Roto Rooter

ROTO ROOTER F. E. Wray, Inc. d/b/a Roto Rooter and Warehouse, Mail Order and Retail Employees and Whole- sale Liquor Salespersons, Local 853, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 32-CA-6880 and 32-CA-6943 29 April 1987 DECISION AND ORDER REMANDING BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 9 June 1986 Administrative Law Judge James M. Kennedy issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to re- instate employees Lionel Myles and Steve Martinez following their participation in a strike protected by Section 7 of the Act. The sole issue before the judge was whether Myles and Martinez had en- gaged in misconduct during the strike sufficiently egregious to deprive them of their right to recall as economic strikers who had made unconditional offers to return to work. We find merit in the Re- spondent's exceptions to the judge's findings con- cerning Myles. Additionally, we shall remand this proceeding to the judge for credibility determina- tions regarding the conduct of Martinez and fur- ther analysis of the complaint allegations concern- ing him. The judge recognized the authority of Clear Pine Mouldings, 268 NLRB 1044 (1984), in which the Board "reject[ed] the per se rule that words alone can never warrant a denial of reinstatement in the absence of physical acts," and adopted an objective test: "whether the misconduct is such that, under circumstances existing, it may reasonably tend to coerce or intimidate 'employees in the exercise of rights protected under the Act." Id. at 1046; see also Id. at 1048. , The Respondent has excepted to some of the judge's credibility find- ings. The Board's established 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 771 With respect to Myles, the judge examined sepa- rately his alleged misconduct on five different oc- casions. First, the judge found that Myles, while on picket duty, spoke for about 2 minutes to nonstrik- ing employee Guy Akana, who was driving his truck from the Respondent's premises. During this incident, Myles told Akana to tell "Don A" that Myles was going to "break his legs." Since Myles held no weapon and "Don A" was not present or even known to Akana, the judge concluded, with- out condoning Myles' language, that the threat was "remote" and thus insufficient to warrant denial of reinstatement. A second series of incidents involving Myles took place when he picketed a worksite to which nonstriking employee John Sales had been dis- patched. The judge found that Myles, in addition to making taunting comments about Sales' compe- tence, threatened ' to "kick [Sales'] fucking ass," "break [his] bones," and "break [him] ,up." Myles further told Sales that his threats were not a "union scare tactic but between you and I [sic], pal." Myles also joined several other picketers in pound- ing on Sales' truck and' shouting, "I'm going to get you" as Sales drove from the worksite following his completion of the job. The judge characterized Myles' conduct toward Sales as "simply a vociferous and boisterous nee- dling of a non-striker" by stressing his findings that Myles never displayed a weapon, that Sales did not consider the verbal threats to be very serious be- can se he did not - seek help, and that the truck pounding incident was not a physical threat be- cause Myles refrained from any direct assault during the times Sales was working outside his truck. The judge concluded that these acts did not rise to a level of misconduct entitling the Respond- ent to deny reinstatement to Myles.2 On yet another occasion during the strike, Myles parked his personal truck 'across, the Respondent's driveway, thus blocking that access to its facility. The Respondent's president testified that he asked Myles to move the truck and that Myles refused. Myles testified that it was the Respondent's general manager who asked' him to move his truck and he thereupon did so. The judge found no evidence re- garding the length of time the truck remained' in the' driveway and no evidence'to contradict Myles' testimony that he promptly moved it when request- ed. The judge further relied on evidence that an adjacent driveway belonging to a neighboring busi- 2 The judge also considered Sales' testimony that on a separate occa- sion about a week before the strike ended in late November 1984, Myles told him that he would return in a week and "take care" of Sales at that time. However, the judge credited Myles' denial that this encounter took place. 283 NLRB No. 117 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ness, one regularly used by the Respondent's em- ployees, did at all times provide access to the Re- spondent's property. He concluded that this inci- dent by itself did not warrant denying reinstate- ment to Myles. Finally, in addition to the encounters involving employees Akana and Sales, Myles was involved in another incident with a nonstriking employee. Myles followed employee Scott Johnson as he left the Respondent's facility in a company truck. Myles intended to -picket at -Johnson's worksite. However, Johnson did not go to work but instead went home for lunch . After Johnson arrived at his home, Myles stood about 60 feet from Johnson's home and, without entering onto his property, called Johnson a "fucking scab" and threatened to follow him "until he died." The judge found the latter alleged threat to be ambiguous and suscepti- ble to the interpretation that Myles only intended to adhere tenaciously to the strike by continuing his practice of lawfully picketing the Respondent's worksites. The judge concluded that the remark was not intended to be . taken literally and was therefore -not a threat of bodily harm . The judge once again evaluated this incident in isolation from Myles' other activities and concluded that it did not entitle the Respondent to deny reinstatement to Myles. Our first disagreement with the judge's analysis concerns his reliance, in part, on a subjective test rather than the objective standard mandated by Clear Pine Mouldings. With respect to-the import of Myles' encounters with nonstriking employees Akana, Sales, and Johnson, the judge, rather than evaluating any reasonable tendency to coerce or in- timidate, chose to analyze what he understood to be Myles' intentions and the employees' reactions. The judge found that when Myles told Akana to deliver personally to a third employee a threat to "break his legs," Akana "was not particularly con- cerned" because he did not know the named em- ployee and because Myles had no weapon or im- mediate opportunity to effectuate the threat. Con- cerning Sales, the judge inferred , that Sales did not take Myles' threats of bodily harm "seriously", be- cause Sales did not seek help from others. The judge further inferred that Myles himself did not intend the threats to be taken seriously because, though he had the opportunity, he did not follow through on them. With respect to. Myles' following of Johnson to his home, the judge found Johnson's fear to be "beyond reasonableness" because the al- leged threat was ambiguous and the Union was en- titled to engage in ambulatory picketing. In addition to his departures from the Clear Pine Mouldings test, the judge failed to consider the to- tality. of Myles' behavior, choosing instead to evaluate each incident in isolation from the others. ConOer`ning'one of these incidents, we agree with the judge that there is insufficient evidence to show that Myles' parking of his truck on the Re- spondent's driveway constituted any 'significant in- terference with the conduct of the Respondent's business. And, as indicated above, we also adopt the judge's credibility finding that the alleged en- counter, between Myles and .Sales in late November did not take place. However, with respect to the remaining three incidents, we find that Myles did engage in a pattern of behavior by - threatening Sales directly with bodily harm and shortly there- after pounding on his truck, by telling Akana to deliver an even more explicit threat to another nonstriking employee, and by following Johnson to his home and threatening to follow him "until he died." Contrary to the judge, we find that, taken as a whole, Myles' encounters with three employees -in which they and a fourth employee were threatened either , directly or indirectly with serious bodily harm or with picketing away from their worksites because they exercised their Section 7 right to re- frain from striking, reasonably tended to ' coerce or intimidate them. Regardless of the striking employ- ees' subjective reaction to these series ' of threaten- ing remarks, the reasonable, indeed the clear, tend- ency of such repeated threats is to coerce or intimi- date employees. In reaching this conclusion, we emphasize that Myles' misconduct was neither an isolated outburst nor were his remarks, in most in- stances, amenable to a 'noncoercive interpretation. Under these circumstances , we find that the Re- spondent's failure to reinstate Myles did not violate the `Act and we will dismiss that portion of the complaint. However, a different result is required concern- ing employee Steve Martinez. In determining whether Martinez engaged in misconduct during the strike sufficiently serious to deprive him of his right to recall, the judge considered 'both his testi- mony and that of employee Steve Penney : Penney testified that ' while driving a company van he stopped at a stoplight on a busy highway. Marti- nez, in his own truck and accompanied by a friend, was in `the adjacent lane to the right . According to a We agree with the judge that the circumstances surrrounding Myles' conduct at Johnson's home are less coercive than those in Georgia Kraft Co., 275 NLRB 636 (1985), given that here there is no -evidence that other members of Johnson's family overheard the shouted threat Howev- er, in our view, Myles crossed any permissible line. Because the Union had a right to engage in ambulatory picketing that reasonably required following nonstriking employees, Member Johansen does not regard Myles' following Johnson home in itself to be an element of Myles' misconduct. ROTO ROOTER Penney, Martinez tried to cut in front of him as the light changed while shouting that 'he was going to "kick his ass." Penney also testified that Martinez spat at his van and threw ice from a paper cup. Martinez, on the other hand, denied the alleged at- tempt to interfere with , the path of Penny's van and the alleged threat, spitting, and ice throwing. He stated that he had merely pulled up alongside the Respondent's van and then proceeded on his way in a normal, fashion when the light changed. The judge in crediting Penney's testimony, "for the sake of analysis" concluded that Penney was neither in any actual danger nor did he reasonably believe he was in, danger. The judge found that the incident lasted only a few moments, the vehicles were moving, at most, about 5 miles per hour, and Penney was at all times protected `from Martinez' alleged nonverbal abuse by the van -itself. The judge concluded that it seemed "unlikely" to him that Penney was "actually intimidated." On this basis he found that the Respondent's refusal to re- instate Martinez was not justified and therefore violated Section 8(a)(3)'and (1) of-the Act. We find, however, that the judge undercut his own analysis in two ways. First he utilized, as he did with the behavior of Myles, the same subjec- tive test rejected in Clear Pine Mouldings. Second- ly, the judge employed a most equivocal procedure for resolving the conflicting testimony regarding what actually happened at the highway stoplight. For while he credited Penney "for the sake of analysis," he also found Martinez' version to be more credible "in some respects." The judge found it "unlikely" that Martinez would, have involved his friend by instigating a "near violent" situation in the middle' of traffic. The judge's avoidance of a clear credibility resolution deprives us of the neces- sary factual basis to determine ' whether any mis- conduct occurred and, if it did, whether it was suf- ficiently serious to deprive Martinez of the protec- tion of the Act. In addition, the judge failed to apply the Clear Pine Mouldings test in an appropri- ate manner. We will therefore remand this portion of the -proceeding to the judge to make definite credibility findings on the alleged strike misconduct and to apply the Clear Pine Mouldings objective test. ORDER The complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by refus- ing to reinstate employee Lionel Myles is dis- missed, IT IS FURTHER ORDERED that this proceeding is remanded to Judge Kennedy for the' purpose of making credibility resolutions on all testimony con- 773 cerning the alleged strike misconduct of employee Steve Martinez and for recommendations whether his conduct justified, under the standard of Clear Pine Mouldings, 268 NLRB 1044 (1984), the denial of his right' as an economic striker to return to work. IT IS FURTHER ORDERED that the judge shall pre- pare and serve on the parties, a supplemental deci- sion setting forth the resolution of such credibility issues and findings and conclusions with respect thereto. Copies of the supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board's Rules shall be ap- plicable. Raoul Thorbourne, for the, General Counsel. Harry Finkle and Neil M. Gerstner (Finkle & Stroup), Walnut Creek, California, for the Respondent. DECISION JAMES M. KENNEDY, Administrative Law Judge. This case was tried before me in Oakland, California, on Janu- ary 22, 1986. It is based on a consolidated complaint issued by the Acting Regional Director for Region 32 of the National Labor Relations Board on January 31, 1985. The complaint is based on charges filed by Warehouse, Mail Order and Retail Employees- and Wholesale Liquor Salespersons, Local 853, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) on November i and December 4, 1984. 1 Prior to the hearing, the, General Counsel, Re- spondent, and the Charging Party reached a partial set- tlement in which paragraphs 7, 8, 9, ,and 10 were re- solved. In addition, the General Counsel moved to dis- miss those portions of paragraphs 13 and 14 respecting an individual named Lister. The motion was granted. The complaint now' alleges that F. E, Wray, Inc. d/b/a Roto Rooter (Respondent) has engaged in certain viola- tions of Section 8(a)(1) and (3) of the National Labor Re- lations Act, as amended (the Act). Issue As modified, the complaint leaves for resolution only the question of whether Respondent unlawfully refused to recall two individuals after the cessation of a strike. The parties have stipulated that the two- individuals in question, Lionel Myles and Steve Martinez, were partici- pants in, a strike that commenced on November I and ended about December 3. The only' question for resolu- tion is whether Myles and Martinez engaged in miscon- duct sufficient to deprive them of their right to reinstate- ment. Respondent contends that they, did; the General Counsel contends they did not. Based on the stipulation of facts and the entire record of the case, as well as my observation of the witnesses and their demeanor,, I make the following: 1 All dates are 1984 unless otherwise noted. 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent admits, and I find, that it has been at all material times a California corporation with an office and place of business in San Leandro where it is engaged in the business of providing sewer and drain cleaning services as well as plumbing services, on both retail and nonretail bases to residential 'and commercial customers. It further admits that during the past 12 months its gross revenues exceeded $500,000 and that it purchased and re- ceived goods and services valued in excess of $5,000, which originated outside California. Accordingly, it admits and I find that it has been at all material times an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The parties stipulated that on November 1, 1984, cer- tain of Respondent's San Leandro employees went on strike, that its employees Lionel Myles and Steve Marti- nez were among the strikers, and that the strike was an activity protected by Section 7 of the Act. The parties further stipulated that on December 3, 1984, both Myles and Martinez made unconditional offers to return to work but reinstatement was denied them because Re- spondent believed they had engaged in certain strike mis- conduct. Finally, the parties have stipulated that had Re- spondent not held that -belief, it would have reinstated both of them to their former jobs. - A. Lionel Myles Respondent points to'approximately five "incidents" to support its decision not to reinstate Myles. The first oc- curred in early November, approximately a week after the strike began. Myles and two other stikers, Mark Forbes and John Greer, were picketing Respondent's San Leandro yard, which is located on Washington Bou- levard, a major thoroughfare in San Leandro. The three pickets were patrolling the sidewalk across the driveway. A nonstriker, Guy Akana, began to exit the parking .lot via the, driveway. Myles stood momentarily in front of Akana's company truck and brought it to a stop at the sidewalk. Akana agrees that he would have had to stop at that point anyway in order to abide by the traffic laws and in order to await a traffic opening. While he was stopped, Greer and Forbes engaged Akana in a short, friendly conversation lasting no more than 2 minutes. Akana testified that he could have left at any time the traffic permitted him to do so, but that he chose to listen ,to what the pickets had to say. After hearing them out, he entered Washington Boulevard and proceeded to his job. With respect to the conversation itself, Akana testified that Forbes asked him to turn in his company keys, but he replied that he could not. He said that Myles then came over and told- him: "Tell Don A that Lam going to break his legs." Akana did not know who- Don A was although he later learned it was an individual named Don Atkins. Myles denied that he ever blocked Akana's truck from leaving the facility. In addition, he specifically denied making any remark about "Don A" and generally denied threatening anyone during the strike. In both early and late November, Myles had confron- tations with nonstriker John Sales. During the strike many of the strikers followed nonstrikers to worksites and picketed '-near those workmen. Late one morning in early November Myles observed Sales leave Respond- ent's yard- on Washington Boulevard for a clean-out job located at the Eden Lodge residential complex also lo- cated on Washington Boulevard and only a few hundred feet from Respondent's yard. Myles and another striker, Tim Shantin, followed Sales there and began to picket. Sales had some difficulty with his winch, which appar- ently had broken, and he was unable to remove his equipment from the truck. Taking advantage of the inci- dent, the pickets taunted Sales by shouting in the pres- ence of the complex's manager that Sales- was inexperi- enced and incompetent. Myles testified that except for telling Sales he was incompetent he said nothing else to Sales. Sales disagrees, asserting that Myles told him he was going to "kick [Sales'] fucking ass and break his bones." Later, Sales says, Myles said he would "bust [Sales] up,"' amplifying that it was not a union scare tactic but "between you and I, pal." Unable to 'unload his equipment with the broken winch, Sales returned to Respondent's yard where he re- paired it. The pickets followed' him to the yard. When he returned to Eden Lodge they followed him again. Myles testified he said nothing to Sales when he returned to the Lodge. Sales testified, however, that when he returned Myles told him he was going to "bust him up" and "kick his ass." Sales then, testified that after he had finished the job, the pickets surrounded his van as he began to leave and Myles and others began to pound, on it. He says Myles was shouting angrily, "I'm going to get you." Myles denied pounding on the van or making any of'the remarks. During this incident it appears' that Sales' van suffered two flat tires. It is unclear whether the tires were punctures or were simply deflated. Either' way there is no evidence connecting Myles to the tire inci- dent. Respondent concedes that it cannot prove that Myles had anything to do with the flat tires but points to the incident as part of the atmosphere of ' the strike. When Sales realized his tires were flat, he got out of the vehicle to inspect them. Neither Myles nor any other picket made any move to carry- out the alleged threats. In late November, according to Sales, Myles remarked to him in the presence of two, other pickets in front of the San Leandro yard that he was going to be coming back to work the following week. Sales' said Myles told him, "I'm going to get you then. I'm going to get your ass then." Sales says he asked-' Myles to repeat what he had said and Myles obliged saying, "I'll be back next week and I'll get ' your ass." Sales responded by saying ROTO ROOTER- that if Myles attempted to do so he would ' file assault charges against him. Respondent also alleges that Myles at one point parked his car in such a manner as to block the driveway into the yard. According to the testimony there are two driveway entrances, one on Respondent's property and another on the U-Haul establishment's property next door. Respondent's employees regularly used the U-Haul driveway as well as their own. Myles remembers that on one occasion he was going to use the telephone booth lo- cated approximately 10 feet inside Respondent's drive- way and that he parked his small truck nearby to do so. He says that when Guy Davenport, Respondent's gener- al manager, asked him to move it he did . Davenport could not remember the incident, but Rodney Wray, Re- spondent's president, asserts that it was -he who had asked Myles to move his car. He says when he did Myles replied. "No way," and refused. Wray asserts that Myles' vehicle was parked horizontally across the drive- way, thereby blocking it. Neither he nor anyone testified that any other vehicle actually attempted to use the driveway while Myles was parked there. Indeed, Wray has no idea when the vehicle- was actually moved, for he simply walked away and did not pursue the matter fur- ther. In any event, there continued to be access to the yard through the U-Haul driveway ' only a few feet away. The last episode involving Myles occurred about No- vember 20. Nonstriker Scott Johnson, shortly before lunchtime, left the yard in a company truck. Myles and striker Will Lister, believing that Johnson was going out on a call, decided to follow him for the purpose of pick- eting the jobsite. Johnson took evasive action and at- tempted to lose them in traffic, adding credence to their belief that he was on his way to a call. Instead of going to a job, however, Johnson went to his home in Fremont to get his lunch. Johnson testified that as he was entering his house Myles and Lister pulled up. He was about 60 feet away from them when they began calling him a "fucking scab." Lister told Johnson that he had no right working for the Company and would never have any rights if he continued to work for it. Johnson says addi- tional words were exchanged and at that point he heard Myles say he was going to harass and follow Johnson "until he died." As a result of that remark Johnson .de- cided to call the police. Myles testified that when he and Lister arrived in front of Johnson's house, Johnson got out of his vehicle and began "hollering" at them. Johnson shouted at the strikers that they did not want to have a job and did not want to work, but could have a job at Roto Rooter if they wanted' to work. Myles referred to a court order, of which he had a copy, which had refused to prohibit strikers from following nonstrikers to jobs and picketing them there. When the police arrived Myles showed the court order to the policeman. Apparently the only thing the policeman did was to detain Myles and- Lister long enough to permit Johnson to leave 'without being fol- lowed. 775 B. Steve Martinez Respondent asserts that striker Steve Martinez en- gaged in misconduct I day on Hesperian Boulevard in San Leandro. The street is a busy six-lane divided thor- oughfare. About November 13, Martinez 'was driving his own truck down Hesperian Boulevard when he encountered a Roto Rooter van driven by Steve Penney, which was stopped at a stoplight . Penney had previously worked at Roto Rooter but had been brought back during the strike. Both vehicles were stopped in adjacent traffic lanes, about 15 car lenghts from the intersection . Penney says Martinez attempted to force his way in front of his van and that while Martinez was doing so he yelled at Penney saying he was going to "kick his ass." Penney says Martinez then spit at the van and threw ice at it from a fast-food chain's paper cup. Penney concedes, however, that his van was never in any real danger and that Martinez did not actually block h' im' from proceed- ing. The entire incident occurred while the stoplight was changing from red to green as the traffic slowly began to move forward. At no time did Penney's vehicle ever exceed 5 miles per hour nor was Martinez driving any differently from that of an individual attempting to change lanes in a traffic jam. Martinez denies the entire matter . He says he noticed the van, remarked on it to a friend who was driving with him, and then proceeded on his way . He specifically denies saying anything to the driver (Whom he did not seek to identify), denies throwing ice or spitting, and denies attempting to cut the van off by chanting lanes. IV. ANALYSIS AND CONCLUSIONS In its decision in Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984), the Board reconsidered its traditional rule with respect to the reinstatement of strikers accused of misconduct. Prior to this decision the Board had held that a striker's verbal threats that were unaccompanied by any physical, act or gesture would not constitute seri- ous strike misconduct justifying an employer's denial of reinstatement. It had also held that verbal threats that were accompanied by physical movements or contacts, such as hitting cars, did constitute serious misconduct. Its rule, as set forth in Coronet Casuals, 207 NLRB 304 (1973), was that absent violence a striker was not to be disqualified for reinstatement, despite having made abu- sive threats against nonstrikers. However, in Clear Pine Mouldings, a Board plurality disagreed- with the, standard because it was inconsistent with other'sections of the Act. It looked to the decision of the Court of Appeals for the Third Circuit in NLRB v. W. C McQuaide, Inc., 552 F.2d 519 (1977) and to the decision of the First Circuit in Associated' Grocers of New England v. NLRB, 562 F.2d 1333 (1977). Those courts had disagreed with the Coronet Casuals approach. In Clear Pine Moulding, the Board adopted these courts' analysis stating that it rejected that per se rule that words alone can never warrant a denial of reinstatement in the absence of physical acts. Instead, the Board said, it now agreed with those courts that a serious threat may draw credibility from the surrounding circumstances and 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not from the physical gestures of the speaker, moreover, an employer need not countenance conduct that amounts to intimidation and threats of bodily harm. Specifically, the Board adopted the McQuaide test, which it charac- terized as an "objective" test, that the Board should look to "whether the misconduct is such that, under the cir- cumstances existing,- it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Clear Pine Mouldings, supra at 1046, quoting McQuaide, supra at 528. Accordingly, it is now the obligation of the Board to look at all the surrounding circumstances to -determine whether or not the strikers' acts may reasonably be seen to have a coercive or intimidating effect on the employ- ees who are also exercising a Section 7 right, the right not to engage in a strike. Since its decision in Clear Pine Mouldings, the Board has decided a number of cases applying that rule. A cer- tain amount of name-calling and posturing conduct has passed muster. See, for example, MGM Grand Hotel, 275 NLRB 1015 (1985) in which strikers called nonstrikers "scabs." Similarly, in Shalom Nursing Home, 276 NLRB 1123, 1135-1136 (1985), even racist name-calling and taunting were deemed to be insufficient to warrant the denial of reinstatement. Yet, in Georgia Kraft Co., 275 NLRB 636 (1985), when strikers visited a nonstriker's home and threatened to "take care of' the nonstriker in the presence of his pregnant wife and young child, the Board deemed that verbal threat sufficient to warrant the denial of reinstatement. In Clear Pine Mouldings itself, the Board found that a striker who swung a 2-foot club at a nonstriking motorcyclist and used the club to beat on the vehicles of other nonstrikers was properly denied reinstatement. The surrounding circumstances included other strikers carrying other weapons, such as tire irons, baseball bats, and ax handles, as well as being accompa- nied by dogs. Also unprotected was a verbal threat to kill a nonstriker when the individual making the threat was equipped with a weapon that he had been using, as was a statement to a nonstriker while crossing the picket line that she was taking her life in her hands by crossing the line and would live to regret it. Likewise unprotect- ed was a threat to burn down the residence of a non- striker. As I view the cases, it seems to me that a striker's pos- session of a weapon while simultaneously making the threat will clearly warrant the refusal to reinstate. Also, justifying the denial of reinstatement would be a threat to burn a nonstriker's home. This sort of threat seems to fall in the same category as the threat accompanied by a ,weapon because the act is so horrible that fire itself be- comes a weapon. - However, a threat made while at an individual's home, unaccompanied by any weapon, seems to fall into a less clear category . In Georgia Kraft, supra, the threat was made in the presence of the nonstriker's pregnant wife and child. That circumstance seems to have made the threat more immediate and real . Would the result be dif- ferent if the 'threat was more vague, was shouted from some distance while simultaneously respecting the prop- erty line, and in the absence of any especially vulnerable family member? Similarly, if no weapon is present when a nonstriker's car crosses the picket line, but the strikers nonetheless pound on the vehicle with their hands without damaging the vehicle, can it be said that the conduct is intimidat- ing? After all the persons inside the vehicle are not likely to be harmed for they are physically shielded by the auto itself. This is not to say that the din created might not cause apprehension in reasonable individuals. Yet can it be said that the strikers by such boisterous conduct have done anything so serious as to warrant loss of employ- ment? Hopefully, the surrounding circumstances test will be helpful here. A. Lionel Myles Turning to the facts before me, I should observe that for the most part all of the witnesses seem reasonably credible in the presentation of their perception of what happened. It is true that Lionel Myles exhibited some areas of inconsistency, but on the other side it seemed to me that John Sales had some problems as well, including a failure to fully observe what was happening around him. Nonetheless, assuming what Sales had to say was true, it appears that Myles said that he was going to kick Sales' fucking ass and break his bones, followed later by a similar threat that Myles was going to bust Sales up and that it was not simply a union scare tactic, but "be- tween you and I, pal." Even so, at no time did Myles approach Sales while Sales was, out of his vehicle and at no time did Myles ever display a weapon. Sales was not even sufficiently concerned to complain to the apartment manager or to return to the company office. It seems to me that Sales' own conduct here -demonstrates that he did not consider the verbal threats to be very serious. I reach this conclusion despite Sales' testimony that Myles was shouting and gritting his teeth and Sales' assertion that he had taken the threats seriously. Had he done so, he would have sought immediate help for he was out- numbered by the pickets. Despite his current' testimony, he was so unconcerned when ' he went back to the yard to fix his winch that he said nothing about it, and then returned to the job. Similarly, when he entered the vehicle to return to the yard after the job was completed, Sales accused Myles of repeating the threats and of pounding on the company truck with his hands. He agrees that other pickets were making similar remarks and also pounding on the vehi- cle. He was so unafraid he got out to check the tires. When he did so nothing happened to him. It was not until he discovered that the truck had suffered the flat tires that he even bothered to report the incident to the Company. I am of the view that this incident is not so serious as to warrant denying Myles reinstatement. While the inci- dent is not to be condoned, nonetheless it appears that the entire incident, except for the flat tires (to which Myles is not in any way connected) was simply a vocif- erous and boisterous needling of a nonstriker. Sales did not take the threats seriously because they were not made in a serious vein. Similarly, the pounding on the truck did not actually amount to a physical threat to him. Had the pickets or Myles wished to actually strike ROTO ROOTER Sales, they could easily have done so when he exited his vehicle: to discover flat tires. Yet they refrained from any physical contact whatsoever . I conclude, therefore, that the incident at the Eden Lodge is not sufficient to war- rant denying reinstatement to Myles. Similarly, Sales testified that in late November , about a week before the strike ended , Myles said that he was going to return in a week and would "take care of" Sales then. Myles denies this incident in its entirety. Adding credence to his denial is his statement that he did not know when the strike was to end so he wouldn't have said that he was going to return in a week . In any event this is a threat that was unaccompanied by any gesture or deeds suggesting that it had credence . Here I accept Myles's denial. With respect to Myles allegedly blocking Akana, it seems to me that the incident speaks for itself. Akana had to stop at the sidewalk for traffic anyway, chose to listen to the pickets, and then proceeded without further delay. He testified that he could have left at any time and that the pickets did not block his exit. Accordingly, I con- clude that neither Myles nor anyone else actually blocked Akana's egress. Connected to that incident, however, is Akana's testimony that Myles told him to tell "Don A" that Myles intended to break his legs. Akana didn't even know who Don A was at the time. Even so, Myles had no weapon and no immediate appar- ent ability to carry out the threat. Don A was not to be seen. Again, while I do not condone his language, Akana was not particularly concerned with it and proceeded on his way. The threat appears remote and not sufficient to warrant denying reinstatement. Similarly, I am unimpressed with the evidence tending to show that Myles blocked the driveway with his vehi- cle. Even accepting Wray's version that Myles parked his pickup truck horizontally across the driveway, it ap- pears that there was still sufficient space for another ve- hicle to have passed; in any event the second driveway was not blocked . Furthermore, even though Myles may have told Wray that he wasn't going to move his car, Myles testified that he did so and Respondent has pre- sented no evidence to the contrary. Aside from Myles' testimony that the truck was parked there only briefly, there is no evidence regarding the length of time the truck remained in the driveway. Finally, there is no evi- dence that anyone actually attempted to enter the drive- way during that period . This incident certainly would not warrant denying Myles reinstatement. Finally, Respondent points to the incident involving Myles and nonstriker Scott Johnson. The fact that Myles and another striker followed Johnson to his home is of little significance. Certainly Myles intended to picket Johnson at a repair site. He did not know that Johnson was going home to get his lunch. There is no evidence that Myles entered Johnson's property or did anything other than to shout at him from the street . Johnson, however, was understandably upset that he had been fol- lowed to his home. Undoubtedly Johnson believed, as do most people, that his home was safe from the labor dis- pute. Yet Johnson inadvertently carried the labor dispute to his house when he drove the company truck there. The Union did have the right to engage in ambulatory 777 picketing and was merely attempting to exercise that right. Johnson's fear, because he was followed, is magni- fied beyond reasonableness. Respondent, however, points to Myles' alleged remark that he would follow Johnson "until he died." Frankly, I find the language to be am- biguous. It may simply have been hyperbole on Myles' part, asserting that he intended to engage in ambulatory picketing until Johnson was tired of it. On the other hand it could mean that Myles literally intended to dog Johnson's trail until he became physically exhausted and died. The latter version seems to be most unlikely given the Union's desire to engage in lawful ambulatory picket- ing. Accordingly, I conclude that Myles' alleged threat here was not a threat at all, but simply a statement made to advise Johnson that he and the Union were tenacious- ly adhering to the strike. Moreover, the statement was made to Johnson who was a party to the labor dispute, not to his family as in Georgia Kraft Co., supra. I con- clude that this incident does not justify denying Myles reinstatement. B. Steve Martinez The last incident involves Steve Penney's version of what Steve Martinez allegedly did and said at the stop- light on Hesperian Boulevard . Frankly, even crediting Penney's version, it seems to me that nothing untoward happened. Assuming that Martinez edged his vehicle in front of Penney's, spit at the van, threw ice at it, and threatened to "kick Penney's ass," nothing really signifi- cant happened. Penney was never in any danger and did not reasonably believe himself to be in any danger. At the most, his vehicle was moving only 5; miles .an hour and he was well protected by the vehicle itself. Martinez never left his vehicle and he did not even attempt to harm Penney's person. The incident lasted only a few moments and it seems unlikely to me that Penney was in any way actually intimidated. I should say here that although I have credited Pen- ney's version for the sake of analysis, in some respects I find Martinez to be the more credible of the two. Marti- nez was driving his own personal vehicle, was not fol- lowing Penney but happened on him by chance, and it seems unlikely he would have drawn his passenger friend into a near-violent situation in the middle of traffic. Moreover, as the light changed Martinez did nothing to continue the encounter, but proceeded on his way. In any event, I find that the incident did not reasonably tend to coerce or intimidate Penney in any manner. Ac- cordingly, I would not deny Martinez reinstatement based on this incident. In conclusion, I find that Respondent has not sustained its burden of proof that either Myles or Martinez en- gaged in a serious act of misconduct such as to disqualify either of them from reinstatement. Accordingly, I con- clude that when Respondent denied reinstatement to Myles and Martinez at the end of the strike, it did so on the basis that they engaged in the strike, conduct clearly protected by the Act. The denial of reinstatement consti- tutes a violation of Section 8(a)(3) and (1) of the Act. 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in certain violations of Section 8(a)(3) and (1) of the Act, I shall recommend that it be ordered to cease and desist there- from-and to take ,certain affirmative action designed to effectuate the policies of the Act. In this regard, Re- spondent shall be ordered immediately to reinstate Lionel Myles and Steve Martinez.to their former jobs, dismissing.if necessary any replacements , or if those posi- tions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges and to make them whole with interest for loss of earnings as described by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950) and Florida Steel Corp., 231 NLRB 651 (1977). See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).,In addition, Respondent shall be re- quired to remove from its records any reference to the unlawful discharges and shall provide each of them with written notice of such removal and to inform each that the discharges will not be'used ras a basis for further per- sonnel actions concerning him. On the foregoing fmdings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Respondent F. E. Wray, Inc. d/b/a Roto Rooter is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Warehouse, Mail Order and Retail Employees and Wholesale Liquor Salespersons , Local 853, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization "within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act on December 3, 1984 by refusing to reinstate strikers Lionel Myles and Steve Martinez to their former posi- tions of employment because they had engaged in a pro- tected strike. [Recommended Order omitted from publication.]