondent's defense or support (ien- erll CouillsCl's cIse. (c) ('rediling Irvirei.,, Rulssclburg's latter testinilon that. in fact. lie did tell lalint Manager Neel,, of the identi- fica;ltion of' the ,.'rong-,doers befiore telling the State police. Respondent. I further con1ellde. ',, as obliged to produce Neel to corroborate Russelburg's esthrinion. \While I ac- cept co)lunsel fr Respondllent's ssertion that Respondent \was unable to locate guald Kell. and. lqu,, l drla\ no ad- serse inferelnce lrorn the failure to produce hil. tle samle does not applI) in the case of' Plant Manager Janies Neel. Respondenlt's filure to produce Neelk to corroborate Rus- selburg's identificatio of' Howard aid Brown a fes miln- uties after the incident not only underlines the contradiction in Russelburg's tesinlonv. ilp)rrl but seemis to mie to sup- port the firlt ersion of' Russelhti rg's subsequlentl! contra- dicled testiimon that he had no conversation with Nel\ on the was I) the police anid thus did not identit\ them to Neel\. Ilie Ifailure to tell Neel of such all identification leads mie to the conclusion that Russelburg did not kno of their identit,. In short I credit Russelburg's first versiol- that he did nl tell Neel of the identification of' the two perpetrators because een at that time. he did not knlow thell. Ihis collclusion is corlsistent with and is supported hb the filtt that lie told neiither Richard Morrisoni nor 300 NATIONAL STEEL CORPORATION Frank Kelly of such an identification nor that he could identify the perpetrators from the time of the incident at 8:40 p.m., notwithstanding his later opportunities to do so. Had Neely been produced, I conclude that this testimony would be unfavorable to Respondent, the party which would be expected to benefit from his testimony. District 65, Distributive Workers of America (The Hartz Mountain Corporation) v. N.L.R.B., 593 F.2d 1155 (D.C. Cir. 1978) f.n. 21, enfg. 228 NLRB 492 (1977): Interstate Circuit v. U.S., 306 U.S. 208, 225-226 (1939). (d) Since it is clear to me that contrary to an)' other testimony, the sole source of light by which Russelburg identified Howard and Brown came from the fire barrel (stipulated at 82 feet from the rear window of the truck) and since the relative positions of the fire, the pickets, and the perpetrators bears directly on the identification and Russelburg's credibility, it is significant that Russelburg first seemed to testify that the fire barrel was in front of the two persons who launched the missiles, i.e., the perpetrators were further from him and behind the fire barrel. Passing this, Russelburg then made clear that the perpetrators were between him and the fire barrel. Thus with the shadows on the perpetrators' faces, Russelburg testified he not only saw their faces but also saw they both had something in their hands. He first testified on direct examination with regard to what was in their hands that he ". . . didn't know what it was." Although he also said on direct examination that the missiles came from sling shots, he thereafter identified the particular type of slingshots in the hands of the perpetra- tors, slingshots known as "Wrist Rockets" slingshots. I do not doubt that identification of familiar forms (in- cluding the tall and well-built Howard) and faces can be instantaneous (Howard and Brown were well known to Russelburg)-at least under ideal conditions for observa- tion. The ability to identify varies with the ability of the observer and with the surrounding physical circumstances. To say that Russelburg, who could not tell a van from a car or red from white, could not only identify their faces but also could see relatively small objects in their hands and identify the particular type of objects, it seems to me, is another matter. Here, there was admitted total darkness (except for the fire at the backs of the perpetrators), and the figures were at least 50 feet away and were observed only for an instant out the rear window after missiles had hit and before the rear window was smashed. I do not credit Rus- selburg's identification. (e) Finally, as noted above, I was impressed by the cir- cumstance that Russelburg, having radioed to Richard Morrison that the truck was being hit, failed to tell either Kelly (his companion) or Morrison, either on the radio or thereafter when he saw him at the guardhouse, whom he had seen launch the missiles. While he was under no legal obligation to tell either of them, it seems to me that he would have said something to one of them in the excitement of the action even if he did not mention the names of the perpetrators. In short, I conclude Russelburg did not, in some way, mention that he had recognized the perpetrators when he was in the truck with Kelly or thereafter on the radio with, or speaking directly to, Morrison or thereafter when he was riding with Neely to the State police simply because he did not know who they were. In view of the (I) physical circumstances resulting in the difficulty of identification, (2) Russelburg's testimonial dis- crepancies, (3) Respondent's overall failure to support Rus- selburg's testimony by the production of guards' reports, (4) Respondent's failure to corroborate Russelburg's testimony with the production of Neely. and in view of the adverse inferences I have drawn from Respondent's failure to pro- duce written documents and witnesses in support of its case, I do not credit Russelburg's identification of Howard and Brown as the perpetrators. Rather. I find that the evidence. considered as a whole, shows that Kelly and Russelburg, while parked on Access Road at and before 8:40 p.m.. had the pickets, including Brown and Howard, under observa- tion and that in making the U-turn in the middle of the Access Road and Route 334. Kelly drove the truck within 20 to 30 feet of the pickets surrounding the fire barrel. It was at those times, rather than thereafter from the rear window of the security truck, I conclude, that Russelburg. by reflected firelight or in the truck's headlights or other- wise, saw and recognized Brown and Howard, standing among the 20 pickets. Assuming. arguendo, that he later saw figures launch missiles at the truck. I conclude that Russelburg could not identify the perpetrators. Why Russelburg chose Brown and Howard as the cul- prits is not at all clear. General Counsel at first attempted to prove that they were chosen because they had filed too many grievances under the collective bargaining agreement against Respondent. It appeared, however, that other unit employees on the picket line had filed at least as many as Henry Howard. In his brief, General Counsel alternatively argues (G.C. Br., p. I I ) that Russelburg, in a state of fatigue induced by working long hours (12 hours per day) because of the strike, retaliated against Howard because he was a discipline problem. General Counsel, however. at the same time, admits that Brown, a high school aquaintance of Rus- selburg, was no such discipline problem. General Counsel then argues only that Russelburg. in his status as the newly appointed supervisor and in his state of fatigue induced by the strike and the strikers, regarded Brown, his one-time friend, and Howard. who worked directly under Russel- burg's supervision in the Cast House, as the "enemy" and. needing a scapegoat for retaliation because of the assault, named the persons whom he recognized on the picket line. While I agree with the General Counsel's ultimate con- clusion that Russelburg could not, and did not, identify them after his vehicle was struck, I do so only on the ground that he saw Howard and Brown on the picket line, was confident of their identification, resented the subse- quent attack on the vehicle and blamed Howard and Brown when reporting the incident to the police. It is un- necessary to speculate, as does General Counsel. whether the vehicle's U-turn into the intersection near the pickets was intentionally provocative." 'I thus agree that Russelburg's identification of Brown and Howard as the culprits was an invention (GC. Br.. p. 10) To the extent however that General Counsel asserts (Br. p 10) that the burden of proof was on Respon- dent to prove the identity of the perpetrators, he is in error. The burden on Respondent is solely that of establishing an "honest belief" The negative burden, the burden to prove that Howard and Brown did not assault the truck, is on General Counsel. I conclude as below noted, that this final burden was not on the General Counsel, under the circumstances of this case, due to Respondeni's failure to prose an honest belief on its own part. 301 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the above conclusions, particularly the peculiar credibility defects in Russelburg's testimony, I am constrained to conclude further that his identification of Brown and Howard was not merely honestly erroneous. I thus further conclude that, through Russelburg, its sole identifying source, Respondent failed to establish any be- lief, much less an "honest belief," that Brown and Howard were responsible for the obviously serious misconduct which occurred." Under such circumstances, it appears from Rubin Bros. Footwear, Inc., supra at 611, that General Counsel is not obliged to go forward with evidence to prove the innocence of the alleged perpetrators. Thus, a prima facie violation having been proved, the violation of Section 8(a)(1) is per- fected where, as here, Respondent then fails to prove an "honest belief." In that case, since unauthorized acts of vio- lence on the part of individual strikers are not chargeable to particular union members (Howard and Brown) in the ab- sence of proof that identifies them as participating in such violence, Cf. Coronet Casuals, Inc., supra; Sea-land Services Inc; and Sea-Land of Peurto Rico, a Division of Sea-Land Service, Inc., 146 NLRB 931, 949 (1964), enfg. 356 F.2d 955, 966 (Ist Cir. 1966), cert. denied 385 U.S. 900 (1966), General Counsel has supported the ultimate burden of proof which is his, N.L.R.B. v. Burnup & Sims Inc., supra, Rubin Bros. Footwear, Inc., supra, without more. B. General Counsel Affirmatively Proved that Neither Howard nor Brown Engaged in the Asserted Misconduct In any event, however, Brown and Howard testified that they did not launch the steel ball bearings or engage in any other misconduct. Respondent rightly notes that, according to General Counsel's witnesses, no picket saw or heard any- thing on that evening. Even picket William Burch saw no act of violence, even though he apologized to Supervisor Gritton for the truck windows being broken. Contrary to any suggestion by General Counsel that the pickets were not responsible for the damage and even discrediting Rus- selburg's testimony insofar that it states that he saw some- one from the picket line launching the missiles, I conclude, arguendo, that the pickets were responsible for assaulting the truck in which Russelburg was riding on February 22. Such a conclusion, absent the showing of participation in a common scheme, not present here, does not, however, make Brown and Howard responsible. M.P. Industries, Inc., and it Subsidiaries, Micro Alloy of Missouri, Inc. and Midwest Precision Castings Company, 227 NLRB 1709, 1710 (1977); Coronet Casuals, Inc., supra at 305. Nevertheless, Howard testified he first arrived at the picket line only 5 minutes before the Kentucky State troop- ers arrived at the picket line at about 8:50 p.m.17 and, thus, after the acts of violence occurred at 8:40 p.m. Were I to credit Howard and his alibi witness, Jim Tipmore, Howard would be naturally absolved from participation in the as- '6 Were the misconduct minor or trivial, such misconduct would be insuf- ficient to render the stnkers unfit for further employment. Cf Coronet Casu- als, Inc., 207 NLRB 304 (1973). 17 Supervisor Gritton testified that the State police were at the Hot Metal Gate at 8:45 p.m. He drove there, met the police, and drove to the Access Road intersection-3 to 4 minutes having elapsed. sault. This would also necessarily absolve Richard Brown because Brown, according to Russelburg, was in Howard's presence at the time of the assault. As above noted, how- ever, I have not credited Howard or Tipmore and have found that Howard, indeed, was present at the fire barrel at about 8:40 p.m. on February 22. Brown admitted he was there. In this connection, Howard, convicted by a jury of armed assault with intent to rob, was sentenced to 10 years in custody on February 5, 1971 (Resp.'s Exh. 3). Respon- dent would discredit his testimony on that basis. See: Rule 609 (a), (b), Federal Rules of Evidence. On the basis of the above discussion relating to Howard's presence at the fire barrel at or about the time of the de- struction of the rear window of the truck, I do not credit either Howard or his corroborating witness, Tipmore, inso- far as their testimony suggests that they were not present at the fire barrel at that time. Rather, I credit Tipmore, pres- ently employed by Respondent for over 7 years and super- vised by Russelburg, only insofar as he testified herein that he was present at the picket line at almost all times that Howard was present and did not see him engage in miscon- duct. Tipmore particularly testified that he did not always have Howard in direct observation. Tipmore could easily have testified that he observed Howard at all times, but he did not do so. Thus, I credit Tipmore and through Tipmore, Howard, insofar as Tipmore and Howard testified that Howard did not engage in acts of violence at the picket line. Similarly, I credit employee Potts' and employee Burch's testimony that they were at the picket line with Brown and that Brown did not engage in picket line misconduct. As above noted, from all the testimony in the case and the circumstances herein, I conclude that Howard and Brown were at the intersection when, prior to 8:40 p.m., guard Kelly and Russelburg observed them at the fire bar- rel and, at about 8:40 p.m., when they U-turned into the intersection and saw Howard and Brown both in the light of the fire barrel as well as from the headlights on the guard truck. While I am skeptical of the solidarity of the General Counsel's witnesses in failing to note any picket line vio- lence, especially in view of Burch's apology to Supervisor Gritton for the truck damage, I am less inclined to disbe- lieve the denial by Brown and Howard and their corrobo- rating witnesses than I was Russelburg's testimony. I must measure them up individually as well as collectively. I con- clude that neither Burch nor Potts nor Tipmore (either pre- sent employees testifying against their employer or, in the case of Burch, a former employee) was unbelievable, and their testimony should be credited to the extent above. Georgia Rug Mill, 131 NLRB 1304, 1305, footnote 1 (1961). Thus, their testimony that they were in the presence of Brown and Howard and did not see them engage in acts of violence leads me to conclude affirmatively that the evi- dence, while less than conclusive, preponderates in support of an affirmative finding that neither Howard nor Brown committed the alleged acts of violence. As above noted, while it seems that some one or more of the pickets did attack the security truck, the Russelburg testimony and the General Counsel's witnesses' testimony not only do not permit the finger of guilt to point at How- ard and Brown, but also affirmatively demonstrate that they were not responsible. 302 NATIONAL STEEL CORPORATION By failing to reinstate Howard and Brown, each having previously offered to (or there having been an offer on their behalf) unconditionally to return to work, after the conclu- sion of an economic strike. Respondent violated Section 8(a)(1) of the Act. .L R.B v. Burnutp & Sims. Inc.. .vupr. CON(lLI SItNS Of LAW I. Respondent, National Aluminum Division of Na- tional Steel Corporation, is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Aluminum Workers International Union, Local Union No. 132. AFL CIO. herein called the Union. is a labor organization within the meaning of Section 2(5) of the Act. 3. Howard and Brown having unconditionally offered to return to work were refused reinstatement by Respondent on or about March 13. 1978, because they engaged in a lawful economic strike: and by such action the Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices burdening and affecting commerce within the meaning of Section 2(6) and (7) of the Act. TilE RMFI)Y To effectuate the policies of the Act, I find it necessary that Respondent be ordered to cease and desist from the unfair labor practices found and to take certain affirmative action, including offering reinstatement to these employees to their former jobs or, if those no longer exist, to substan- tially equivalent positions, displacing if necessary any em- ployees assigned to these positions. without prejudice to their seniority or other rights and privileges, and to make them whole for any' losses they may have suffered as a re- sult of the unlawful interference with their rights and the refusal to reinstate them on a timely basis. i.e., on March 13, 1978. All such losses are to be reimbursed in the manner set forth in F. W. Woolworth Compantv, 90 NLRB 289 (1950), with interest thereon to be computed as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).'8 I shall further order that Respondent post an appropriate notice. Upon the foregoing findings of fact, conclusions of law. and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 9 The Respondent, National Aluminum Division of Na- tional Steel Corporation, Hawesville, Kentucky. its officers. agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to reinstate any employee, who has unconditionally offered to return to his job, for having engaged in a lawful strike or other concerted activity pro- "See, generally, Isis Plumbing Heating Co. 138 NLRB 716 (1962). " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations. be adopted by the Board and become ts findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. tected under the provisions of Section 7 of the National Labor Relations Act. as amended. (b) In any other manner interfering with. restraining. ol coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessar\ to e- fectuate the purposes and policies of the Act: (a) Offer to Henry Howard and Richard Brown immiledi- ate and full reinstatement to their former obs or. If their jobs no longer exist. to substantially equisalent positions, without prejudice to their seniorit, or other rights and privileges, and make them whole lor an! loss of CaltEnlllg commencing March 13. 1978. in the manier set forth in the section of this Decision entitled 'I'he RemedL." (hI Preserse and. upon request. make a ailabhle to he Board or its agents. for examinaltion and cop, ing. all pat!- roll records. social securits pa nmelnt records. timnecards. personnel records and reports. and all other records neces- sary to analyze the amount of backpa;l due under the terms of this Order. (c) Post at its Hawessille. Kentuclk. plant copies of the attached notice marked "Appendix." 2 ( Copies of the notice on forms provided b the Regional DI)rector of Region 9. after being duly signed bh an authorized representati.e of Respondent, shall be posted bh the Respondent immedi- ately upon receipt thereof' and be maintained tfor 0 con- secutive days thereafter, in conspicuous places. including all places where notices to employees are customarils posted. Reasonable steps shall be taken by the Respondent to en- sure that the notices are not altered. detaced,. or covered b\ any other material. (d) Notify the Regional Director of Region 9 of' the Na- tional Labor Relations Board. in uwriting. ithin 20 days from the date of this Order. what steps the Respondent has taken to comply herewith. 12 In the event that this Order is enforced h a .ludgment i the I nited States court of Appeals, the :lrds in the notice reading "Posted hb order ot the National Labor Relatiins Board" shall read Posted Pursulant to a Judg- ment of the United States Court otf Appeals Entorcing an order ol the Na- tional .ahbor Relations Board " APPENDIX Nori( i 10 EI {l oYI l : s POSIFI) BY ORI)IR ()i 111I NA11()NAI. LABOR RI Alli()NS BOARD ,An Agency of the United States Government W'l I.'11. NOt fail or refuse to reinstate an em- ployee because he engages in the protected concerted activity of engaging in a strike upon his unconditional offer to return to work. WE IIi NOT in any other manner interfere with. restrain. or coerce our employees in the exercise of the right to self organization: to bargain collectivel 3 through representatives of their own choosing: to en- gage in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection: or to refrain from any and all such activities. WF. wtIl.. offer to Henrs How ard and Richard Brown immediate and full reinstatement to their for- 303 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mer jobs or, if their jobs no longer exist, to substan- tially equivalent positions without prejudice to their seniority or other rights and privileges, discharging if necessary any replacements and WE WILL make them whole for any earnings lost as a result of our unlawful conduct against them, plus interest, according to the law. NATIONAL ALUMINUM. DIVISION OF NATIONAL STEEL CORPORATION 304