Marshall Engineered Products, Co., LLC

MARSHALL ENGINEERED PRODUCTS CO., LLC 351 NLRB No. 47 767 Marshall Engineered Products Company, LLC and International Union, United Automobile, Aero- space & Agricultural Implement Workers of America–UAW, Local 893, Unit 7. Case 18–CA– 16303 September 29, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND LIEBMAN On March 21, 2003, Administrative Law Judge Ben- jamin Schlesinger issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified. The issues here are whether the judge correctly found that the Respondent violated Section 8(a)(1) of the Act by discharging employees David Spillman, Tim Kelley, and Allan Cripps for alleged misconduct while engaged in protected activity. For the reasons set out below, we adopt the judge’s finding that the Respondent unlawfully discharged Spillman, but we reverse his finding that its discharges of Kelley and Cripps were unlawful. I. SPILLMAN’S DISCHARGE The parties were signatories to a collective-bargaining agreement that expired on September 28, 2001.1 They were unable to reach a new agreement by that date, and the Union began an economic strike on September 29. On October 31, a vehicle owned by replacement worker Carlos Felix was hit by a rock or other object as he drove out of the main gate of the Respondent’s facility. After an investigation, Kenneth Creech, the Respondent’s hu- man resources manager, discharged economic striker David Spillman for throwing the object at Felix’s vehi- cle. Spillman, however, denied any wrongdoing. Subse- quently, after viewing a videotape that exonerated Spill- man, Creech acknowledged that Spillman had not en- gaged in the misconduct. In NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964), the Supreme Court set out the analysis for determining whether the discharge of an employee for misconduct while engaged in protected activity is unlawful: 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 1 All dates are in 2001, unless otherwise stated. the basis of the discharge was an alleged act of miscon- duct in the course of that activity, and that the em- ployee was not, in fact, guilty of that misconduct. Thus, under Burnup & Sims, in determining whether Spill- man’s discharge violated Section 8(a)(1), it is the Respon- dent’s burden to show that it had an honest belief that Spillman had engaged in strike misconduct that was serious in nature. See also Gem Urethane Corp., 284 NLRB 1349, 1352–1353 (1987). The burden then shifts to the General Counsel to prove that Spillman had not, in fact, engaged in that misconduct. Applying that analysis here, we find that when the Re- spondent discharged Spillman it had a good faith belief, based on Creech’s preliminary investigation, that Spill- man had engaged in the alleged misconduct. We also find, however, that the General Counsel met his burden of showing that Spillman did not engage in the alleged misconduct for which he was discharged and therefore find that the discharge violated Section 8(a)(1).2 The only evidence pertaining to Spillman’s culpability for the incident consists of: (1) Spillman’s denial, which the judge credited; and (2) Creech’s testimony that three individuals—Carlos Felix, Maria Felix, and Jose Ortiz– all identified Spillman as one of the individuals who threw an object at the truck. However, the Felixes and Ortiz did not testify. In any event, Creech ultimately acknowledged Spillman’s innocence.3 Thus, the General Counsel has proven that Spillman did not in fact engage in misconduct. Under Burnup & Sims, the General Coun- sel has established that Spillman’s discharge violated Section 8(a)(1).4 II. KELLEY AND CRIPPS’ DISCHARGES By letter of November 30, Creech discharged alleged discriminatees Kelley and Cripps, effective November 9, “[b]ased upon the fact that you vandalized the vehicle of an applicant for employment . . . while on the picket 2 The judge dismissed the allegation that the discharge violated Sec. 8(a)(3). There is no exception to this dismissal. 3 The Respondent argues that the judge abused his discretion by de- nying the Respondent’s motion to take depositions of the Felixes and Ortiz. We disagree. Sec. 102.30 of the Board’s Rules and Regulations states: “Witnesses shall be examined orally under oath, except that for good cause shown after the issuance of a complaint, testimony may be taken by deposition.” Here, the Respondent failed even to show that the witnesses were available for depositions at the time of the hearing. The witnesses lived in another part of the country at that time. The judge stated that the Respondent could move to reopen the record in the event that the Respondent located the witnesses at a later date. The Respondent has not, however, so moved. 4 We find it unnecessary to pass on the judge’s additional finding that the Respondent violated Sec. 8(a)(3) by maintaining the discipline against Spillman after the Respondent learned that he had not engaged in strike misconduct inasmuch as any such finding would be remedially cumulative. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768 line” on that date. The “vandalism” at issue included tearing off the vehicle’s driver-side mirror and rocking the vehicle from side to side. The Respondent’s letter establishes, as the judge found, that Kelley and Cripps were engaged in protected activity when the alleged misconduct occurred and that the Respondent knew that they were so engaged. The judge found that whether the discharges of Kelley and Cripps were unlawful “present[ed] a closer question” than the issue of whether Spillman’s discharge was unlawful. From this, we infer that the judge found that the Respondent established that it had a good-faith belief that Kelley and Cripps had engaged in the misconduct at issue when it discharged them. Therefore, under the Burnup & Sims analysis described above,5 the issue here is whether the General Counsel carried his burden of showing that Kelley and Cripps did not in fact engage in the misconduct at issue—vandalizing an applicant’s ve- hicle. Concluding that they did not vandalize the vehi- cle, the judge found that the Respondent violated Section 8(a)(1) by discharging Kelley and Cripps. We reverse. In finding that Kelley and Cripps did not engage in this misconduct, the judge credited the testimony of one wit- ness, Scott Warnell, and, in effect, discredited the testi- mony of witness Brandon Campbell and was not im- pressed by the testimony of witness Arnold Brown.6 For the following reasons, we find that the judge erred in crediting the testimony of Warnell over that of Campbell and Brown. In doing so, we emphasize that the judge did not resolve the issue of credibility based primarily on demeanor.7 Evaluating the record independently, we find that the judge erred by not considering Campbell’s testi- mony in full and by failing to appreciate that a significant 5 The Respondent argues that the judge erred by failing to apply a Wright Line analysis, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981, cert. denied 455 U.S. 989 (1982), to determine whether the Respondent unlawfully discharged Kelley and Cripps. We disagree. The record indicates that, as more fully explained below, when strikers Kelley and Cripps confronted Brandon Campbell and T.J. Kunz in the parking lot of Warnell Trucking Company, Kelley and Cripps believed that Campbell and Kunz were applicants for employment and that they began yelling at them for trying to take the strikers’ jobs. This evi- dences that Cripps and Kelley were engaged in protected concerted activity in the parking lot. Thus, the lawfulness of their discharges is governed by the Burnup & Sims analysis. See, e.g., Yuker Construction Co., 335 NLRB 1072, 1073 (2001). 6 The judge neither credited nor discredited the testimony of Kelley and Cripps. They testified that they did not touch the truck and did not see a mirror fall off the truck as it was leaving the parking lot of R. J. Warnell Trucking. 7 See, e.g., J. N. Ceazan Co., 246 NLRB 637, 638 fn. 6 (1979) (“[t]he Board has consistently held that ‘where credibility resolutions are not based primarily upon demeanor . . . the Board itself may pro- ceed to an independent evaluation of credibility.’”). portion of his testimony was independently corroborated by Brown. In finding that the judge erred in crediting Warnell’s testimony, we again emphasize that the judge’s credibil- ity resolution was not based primarily on demeanor. We also emphasize that a crucial portion of Warnell’s testi- mony regarding the loss of the side-mirror—testimony which the judge credited—is contradicted by the physical evidence. On November 9, Brandon Campbell and a friend, T.J. Kunz, drove a borrowed pickup truck to the Respon- dent’s plant to apply for a job. Campbell parked in the parking lot owned by R. J. Warnell Trucking, a lot that was used by Respondent’s striking employees to park their vehicles while picketing. The Warnell parking lot was across the street from the Respondent’s facility. According to Campbell, when he and Kunz got out of the truck, there were children standing nearby, one of whom told Campbell that he could not park there. Campbell responded: “I don’t want to fucking deal with you right now.” Campbell and Kunz then walked across the street to the Respondent’s facility. When they reached the Re- spondent’s facility, a security guard, Arnold Brown,8 cautioned Campbell and Kunz not to park where they had because the strikers used the lot to park. Campbell and Kunz immediately returned to the parking lot where Scott Warnell, the son of the owner of Warnell Trucking, approached them and told them that “he was going to kick their ass for talking to his kid in a vulgar way.” He also said that they were not supposed to be parking in the lot. According to Campbell, striker Tim Kelley then got close to Campbell’s face and stated that “he did not need to come there and take their jobs away.” As Campbell tried to open the truck’s driver-side door, Kelly kept pushing the door shut. Campbell finally got into the truck and locked the door. Campbell then unlocked the pas- senger-side door, and Kunz jumped into the truck. Campbell stated that he started the truck and slowly proceeded backwards when Kelley on the driver’s side and striker Allan Cripps on the passenger’s side started to rock the truck. Although not mentioned by the judge, Campbell testified that as he “peeled out,” he laughed at Kelley because he “thought it was dumb what they were doing” and it was then that Kelley ripped off the driver- side mirror. The judge found that Campbell had nothing to gain from his testimony but found that Campbell was too 8 Although the judge described Brown as a “technical photographer and site commander,” Brown was, in fact, a “tactical” photographer. Although Brown served as the site commander on other assignments, he was not the site commander at the Respondent’s facility. MARSHALL ENGINEERED PRODUCTS CO., LLC 769 frightened to assess the situation and remember it accu- rately. In reaching this conclusion, the judge noted that Campbell, in answer to a series of leading questions on cross-examination, admitted that the situation was very stressful, that his heart was pounding, and that his intent and focus were on getting out of the parking lot as quickly as possible, and that he therefore may not in fact have correctly seen what he had testified to. Although the judge stated that he was not “impressed” by Brown’s testimony, he did not expressly discredit it. As relevant here, Brown corroborated Campbell’s testi- mony that Kelley and Cripps had rocked the truck from side to side. The judge was “particularly impressed,” however, by the testimony of Scott Warnell, the son of the owner of Warnell Trucking. The judge found Warnell to be a neu- tral witness, because, while he testified that his father and a union leader, Bob Schubert, were lifelong friends and that his father had permitted the Union to use the parking lot and an unused building during the strike, he also testified that he himself was not personally sympa- thetic to the Union. Warnell testified that Kelley and Cripps did not touch the truck and that as the truck was rapidly leaving the parking lot, it hit a large piece of old concrete foundation sticking out of the ground. Accord- ing to Warnell, “[j]ust the corner, the right front steer tire and the right rear drive tire of the truck” went over the foundation and that when the truck hit the ground again, the passenger-side mirror fell off. Warnell further testi- fied that “when they drove over the cement all you could see was like the passenger side of the pickup” and that he watched the passenger-side mirror fall off and that he saw it hit the ground. While noting that it was the driver-side mirror and not the passenger-side mirror that “fell off,” the judge found that Warnell credibly and candidly placed in perspective what had actually occurred in the parking lot. Thus, ac- cording to the judge, Warnell’s account of the incident established that the truck’s hitting the concrete founda- tion “caused the truck to look as if someone was pushing it from side to side, but the truck was just rocking from hitting the foundation of the old building and rolling over chunks of concrete, gravel, and stones,” and it was this that caused the side-mirror to fall off. On this basis, the judge found that Kelley and Cripps did not, in fact, en- gage in the misconduct for which the Respondent dis- charged them. We find that the judge erred in discrediting Campbell’s testimony based on Campbell’s concession that because of the stress of the situation, he may not in fact have cor- rectly seen what he testified to. In making this finding, the judge failed to consider Campbell’s further testimony at the end of this line of questioning—“I believe what I saw is what I saw.” In our view, by this statement, Campbell reaffirmed the sum and substance of his testi- mony on the critical points at issue. Campbell’s further testimony on redirect—that it was Tim Kelley who pulled the side-mirror off the truck, that his “excitement” had no effect on his ability to recognize Kelley or to point him out to the police, and that as he sat in the court- room at the hearing in this case, Campbell had not changed his mind on this fact—only emphasizes this point. Further, we note that a critical element of Camp- bell’s testimony, that it was the driver-side mirror that came off, is supported by the police incident report, filed immediately after the incident, that listed as “destroyed” the “side mirror Driver’s side.” As to Campbell’s testi- mony that Kelley and Cripps rocked the truck as it was backing up in the Warnell parking lot, we find that the judge failed to give proper weight to the fact that Camp- bell’s testimony in this regard was corroborated by Brown. As to the judge’s finding that Warnell was “completely neutral” and therefore to be credited,9 we find that the judge erred by passing over in a parenthetical Warnell’s testimony that it was the passenger-side mirror that fell off the pickup truck when that testimony was contra- dicted by physical evidence that established that it was the driver-side mirror that was lost. The fact that War- nell’s detailed testimony about this event is contradicted on a critical point by objective evidence undermines his testimony on this important point and we therefore de- cline to credit his testimony describing how the side- mirror “fell off” the truck.10 9 There is good reason to dispute the judge’s (and our dissenting col- league’s) description of Warnell as a completely “neutral” witness: Warnell admitted that he had known Kelley’s brother “real well” and went to school with him. 10 Our dissenting colleague misstates our characterization of the judge’s reliance on Warnell’s demeanor. The judge’s findings were indeed partially demeanor-based. However, it was the substance of Warnell’s testimony recounting the facts about the nature of the mis- conduct, “plac[ing] in perspective what actually had occurred,” as the judge put it, that is belied by other record evidence. The Board has historically given less deference to the demeanor of a witness when it finds that the judge has ignored or given insufficient weight to critical evidence. See, e.g., Braclo Metals, Inc., 227 NLRB 973 fn. 4 (1977). The dissent also finds Campbell’s account of the facts to be at odds with three other eyewitnesses besides Warnell. These witnesses’ testi- mony, however, was not internally consistent. Brown testified that he saw Kelley “confront” Campbell and Kunz and that, like Campbell, he saw Kelley and Cripps rocking the truck. Kelley and Cripps, on the other hand, testified that they never touched the truck. In any event, the judge neither specifically credited Brown nor did he specifically credit Kelley and Cripps’ self-serving testimony. Finally, unlike our dissenting colleague, we are unable to discern how the Respondent’s use of the term “vandalism” as the basis for DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770 Further, even if we were to credit Warnell’s testimony that the right side of the truck went over a piece of con- crete that caused it to lift up and then hit the ground, this testimony would not establish that it was hitting the piece of concrete that caused the truck to rock from side to side as it left the Warnell parking lot. Warnell did not testify that the truck rocked back and forth. While, as explained above, Campbell and Brown testified that Kelley and Cripps rocked the truck, they testified that this occurred as the truck was backing up and before it went forward. Thus, the judge’s finding that the truck rocked as it was going forward is unsupported by the testimonial evi- dence. For all these reasons, we find that the judge’s find- ings—that Kelley did not pull the driver-side mirror off the truck and that Kelley and Cripps did not rock the truck—based as they are on testimony by Warnell that was belied by the objective evidence as to the former misconduct and nonprobative as to the latter—cannot stand. Accordingly, we find that the General Counsel has not met his burden of establishing that Kelley and Cripps did not engage in the misconduct for which the Respondent discharged them. We therefore reverse the judge’s finding of the violation. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge, as modified below, and orders that the Respondent, Mar- shall Engineered Products Co., Marshalltown, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified below. 1. Substitute the following for paragraphs 2(a), (b), and (c). “(a) Within 14 days from the date of this Order, offer David Spillman full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make David Spillman whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of David Spillman, and within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way.” 2. Substitute the attached notice for that of the admin- istrative law judge. discipline in Kelley and Cripps’ termination letters must necessarily be restricted to the damage inflicted only to the truck’s mirror. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. MEMBER LIEBMAN, dissenting in part. In overturning the judge’s credibility resolutions and finding that the Respondent lawfully discharged two em- ployees for alleged strike misconduct, the majority reaches a result that runs contrary to long-established Board principles.1 Under Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951), the Board will not overrule an administrative law judge’s credibility resolutions “unless the clear preponderance of all the relevant evidence convinces [the Board] that they are incorrect.” Not only is the majority’s position un- supported by a clear preponderance of the evidence, it is flatly contradicted by the overwhelming weight of the testimony. Essentially, the majority disregards the state- ments of four eyewitnesses, including the explicitly cred- ited account of a neutral witness, and relies solely on discredited testimony in reaching its decision. The essential facts are straightforward: The Respon- dent discharged striking employees Tim Kelley and Allan Cripps following an altercation with two prospec- tive job applicants and strike breakers, Brandon Camp- bell and T.J. Kunz, in a nearby parking lot. The lot, owned by R.J. Warnell Trucking, was being used by the Respondent’s striking employees to park their vehicles while they engaged in picketing. The nature of the alter- cation was disputed at the hearing. Campbell, who ini- tially parked his vehicle in the Warnell lot, testified that he and Kunz were confronted by Kelley and Cripps upon returning to the lot to move the vehicle upon the request of the Respondent’s security guard Arnold Brown. Campbell testified that Kelley and Cripps rocked the vehicle from side to side and shouted as he and Kunz tried to enter the vehicle. Campbell also alleged that as the truck sped out of the parking lot, Kelley pulled off the driver-side mirror. The incident was also witnessed by Brown and Scott Warnell, a mechanic for and the son of the owner of R.J. Warnell Trucking. As discussed below, these two witnesses, along with Kelley and Cripps, contradicted Campbell’s account of how the ve- hicle was damaged. As does the majority, I will assume that the Respon- dent believed, in good faith, that Kelley and/or Cripps pulled the mirror off the vehicle.2 Accordingly, the bur- 1 I agree with the majority opinion in all other respects. 2 According to the Respondent’s termination letters, both Kelley and Cripps were discharged for “vandaliz[ing] the vehicle of an applicant for employment.” The judge found that pulling the mirror off of the vehicle was “the act of vandalism for which [human resources director] Creech discharged them.” In suggesting that the discharges of Kelley MARSHALL ENGINEERED PRODUCTS CO., LLC 771 den shifted to the General Counsel to prove that the strikers did not, in fact, do so. NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964). As the judge properly found, the General Counsel carried his burden. With regard to Cripps, there is simply no record evi- dence indicating that he engaged in any act of vandalism. The Respondent never alleged that Cripps pulled off the mirror, nor did Campbell testify that Cripps did. Rather, Campbell testified that Kelley was the guilty party. Ac- cordingly, I would find that the General Counsel proved that Cripps did not engage in the misconduct for which he was terminated. As to Kelley, of the five eyewitnesses who testified, only Campbell testified that Kelley pulled off the mirror. Both Kelley and Cripps denied touching the mirror or the vehicle. Brown testified that he did not see either em- ployee do any damage to the vehicle. Finally, Warnell testified that he did not see Kelley or Cripps touch the vehicle at all. Instead, Warnell stated that the mirror simply fell off while the old and rusted vehicle bounced over deep ridges in the lot as Campbell sped away. In crediting Warnell’s testimony, the judge found that his recall of events “was almost entirely accurate” and that he “credibly and candidly placed in perspective what actually had occurred.” In so finding, the judge took into account Warnell’s erroneous testimony regarding which side of the vehicle the mirror fell off. The overall accu- racy of Warnell’s testimony is borne out by its consis- tency with the accounts of Kelley, Cripps, and Brown. Indeed, the lone inaccuracy does little to negate the over- all reliability of Warnell’s testimony or undermine the judge’s clearly-articulated finding that Warnell was the most convincing witness who testified. The only remaining testimony, then, is Campbell’s. His testimony regarding the mirror explicitly contradicts that of the Respondent’s own witness Brown, who testi- fied that Kelley was not even positioned near the mirror as the vehicle raced out of the lot. The judge discredited Campbell’s testimony in its entirety, finding that Camp- bell was “too frightened to assess the situation and re- member it accurately.”3 There is no reason to believe, as and Cripps were based on both pulling off the mirror and rocking the vehicle, the majority improperly relies on Creech’s post hoc explana- tion of the basis for the discharges. See McClendon Electrical Services, 340 NLRB 613, 614 (2003) (rejecting an employer’s post hoc rationale for discharge where it deviated from the original disciplinary notice to discriminatee). In accordance with the basis set forth in the Respon- dent’s termination letters, I would adopt the judge’s finding that both discharges were predicated solely on the mirror allegation. 3 Although the judge stated that Campbell had nothing to gain by his testimony, I would not consider Campbell to be a neutral witness. As an applicant for employment with the Respondent, Campbell had rea- son to curry favor with the Respondent. Campbell’s status as a strike breaker is also a factor. the majority alleges, that the judge ignored any piece of Campbell’s testimony. Moreover, contrary to the major- ity, it is unclear how Campbell’s ambiguous closing comment—“I believe I saw what I saw”—would under- cut Campbell’s concession that he might be wrong about what happened or the judge’s overall finding that Camp- bell was not a credible witness. After watching and listening to all of the witnesses and evaluating the record as a whole, the judge set forth a considered and plausible account of the events in ques- tion. Unlike the majority, I see no reason to substitute our own judgment for that of the judge, who was present at the hearing and had the unique opportunity to evaluate the testimony firsthand.4 Tempting as it may be, it is simply not the Board’s role to second-guess a judge and reassess the credibility of witnesses. This is particularly true where, as here, the testimonial evidence presented all but demands the outcome reached by the judge. Accordingly, I dissent. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge our employees for engaging in concerted and protected activities. WE WILL NOT discharge or otherwise discriminate against any of our employees for supporting International Union, United Automobile, Aerospace & Agricultural Implement Workers of America—UAW, Local 893, Unit 7, or any other union. 4 I reject the majority’s statement that the judge’s findings were not based on the demeanor of the witnesses. In crediting Warnell’s testi- mony, the judge emphasized that he was impressed with Warnell him- self, and not merely his testimony. Likewise, the judge stated that he was not impressed with Campbell. The judge’s focus on the individual in both instances clearly implies a reliance on their demeanor during the hearing. Even assuming that the judge’s reliance on their demeanor was minimal, the testimonial evidence in favor of Kelley and Cripps remains one-sided. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL within 14 days from the date of the Board’s Order, offer David Spillman full reinstatement to his former job, or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make David Spillman whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, with interest. WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge, and within 3 days thereafter, notify David Spillman in writing that this has been done and that the discharge will not be used against him in any way. MARSHALL ENGINEERED PRODUCTS COMPANY, LLC David M. Biggar, Esq., for the General Counsel. Nathan D. Plantinga, Michael Stroster, and Peter J. Kok, Esqs. (Miller, Johnson, Snell & Cummiskey, P.L.C.), of Grand Rapids, Michigan, for the Respondent. Matthew J. Petrzelka, Esq. (Simmons, Perrine, Albright & Ell- wood, P.L.C.), of Cedar Rapids, Iowa, for the Charging Party. DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW BENJAMIN SCHLESINGER, Administrative Law Judge. Re- spondent Marshall Engineered Products Company, LLC, dis- charged three striking employees, David Spillman, Tim Kelley, and Allan Cripps, for alleged misconduct while engaging in picketing. None of them did what Respondent alleged that they did, and its terminations were unlawful under NLRB v. Burnup & Sims, 379 U.S. 21 (1964).1 Respondent, with its principal office in Marshalltown, Iowa, is engaged in the manufacture and nonretail sale and distribu- tion of steam heat traps and regulators. During the year ended December 31, 2001,2 Respondent purchased and received at its Marshalltown facility goods valued in excess of $50,000 di- rectly from points outside Iowa. I conclude that Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. By September 28, the termination date of its collective- bargaining agreement with International Union, United Auto- mobile, Aerospace & Agricultural Implement Workers of America—UAW, Local 893, Unit 7 (Union), which I conclude is a labor organization within the meaning of Section 2(2) of the Act, the parties had been unable to reach a new agreement; and the Union began an economic strike the following day. 1 The unfair labor practice charge was filed on March 22, 2002, and the complaint was issued on October 30, 2002. This case was tried in Marshalltown, Iowa, on January 16 and 17, 2003. 2 All dates are 2001, unless otherwise indicated. Respondent continued to operate with replacement employees. The first alleged act of misconduct involved a rock or other object being thrown at and hitting the vehicle owned by re- placement worker Carlos Felix on October 31. Spillman, who was discharged effective that day, by letter dated November 15, denied that he threw anything. Respondent produced no wit- nesses who testified to this event. Its attempts to find Felix, and two others, whose statements it had relied on in making the decision to terminate, were unavailing. What is left of Respon- dent’s proof is of no value. Even the statement of Felix is worth nothing, because he recanted it; and a criminal charge against Spillman was dismissed based on the fact that Felix verified that, according to the Marshall County attorney’s motion to dismiss the criminal complaint, Spillman was not “one of the individuals throwing the chunk of concrete,” as a videotape of the rock-throwing incident that was also placed in evidence in this proceeding so showed. Although the videotape is not wholly conclusive that Spillman was without fault, because, at the moment that the rock or object is heard crashing against Felix’s vehicle, Spillman is no longer in the frame of the video- tape, Spillman is seen immediately before the sound, within a second or so, running after the vehicle, but carrying nothing in his hand. From viewing this videotape, Kenneth Creech, Re- spondent’s chief financial officer and the human resource direc- tor, was able to admit, albeit with the greatest of reluctance, that “Looking at the tape it would appear that Mr. Spillman could not have been involved. . . . It would appear unlikely.” Later, he said that it was “highly unlikely” that Spillman threw anything. I agree, noting that his testimony concedes that Respondent did not meet its burden of proving by a preponderance of the evidence that Spillman did anything wrong. My finding is, however, more positive and definite. Based on the tape, the utter lack or evidence supporting any basis for disciplining Spillman, and Spillman’s credible denial of wrongdoing, I find that he did not commit the Act for which he was disciplined.3 Burnup & Sims, supra, reversed a court of appeals ruling that the employer did not unlawfully discharge two employees, whom it believed in good faith had threatened to use dynamite to unionize the employer if the union did not get sufficient au- thorizations. The Court wrote, 379 U.S. at 22–24: [W]e are of the view that in the context of this record § 8(a)(1) was plainly violated, whatever the employer’s mo- tive. Section 7 grants employees, inter alia, “the right to self-organization, to form, join, or assist labor organiza- tions.” Defeat of those rights by employer action does not necessarily depend on the existence of an anti-union bias. Over and again the Board had ruled that § 8(a)(1) is vio- lated if an employee is discharged for misconduct arising 3 Both the General Counsel and Respondent contend that the failure of the other to call certain witnesses on the other’s case requires an adverse inference that the testimony would have been contrary to the other’s interest. I decline to make such an inference. None of the wit- nesses whom the parties did not call may reasonably be assumed to be favorably disposed to the party not calling them. Electrical Workers Local 3 (Teknion, Inc.), 329 NLRB 337 (1999), because both parties could have confidence in an available witness’ objectivity. MARSHALL ENGINEERED PRODUCTS CO., LLC 773 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 [(1944)]; Standard Oil Co. [of California], 91 NLRB 783, 790–791 [(1950)]; Rubin Bros. Footwear, Inc., 99 NLRB 610, 611 [(1952)]. In sum, § 8(a)(1) is vio- lated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an al- leged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that miscon- duct. That rule seems to us to be in conformity with the pol- icy behind § 8(a)(1). 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 acquires a precarious status if innocent employees can be discharged while en- gaging in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the § 8(a)(1) right that is controlling. [Footnotes omitted.] Accordingly, Respondent’s discharge of Spillman, who was guilty of nothing, violated Section 8(a)(1) of the Act. The com- plaint also alleges that Respondent’s discharge of Spillman violated Section 8(a)(3). In his investigation of this incident, Creech asked if there was videotape of the incident, and the security guards told him there was one “showing the rocks flying but the people who had thrown them were hidden by the building and the tree that were out front.” The General Counsel questions the scope of his further investigation by not seeking the second videotape, discussed above, but what he did was neither casual nor aimed at disciplining Spillman in particular. He honestly believed, based on three statements of eyewit- nesses, that Spillman was the culprit; and he was entitled to rely on what the security guards had told him. That was sufficient. I thus conclude that Respondent did not violate Section 8(a)(3) when it initially discharged him. On the other hand, once Creech found out about the exis- tence of the second tape at the time when he was preparing for Spillman’s unemployment compensation hearing in late De- cember and saw it and formed his opinion that Spillman did not throw the rock or other object, and then Creech learned that Lopez, the principal witness, recanted, Creech could no longer have an honest opinion that Spillman was guilty. Yet, Creech did not reverse his decision. It did not, as Respondent contends, offer to return Spillman to his job without any loss of seniority. Instead, on March 14, 2002, it made an offer conditioned on the settlement of the entire contract, returning Spillman as well as four other employees to the seniority list, awaiting an opening, should one occur, because all the positions had been filled by permanent replacements. Respondent did not make that offer unconditionally. It did not reverse its discipline of Spillman. It has offered no cogent explanation for the maintenance of the discipline in this cir- cumstance. It is well-settled that, when the asserted reason for an action fails to withstand scrutiny, the Board may infer that there is another reason—an unlawful one which the employer seeks to conceal—for the discipline. Shattuck Denn Mining Corp., 362 F.2d 466, 470 (9th Cir. 1966); Painting Co., 330 NLRB 1000, 1001 fn. 8 (2000). Because Respondent has of- fered no reason at all, the Board is entitled to make the same assumption. Accordingly, I conclude that, under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), Respondent violated Section 8(a)(3) and (1) of the Act. Spillman was engaged in union activities by being a striker, carrying a picket sign, and supporting the Union’s cause. Respondent knew that, but none- theless maintained its discipline of him even when it had no basis for it. Respondent has not demonstrated that it would have taken the same action, even in the absence of his union activi- ties. Wright Line; Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999); Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). The discharges of Kelley and Cripps, effective November 9, by letter dated November 30, present a closer question, because two witnesses, Brandon Campbell and Arnold Brown, a techni- cal photographer and site commander for the security company hired by Respondent, testified on its behalf. Essentially, Re- spondent’s claim was that on November 9 Campbell and his friend, T.J. Kunz, drove in a borrowed truck to Respondent’s plant to apply for a job. Campbell parked in the parking lot owned by R.J. Warnell Trucking, a lot that was used by Re- spondent’s striking employees to park their vehicles while they engaged in picketing and to use a building on the property to store their food. Campbell and Kunz walked over to one of the entrances to the plant, about 100–120 yards, where they were met by Brown, who cautioned them not to park where they had, because the strikers used that lot to park, but to park behind the plant, away from where the picketing was going on. Campbell and Kunz returned to their car, where they were met with a loud and angry reception from Kelley and Cripps. Followed by Warnell, who repeated that he was going to beat up Campbell, he and Kunz quickly got into their truck, which was being rocked from side to side by the two picketers, one on each side of the vehicle, screaming at the occupants, and sped out of the parking lot to escape, during which Kelley pulled off the driver’s side-view mirror. Both Kelley and Cripps denied that they even touched the vehicle and, according to Brown, neither was positioned near the side-view mirror. Respondent’s case is suspect for several other reasons. First, I was not otherwise impressed by Brown, particularly when he testified that, from his vantage point 100 or more yards away, he saw Kelley “confront” the job appli- cants when they came back to the parking lot and that he saw the two striking employees rocking the vehicle. He was posi- tioned too far away to see a “confrontation” and, in the few seconds that he witnessed the incident (he was videotaping other picketing activity), to note accurately all the particulars to which he testified. In addition, he could not have been particu- larly impressed by what he saw because he never prepared a report about the incident. Campbell had nothing to gain by his testimony, but he admitted that the situation was very stressful, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774 that his heart was pounding, that he had a deep interest in get- ting out of the parking lot as fast as possible, that his intent and focus on getting out of that parking lot as quickly as possible could have compromised his ability to perceive events, and that because of the energy of the situation, it might have been pos- sible that he may not in fact have actually seen what he testified to. I find that he was too frightened to assess the situation and remember it accurately. Rather, I was particularly impressed by the last witness called by the General Counsel, in his rebuttal case, Scott Warnell, a mechanic for and the son of the owner of the R.J. Warnell Trucking, who credibly and candidly placed in perspective what actually had occurred. Although his father allowed the strikers to use the property because he was a friend of a leader of the Union, Warnell did not believe in the Union and had no sympathy for the strike. I find him completely neu- tral; I find that his recall was almost entirely accurate. On No- vember 9, his 13 year-old son, Colton, and a friend were riding all-terrain vehicles on the lot. He came back to the shop and told his father that one of the strikers had almost run into him. He told the man that he could not park there, and the man (who was Campbell) said: “[F]uck you, I’ll park where I want to park.” (Campbell testified that, when this young man told him that he could not park there, he replied: “I don’t want to fucking deal with you right now.”) Warnell became angry and started for the union strike shack on Respondent’s property to kick them off his property. In the meantime, Kelley and Cripps were heading over from the picket line to see who the new visitors were, aware that Respondent was hiring strike replacements. But Warnell did not look at them when Colton pointed to, as the guilty ones, Campbell and Kunz, who were returning from Respondent’s office, pursuant to Brown’s advice, to move their truck from the lot. Warnell waited for them to come on his property, and then threatened Campbell: “[Y]ou ever talk to my kid that way again I’ll knock your fucking lights out.” By this time, Kelley and Cripps had come out of the union shack, crossed the street, and were yelling at Campbell and Kunz, calling them scabs, and telling them to go home and to get dif- ferent jobs. Campbell and Kunz rushed to their truck, all the time followed by Kelley and Cripps, and got in, Campbell driv- ing, as before, and trying to get out of the lot as fast as possible, “[tearing] off just throwing gravel and rocks” because he had been cursed at and threatened by Warnell and was being yelled at by and was fearful of (thanks to Brown) the strikers. In the process, Campbell was so edgy that, when he started the engine of his truck, he immediately threw the truck into reverse and then stalled it, restarted it, spun the wheels and made the tires squeal, and hit one of many deep ridges on the lot (the lot had previously contained a building, and there were still jutting out from the surface big pieces of foundation). That caused the truck to look as if someone was pushing it from side to side, but the truck was just rocking from hitting the foundation of the old building and rolling over chunks of concrete, gravel, and stones. As it did, the mirror on the driver’s side (Warnell inac- curately believed the mirror was on the passenger side) fell off, not because someone was pulling it off, but because the truck was being heaved by the surface of the lot, Campbell was driv- ing erratically in his attempt to leave there as fast as possible, and, probably just as important, the truck was old and rusty. Even Brown did not corroborate that Kelley and Cripps pulled off the mirror, which was the act of vandalism for which Creech discharged them. Accordingly, I find that Kelley and Cripps were blameless and did nothing to warrant any discipline, no less Respondent’s discharge. Respondent contends that these employees were not engaged in protected activities, because they wandered from the picket line site to investigate what they thought was a verbal, if not physical, altercation between Colton and the two strangers. I have found, however, that they were actually headed over to the parking lot to see whether the two strangers parking in their lot were strikebreakers. That is what Creech thought, too, be- cause his termination letter specifically refers to their “van- daliz[ing] the vehicle of an applicant for employment . . . while on the picket line.” [Emphasis supplied.] In fact, at the time of the alleged incident, they were yelling at the applicants to go home and not to take the strikers’ jobs and calling them scabs. In addition, the law is perfectly clear that, even though the inci- dent did not take place on that small area that Respondent calls the picket line, the Board has never been so limited. See, e.g., Georgia Kraft Co., 275 NLRB 636 (1985). I conclude that, under Burnup & Sims, Respondent violated Section 8(a)(1) of the Act. Although the complaint also alleges an independent violation of Section 8(a)(3), the General Counsel withdrew that contention in his brief. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Having discriminatorily discharged David Spillman, Tim Kelley, and Allan Cripps, Respondent must offer them reinstatement and make them whole for any loss of earnings and other benefits, in accord with Abilities and Goodwill, 241 NLRB 27 (1979), enf. denied 612 F.2d 6 (1st Cir. 1979), computed on a quarterly basis from date of dis- charge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Respondent contends that the employees are not entitled to backpay because each testified with great sincerity that in no event would they cross the Union’s picket line to go to work. Abilities and Goodwill provides for just such a contingency, the Board stating, 241 NLRB at 28: “[E]ven if the employer fails to offer reinstatement, it remains free to seek to reduce backpay by presenting evidence that the employees would have refused such an offer if made, or that they failed to make a diligent effort to mitigate the backpay obligation by seeking interim employment elsewhere.” The recommended remedy does not bar Respondent from making this claim in compliance proceed- ings. MARSHALL ENGINEERED PRODUCTS CO., LLC 775 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Respondent Marshall Engineered Products Company, LLC, Marshaltown, Iowa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging its employees for engaging in concerted and protected activities. (b) Discharging or otherwise discriminating against any of its employees for supporting International Union, United Automobile, Aerospace & Agricultural Implement Workers of America—UAW, Local 893, Unit 7 or any other union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer David Spillman, Tim Kelley, and Allan Cripps full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make David Spillman, Tim Kelley, and Allan Cripps, whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges, and within 3 days thereafter notify the employees in writing that this has 4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. been done and that the discharges will not be used against them in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility in Marshalltown, Iowa, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by Respondent’s authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respon- dent has gone out of business or closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent at any time since November 15, 2001. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. 5 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”