Georgia Kraft Co.

-636 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD Georgia Kraft Company,. Woodcraft Division and Laborers' Local Union No. 246 . Cases 10-CA- 15289, 10-CA-15293, and.10-CA-15564 31 May 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND - MEMBERS - HUNTER AND DENNIS. - On 30 ' September' 1981 the Board issued a Deci- sion and `Order in this 'proceeding,1 finding , . inter alia, that the Respondent violated Section 8(a)(1) of the Act by discharging strikers Barlow, Bishop, and Hughes for engaging in strike misconduct' On 24 January 1983 the United -States. Court of Ap- peals for the Eleventh 'Circuit enforced 'the Board's Order in full.2 Thereafter, the Respondent filed a petition for writ of certiorari to the'United States Supreme Court. On 14 November 1983 the Su- preme Court granted certiorari in this proceeding limited to the question, of whether-the Respondent violated the Act by discharging strikers Bishop and Hughes for making verbal threats to a nonstriker.3 While this case was pending before the Supreme Court, the Board adopted a new standard for find- ing strike misconduct warranting the denial of rein- statement based on verbal threats. On 22 February 1984 the Board .issued Clear Pine Mouldings,4 in which it announced that it would apply the objec- tive test formulated by the United States Court of Appeals for the Third Circuit in McQuaide5 to de- termine whether strikers' verbal threats justify an employer's refusal to reinstate . In adopting the McQuaide standard, the Board overruled its previ- ous decision in this proceeding to the extent it was inconsistent with Clear Pine Mouldings.6 Thereaf- ter, the Board asked the Supreme Court to remand the instant case to it based on Clear Pine Mouldings. On 26 March 1984 the Supreme Court vacated that portion of the court of appeals' judgment on which certiorari had been granted in this proceed- ing and remanded this case to the court of appeals with directions that the case be remanded to the Board for further consideration in light of Clear Pine Mouldings.7 On 24 May 1984 the court of ap- 1 258 NLRB 908 (1981) 2 696 F 2d 931 (11th Cir 1983) 3 104 S Ct 421 (1983) 4 268 NLRB 1044 (1984) 5 NLRB v W. C McQuaide, Inc, 552 F2d 519, 527 (3d Cir 1977) 6 Clear Pine Mouldings, 268 NLRB 1044 at fns 8 and 14 Member Dennis concurred in overruling this case 7 104 S Ct 1673 (1984) The Court did not disturb the judgment of the court'of appeals with respect to the other portions of the case peals remanded this proceeding to the Board." Thereafter, the Respondent and. the General Coun- sel filed statements of position with the- Board on remand. The Board has reconsidered its Decision and Order in light of the entire record and the state- ments of position. The Board has decided to re- verse its conclusion that the Respondent violated Section 8(a)(1) of the Act by discharging strikers Landis, Bishop. and Jeffrey Hughes for strike mis- conduct and to dismiss those allegations,-of the complaint. 9 . The facts concerning the strike misconduct of Bishop and Hughes may be stated briefly. About 2 weeks after the economic strike began, in late No- vember 1979, striking employees Bishop and Hughes visited nonstriking employee, William Walker at Walker's home in the evening. Walker spoke to Bishop and Hughes through his front door with his pregnant wife and young daughter present. Walker immediately noticed a strong smell of liquor and asked Bishop and Hughes to leave, but they refused to go. Bishop and Hughes asked Walker why he had returned to work and why he was not on the picket line, stating that the Union could fine him for this. Walker said that he needed the money and that he was not a member of the Union. Bishop and Hughes said he was a member and he was "screwing them out of their God damn money." Walker asked them not to curse in front of his little girl and asked them again to leave. Bishop responded by stating he would "take care of Walker if Walker returned to work. Walker asked what he meant by that. Hughes laughed and said, "Yeah, we'll take care of you.". Bishop and Hughes continued to curse Walker for taking their money and to state he should not have crossed the picket line. After repeated requests that they go, Bishop and Hughes finally left. Although the judge found that Bishop and Hughes threatened Walker with bodily injury, the Board found their remarks about "taking care" of Walker were ambiguous. The Board concluded that this was merely an isolated incident of verbal intimidation, unaccompanied by violence or physi- cal gestures, and thus was not sufficiently serious misconduct to warrant their discharge. e No 81-7852 The Respondent has requested that we also reconsider the Board's previous finding that the discharge of striker Preston Barlow violated the Act The Supreme Court did not grant certiorari as to that portion of the court of appeals' judgment, however, and thus Barlow's discharge is not before us under the terms of the Supreme Court's remand Nor do we agree with the Respondent that we should reconsider this finding sua sponte, based on the Supreme Court's remand in Catalytic, Inc, 264 NLRB 1157 (1982), affd 714 F 2d 158 (11th Pr 1983), cert granted, judgment vacated, in part, and remanded 104 S Ct 2164 ( 1984), in light of our recent decision in that case at 275 NLRB 97 (1985) 275 NLRB No. 91 • GEORGIA. KRAFT CO As we stated in Clear Pine Mouldings, "we reject the per se rule that words alone can never- warrant a denial of reinstatement in the absence of -physical acts." 1 ° Rather, we use the following objective test: "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.'•'11 , Applying this standard, we find that Bishop and Hughes engaged in misconduct that reasonably tended to-coerce or intimidate employee Walker in the exercise of his right to refrain from, striking. Their statements that they would "take care of' Walker were not ambiguous remarks in the con- text, but rather were threats of bodily harm.12 Fur- 10 268 NLRB 1044; 1046 Member Dennis concurred in rejecting the previous Board rule that a verbal threat could never justify. a denial of reinstatement in the absence of physical gestures • ii Id at 1046 Member Dennis concurred in the adoption of.this objec- tive test ^ - 12 Although Bishop denied making this threat. "he admitted he` told Walker that if Walker returned to work4it would be at Walker's own risk and other people might hurt him • 637 thermore, the surrounding, circumstances were ob- viously coercive and intimidating :. Thus, Bishop and Hughes made these threats at Walker's home, in the presence of his pregnant wife and young daughter, while cursing, in a drunken state, and while refusing, numerous requests to leave . The Act does not protect such intimidating conduct with re- spect to an employee who is exercising his Section 7 right to refrain from striking. Accordingly; we find , that the Respondent did not, violate the Act by discharging Bishop and Hughes . Therefore, - the complaint allegations as to their discharges are dismissed. ORDER The" allegations contained in' paragraphs 8, 10, and 21 of the consolidated complaint in Cases 10- CA-15289 and 10`CA-15293 are dismissed insofar as, --they. relate to the discharges of Landis Bishop ad- Jeffrey Hughes. - < t f r ^ ^ i < - 7 I r.:1' . , •• IJi . 4 _ _ .. i j . ^i. I•. , _ - = i I r V 5 i L t ' , i i .: 4. ,, i. f; i. i_ ._, 1' ^• ^ '+ V•i. r-iti .b' .. , f3i,:ili1 1. .i :f r:L; . ' 1 f,