Gsm, Inc.

174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD GSM, Inc. and Local 585, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. Cases 4-CA- 13204 and 4-CA-13392 10 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 30 March 1984 Administrative Law Judge Karl H. Buschmann issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs, and the Charging Party filed a brief in opposition to the Respond- ent'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 only to the extent consistent here- with, to modify his remedy, 3 and to adopt his rec- ommended Order as modified. We affirm the judge's findings that the Respond- ent unlawfully discharged and refused reinstate- ment to strikers Marenic, Davis, and Jones. 4 With respect to these strikers, the judge credited their testimony denying that they engaged in any picket line misconduct. Accordingly, we find that even if the Respondent held an honest belief that they had engaged in misconduct, the General Counsel met the burden of proving that such misconduct did not occur. 1 The Respondent excepts to the judge's ruling denying its motion to dismiss the complaint on the grounds that, under Markle Mfg Co, 239 NLRB 1142 (1979), enfd. 623 F 2d 1122 (5th Cir 1980), the General Counsel had failed to establish a prima facie case. We affirm the judge's ruling, agreeing that Markle is distinguishable insofar as the CB com- plaint in that case, unlike here, identified specific individuals who had en- gaged in picket line misconduct We express no view on the other bases cited by the judge for distinguishing Markle or for otherwise denying the motion 2 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings 3 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.0 § 6621 4 Consistent with Abilities & Goodwill, 241 NLRB 27 (1979), the Judge awarded backpay to the unlawfully discharged strikers computed from the date of their discharge Chairman Dotson would overrule Abilities & Goodwill, and would, in the event the unlawfully discharged strikers were not permanently replaced prior to their discharge, date the Respondent's backpay obligation to them from the time they made an unconditional offer to return to work 284 NLRB No. 22 We also affirm the judge's finding that the strike was converted to an unfair labor practice strike on 1 November 1982, shortly after the above strikers were unlawfully discharged. 5 Additionally, we affirm the judge's finding that the Respondent vio- lated Section 8(a)(1) of the Act by threatening em- ployees with the loss of their jobs and canceling certain employees' insurance benefits.6 We disagree, however, with the judge's findings that the Respondent unlawfully discharged and re- fused reinstatement to strikers Attanasio, Errickson, Paravati, and Smith. The record shows, and the judge found, that Attanasio kicked a striker ,re- placement's car as it was leaving the plant and at- tempted to kick another; that Errickson slapped the hood of a car as it was leaving the plant; that Para- vati threw a beer can at the side of the Respond- ent's delivery truck as it was leaving the plant; and that Smith intentionally parked his van in areas where the pickets could hide behind it and throw rocks. Smith was also driving the van on an occa- sion when, after following a company truck, his passenger, striker Bohrer, jumped out at a stoplight and threw a cinder block at the truck. In Clear Pine Mouldings, 7 the Board held that strike misconduct is disqualifying if, under all the circumstances, it reasonably tends to coerce or in- timidate other employees. With respect to Attana- sio, Errickson, and Paravati, the judge found their assaults on vehicles nondisqualifying under this standard because they were "relatively, innocuous," because they were "unaccompanied . . by verbal or other intimidating conduct," because the strikers themselves "did not exhibit any threatening or vio- lent demeanor" while assaulting the vehicles, and/or because their assaults did not actually damage those vehicles. 8 We disagree. Conduct such as kicking, slapping, and throwing beer cans at moving vehicles is intimidating enough in and of itself without being accompanied by additional threats or a "threatening or violent demeanor." Further, while such conduct might be "relatively 5 The judge Inadvertently failed to order the Respondent to offer rein- statement to all strikers who were neither discharged nor permanently re- placed prior to the strike's conversion into an unfair labor practice strike. We shall therefore modify the judge's recommended Order to include this remedy See Interstate Paper Supply Go, 251 NLRB 1423 (1980) 6 Inasmuch as we also agree with the judge's conclusion that, under Broyhill Go, 260 NLRB 1366 (1982), no remedial order is necessary for these violations, we find it unnecessary to pass on the judge's finding that the Respondent also violated Sec 8(a)(3) of the Act when it canceled certain employees' Insurance benefits 7 268 NLRB 1044 (1984) 8 With respect to Errickson, the judge also stated that he was pro- voked into slapping the car because his father had been struck by a strik- er replacement's car However, Errickson himself cited only obscenities shouted by the striker replacements and his "frustration" for his violent behavior Moreover, it is unclear whether Errickson's father was struck before or after the car slapping incident GSM, INC. 175 innocuous" when measured against more violent behavior, it nevertheless is violent conduct which may reasonably tend to coerce or intimidate em- ployees in the exercise of their rights protected under the Act.9 With respect to Smith, the judge found his dis- charge unlawful because there was no evidence that Smith himself directly engaged in any coercive or intimidating conduct. We find, however, that his active cooperation with pickets engaged in such conduct justified his discharge." Accordingly, contrary to the judge, we conclude that strikers Attanasio, Errickson, Paravati, and Smith are not entitled to reinstatement. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 3. "3. By discharging and refusing to reinstate strik- ers James Marenic, Arthur Davis, and Lamont Jones, the Respondent violated Section 8(a)(1) and (3) of the Act." 2. Substitute the following for Conclusion of Law 5. "5. By threatening employees with the loss of jobs and canceling certain employees' insurance coverage, the Respondent violated Section 8(a)(1) of the Act, but in view of its disavowal of that conduct and corrective action a remedial order will not be required." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, GSM, Inc., Pennsauken, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 9 See Stroehmann Bros. Co, 271 NLRB 578 (1984) (each of striker's acts of blocking a truck, jumping on its running board, and banging on its window, alone or in concert with other stnkers' misconduct, warranted striker's discharge). It is noteworthy that, here, both Ernckson and Para- vats acted in concert with other pickets in assaulting vehicles. For exam- ple, several other pickets as well as Errickson slapped the car as it was leaving the plant. Paravati, too, was not alone in attacking the Respond- ent's delivery truck when its driver refused to honor the picket line. There was testimony that another picket broke the truck's windshield, and the videotape of the incident shows another picket also throwing an object at the truck. Member Babson finds it unnecessary to rely on this additional rationale in concluding that Errickson's and Paravati's misconduct justified their discharges and disqualified them from reinstatement. I° See Giddings & Lewis, 240 NLRB 441, 445-456 (1979). In agreeing with his colleagues that Smith is not entitled to reinstatement, Member Babson relies solely on the judge's finding that Smith was driving the van when his passenger, Bohrer, jumped out and threw a cinder block at a company truck. He finds that Smith's participation in this incident is suf- ficient alone to justify Smith's discharge and disqualify him from rein- statement. 1. Delete the names "Antonio Attanasio," "James Smith," "Brett Errickson," and "Dominic Paravati" from paragraph 2(a). 2. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs. "(c) Upon their unconditional application to return to work, offer immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, to all strik- ers whose jobs were not filled by permanent re- placements on or before 1 November 1982, dismiss- ing if necessary any persons hired after that date, and make the strikers whole for any loss of earn- ings and other benefits suffered as a result of the Respondent's refusal, if any, to reinstate them, by payment to each of them a sum of money equal to that which each would have earned as wages during the period commencing 5 days after the date reinstatement is required to the date of the Re- spondent's offer of reinstatement, with backpay and interest thereon to be computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB No. 181 (May 28, 1987)." 3. Substitute the attached notice for that of the administrative law judge. 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge, refuse to reinstate, or otherwise discriminate against any of you for en- gaging in a strike or other concerted activity pro- tected by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer James Marenic, Arthur Davis, and Lamont Jones immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, discharging if neces- sary any replacements for these employees, and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the above unlawful discharges and notify the em- ployees in writing that this has been done and that the discharges will not be used against them in any way. WE WILL, on their unconditional application to return to work, offer immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, to all strik- ers whose jobs were not filled by permanent re- placements on or before 1 November 1982, dismiss- ing if necessary any persons hired by us after that date, and make the strikers whole for any loss of earnings and other benefits suffered as a result of our refusal, if any, to reinstate them in a timely fashion, plus interest. GSM, INC. Marvin Weinberg and Bruce D. Bagley, Esqs., for the Gen- eral Counsel. Steven W. Sulks, Esq., of Haddonfield, New Jersey, for the Respondent. William T Josem, Esq., of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE KARL H. BUSCHMANN, Administrative Law Judge. These cases arose on a complaint issued in Case 4-CA- 13204 on November 30, 1982, and a second complaint issued in Case 4-CA-13392 on March 16, 1983. The complaints were consolidated on April 6, 1983. The re- spective charges were filed on September 15, 1982, and December 9, 1982, by Local 585, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America. The complaints allege in substance that the Respondent, GSM, Inc., unlawfully threatened and interrogated its employees in violation of Section 8(a)(1) of the National Labor Relations Act, that the Re- spondent discontinued payments for medical and life in- surance for certain employees in violation of Section 8(a)(3) and (1) of the Act, and that the Respondent un- lawfully discharged 21 employees because they partici- pated in a strike. The Respondent filed its answer on March 23, 1983, in which it admitted certain jurisdiction- al allegations and in which it denied the commission of any unfair labor practices. A hearing was held before me on May 2-6, and 10, 1983, in Philadelphia, Pennsylvania. Pursuant to motion by the General Counsel the complaint was amended during the trial to allege that the strike by the employees was prolonged by the Respondent's unfair labor prac- tices. On the entire record,' including my observation of the witnesses, and after consideration of the briefs filed by the General Counsel, the Company, and the Union, I make the following FINDINGS OF FACT I. BACKGROUND The Respondent, GSM, Inc., is a New Jersey corpora- tion engaged in the remanufacture of automobile trucks and industrial engines at its Pennsauken, New Jersey fa- cility. The Company is admittedly an employer within the meaning of Section 2(6) and (7) of the Act. It em- ploys approximately 75 production employees who were represented by the Union for about 10 years. The Union is a labor organization within the meaning of Section 2(5) of the Act. The most recent collective-bargaining agreement be- tween the principals expired on July 23, 1982. The par- ties were unable to agree on a new contract after about 10 bargaining sessions. As a result, the Company's pro- duction and maintenance employees went out on strike on July 25, 1982. Within a few days, on July 28, 1983, GSM requested injunctive relief in the state court of New Jersey. The injunction prohibited the Union from such conduct as maintaining more than four pickets at each of the plant's entrances, trespassing on the Compa- ny's premises, harassment of other employees, and acts of violence. In spite of the state injunction, the striking em- ployees engaged in occasional misconduct on the picket line after the Company decided to hire replacement em- ployees for the strikers in September 1982. On Septem- ber 13 the first group of replacement workers reported for work. On September 23 the Company filed charges accusing the Union of picket line misconduct. On Octo- ber 29 the Company informed 21 strikers that they were terminated for their picket line misconduct. The Union promptly informed the Company on November 1, 1983, that its ongoing strike was in protest of GSM's unfair labor practices. On November 30 the Board issued a complaint in Case 4-CB-4519 charging the Union with misconduct in violation of Section 8(b)(1)(A) of the Act. The complaint, which did not identify individual strikers, contained allegations of rock and bottle throwing, block- ing the entrances to the plant, shouting and kicking, or hitting of cars. The CB complaint against the Union was in the process of settlement at the time of the trial in this case. At the conclusion of the hearing, the settlement stipulation was pending with the Board. i Errors in the transcript are noted and corrected GSM, INC. 177 The termination letter of October 29, 1982, was writ- ten by Jeffrey Kelemen, the Respondent's president. It notified 21 strikers that they were fired for having en- gaged in picket line misconduct, but the form letter did not specify the particular misconduct and simply in- formed the discharged employee as follows: This letter is to advise you that your employee status at GSM, Inc., is being terminated immediate- ly due to your picket line misconduct. The specific incidents on which the Respondent relied for its decision to discharge the strikers are itemized in a letter, dated January 11, 1983, drafted by the Respond- ent's counsel and addressed to the attorney for the Board (G.C. Exh 11). The Charging Party emphasized in its brief that the Respondent must be limited at the trial in establishing its good-faith belief that the strikers had en- gaged in the described conduct to those incidents speci- fied in the letter, since the letter was written shortly after the discharges. Any additional incidents, according to the Union, should be disregarded. I generally sympa- thize with this position, because the Respondent's letter may be considered an admission. Because the incidents were so numerous it is conceivable, however, that the Respondent's counsel had omitted certain incidents on which the Respondent had actually relied at the time of the discharges. I have therefore not limited the Respond- ent to its itemized list of incidents and I have considered additional misconduct when the record indicates that the Respondent had considered them at the time the dis- charges were effectuated. A. The Burden of Proof The law is clear that when an employer disciplines an employee because he has engaged in an economic strike, such discipline violates Section 8(a)(3) and (1) of the Act. An employer may defend its action by showing that it had an honest belief that the employee disciplined was guilty of strike misconduct of a serious nature. If the em- ployer is able to establish such a defense, then the Gener- al Counsel has the burden to show that either the em- ployee did not engage in the conduct or that such con- duct was protected. The burden then shifts back to the employer to rebut such evidence. Schreiber Mfg. Co. v. NLRB, 725 F.2d 413 (6th Cir. 1984). General Telephone Co., 251 NLRB 737, 738-739 (1980), affd. 627 F.2d 895 (D.C. Cir. 1981). See also NLRB v. Burnup & Sims, 379 U.S. 21 (1964). That an employer must assume the burden to establish an "honest belief" of misconduct is well settled. The Re- spondent, however, has moved to dismiss the complaint in reliance on the decision in Markle Mfg. Co., 239 NLRB 1142 (1979), affd. 623 F.2d 1122 (5th Cir. 1980). There, as here, the Board had issued two complaints, one against the union charging it with violations of Section 8(b)(1)(A) of the Act, citing numerous incidents of picket line misconduct, and the other against the employer al- leging that the discharges of employees for picket line misconduct violated Section 8(a)(3) of the Act. In Markle, the Board had accepted a formal settlement of the CB complaint, and the employer was held to be enti- tied to rely on that complaint and the disposition of it by consent order to establish its good-faith belief that the pickets had engaged in disqualifying conduct. Accord- ingly, it is the Respondent's position here that, like the employer in Markle, it should have been able to rely on the CB complaint and the settlement stipulation for its "good faith" belief that picket line misconduct has oc- curred that would have required the General Counsel to show as its prima facie case that the pickets had in fact not engaged in such conduct. Because the General Coun- sel had failed to assume that burden and, instead estab- lished as its prima facie case proof that the employees had been discharged for their participation on the picket line, the Respondent filed a motion to dismiss the com- plaint. The Respondent's motion, a ruling on which I have reserved, must however be denied because of sever- al important distinctions between the facts in Markle and those in the instant situation. First, on October 29, the date when the Respondent made its decision to discharge the strikers, a complaint had not yet issued in the CB case. It consisted of no more than the Respondent's own charge that was filed on September 23. The complaint did not issue until November 30. Second, in Markle, the employer's decision permitting reliance on the CB case was made after the court's enforcement of the CB settle- ment. Third, in Markle the complaint had identified the specific employees who had engaged in the misconduct. The CB case in the instant case did not list the individ- uals. Even if the Respondent had based its honest belief of picket line misconduct on such a CB complaint, it would obviously be unable to do so with respect to iden- tifiable strikers. And finally, the standard that determines a violation of Section 8(b)(1)(A) of the Act may not be identical to that which constitutes disqualifying picket line misconduct. It is therefore clear that the Respond- ent's motion must be denied. B. The Misconduct The parties agree that serious acts of misconduct com- mitted by a striker on the picket line may disqualify him from the protection of the Act as a matter of public policy. NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977); Clear Pine Mouldings, 268 NLRB 1044 (1984). For example, Coronet Casuals, 207 NLRB 304, 305 (1973), frequently cited and relied on by all the parties, set forth the explanation that strikers who seized the employer's property or engaged in brutal violence against a nonstriker generally lost the protection of the Act. According to the Board, it is necessary to analyze the seriousness of each act of misconduct and to differentiate between cases of mere "animal exuberance" from those in which the misconduct is so flagrant or egregious as to require subordination of the employees' protected rights in order to vindicate the broader interests of society as a whole. General Telephone Co., 251 NLRB 737, 739. The crucial question is whether the misconduct under the cir- cumstances tended "to coerce or intimidate" nonstriking employees or the Respondent's supervisors. W. C. McQuaide, Inc., supra; Associated Grocers v. NLRB, 563 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD F.2d 1333, 1337 (1st Cir. 1977); Clear Pine Mouldings, supra. Although the parties are in general agreement about the legal defmition of disqualifying misconduct and, indeed, that some of it occurred during the strike, there is sharp disagreement about the seriousness of a particu- lar act, the extent of the misconduct evidenced by the record, and whether the discharged employees had par- ticipated in it. I have carefully considered the record and considered the Respondent's reasons for terminating the strikers, as well as the evidence of actual picket line misconduct. Of particular assistance were videotape recordings of the employees' activities that were taken by the Respondent over the 10-month period throughout the lengthy strike (R. Exhs. 8, 10). The video recording that actually de- picts the picket line activity and that is designed to high- light picket line misconduct consists of a 15-minute com- posite out of a total of 15 hours of video recordings. It showed, for example, that the misconduct was not as violent as described by the Respondent and that the ac- tivities were not one-sided. Throughout the period, when the strikers walked the picket line, they were confronted by and exposed to the video camera. Uniformed security guards hired by the Respondent patrolled the facility, oc- casionally with guard dogs. For much of the time local police were also present in their police cruisers. Al- though the record shows that some intimidating and co- ercive misconduct occurred, it is also clear that claims of strikers' "daily violence" or "massive and egregious vio- lence," or of "a virtual siege" lasting several weeks, are exaggerated. This is particularly so when the record fur- ther shows that in some instances replacement workers taunted the strikers with gestures or slogans such as "we've got your jobs," and that they participated in mutual rock throwing and other misconduct. This caused confrontations between workers and strikers and it esca- lated the hostility. Yet the Respondent did not discharge any replacement employees for their misconduct. More- over, it is clear from the testimony and the record that nonstrikers, including employees from other firms in the area, also engaged in violence and misconduct during the strike. In short, from a broad perspective the strikers may have received a disproportionate share of the blame for , some of the misconduct, all of which may also ex- plain the lack of actual involvements by the local police, in spite of its ubiquitous presence at the site. In the following person-by-person account of the mis- conduct, I have greatly relied on the testimony of the Respondent's president, Jeffrey Kelemen, and Scott Ke- lemen, Respondent's vice president. With few exceptions I found their testimony credible and reliable. The Re- spondent's other chief witness was security guard James Tallman. However, I have not heavily relied on the testi- mony of security guard James Tallman, unless it ap- peared plausible or consistent with other testimony or documentary evidence. As a witness he appeared inse- cure, nervous, and unreliable. His testimony also im- pressed me as being frequently exaggerated, partial, and vague. Nonetheless, on the basis of the video tape show- ing specific incidents of misconduct and eyewitness ac- counts by supervisors, replacement workers and guards, as well as the strikers' admission of their own demeanor throughout the strike, the record establishes a consistent and reliable basis of the strikers' conduct. In several of the discharges the Respondent was able to establish a good-faith basis for its belief that misconduct occurred. In some instances the General Counsel has shown that the misconduct was not committed by the employee or that it failed to rise to the levels of disqualifying conduct. Most of the alleged misconduct consisted of the throwing of objects (rocks, bottles, bolts, firecrackers) at the cars of replacement workers or at the plant. I have found such conduct, when committed more than once by a Striker, or when it caused damage to the car or the building, to be of such seriousness so as to disqualify a striker from reemployment. Coronet Casuals, 207 NLRB 304 (1973); Gold Kist, Inc., 245 NLRB 1095, 1101 (1979). Other common misconduct consisted of kicking or slap- ping of cars of replacements. I have found that such con- duct, if standing alone and unaccompanied by damage, did not rise to the level of seriousness to be considered disqualifying. Coronet Casuals, supra; Gold Kist, Inc., supra at 1100; Newport News Shipbuilding, 265 NLRB 716 (1982). 1. Antonio A. Attanasio According to the Respondent, this employee partici- pated in two incidents of serious misconduct. The first incident occurred about a week after replacements had been hired around the middle of September 1982. Scott Kelemen, Respondent's vice president, testified that he observed Attanasio kicking the car of a replacement worker as the car was leaving the plant. He also attempt- ed to kick a second car but fell down. Attanasio admit- ted that he made an attempt to kick the car, but that he lost his balance and fell down in the process. His testi- mony, although somewhat equivocal, is supported by a photograph which shows him stumbling to the ground. (G.C. Exh 12.) The second incident occurred on September 28, 1982, when a group of pickets were present as job applicants left the plant in a car. This incident is depicted on a vid- eotape (R. Exh. 8, incident 14) and shows the pickets milling about as the car approached them, reversed, and, at one point, almost appeared to collide with them. Jef- frey Kelemen, Respondent's president, testified that At- tanasio was among the pickets and that he kicked the car occupied by job applicants. It is the Respondent's posi- tion that Attanasio's conduct intimidated the occupants of the car although the Respondent apparently concedes that he made no verbal threats and showed no other in- timidating demeanor. An examination of the video por- tion of this incident discloses that intimidating conduct, if any, was not committed by this striker but by the car's driver who appeared to drive recklessly. (R. Exh. 8, inci- dent 14.) Moreover I find the incident as depicted on the video- tape to be unclear and inconclusive insofar as Attanasio's presence is concerned during that incident. I therefore credit the testimony of Scott and Jeffrey Kelemen to the extent that Attanasio's misconduct consisted of one epi- sode where he slightly kicked a car and another episode GSM, INC. 179 where he attempted to kick a car of replacement em- ployees or job applicants. His conduct in this regard was restrained and admittedly caused no damage to any vehi- cle. He certainly did not exhibit any threatening or vio- lent demeanor, I find his conduct to be relatively innocu- ous, not violent or intimidating, and certainly not suffi- ciently serious so as to disqualify him from reinstatement. Clear Pine Mouldings, 268 NLRB 1044 (1984); Gold Kist, Inc., 245 NLRB 1095, 1100 (1979); Coronet Casuals, supra, 207 NLRB at 307. 2. Luther Bloodworth As a shop steward and 15-year veteran in the Re- spondent's employ, Bloodworth was discharged for having engaged in misconduct, consisting of rock throw- ing. The first incident occurred on September 21, 1982, when two cars approached the plant. The first car was driven by Jeffrey Kelemen. As he entered the plant Bloodworth threw a bottle at the car's rear quarter panel. Bloodworth admitted this incident and testified that he reacted to a replacement worker's obscene ges- ture and comment to get out of the way. This incident was recorded on videotape (R. Exh. 8, incident 3) and described by Kelemen's testimony that indicated that some damage resulted to the rear of his car as a result of the impact with the bottle. Bloodworth also admitted a second incident in which he threw a rock at a passing company tractor trailer, acting out of anger at the driver of the tractor who told him to get out of the way. The incident is recorded on videotape (R. Exh 8, incident 5). No damage was caused by this rock throwing incident. The other alleged rock throwing incident on Septem- ber 23, 1982, was not substantiated by the record. Wit- ness Larry Young, a security guard, identified Blood- worth as one of several people throwing rocks or bolts at the plant from behind a blue van on September 23. However, he subsequently identified the man on the tape, thought to be Bloodworth, as Bo Williams, another striker (Tr. 495). His testimony is therefore unclear and unreliable. Bloodworth also stands accused of having participated at the September 26 "night raid." Witness James Tall- man, a security guard, testified at length about a gather- ing of pickets and employees of other firms on that Sunday evening across from the Respondent's plant. Tallman's testimony indicated that the gathered group made threats to vandalize the Respondent's building and that they threw rocks and bottles at the windows. How- ever, Tallman was unable to be specific about the extent of Bloodworth's participation. He identified Bloodworth as one who participated in the throwing of objects. But the record does not contain any corroboration of Tall- man's testimony or show which object was thrown or whether any damages resulted from Bloodworth's action. Accordingly, I find that Bloodworth was present at a general rock throwing incident on September 26, in which the extent of his participation is unclear and where he caused no damage. Reliable evidence, however, shows that Bloodworth threw objects on two specific occasions, once at Kele- Men's car with minor damage and once at a truck. I con- clude that his misconduct reached the severity that dis- qualified him from reemployment rights. Case law indi- cates that the throwing of objects at an employer's car is not always considered such serious or violent conduct as to deprive a striker the right of reinstatement, Coronet Casuals, 207 NLRB 304, 308 (1973), but the throwing of rocks at cars or trucks, accompanied by some damage, will usually be regarded as disqualifying conduct. Gid- dings & Lewis, Inc., 240 NLRB 441, 448 (1979); Totes Inc., 257 NLRB 678 (1981); Schreiber Mfg. Co. v. NLRB, 725 F.2d 413 (6th Cir. 1984). 3. Russel Cauley The Respondent has accused this employee of miscon- duct on the picket line, including making verbal threats, kicking cars, and throwing rocks or bolts at cars, trucks, and the plant building. Cauley did not deny the evidence against him, and the record supports several of the alle- gations of picket line misconduct. For example, on Sep- tember 13, 1982, as replacement workers were leaving the Respondent's plant, Cauley kicked cars and spat on them. This was observed by Scott Kelemen, Respond- ent's vice president, and William T Simmons, one of the replacement employees. Cauley engaged in similar car- kicking episodes on September 29, as cars entered the Respondent's parking lot. On September 20 or 21, Cauley was observed by Mark McAndrew, Respondent's treasurer, throwing a rock at the plant and breaking a window. On September 29, 1982, witnesses Charles Shover and James Tallman, both security guards for the Respondent, testified that Cauley threw a rock over a truck towards the plant. This incident was also recorded on video tape (R. Exh 8, incident 12). No damage resulted from this incident. The record contains the testimony by supervisors and employees that Cauley may have engaged in other rockthrowing incidents. A detailed discussion of that tes- timony would only be cummulative, for it is clear that the extent of Cauley's misconduct relied on by the Re- spondent and actually shown in the record was suffi- ciently serious so as to disqualify him for reemployment. Gold Kist, Inc., 245 NLRB 1095 (1979); Giddings & Lewis, supra; Newport News Shipbuilding, 265 NLRB 716 (1982); Schreiber Mfg. Co. v. NLRB, supra. 4. Robert Keefe Also known as Tarzan, Robert Keefe was discharged for picket line misconduct that the Respondent believed consisted of numerous "incidents of violence and vandal- ism." According to the Respondent, Keefe threw rocks and other objects at employee cars and windows on sev- eral occasions, including September 21 and 22, and par- ticipated in the night raid on September 26, 1982. The record substantiated several of the incidents. Approximately 3 weeks after the replacements were hired on September 13, Keefe with two other individuals were positioned behind a camper near the south end of the plant. Ronald Campbell, a security guard, observed them throwing beer bottles and rocks towards the build- 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing. No damage resulted, but at one point Keefe actually aimed a rock at the security guard. This incident was also observed by another security guard, Charles Shover. Security guard Tallman and replacement worker Frank Rubba testified that for a period of 1 or 2 weeks right after replacements were hired, Keefe threw rocks and other objects at the loading platform of the plant and the employees' parking area. In October or about 2 months after William Simmons was hired as a replacement worker, Keefe approached Simmons on the employee parking lot during a break- time. Keefe showed him the handle of a gun with the comment that he had a surprise for him Keefe admitted that incident but explained that it had merely been the handle of a toy gun. At another occasion on September 22 Keefe can be seen on a videotape being among a group of pickets and swinging an umbrella at a car as it left the parking lot. There were other incidents that Keefe was alleged to have committed. However, in view of the above find- ings, a detailed discussion would be redundant. For ex- ample, on September 29 Keefe threw a rock at replace- ment John Murray's car, damaging his windshield. How- ever, the incident was not known by the Respondent at the time it decided to discharge Keefe. Another incident involving a confrontation between several replacement employees and strikers, including Keefe, occurred on September 21. The Respondent described it as an ambush on National Highway. However, the testimony of sever- al witnesses explained that this episode may have been provoked by replacement workers who were armed with chains and axe handles. Similarly, in the incident on Sep- tember 29, when Keefe threw an empty soda can at the car of a replacement worker entering the parking lot, the record shows that the car gave no signals and nearly ran over Keefe. Keefe's conduct was clearly provoked by the driver of the car. Keefe denied throwing objects at replacement workers except during the "ambush epi- sode" on September 21. However, the record clearly shows that Keefe committed several acts of violence such as stone throwing and engaged in other intimidating conduct so as to disqualify him from reemployment. 5. Earl Bohrer The Respondent based its good-faith belief that Bohrer committed strike misconduct on such incidents as punch- ing or kicking cars, the throwing of firecrackers and other objects, and his participation during a night raid. The record supports the Respondent's belief in several respects. First, on September 13, the day the replace- ments reported for duty, Bohrer punched the windows and sides of three or four cars as they passed through the picket line. Although Bohrer did not damage any of the cars, he seriously hurt his hand and wore a cast for some time thereafter. Obviously Bohrer's punches must have been substantial. The record, however, does not show that Bohrer's actions were accompanied by verbal threats. On the same day, James Perry, a replacement worker, observed Bohrer throwing objects at the cars of replacement workers. Perry did not identify the objects nor what damage, if any, resulted. On September 23, 1982, Bohrer white picketing threw 1-inch firecrackers on the driveway. He did not throw them at anyone or cause any damage. Bohrer was also identified by security guard Tallman as being among several strikers who threw rocks and other objects at the plant on the evening of September 26. However, Tallman's testimony was not corroborated. In any case, no specific damage attributable to Bohrer was mentioned. Bohrer's participation in this incident is therefore not clear. Finally, William Simmons, a replacement worker, testi- fied, that Bohrer with other strikers followed a company truck in October as it left the plant. As the truck stopped, the strikers pulled alongside, and Bohrer threw a rock or a cinderblock striking the rear of the truck. Other incidents of alleged misconduct were unknown to the Respondent at the time it decided to discharge this employee or were not sufficiently established by record evidence to be reliable. In any case, it is clear that Bohrer's conduct clearly transgressed the limits of per- missible conduct. His discharge was therefore justified. 6. Jethro Grace The bases for the discharge of Jethro Grace are sever- al incidents of rock throwing at the cars of replacement workers, other acts of vandalism against cars, and his participation during the night raid on September 26. Ac- cording to the record, Grace was observed by James Perry on September 13 standing on Melrose Highway and throwing a rock towards the plant building. The rock broke the window. On the same day, security guard Shover saw Grace as he picked up a rock, bouncing it several times in his hand, and then threw it into the park- ing lot. Shover also testified that he believed that the car window of a replacement worker was shattered as a result of Grace's action. Two replacement employees, Donald Anderson and James Perry, described how Grace, among other strikers, stood on the highway in front of the plant on September 15 and broke the win- dows of their cars with a pipe or a club as they ap- proached the parking lot. Other incidents, such as Grace's participation in the Sunday night raid on September 26 and a car tire slash- ing reference, are not sufficiently specific to be consid- ered as probative evidence. However, Grace's involve- ment in the incidents of picket line misconduct listed above is fully supported by credible evidence despite Grace's denials. I therefore find that the Respondent was fully justified in discharging this employee. 7. Edward Kelly Kelly was discharged because he allegedly kicked the cars of employees as they left the plant and because he participated in a rock-throwing incident on September 23, 1982. The record supports the Respondent's belief that this employee engaged in acts of misconduct. First, Kelly admitted, when confronted with video recording segments, that he participated in three incidents of car kicking. The first incident occurred on September 23, 1982, when he kicked the right rear of a blue car as it left the plant. The second incident occurred on Septem- GSM, INC. 181 ber 29 when he again kicked a car and, on October 7, Kelly kicked the side of a red truck that was driven by a job applicant. Kelly was also observed by replacement workers to have carried a slingshot on September 24 to the picket line. Frank Rubba credibly testified that he saw a rock flying through the air simultaneously with Kelly carry- ing a slingshot. He was, however, unable to testify whether Kelly actually shot the rock through the window. Gary Koehler testified that Kelly not only car- ried a slingshot, but that he observed him use it on sever- al occasions in breaking a window in the area where Koehler worked. Koehler's testimony, however, Wistix- aggerated and intemperate. I have therefore credited his testimony only to the extent that it corroborated that of Rubba. Accordingly, I find that Kelly brought a sling- shot to the picket line and that its use did not cause any damage. Finally, security guard Young observed Kelly as he positioned himself behind a parked blue van on September 23 from which rocks were thrown at the plant building. Kelly denied throwing any objects and testified that he made throwing motions only to tease the person operating the video camera. I cannot credit Kelly's explanation and find that he engaged in rock throwing. On the basis of the foregoing episodes considered as a whole, I find that Kelly's conduct was sufficiently coer- cive and violent so as to disqualify him from reemploy- ment by the Respondent. 8. James Marenic The Respondent believed this employee to have threatened replacement workers as they entered the plant and to have thrown objects at the plant building. The record, however, does not support the Respondent's belief of Marenic's misconduct. First, the only evidence of a threatening statement was a voice recorded in the Respondent's video recording equipment to the effect, "your old lady's got to drive out . . . [y]ou think she's going to get out of here." (R. Exh. 8.) That statement, however, could have been made by anyone near the picket line, and there is no testimony that Marenic made that statement. The Respondent attempted to offer the testimony of Jeffrey Kelemen to identify the voices on the recording as that of Marenic and Alex Rusinko. Be- cause I deemed this voice identification too speculative, I disallowed the evidence. 2 Marenic credibly testified that he did not yell or threaten any replacement worker, al- though he may have uttered a swear word. I therefore find that Marenic did not, as the Respondent may have believed, threaten any replacement worker. Insofar as Marenic's alleged violence on September 26 is concerned, the record contains only security guard Tallman's testimony. He testified that he observed a large gathering of union people across from the Re- spondent's plant on that Sunday night. As he approached the group, he spoke to Masenic inquiring what was hap- pening. Marenic, according to Tallman, replied that they were "going to tear the hell out of the place." Tallman 2 This ruling also affected Respondent's allegation of similar statements made by Alex Rusinko Jr. testified further that he overheard Marenic repeating the threat to the police a short while later. Pursuant to a leading question, Tallman hesitantly stated that Marenic threw one or two objects at the building that night. Tallman's testimony in this regard was not corroborat- ed and seems implausible. Although security guard Young was present during the episode, guarded the building with Tallman that night, and appeared as a wit- ness in this case, he did not testify about this episode. Moreover, I have difficulty accepting the alleged con- versations in which Marenic would openly admit to the security guard and the police that he was about to commit serious acts of vandalism. I have not credited his testimony. Marenic, on the other hand, credibly testified that he was at the picket site that evening and that he spoke with Young and Tallman specifically observing that the picketing was peaceful. Marenic left for home prior to the commencement of any violence. On the basis of the foregoing, I conclude that Marenic did not engage in any misconduct. Finally, the Respondent accused Marenic of "loitering behind the van with a group of employees when the shower of rocks took place" on September 23. However, the video recording of Maren- ic's conduct on that day, while showing his presence on the picket line, proves that he did not engage in any stone throwing incident or any other misconduct. It is well settled that the misconduct committed by other pickets may not be imputed to another employee unless he actually participated in such conduct, which the re- cordfails to do. Accordingly, the Respondent's good- faith belief of Marenic's misconduct was disproven. His discharge violated Section 8(a)(1) and (3) of the Act. 9. Robert Haines The Respondent's good-faith belief that Haines com- mitted serious misconduct on the picket line is alleged as a result of incidents of rock throwing on September 23 and 29 and the setting off of firecrackers while on the picket line. Security guard Ronald Campbell testified that he observed Haines on September 23, 1982, as he shot off a bottle rocket from the opposite side of the plant's entrance towards him. The instrument landed about 2 feet from where he stood near the front entrance of the plant. On the same day Haines, sitting on the curb near the picket line, lit and threw firecrackers to the ground. (R. Exh., incident 8.) The record is not clear to what extent a bottle rocket differs from a firecracker, but it is clear that the bottle rocket was the more serious of the two incidents because it was directed at the security guard. On September 29, 1982, according to security guard Shover's testimony, Haines was behind the blue van parked on the opposite side of the street. Haines had a pile of rocks on the ground and threw them at the plant building. He hit two windows and broke them. Similar conduct is also alleged to have occurred on September 23, 1982. However, Haines was merely identified as being among several pickets behind the parked blue van. Video recording of the episode depicts the scene but is inconclusive as to the extent of Haines' conduct on that day. I have therefore not considered this incident in eval- 182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD uating the alleged misconduct. However, the misconduct that is fully supported by the record, despite Haines' denial, particularly the willful destruction of the plant windows and the attempted assault with the bottle rocket is sufficient to support the Respondent's good-faith belief of misconduct by this employee to justify his discharge. 10. Alex Rusinko Jr. As the Union's strike captain until his discharge, Ru- sinko was on the picket line more than any other em- ployee. He occasionally wore a cowboy hat and carried a clipboard to keep a record for the scheduling of pick- ets. He also carried a mirror to blind the camera, because he objected to the Respondent's practice of video re- cording the strikers on the picket line. Rusinko was fired by the Respondent because he threatened employees en- tering the plant on September 17, 1982, and kicked their cars, for using the mirror to blind the camera, and for his participation for the "night raid" on September 26, 1982. On September 17, 1982, a replacement worker's car was leaving the plant. As the car passed him on the picket line Rusinko hit the car with his hand and ran alongside it for a short distance. Rusinko testified that he slapped the car because it nearly hit him when it entered the lot and that he attempted to slow down the car to obtain the license and registration number. The evidence does not show that the car was driven recklessly or that its driver had somehow provoked Rusinko. He simply slapped the car and yelled out to the driver (R. Exh 8, incident 1). On September 23, 1982, Rusinko, with other pickets, stood beside the blue van parked across the street. Ru- sink° with a truck mirror in his hand reflected the sun at the video camera as it recorded the throwing of several rocks by individuals hidden behind the van. That scene shown on videotape incidentally supports the General Counsel's claim that nonstrikers were often involved in some of the misconduct. In any case, Rusinko left the scene along with everyone else after a window was shat- tered by the rocks. (R. Exh., incident 10.) The evidence clearly suggests that Rusinko's action was designed to camouflage the rock-throwing episode from the video camera. Rusinko thereby became a part of the unlawful action. In addition, the record contains testimony by several replacement workers that Rusinko engaged in serious rock-throwing incidents. For example, John Murray tes- tified about an incident on October 1 when Rusinko threw a rock at a replacement car. Similarly, Gary Koehler testified about two incidents of rock throwing. Both incidents, however, were not reported by these em- ployees to management until about 2 weeks before the trial in this case. The Respondent obviously did not rely on these incidents (R. Exh. 11). I have therefore not con- sidered them in my analysis of Rusinko's alleged miscon- duct. Two other incidents that the Respondent discussed in its brief should be disregarded. Perry's testimony im- plicating Rusinko on September 13 for throwing rocks at employees' cars did not identify Rusinko by name. Perry identified Rusinko only as the "cowboy" because he wore a cowboy hat on the picket line. This identification is insufficient, because the record shows that other strik- ers occasionally appeared on the picket line in cowboy attire. Tallman's recollection of Rusinko's role on Sep- tember 26 was not corroborated and was generally un- clear. Rusinko's participation with the mirror behind the blue van while rocks were thrown at the plant building, as well as his hitting of the car driven by a replacement worker were sufficiently intimidating and serious to sup- port the Respondent's decision to discharge this employ- ee. 11. Jack Montesjardi The Respondent's belief that Montesjardi engaged in misconduct is based on incidents of rock throwing on September 23 and 29, 1982. Montesjardi was a union steward and had served on the Union's negotiating com- mittee. He had been in the Respondent's employ for about 15 years. The record shows that Montesjardi en- gaged in several acts of picket line violence. He admitted to rock throwing at a replacement's car because the oc- cupant taunted him with a comment, "I got your job." The video recording shows that Montesjardi threw an object in the direction of a car after it entered the plant's premises about 8 a.m., on September 29, 1982. (R. Exh 8, incident 12.) The object did not hit any car or cause any damage. Security guard Shover testified that Montesjardi threw a total of about four or five rocks into the parking lot that morning as replacement workers en- tered the plant in their cars. One car may have been hit and damaged, according to Shover. He further testified that Montesjardi and Robert Haines were behind the blue van sometime later during the same morning of Sep- tember 29 throwing objects in the direction of the plant. Additional rock-throwing incidents are alleged, as for example one which occurred on September 23 as de- scribed by Michael Waller, a replacement worker, an- other one on September 22 as seen on video and identi- fied by Kelemen, one described by Tallman in his ac- count of the Sunday night raid on September 26, as well as the group activity behind the van on September 26. I found the video scenes on September 23 and 26 too un- clear and vague to be credible and Waller's testimony dubious, because of his uncertain demeanor as a witness. Moreover, the lack of corroboration by Perry and An- derson who were in Waller's car during the alleged as- sault but did not mention this incident during their testi- mony, supports Waller's lack of credibility. Montesjardi denied his involvement in that incident. Finally, Tall- man's account of_the Sunday night raid was uncorrobor- ated and, for reasons already stated, unreliable. Howev- er, the record has convincingly established that Montes- jardi committed picket line misconduct, as believed by the Respondent I accordingly find his discharge to have been justified. 12. John F. Montesjardi As the nephew of Jack Montesjardi, the union stew- ard, John Montesjardi was also employed by GSM, Inc., until his discharge on October 29, 1982. The Respondent based its belief of serious picket line misconduct commit- ted by this employee on an incident on September 29, d8M, INC. 183 1982. Jeff Kelemen testified that he was leading a group of employees by caravan into the plant when Montes- jardi threw a bottle at his car. It hit the left rear quarter panel and dented it. Montesjardi denied ever throwing any objects. However, I credit Kelemen's testimony and find that Montesjardi was responsible for the incident. The Respondent also refers in its brief to a rock- throwing incident about a week after the replacements had reported for work on September 13. According to security guard Shover's testimony, Russel Cauley and Montesjardi stood behind a truck and threw rocks at the plant's loading platform. However, because the record does not show in any way that the Respondent relied on this episode or was even aware of it at the time of the discharge, I have not considered it. Even though Montesjardi, unlike the strikers discussed above, had engaged in only one act of misconduct, namely, the throwing of an object causing damage to Kelemen's car, it was sufficiently intimidating to the re- placements in the caravan and violent towards Kelemen to be regarded as disqualifying conduct. 13. Aniello Napolitano Employed for 9 years at GSM, Inc., Napolitano was discharged for having thrown objects at employees on several occasions. Napolitano denied ever having thrown a stone or any other object. But the record shows other- wise. Security guard Shover testified that on September 28, 1982, about lunchtime, he observed Napolitano throw a rock at a car that drove out of the Respondent's park- ing lot. Two hours later, as a job applicant was leaving the plant and turned on Melrose highway, Shover wit- nessed as Napolitano threw a bottle at the side of the car. One day in the first week of October, replacement employees Joseph Baxter and Joseph Sage were leaving the plant in Sage's car at 4:30 in the afternoon when Na- politano stepped out of a group of pickets and threw a rock at the side of Sage's car. NVhen Sage stopped the car momentarily, Napolitano motioned to him as if to invite him to a fight. No damage resulted from the inci- dent. And finally, replacement employee William Sim- mons testified that he was a passenger in a fellow em- ployee's car several weeks after they were hired in Sep- tember when Napolitano threw an object at the car caus- ing minor damage. The record contains additional testi- mony about Napolitano's rock-throwing activity. How- ever, the seriousness of his misconduct was sufficiently established by the incidents listed above from which I have no difficulty concluding that the Respondent was justified in discharging this employee. 14. James Smith The Respondent's belief of misconduct of this employ- ee is primarily based on his use of the blue van that was frequently parked on a sidewalk across from the plant. Smith admitted that he owned the van and habitually parked it in a spot across from the plant to provide shel- ter for the pickets in inclement weather and to serve coffee. But the Respondent accused Smith of using it to assist pickets in unlawful acts such as the throwing of stones. Again, Smith has conceded in his testimony that on some occasions other individuals may have hidden behind the van to throw objects and that fellow employ- ee Bohrer threw a cinderblock from the van at the car of replacement worker Simmons. But the record is devoid of any misconduct actually committed by James Smith. Indeed, the record shows and Smith credibly testified that he used the truck as a resting place for his fellow strikers where they kept coffee and sandwiches and where they went to get out of the rain. Smith denied that he stored rocks or other objects in the van or that he used it to camouflage misconduct. When on September 23 rocks were thrown by individ- uals from behind the van, there is no evidence suggesting that Smith threw rocks or transported rocks to the picket line. Indeed, close scrutiny of the video segment (R. Exh. 8, incident 10) shows that rocks were thrown at the pickets and landed near the van. The incident on September 24 described by security guard Shover indi- cates that bolts were thrown from behind the van, but his testimony indicated that four individuals were behind the van. There is no suggestion that Smith participated in that conduct. This is also true of a rock-throwing inci- dent on September 29 when certain pickets were identi- fied as having thrown rocks; Smith was not one of them. Finally, there is testimony by replacement worker Sim- mons that the van driven by Smith followed his car on September 13 for about 2 miles without any incident. About a month later, Smith's van followed a company truck driven by Simmons, when Bohrer emerged from Smith's van to throw a cinderblock at the rear of the company truck. However, except for the inference that in both instances Smith followed the cars, there was no suggestion that Smith committed any other wrongful act. Moreover, I reject any suggestion that Smith followed the cars or trucks of replacement employees in order to intimidate them. Rather, I find that any appearance that the van may have followed Simmons' car or truck was purely coincidental. The record clearly shows that fol- lowing the cars of replacements was not a common prac- tice among the striking employees. Furthermore, Sim- mons' statement that the blue van had intentionally fol- lowed him is totally uncorroborated and I discredit Sim- mons' testimony to that effect. It is therefore clear that the record does not support any acts of misconduct or violence committed by Smith. The blue van may have annoyed the Respondent, but Smith's discharge obvious- ly violated Section 8(a)(1) and (3) of the Act. 15. Edward Williams A 10-year veteran with the Respondent, Williams was accused of throwing objects at cars on September 13 and 20, 1982. The record shows that on September 13, when replacements first reported for work, security guard Shover and replacement employee William Simmons ob- served Williams throwing a bottle at Simmons' van as he left the Respondent's parking lot. The window of Sim- inons' car was shattered. Williams' testimony, as cor- roborated by John Alexander, credibly established that Simmons drove aggressively out of the parking lot to- wards Williams and, sharply turning on the highway, narrowly missed Williams. At the same time Simmons 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shouted at Williams to get out of the way. Williams, who had to jump out of the way, then threw the bottle at the car. Security guard Shover testified about another incident that occurred about a week after replacements had been hired. Williams stood on the street and threw a rock into the direction of the parking lot area. No damage resulted from this incident. On October 7, 1982, when replacement employee Ken Ford applied for a job with GSM, he was stopped by about eight pickets. Ford conversed briefly with the pickets when Williams slapped the side of his truck with his hands. The truck was not damaged as a result of this incident. The Respondent has alleged two additional incidents, one which occurred on September 13 when Williams threw a rock at a car in which replacement worker Donald Anderson was riding and another that occurred on the following day when replacement James Perry ob- served Williams, among others, throwing rocks. Howev- er, I agree with the General Counsel that, in both in- stances, the witnesses' identifications of Williams were tenuous. For example, to the question whether he could see the person who threw the rock, Anderson repeatedly stated, "Not really." He finally identified the man as being black and wearing a denim hat that resembled Wil- liams. Similarly, Perry hesitantly identified Williams as one of the strikers who threw rocks at his car. On cross- examination, Perry seemed unsure, he could not explain why he had failed to mention this incident in his affida- vit, and he admitted that it was difficult to "think clearly all the time" under such circumstances. In any case, these two last instances are not the sole determining factors of Williams' picket line conduct. Williams admitted the throwing of rocks, albeit when provoked; and the record is clear that Williams threw objects at cars at least on one occasion without provoca- tion. It is therefore clear that Williams' misconduct, con- sidering the cumulative effect of the several incidents, rose to the level of seriousness so as to justify the Re- spondent's action. 16. Brett Errickson A relative recent employee at the time of his dis- charge, Errickson was fired even though he engaged in only one minor incident on the picket line on September 17, 1982. In this regard, the record evidence consists of only the video segment of the incident that shows a car leaving the plant and, breaking through the picket line without stopping and entering the highway without slowing down, the car is slapped by several pickets. Er- rickson also slaps the hood with his hand, unaccompa- nied, however, by verbal or other intimidating conduct (R. Exh 8, incident 1). The entire scene as shown on the video segment is fairly innocuous and devoid of any sig- nificant coercive or intimidating effect. Moreover, Er- ricicson, who admitted that he may have slapped the hood of the car, explained that the men going through the picket line cursed him and shouted obscenities. He also related that his father, also an employee at GSM, was once struck by a car recklessly driven by a job ap- plicant. Errickson therefore felt particularly frustrated. In any case, it is clear that the casual slap on the hood of the car, particularly under the circumstances here and without causing any damage, did not amount to the vio- lent, intimidating, or coercive misconduct to be consid- ered disqualifying for reemployment. The Respondent's action in discharging this employee clearly violated the Act. 17. Arthur Davis and Lamont Jones The Respondent discharged employees Davis and Jones upon its belief that these employees were involved in coe incident of kicking the car of a job applicant on September 28, 1982. The only record evidence for this incident is a video segment and Jeffrey Kelemen's testi- mony—not as an eyewitness—attempting the identifica- tion of Davis and Jones from the video recording (R. Exh. 8, incident 14). Even conceding Kelemen's familiar- ity with the individual pickets and his expertise in making identifications of individuals from the video re- cording, I question the accuracy of the identification of these two individuals, because the particular segment (in- cident 14) shows at least a dozen or more strikers who can barely be recognized as individuals. Even if I accept- ed, arguendo, Kelemen's identification of Davis and Jones as the two individuals who kicked the car, it is clear that the driver of the car drove in an extremely reckless and provocative manner that prompted an audi- ble commentary on the video segment "he is running over them." The car stopped several times and suddenly reversed in an apparent attempt to hit the pickets, rather than making an effort to get away from them. Obviously, the ones intimidated were not the job applicants. In any case, I credit Jones' and Davis' testimony in which they denied that they ever kicked a car or engaged in any misconduct. It is therefore abundantly clear that the record does not support the Respondent's good-faith belief that Davis and Jones had engaged in misconduct, not only because of their denial of any wrongdoing and a clearly deficient identification, but also because their alleged conduct was unaccompanied by any intimidating or coercive demeanor and because their alleged miscon- duct was harmless and in any case had been provoked by the driver of the car. I accordingly find that the Re- spondent violated Section 8(a)(1) and (3) of the Act when it discharged these strikers. 18. Dominic Paravati This employee was discharged by the Respondent on a belief that his involvement in one incident amounted to serious and intimidating picket line misconduct. The evi- dence shows that on September 21, 1982, Paravati was among several pickets as Respondent's delivery truck was leaving the plant's premises and was briefly stopped at the picket line where the pickets requested that he honor the picket line. As shown on the video segment recording this incident, Paravati threw an empty beer can at the side of the truck. (R. Exh. 8, incident 4.) Para- vati admitted the incident and explained that he was frus- trated at the driver who refused to honor their picket line. Although there is testimony that other pickets broke the windshield of the truck, it is clear that Paravati was GSM, INC. 185 unaware of that and certainly was not responsible for that occurrence. His sole responsibility was the throwing of an object at the side of the truck. He caused no damage and, unaccompanied by any intimidation or threats of bodily harm, the act did not tend to coerce or intimidate any employees. The record shows clearly that Paravati's only act did not rise to the seriousness of dis- qualifying conduct. The Respondent violated Section 8(a)(3) and (1) by its failure to reemploy this employee. II. THE UNFAIR LABOR PRACTICE STRIKE As amended, the complaint charges that the Union's strike was prolonged by the discharge of the strikers on October 29, which in effect turned the economic strike into an unfair labor practice strike. Because the Union changed its picket signs as of November 1, 1982, to pro- test the Respondent's unfair labor practices, it is the Gen- eral Counsel's position that the strike became an unfair labor practice strike effective November 1, 1982. The issue would be moot had all 19 discharges been justified. However, because the Respondent's discharges of several strikers violated Section 8(a)(3) and (1) of the Act, it is clear that the issue must be considered. The parties agree that in making a determination whether a strike will be considered an unfair labor practice strike it must be caused "in whole or in part" by the company's unfair labor practice. American Cyanamid v. NLRB, 592 F.2d 356 (7th Cir. 1979). An economic strike may be convert- ed into an unfair labor practice strike provided that there is a causal connection between the unfair labor practice and the prolongation of the strike. Robbins Co., 233 NLRB 549 (1977). The record shows that the strike began on July 23, 1982, as an economic strike. The dis- charges were effectuated by letter on October 29, 1982, and a union meeting was held on November 1, 1982. John Alexander, president of Local 585, testified that the meeting on November 1, 1982, was called for the em- ployees to sign up for strike benefits. At that meeting the Union had become aware of the discharges. Because it thought that the Company was not bargaining in good faith, because it set up bars to a settlement and dis- charged the employees, it changed its picketing signs to read "G.S.M., Inc. unfair labor practice strike, Local 585 UAW." Although the primary purpose for the strike was to get a bargaining agreement, the record is clear that the Union protested the Company's unfair labor practices that it thought consisted of bad-faith bargaining and the discharges. Accordingly, there is no doubt that the Union protested the Company's discharges. The record also shows that the strike was prolonged by the Compa- ny's action. Contrary to the Respondent's suggestion, the Union in its written communications to its membership repeatedly expressed its frustrations about the results of the discharges. For example, the communications (dated Nov. 2 and 18 and Dec. 7 and 16) contain the following: We have over eighty of our members on strike. The company has now hired scabs of which there are over thirty-five working in the plant at the present time. It has become a very nasty situation with a very, very unreasonable company. . . It is essen- tially important that all our units support the gallant efforts of our membership at GSM in the strike of survival against a scab-hiring, union-busting corpo- ration. [R. Exhs. 37-40.] Moreover, the record shows that the strike became more violent right after the Company decided to hire re- placements. Indeed, Jeffrey Kelemen admitted in his tes- timony that picket line violence increased substantially in September and October 1982. It is accordingly clear that the Company's discharges prolonged, at least partially, the ongoing strike. Having found that the Respondent violated Section 8(a)(3) and (1) by discharging seven of the strikers, I find that the strike was converted into an unfair labor practice strike on November 1, 1982. HI. ADDITIONAL ALLEGED VIOLATIONS The complaint contained three allegations of 8(a)(1) violations; first, that on September 7, 1982, Supervisor Robert Feby threatened employees with discharge if they failed to ratify certain company proposals in con- nection with the collective-bargaining agreement; second, that Supervisor Joseph Brocious interrogated an employee on September 7 about the employees' sympa- thies regarding these proposals; and third, alleged also as an 8(a)(3) violation, that on August 6, 1982, the Re- spondent unlawfully discontinued premium payments for certain employees. By letter of December 2, 1982, the Respondent informed all strikers and replacement em- ployees that there was no truth to these allegations, and that, in any case, the Company disavowed such conduct even if it had occurred, and that the cancellation of the insurance policy for these individuals had been an inad- vertent error that had been retroactively corrected by the Company (R. Exh. 4). Nevertheless, the General Counsel has submitted these issues to be resolved. The record shows, and the Respondent concedes, that on September 7 the two supervisors, Feby and Brocious, and two employees, James Marenic and Alex Rusinko, had a conversation at the picket line. It is also agreed that the conversation concerned the vote of the union members concerning certain company proposals. The parties, however, disagree whether the supervisors made the alleged statements. In this regard, I credit the testi- mony or the two employees who had little or nothing to gain from their testimony. Their testimony was substan- tially consistent and plausible. Following the union meeting on September 7, the strikers returned to the picket line. Feby who was later joined by Brocious approached Rusinko and asked how the vote went. Rusinko answered that the membership had turned it down. Brocious then inquired what the of- ficial count was, to which Rusinko answered that all but three voted "no." Brocious asked for their names. The employees refused to reveal the names. At one point during that conversation Feby interjected and stated that they should have voted in favor of the proposal because the Company would now hire people to replace them and that the strikers would be fired. It is clear that a supervisor's statement to employees that they would lose their jobs because of their union or protected activity is a violation of Section 8(a)(1) of the 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act. But the interrogation of employees as to their union sympathy is a violation only under coercive circum- stances. I do not regard the circumstances of this conver- sation sufficiently coercive. The employees were on the picket line and not under the employer's control; they had the freedom to leave at any time; these supervisors did not belong to top management; the meeting was casual; the questions were posed in a conversational set- ting; and these individuals have talked informally on pre- vious occasions. The Respondent therefore violated Sec- tion 8(a)(1) of the Act only with respect to the threat made by Feby. In its letter of December 2, 1982, Re- spondent informed its employees, inter alia, as follows: With respect to the charge of Local 585 regarding alleged statements of Robert Feby, the Company wants you to know that, even if such statements were made, they were not authorized, and they do not reflect the position of the Company. The Com- pany disavows them. The Company reaffirms the right of its employees to legally picket. Even though the Respondent did not disavow this conduct until 2 months later, I believe that a remedial order under these circumstances is unnecessary. Broyhill Co., 260 NLRB 1366 (1982). With regard to the Respondent's discontinuance of the insurance benefits, the record is uncontroverted. The Re- spondent discontinued its premium payments on August 6, 1982, for all employees and so informed them by letter. The Respondent's action with respect to the strik- ers was lawful, but several employees, including John Bowers, Frank Viola, Antonio Attanasio, Arthur Burns, and Stanley Prusik, were already on disability at the time of the strike. The Respondent has stated that the insur- ance of these individuals was inadvertently canceled and notified them by letter of December 2, 1982, that the in- surance had been restored retroactively. It is of course clear that an employer may not discontinue the benefits for disabled workers. Emerson Electric Co. v. NLRB, 650 F.2d 463 (3d Cir. 1981). The Respondent has essentially conceded its error and represented in its brief that "cov- erage was made retroactive so that no one entitled to in- surance benefits lost even a day's protection." Based on this representation, and because the Respondent informed all employees of this error by letter of December 2, 1982, a finding of violation is unnecessary on this issue even though a technical violation was committed. Broy- hill Co., supra. The Respondent stated as follows in the December 2 letter: With respect to the charge of Local 585 regarding cancellation of insurance benefits, please be advised that when the Company exercised its legal right to cancel the insurance benefits for its striking employ- ees on August 6, 1982, the insurance benefits of seven individuals who were out of work on disabil- ity or workers' comp leave were, due to clerical oversight, inadvertently cancelled. The individuals affected were Frank Viola, Percy Breaux, Antonio Attanasio, John Bowers, Stanislaw Prusik, Arthur Burns and Walter Zarnack. This action was neither taken nor intended to punish any employees for en- gaging in protected union activities. When the error was discovered, the insurance benefits for these seven individuals were immediately and retroactive- ly restored, so that they at no point lost any insur- ance coverage. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged and failed to reinstate Antonio Attanasio, James Marenic, James Smith, Brett Errickson, Arthur Davis, Lamont Jones, and Dominic Paravati, I recommend that the Respondent offer each of these employees immediate reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without loss of seniority or any other rights or privileges, discharging if necessary any replacements hired, and make each of these employees whole for any loss of earnings and other benefits, 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 Florida Steel Corp., 231 NLRB 651 (1977). Any remedial order relating to the Respondent's viola- tions of Section 8(a)(1) involving a threat, and Section 8(a)(1) and (3) involving the cancellation of the insurance policies for certain employees, is unnecessary in view of the Respondent's corrective action. CONCLUSIONS OF LAW 1. The Respondent, GSM, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Local 585, International Union, United Automobile, Aircraft and Agricultural Implement Work- ers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging and refusing to reinstate the seven strikers, Antonio Attanasio, James Marenic, James Smith, Brett Errickson, Arthur Davis, Lamont Jones, and Do- minic Paravati, the Respondent has violated Section 8(a)(1) and (3) of the Act. 4. The strike that began on July 23, 1982, was convert- ed into an unfair labor practice strike on November 1, 1982. 5. Even though the Respondent violated Section 8(aX1) of the Act by threatening employees with the loss of jobs and Section 8(a)(3) and (1) of the Act by cancel- ing the insurance coverage for certain employees, a re- medial order will not be required in view of the Re- spondent's disvowal of the practices and corrective action. 6.The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7.All other allegations have not been substantiated. - GSM, Ii4C, 187 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed ORDER The Respondent, GSM, Inc., Pennsauken, New Jersey, its officers, agents, successors, and assigns, shall I. Cease and desist from (a) Discharging or failing to reinstate any employee for engaging in a strike or any other concerted activity protected by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Antonio Attanasio, James Marenic, James Smith, Brett Errickson, Arthur Davis, Lamont Jones, and Dominic Paravati immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and make them whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against them, in the manner set forth in the remedy section of the decision. 3 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 4$ of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Pennsauken, New Jersey, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, shall be posted by the 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 the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. 4 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."