Southwest Forest Industries, Inc.

SOUTHWEST FOREST INDUSTRIES - 765 Southwest Forest Industries, Inc. and Local 562, United Paperworkers International Union, AFL-CIO, CLC. Case 25-CA-13189 14 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 16 December 1981 Administrative Law Judge Stephen J. Gross issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions, a supp6rting brief, and an answering brief to the General' Counsel's exceptions. The National Labor Relations Board has delegat- ed 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 briefs and has decided to affirm the Judge's rulings, findings,2 and conclusions, for the reasons stated in this deci- sion, and to adopt the recommended Order. For the reasons fully set forth in the attached de- cision, the judge found that employee James Scott's strike misconduct was sufficiently serious to war- rant his discharge. Accordingly, he dismissed the complaint's allegation that the Respondent violated Section 8(a)(3) and (1) by discharging Scott for en- gaging in union activities. While we adopt the judge's recommendation to dismiss the complaint, we do so on the basis of a different rationale. On 29 January 1981 3 the Respondent's employ- ees went out on strike over economic issues. The following day, strikers used a baseball bat to break the window of a truck that was attempting to cross the picket line to enter the plant, and hit the driver of the truck in the face when he attempted to walk from the truck to the plaiit. 4 On 31 January striker Scott, who had been drinking, spun his car across the Respondent's lawn causing it to stall crosswise on the Respondent's driveway. Upon being in- formed that a car was blocking the driveway, the Respondent's general manager, Wilhoite, and Plant Production manager Blaine left the plant to investi- gate. As Wilhoite and Blame approached his car, 1 The Respondent's. request for oral argiiment is denied as the record and briefs adequately present the issues' and the positions of the parties 2 The Respondent,has excepted to some of the Judge's credibility find- ings The Board's ekablislied policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd '188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 All dates refer to 1981 4 The two strikers involved were discharged and their discharges are not contested Scott got out of the , car and took out a child-size baseball bat which he allegedly kept there for self- protection. With the bat in his hand, Scott then cursed Blame for several minutes. The episode was witnessed by the Union's president and several su- pervisors and picketers. Blaine left, only to return approximately 10 min- utes later to the site , of Scott's stalled car. Scott, still holding the bat in his hand, recommenced 'cursing Blame. Scott then asked Blame if he had ever played baseball, and Blaine replied yes. Scott next stated that he would use Blame for a baseball bat if Blaine crossed a line that a striker had drawn on the driveway earlier as a symbol separating management's side from the picketers' side. Later in the day, Blaine, who had left the prem- ises on business, returned to the plant. As he at- tempted to turn the car into the driveway, Scott placed himself in front of the car for 5 to 10 min-, utes and cursed fellow picketers for not helping him. After letting Blaine's car pass through the picket line, Scott stopped one of the Respondent's trucks, jumped on to its running board, and cursed the driver. On 2 February the Respondent dis- charged Scott for engaging in strike misconduct. The judge found that Scott had engaged in seri- ous misconduct which rendered him unfit for fur- ther service with the Respondent. We agree. The combination of Scott's physical and verbal acts of abuse and confrontation put him clearly beyond the protection of the Act and justified his discharge.3 We disagree, however, with the judge's subordi- nate finding that "Scott never actually menaced Blaine or anyone, else" with the baseball bat. In Clear Pine Mouldings, the Board adopted a new objective test for determining the legality of an employer's refusal to reinstate a striker because of verbal threats by strikers directed at fellow em- ployees or even at persons who do not enjoy the protection of Section 7 of the Act. The test is "whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Viewed apart from Scott's blockading efforts, his verbal tirades against Blame while holding a small baseball bat in his hand reasonably tended to coerce within the meaning of the above' test..With- 5 The judge correctly noted that the Respondent had committed no unfair labor practices against which Scott's misbehavior might be weighed See 'NLRB v Thayer Co ,213 F 2d 748 (1st Cu. 1954), cert denied 348 U S 883 (1954) For reasons stated in the plurality opinion of Chairman Dotson , and Member Hunter in Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984), Member Hunter doei not agree with the Thayer test of balancing an employer's unfair labor practices against strik- er misconduct in determining whether adverse action against the striker is warranted 273 NLRB No. 103 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out provocation, Scott repeatedly confronted Blaine while in conspicuous possession of a poten- tial offensive weapon. 6 At one point, Scott clearly' threatened to assault Blaine if he crossed the sym- bolic picketers' line. The presence of the bat heightened the impression of imminent physical danger imparted by the threat, even though Scott apparently never lifted the bat from his side. In the circumstances of this case, Scott's behavior reason- ably tended to threaten Blaine with bodily harm. By this 'misconduct above, as well as by -the totality of his actions described above, Scott forfeited any right to further employment by the Respondent. .ORDER The recommended Order of the adininistrative law judge is adopted and the complaini. is dis- missed. 8 It is irrelevant that, as' the judge found, Scott considered the bat nec- essary for self-defense. There is no evidence that Blaine or any other.wit- ness to Scott's behavior would reasonably have viewed the bat as limited to a defensive purpose DECISION • I. BACKGROUND STEPHEN J. GROSS, Administrative Law Judge. The United, Paperworkers , International Union (the Paper- workers) and Paperworkers Local No. 562 represent the production and maintenance employees at the Indianapo- lis plant of Southwest Forest Industries (SFI).' On Janu- ary 21, 1981, 2 the employees represented by the Paper- workers went out On strike over economic issues. Picket lines were established immediately. SFI continued to op- erate the plant using supervisors and nonbargaming unit employees. On February 2 and 3 SFI fired four striking employees and suspended one. SFI's letters to those employees gave as the reasons for its action against them their participa- tion in, activities such as damaging vehicles attempting to enter the plant, hitting the driver of one of those vehi- cles, damaging a supervisor's vehicle, threatening non- striking personnel, and committing "malicious mischief." 'On February 18, Local 562 filed a charge against SFI contending that its discharges and suspension of the five employees violated the Act. • A complaint, dated April 9, followed, limited to SFI's actions against one of the employees, James Scott. Ac- cording to the complaint, ,SF! discharged Scott because he Moined, supported or assisted -the Union, 'and en- gaged in concerted activities for the purpOse of 1 SFI does not dispute the General Counsel's contention that It is an employer engaged in Oommerce for the purposes of the National Labor Relations Act (the Act) And all parties agree that Local 562 is a labor organization within the meaning of Sec 2(5) of the Act Hereafter all dates will refer to 1981 mutual aid and/or protection, and in order to dis- courage employees from engaging in such activities or other [protected] activities . . . and because said employee participated in a strike called by the Union. SFI denied any wrongdoing and the case went to hearing in Indianapolis on September 28 and 29. The General Counsel and SFI have filed briefs, and the case stands ready for decision.3 There is no real dispute about the general requirements of the Act pertinent to this case. Employees have the right to strike and to picket (absent circumstances not present here). Employers accordingly may not discrimi- nate against employees for doing so. While an employ- ee's serious acts of misconduct on the picket line place the employee outside the Act's protection, minor picket line- misconduct does not. 4 And if an employer in good faith fires a striking employee on the ground that the em- ployee was guilty of serious picket line misconduct, the employer nonetheless will be deemed to have violated Section 8(a)(1) of the Act if it can be shown that, despite the employer's honest belief to the contrary, the employ- ee did not in fact engage in misconduct aggravated enough to remove the employee from the Act's protec- tion.5 No party contends that , Scott's discharge stemmed from union animus on SFI's part or was otherwise discri- minatorily Motivated; and there is no evidence in the record that would support such a contention if one had been niade. The questions at issue are therefore limited to: (1) whether Scott actually engaged in the activity for which SFI fired him; and (2) if he did, whether those ac- tions were sufficiently aggravated to render his conduct unprotected. For the reasons stated below, my conclusion is that both questions must be answered affirmatively, and that SFI accordingly committed no unfair labor practice when it fired Scott. II. SCOTT'S VERBAL ABUSE OF BLAINE A. Introduction - On January 31 Scott involved himself in several angry, loud confrontations at or near the picket line. As is usual in such cases, a lot of things happened in relatively short 3 On March 16 Respondent's attorney sent a'27 page letter to Region 25 in response to the charges Local 562 had filed against SFI Several pages of the letter related to Scott The General Counsel sought to Intro- duce the entire letter into evidence But I allowed Into the record only those pages specifically relating to Scott See Tr 77-81 At p 8, fn 1, of her bnef, the General Counsel renewed her motion to have the entire letter (or at least several additional pages) made part Of the record The renewed motion is denied In view of the possible prejudice to Respond- ent by adding evidence to the record at this juncture, the General Coun- sel would have had to make a compelling case for her motion to have been granted But It continues to appear that the relevance of the addi- tional pages is marginal And the General.Courisel had the opportunity to use as much of the document in question as she chose for purposes of impeaching Respondent's witnesses (so long as she avoided asking about attorney-client communications see Tr 79) 4 See Coronet Casuals, 207 NLRB 304 (1973) 5 See Ohio Power Co, 215 NLRB 862 (1975), et NLRB v Burnup & Suns, 379 U S 21 (1964) SOUTHWEST FOREST INDUSTRIES 767 periods of time, and the circumstances carried an emo- tional charge with them. In those kinds of situations wit- nesses- to the events will inevitably misperceive some of what actually happened, and, on top of that, later misre- member some of what they perceived. None of the persons who testified in this proceeding were immune from those kinds of difficulties. But five of the witnesses did seem to attempt to testify accurately about what they remembered: The General Counsel wit- nesses Coffman and Haltom; and SF! witnesses Blame, Clark, and Wilhoite. The description below of Scott's ac- tivities represents my understanding of what happened on January 31 based on an amalgamation of the testimo- ny of those five witnesses. (The testimony of the General Counsel witnesses Scott and Siedle differed substantially from the other witnesses and at times seemed inherently improbable. Under the circumstances I am unable to credit much of the testimony of either of the two.) B. Scott's Confrontation with Production Manager Blame Late in the morning of January 31 Scott drove his car back and forth on the street in front of the SFI plant, driving in a way that produced loud engine and tire noises and high rates of acceleration and deceleration. Ultimately, that form of driving resulted in Scott's car spinning across the plant's front lawn, with the car ending stalled crosswise on the driveway at the western side of the plant A guard somewhere near the site radioed to say that a car was parked across the west driveway, blocking it. Bert Wilhone is the general manager of SFI's Indianapo- lis plant and the Company's senior official at the plant. When Wilhoite was told about the car blocking the driveway, he went out to the site in an effort to handle the situation: A few moments later Thomas Blaine, the plant's production manager and second most senior offi- cial, also headed for the site. Scott had consumed sufficient alcohol for his speech and coordination to be obviously affected. For reasons not to be found in the record, Scott believed that Blame had stood in the way of management and the Union working out their differences without a strike. As Wil- hoite and Blame approached, Scott got out of his car. Scott kept a child-size baseball bat in his car "in case," as he put it, "I ever run into any trouble." 6 And he was holding the bat when he got out of the car. After ex- changing. a few relatively calm words with Wilhoite, Scott, referring to Blame, told Wilhoite that "if it weren't for that skinny motherfucker we wouldn't be out on strike right now." Scott then turned to Blaine and, while striding back and forth in an area about 3 to 6 feet from Blaine; proceeded to curse at him profanely ("weasel-faced motherfucker," "cocksucker," etc.), loudly, angrily, and repetitiously. Blaine did not respond. All of this took place in the presence of several SFI su- pervisors, the president of Local 562 (who had earlier tried, unsuccessfully, to get Scott to leave), and a dozen or so picketers. 6 Tr 210-211 After a few minutes of Scott's cursing, Wilhoite, in an effort to defuse the situation, told Blame to check things at the plant's east driveway. Blaine followed Wilhoite's orders But 5 or 10 minutes later Blame returned to the site of Scott's stalled car. Scott promptly began to curse at Blaine again, and again used the Most- abusive, profane epithets available. Sometime earlier another of the picketers had delineated a place on the driveway that, he jokingly said, marked the boundary line between the picketers' turf and man- agement's. Scott asked Blaine if he had ever played base- ball. Blame responded affirmatively. Scott then asked Blaine whether he had ever been used as a baseball bat and suggested that he would use Blame in just that way if Blame stepped across that imaginary line. As Scott said that he had his right hand pointing at Blame But the baseball bat was in his left hand and he continued to hold the bat down, near his leg At that point Wilhoite stepped between Blaine and Scott and told Blame to leave the area. Blame stepped backward a few steps (so that he would not have to turn his back to Scott while he was within Scott's striking range), turned, and walked away.7 The driveway was ordinarily wide enough for two cars to pass. But during the strike it was partially blocked by several 55 gallon drums. The combination of Scott's car and the drums completely blocked the drive- way. At the Company's request, however, the pickets pushed Scott's car to the side witbout interference from Scott. III. SCOTT'S SUBSEQUENT ACTIONS BLOCKING VEHICLES About an hour after Scott's confrontation with Blaine, BlaMe left the plant in his own car on company business. He returned about 1 p m. The plant borders English Avenue. As Blame started to turn onto the east driveway 7 Blame and Wilhoite each wrote "incident reports" covering the Scott-Blame confrontation (see G C Exh 8, Tr 67-72 and 296) The General Counsel submitted Wilhoite's incident report Into evidence (but not Blame's) solely for "the purpose of impeachment, and not for the truth of th.e matters asserted in the document" (Tr 67) The General Counsel points out that while Wilholte testified that Scott actively men- aced Blaine with the baseball bat, Wilhoite's incident report makes no mention of a bat That discrepancy is one of the reasons that I do not believe that Scott waved the bat around in a threatening way, as Blame and Wilholte testified But Wilhoite's failure to' mention the bat in his in- cident report by no means necessarily shows that Scott did not have a bat in his hand dunng the incident The General Counsel, in a further reference to the incident reports, argues that, given their availability and their obvious relevance to the issues at hand, an adverse inference should be drawn against SFI because of its failure to introduce Wilhoite's and Blame's reports into evidence (Br at 5) But the matenal in the reports is hearsay While , Fed R Evid 803(6) permits the admission of some reports notwithstanding that consid- eration, the incident reports at Issue here were obviously prepared with the awareness of possible litigation in mind Under these circumstances the admissibility of the reports is far from clear see, e g , Picker X-Ray Corp v Frerker, 405 F 2d 916, 922-923 (8th Cir 1969) (incident report held inadmissible), 4 Weinstein's Evidence at 803-177 (1979) It according- ly can be presumed that SFI assumed that any attempt by it to introduce the incident reports into evidence would be met with a vigorous, and sus- tainable, hearsay objection from the General Counsel Drawing an ad- verse Inference against SFI for failing to try to put the reports into evi- dence in that Lund of situation would be unwarranted 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into the plant from English Avenue, Scott placed himself in front of Blame's car. Blame stopped the car. For the next 5 or 10 minutes Scott remained in front of BlaMe's car, sometimes leaning against , it, and cursed at nearby picketers for their willingness to allow vehicles to enter the plant grounds. (E.g., "None of you other son-of-a- bitches are going to help me . . . on the strike line, I'll have to do it by myself.") 8 In the meantime the other picketers began demanding that Scott let Blame's car pass. At no time during this incident did Scott address any remarks to Blame. Scott ultimately did, of his own accord, let Blaine's car go through. But Scott forthwith placed himself in front of an SFI truck that was immediately behind BlaMe. Scott and the picketers continued their argument for a while—with Scott remaining in front of the truck—and then Scott jumped on the running board of the truck and cursed at the driver. Scott subsequently got off the truck, and, about 5 minutes after it had first been stopped by Scott, it proceeded into the plant.9 IV SFI'S ACTION AGAINST SCOTT - In 'a letter dated February 2, 1981, but actually signed on February 3, SFI advised Scott as follows: You are discharged from employment effective February 2, 1981, for engaging in picket line mis- conduct censisting of making threats of bodily harm directed towards another employee and for trespass and malicious mischief at the picket line established at our plant, 6400 English Avenue, Indianapolis, In- diana on Saturday, January 31, 1981. V. CONCLUSION Scott never actually menaced BlaMe or anyone else. While Scott's actions certainly must have seemed threat- ening to Blaine and Wilhoite, BlaMe—who was the object of Scott's attention—recognized that Scott's base- ball bat "threat" was contingent on Blame stepping onto Scott's side of that imaginary line. As for Scott taking the bat out of his car, the impression I got was that, as Scott saw things, he needed the bat for his own protec- tion; not as an offensive weapon: Finally, as far as this record discloses, Scott's misbehavior during the strike was limited to the January 31 incidents, and those were at least in part a product of Scott's consumption of alco- hol.10 8 Tr 275 (witness Coffman) 9 The truck was stopped a total of 10 minutes or so First because Scott had stopped the car in front of it (Blame's) And then because of Scott's actions directed at the truck With the truck unable to exit off English Avenue Into the plant, a traffic jam developed on English Avenue 10 See Juniata Packing Co. 182 NLRB 934, 936 (1970) But Scott's verbal abuse of Blame was sufficiently' far out of line for his actions to lose the protection of the Act. A short burst of profanity is mit cause for dis- charge—even, probably, • if a member of management is the object of that profanity.' But here that abuse, apart from being very ugly, lasted for several minutes (a long time for that kind of incident), and then was repeated (when Blame returned frOm checking the east driveway). Beyond that: (1) BlaMe Was a high-ranking official of the plant at which Scott worked; (2) the ugliness of the inci- dent was heightened by Scott's drunkenness and- the presence of a bat in his hand; and (3) nuMeibus employ- ees and several supervisors witnessed the incident. By any standard Scott's behavior under these circum- stances rendered him unfit for further service with SFI. The Company accordingly did not' act improperly in firing Scott, particularly since SFI had committed no unfair labor practices against which Scott's misbehavior might be weighed. 12 , As for Scott's action in stopping Blame's car and the company truck, we need not resolve here whether that would be enough, standing alone, to remove Scott's strike activities from the Act's protection. But in view of the fact that Scott stopped both vehicles for considerable periods—not just momentarily—and did his best to get the other picketers to prevent vehicles from entering, Scott's stopping the two vehicles adds to the strength of SFI's case. CONCLUSIONS OF LAW 1. Employee James Scoft engaged in acts of picket fine misconduct sufficiently aggravated to lose the protection otherwise accorded by the National Labor Relations Act. 2. Respondent Southwest Forest Industries discharged Scott for that aggravated misconduct. 3. Respondent's discharge of Scott accordingly did not violate the Act in any respect. . On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- 3 ORDER The complaint is dismissed in its entirety. " See Moore Business Forms, 224 NLRB 393, 405 (1976), Rangaire Corp. 157 NLRB 682, 711 (1966), Mosher Steel Co. 226 NLRB 1163, 1166 (1976) i2 See NLRB .v. Thayer Co. 213 F 2d 748, 755 (1st Cu- 1954), cert denied 348 U S 883 (1954) Compare Moore - Business Forms, supra, Ran- gaire Corp. supra, Juniata Packing Co. supra, Masher Steel, supra 13 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