Tube Craft, Inc.

TUBE CRAFT 491 Tube Craft, Inc. and United Steelworkers of Amer- ica, AFL-CIO, Local 8703. Case 8-CA-18821 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 13 August 1986 Administrative Law Judge Walter H. Maloney Jr. 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, and conclusions only to the extent consistent with this Decision and Order. The principal issue presented here is whether certain picket-line conduct went beyond the limits of protected concerted activity and constituted mis- conduct which permitted the Employer to dis- charge strikers Edward Steele, Alice Emmert, Ruth Kelly, Betty Schumaker, and Betty Wallace. The conduct occurred between 2 and 10 January 1985.1 The Respondent had permanently replaced all the strikers by 9 January, and it discharged them the following December. Their replacements were then still occupying the strikers' positions. Al- though the Respondent took no action against the strikers for almost a year after the picket-line con- duct in question, it stated to the Union on 9 Janu- ary that the fact it was treating the strikers "as per- manently replaced does not constitute a waiver of any of Tube Craft's legal rights with regard to picket line misconduct." We take this message to mean that the Respondent wanted to be on record as not condoning the alleged misconduct and as re- serving the right either to discharge the offenders or refuse to reinstate them if and when positions became available. Although the complaint in the instant case al- leges that the Respondent violated Section 8(a)(3) of the Act by its discriminatory discharge of the strikers, we apply the same standard in evaluating the protected nature of the picket-line conduct as we do in refusal-to-reinstate cases such as Clear Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1985). Alleged Picket-Line Misconduct The essential facts concerning what occurred on the picket line are not in dispute, and the judge's recitation of the specific incidents is accurate in general, except that some details that the record evidence compels us to acknowledge add clarity to the overall picture. The strike involved only the Respondent's 6 office and technical employees, who constituted a separate bargaining unit from the approximately 40 production and maintenance em- ployees.2 During the incidents in question, the picketing activity was focused on a small strip at the street entrance to the Respondent's driveway, apparently the only available route for receiving and shipping the materials used in the Respondent's metal tube fabricating business. These shipments were carried in large tractor-trailers or flatbed trucks driven by truckdrivers employed by outside carriers, not the Respondent. The driveway, estimated to be between 10- and 15-feet wide, provided a single lane adequate for a large truck, with a small amount of space on either side. A small area of vacant land, which was not owned by the Respondent, adjoined the driveway entrance on one side. This empty space created a potentially wider entrance, but regular truck in- gress was possible only by driving straight into the driveway entrance proper. Entry was normally ac- complished by backing into the Respondent's park- ing lot on the opposite side of the street from the driveway entrance and then proceeding directly across the street and into the driveway. The strik- ers, usually three or four at a time during the inci- dents in question, occupied the entrance strip, either patrolling or standing with their picket signs. Their presence and oral appeals persuaded many truckdrivers not to attempt entry. This activity alone might have succeeded in shutting the Re- spondent off completely from its supplies and cus- tomers. That, however, is a lawful object of pri- mary picketing and does not concern us here. On 2 January, the first day of picketing, a truck attempted to enter the driveway. The driver first parked along the street while strikers Steele, Wal- lace, and a third striker, who is not involved in this proceeding, picketed. They were accompanied by Union Representative John Gronofsky. The Re- spondent's president, Thomas La Boda, twice asked Gronofsky to remove himself and the pickets from the driveway entrance so that the truck could enter. Gronofsky refused. The Respondent's plant ' All dates hereafter are 1985 unless otherwise indicated We agree with the judge that other alleged misconduct on 24 January did not con- stitute a valid basis for discharge 2 The strikers were represented by Local 8703 of the Steelworkers Union, which also represented the production and maintenance employ- ees The production and maintenance employees continued to work throughout the strike 287 NLRB No. 51 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD manager urged the truckdriver to proceed, telling him to run over the pickets if necessary. Eventual- ly, the driver performed the backup maneuver and faced the strikers from across the street. He ad- vanced about halfway into the street and waited for the 'pickets to clear, then backed again out of the street. The record does not reveal how long the truck remained in the street before retreating. There is a testimonial dispute, unresolved by the judge, concerning whether the pickets kept walk- ing back and forth across the driveway entrance or stood still and faced the truck as it approached and waited. Photographs of the incident persuade us that at some point the strikers stood in the entrance and faced the truck as it attempted to enter. La Boda told Gronofsky he would call the police to get the truck through. When Gronofsky indicated to La Boda that he should do what he had to do, La Boda called. The police arrived and instructed the pickets to permit the truck to enter. The pickets complied. Although the time taken up by each stage of this incident is not recorded, the total elapsed time between the truck's arrival and its entry was approximately 50 minutes. A similar incident occurred the following day, 3 January, when pickets occupied the entranceway until the police arrived. On this occasion, however, the truckdriver made no active attempt to enter until the pickets were cleared. He pulled to the curb, parked parallel along the street, and waited approximately. 65 minutes while the pickets walked along the entrance. Participating pickets that day were Steele, Emmert, Kelly, Schumaker, and a fifth striker. Several incidents on 8, 9, and 10 January were videotaped by the Respondent and the tapes placed in the record, supplemented by explanatory testi- mony. To the extent that the following description sets forth details not recited by the judge in his de- cision, these details do not involve matters of wit- ness credibility but, rather, our interpretation of the videotapes. An incident on 9 January involved Emmert, Schumaker, Wallace, and another striker.3 As a truck attempted to exit from the Respondent's driveway (apparently the strikers had permitted it entry earlier), the strikers controlled their move- ments so that at least one of them was in the truck's path at all times. The driver approached within a few feet of the picket line and stopped. A police officer arrived shortly and persuaded the strikers to clear the path. The truck was delayed for approximately 2-1/2 minutes. Emmert, Wallace, Kelly, and a fourth striker were involved in the first of two incidents on 10 Janauary. At 8 a.m. a truck arrived and backed into the parking lot in obvious preparation for for- ward entry into the driveway. The strikers walked within the driveway entrance as on the previous day. The truck advanced to the center of the street and remained there for a little less than a minute. The driver then retreated into the parking lot, still facing the picket line in the entranceway. He re- mained until a police officer arrived and moved the pickets away at 8:18 a.m. From the time the driver completed his initial backup maneuver in prepara- tion for entering he driveway, he waited approxi- mately 15 minutes before the entrance was cleared. Later the same morning the final incident in this series occurred. Participating were Emmert, Kelly, and Schumaker. The scenario and the time elapsed were almost identical to the earlier 10 Janauary in- cident, but in this instance the truckdriver sounded his horn before advancing to the center of the street, where he blocked traffic for about a minute before retreating to the parking lot.4 Later, two police officers arrived and talked with the strikers for 5 minutes before the strikers stepped aside to permit the truck through. 5 Discussion and Conclusions The plurality Board opinion in ,Clear Pine Mould- ings, supra, states that peaceful picketing does not include the right to block access to the employer's premises. 268 NLRB at 1047. Both the plurality and the concurring opinion adopt as the general standard for striker misconduct serious enough to permit the employer to refuse reinstatement, that which, "under the circumstances existing . . . may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Id. at 1046, 1048, quoting NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977). In unanimously adopting this standard the Board also extended it to include coercion or intimidation of persons who do not enjoy the protection of the Act, such as supervisors. 268 NLRB at 1046 fn. 14 (plurality), id. at 1048 (concurrence). We view the strikers' conduct here as blocking access. Further, regardless of whether, blocking access is, per se, misconduct which forfeits the right of reinstatement, the conduct here amounted ° Shortly after this maneuver was completed, one of the picketing 3 Our ultimate findings and conclusions make it unnecessary to com- strikers was relieved by an unidentified person the Respondent's brief ment on a single incident on 8 January except to note our agreement places Wallace at the site during this incident, but the record does not with the judge that there was no substantial misconduct, even when identify her with the relief picketer viewed as part of the pattern of events s No arrests were made in connection with any of these incidents TUBE CRAFT to such coercion and intimidation of the truckdriv- ers as to justify refusal to reinstate or, in this case, discharge. Although peaceful picketing unquestionably in- cludes the right to make nonthreatening appeals to those who are about to cross a picket line, the deci- sion of such persons to ignore such appeals must be respected. Thus, physical obstruction of an en- trance has been held to violate Section 8(b)(1)(A) of the Act when attributable to a union.6 The ob- structions here, which are attributable directly to the discharged strikers, were neither isolated nor trivial. They took place after the truckdrivers in- volved had decided to cross the picket line.7 Thus, in at least three instances, those on 2 and 10 Janu- ary, the drivers approached the picket line head on, after consciously maneuvering into position to cross the picket line, only to have the strikers block their entrance until the police arrived. All the discharged except Steele participated in at least two of these extended obstructions. Steele, howev- er, participated in the 50-minute obstruction on 2 January and was one of those who stood and faced the oncoming truck on that occasion when the driver advanced into the street.' These instances of blocking access, each extend- ing over a considerable period of time, together with the 9 January incident in which three of the discharged strikers attempted to obstruct the exit of another truck, constitute a pattern of conduct evi- dencing a strategy of refusing to limit the picketing to peaceful appeals for support of the strike. Al- 6 Grede Foundries, 235 NLRB 363, 380 (1978) Although obstructing is often accompanied by mass picketing and threats, the cited case appears to isolate obstruction as a violation It should also be noted that "mass picketing" is a relative concept Under the circumstances presented here, three to five picketers were sufficient to block truck access quite effec- tively Cf Leon Ferenbach, Inc, 212 NLRB 896, 904 (1974) There, the administrative law judge , in a finding that was not excepted to and there- fore was not reviewed by the Board, stated Insofar as the pickets were peacefully picketing they were exercis- ing their statutorily guaranteed right to engage in protected concert- ed activities That involved their movement back and forth across the entrance in such a fashion as to inform the public of their appeal for support , but not in such a manner as to block access to the plant At the point where the pickets set about to close the roadway for incoming vehicles and sought to bar such ingress they were not en- gaged in protected concerted activities Mass picketing, where a large number of pickets form a solid wall across the factory entrance to prevent everyone from entering , has long been illegal and unpro- tected Similarly, here the tactic pursued by Morton, Holdren, and Morgan closed the entrance as effectively as if a gate had been swung across the roadway When they chose to adopt this course they could not expect that the Act would provide them with any protection r We take exception to the judge's comment that the drivers "were in- volving themselves in someone else's troubles by approaching or crossing the picket line " It was the picket line that involved the drivers in the dispute Whichever choice they made would have given support to one side or the other 8 Steele also participated in the less clearcut incident on 3 January when the driver waited 65 minutes, but never made a direct attempt to force the picketers to move We need not decide whether the strikers' conduct during this incident constituted unprotected conduct 493 though such a pattern may not always be a neces- sary element in converting picketing that blocks entry into unprotected conduct, it is sufficient here to persuade us that the conduct of the discharged strikers was unprotected. Furthermore, we find that the Respondent dis- charged the strikers for this misconduct and not for engaging in a protected strike. The judge inferred from the Respondent's delay of almost a year in discharging them that the asserted misconduct was merely a pretext. The judge suggested obliquely that the motivating factor may have been the testi- mony by three of the strikers in an earlier unfair labor practice proceeding, an allegation that was neither made nor litigated in this case. We do not find the inference of a pretext supportable. On 9 January the Respondent expressly reserved its rights to take appropriate action in response to the pattern of misconduct then in progress. It can hardly be said, therefore, that the Respondent con- doned the misconduct that already had occurred or that occurred within the following day. As all the strikers' positions were and continued to be filled by permanent replacements, there was no need for the Respondent to take any immediate action with respect to the strikers' future reinstatement. In De- cember, the strikers renewed an earlier uncondi- tional offer to return to work. The Respondent then decided it was time to act and thus leave no uncertainty about its position. Whether this strate- gy was the only choice, the best, the least subject to criticism, or none of the above, it does not estab- lish a pretext here. Accordingly, we find that the Respondent lawfully discharged the strikers for strike misconduct and shall dismiss the complaint. ORDER The complaint is dismissed. Rufus L. Warr, Esq., for the General Counsel. Jeffrey M. Carey, Esq., and David E. Bishop, Esq., of Cleveland, Ohio, for the Respondent. Mark A. Rock, Esq., of Cleveland, Ohio, for the Charg- ing Party. DECISION STATEMENT OF THE CASE WALTER H. MALONEY JR., Administrative Law Judge. This case came on for hearing before me at Chicago, Illi- nois, on an unfair labor practice complaint' that alleged i The principal docket entries in this case are as follows Charge filed against Respondent by United Steelworkers of America, AFL-CIO, Local 8703 (the Union or USWA) on January 10, 1986, amended charge filed here against Respondent by the Union on February 24, 1986, complaint issued against Respondent by Regional Director for Continued 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Respondent Tube Craft, Inc.2 violated Section 8(a)(3) of the Act More particularly, the complaint al- leged that the Respondent discharged five named strikers because they engaged in union and protected concerted activity. The strikers are Alice Emmert, Edward Steele, Ruth Kelly, Betty Wallace, and Betty Schumaker The Respondent admitted firing these individuals and one other striker, Sylvia Lucia, but asserted that it was privi- leged to do so because they had'engaged in strike-related conduct that was so egregious that they forfeited any right of reinstatement that they might have under the Act. On these contentions the issues here were drawn.3 FINDINGS OF, FACT new employees were hired He further found that, as of January 9, the strike was converted into an unfair labor practice strike, so he recommended to the Board an order requiring the Respondent to reinstate the strikers as vacancies became available and to place them on a preferential hiring list in anticipation of that possibility. At this writing, Tube Craft I is still before the Board on appeal In refusing to bargain with the Union , the Respond- ent's lawyer read to Union Negotiators John J. Gron- ofsky and Edward Steele5 a statement that was reprinted in whole in Judge Leiner's decision With respect to the issues in this case, the statement read- I. THE UNFAIR LABOR PRACTICES ALLEGED Respondent operates a plant in Cleveland, Ohio, locat- ed at 8000 Baker Street, where it manufactures various kinds of tubing. It employs a production and mainte- nance unit of about 40 employees and an office and tech- nical unit of about 6 employees. Both are represented by the Charging Party in this case. On January 2, 1985, at the expiration of their contract, the six members of the office and technical unit went on strike. Apparently the production and maintenance em- ployees did not support this strike and continued to work. The office employees set up a picket line in front of the plant near a driveway which forms the western boundary of the Employer's property and immediately abuts the main building. The driveway is about 50-75 feet from the main entrance to the building and is used both by production and maintenance employees and by deliverymen.4 - Within a few days after the beginning of the strike, the Respondent replaced the strikers and refused to bargain any further with the Union, claiming that it had formed a good-faith doubt of the Union's continuing majority status as bargaining agent. As more fully set forth in a decision issued by Administrative Law Judge Robert W. Leiner on January 24, 1986 (JD-386-85 (Tube Craft 1)), Judge Leiner found that the Respondent did not have objective evidence sufficient to assert a good-faith doubt regarding thie,Union's majority status and, by refusing to bargain with .the Union on and after January 9, it violat- ed Section 8(a)(1) and (5) of the Act. He found that the replacements, or most of them, were hired before that date so that' the strike was economic in character when Region 8 , on February 24, 1986 , Respondent 's answer filed on March 5, 1986, hearing held in Cleveland, Ohio, on May 19, 1986, briefs filed here by the General Counsel, the Charging Party, and the Respondent on or before July 14, 1986 2 Respondent admits, and I find, that it is an Ohio corporation which operates a place of business in Cleveland, Ohio, where it is engaged in the fabrication of metal tubing for use in the transportation and other in- dustries It annually ships from its Cleveland, Ohio facility directly to points and places located outside the State of Ohio goods and merchan- dise worth in excess of $50,000 Accordingly, the Respondent is an em- ployer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act The Union is a labor organization within the meaning of Sec 2(5) of the Act 3 Certain errors in the transcript have been noted and corrected 4 The office is located in the central part of the building, so office em- ployees use the front door rather than the side driveway going to and from their duty posts Six members of the 0 & T unit began a strike on January 2, 1985. The strike continues as of today. Tube Craft has permanently replaced each of the six 0 & T employees The replacements are working.6 With regard to permanent replacements, as you know, the replaced employees have job rights should the replacements leave in the foreseeable or unforseeable future. You know as well as I do, Mr Gronofsky, that the striking 0 & T employees engaged in miscon- duct during the strike. The fact Tube Craft is treat- ing the striking 0 & T members as permanently re- placed does not constitute a waiver of any of Tube Craft's legal rights with regard to picket line mis- conduct. ' I credit Gronofsky's testimony that he mailed to the Respondent a letter dated January 14, that read as fol- lows: As the Representative of the United Steelworkers of America and the Union Representative, on behalf of the employees I am requesting that you call them back to work They wish to return unconditionally to their positions, however, it is my understanding that their Agreement which expired on December 31, 1984, would continue in effect Please advise me at the telephone number above of the date the employees should report for work. Tom La Boda, president of the Respondent and the ad- dressee of this letter, claimed never to have received it until December 1985, when it was forwarded to the Re- spondent again as an attachment to a second request for reinstatement. At a hearing or predetermination confer- ence conducted in May or June 1985 by the Ohio Unem- ployment Compensation Commission, a copy of the letter was given to the referee conducting the meeting and was discussed in La Boda's presence, although ap- parently a copy was not given to La Boda at this time. La Boda testified that, as of May or June 1985, he was aware of the Union's contention that it had made an un- a Gronofsky is a staff representative for the United Steelworkers of America Steele was a striking employee and a member of the bargaining unit 6 As of May 19 , 1986, the date of the hearing in this case , all six re- placements were still working TUBE CRAFT conditional offer on behalf of striking employees that they return to work. Picketing continued at the Respondent's premises throughout the summer and fall of 1985 On December 2 and 3, a hearing was held in Tube Craft I, in the course of which strikers Alice Emmert, Betty J. Schumaker, and Ruth Kelly testified for the General Counsel. On December 9, Gronofsky again wrote La Boda a letter re- questing reinstatement for striking employees . The letter read: I am sending you this letter because you indicat- ed you had not received the letter forwarded by this office dated January 14, 1985, sent 1st class mail [copy enclosed] On behalf of the striking employ- ees I am submitting their unconditional application for reemployment Please advise me at the telephone number indicat- ed on this letterhead of your decision and the time and date the employees should report to work. On December 30, 1985, the Respondent sent all six strik- ers7 identical letters which read: The Company has considered certain of your ac- tions related to your picket line activity during the strike which you and others began on January 2, 1985. The Company has received the evidence available to it and has consulted with legal counsel regarding applicable law and considers certain of your misconduct to be unprotected activity. The Company has a good faith belief that certain of your actions during the strike were unlawful and constituted such misconduct as will justify termina- tion of your employment with the Company. There= fore, the Company hereby informs you that you are discharged from your employment with Tube Craft, Inc , effective this date. II. ANALYSIS AND CONCLUSIONS Any consideration of the rights of strikers to obtain re- instatement on unconditional request must begin with the premise that striking, in the absence of contract provi- sions to the contrary, is activity protected by Section 7 of the Act. As the Third Circuit said in NLRB v. W. C McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977): We recognize that some confrontations between strikers and non-strikers are inevitable and that not every impropriety is grounds for discharge. t 6 Moreover, we recognize that it is the primary re- sponsibility of the Board and not of the courts "to strike the proper balance between the asserted busi- ness justifications and the invasion of employee rights." NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 546, 19 L.Ed.2d 614 (1967). Yet, we do not believe that an employer must coun- tenance conduct that amounts to intimidation and threats of body harm. Threats are not protected 495 conduct under the Act, and we fail to see how, a threat acquires protected status simply because it is unaccompanied by physical acts or gestures. The question is whether a threat is sufficiently egre- gious, not whether there is added emphasis. 16 A "trivial rough incident" or [a] "moment of animal exuber- ance" does not convert otherwise peaceful picketing into violence Milk Wagon Drivers Union v Meadowmoor Dairies, 312 U S 287, 293, 61 S Ct 552, 85 L Ed 836 (1940) The court in McQuaide then went on to equate conduct so egregious that it warrants the forfeiture of reinstate- ment rights with conduct by strikers which' amounts to a violation of Section 8(b)(1)(A) of the Act. Rather than focus on either the subjective intent of the striker or the perception of the "victim," we adopt an,objective standard to determine whether conduct constitutes a threat sufficiently egregious to justify an employer's refusal to reinstate. In Local 542, International Union of Operating Engineers v. NLRB, 328 F.2d 850 (3d Cir.), cert denied, 379 U.S. 826, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964), this court set forth the test for union coercion and intimidation in violation of Section 8(b)(1)(A): That no one was in fact coerced or intimidated is of no relevance. The test of coercion and in- timidation is not whether misconduct proves ef- fective. The test is whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate em- ployees in the exercise of rights protected under the Act. Id. at 852-853. We believe that this standard which this Circuit had adopted in the closely analogous , situation of Section 8(b)(1)(A) violations, is equally applicable to threats and intimidation by individual strikers. [552 F.2d at 527-528.] The court went on, to apply this standard to reinstate- ment requests made by strikers in the McQuaide case with varying results in particular instances. It is this case that the Board relied on in formulating the striker rein- statement standard which it announced in Clear Pine Mouldings, , 268 NLRB 1044 (1984). Respondent relied on six incidents occurring at or near the picket line between January 2 and 10, 1985, and one employee following incident occurring on January 24, 1985, to justify the six discharges which were effectuated on December 30, 1985. As noted before, the picketing of the Respondent's premises was confined to the driveway entrance to its premises from Baker Street. The area in question may best be described in the following sketch, which does not purport to be drawn to scale: 7 By this time striker Sylvia Lucia had resigned so she was not named in the complaint that was issued in this case However, the recommended Order in Tube Craft I is broad enough to include her by reference 496 Lowe Chemic lot 4T picket ivty Tube Craft Parking Lot y1 It is well to note at the outset that none of the picket line incidents relied on by the Respondent involved con- frontations between pickets and nonstriking employees in the production and maintenance unit. Apparently all of them were able to enter and leave the Respondent's premises without difficulty. The events in question all in- volve deliverymen-individuals who were strangers to the labor dispute in progress at Tube Craft and who were involving themselves in someone else's troubles by approaching or crossing the picket line. Many of them, especially Teamsters-represented drivers, simply drove on when they observed a USWA picket line at the drive- way. Others were simply undecided about what course of action to take, and their indecision was an obvious factor in some of the events that occurred. - A second consideration that is quite evident both from the verbal and pictorial descriptions of these events is that none of the pickets engaged in violence or in threats of violence toward drivers or anyone else. One or both of these factors is an essential element of a finding of in- eligibility for reinstatement under the Clear Pine Mould- ings doctrine, as well as other cases that apply that doc- trine.8 The fact that pickets commit a civil trespass, vio- late pedestrian regulations in a traffic ordinance, or commit a parking infraction does not mean that they have engaged in egregious misconduct, as the Board has used that term. It'is also clear from undisputed testimony in this record that Plant Manager Walt Lindenberg on two occasions urged drivers of delivery trucks to run over the pickets who were patrolling in front of the Re- spondent's driveway. Such remarks are a display of strong animus on the part of the Respondent and are also evidence of a desire on its part to provoke incidents at the picket line. 8 One case decided long before Clear Pine Mouldings and relied on by the Respondent, Leon Fernbach, Inc, 212 NLRB 896 (1974), involved a situation in which the trial examiner and the Board refused to find egre- gious misconduct on the part of a picket who actually laid down in the street in the path of an advancing delivery truck in such a manner that the driver was persuaded not to advance any farther DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD - Driveway Tube Craft Building ake !11 Both the verbal descriptions of the picketing and the videotapes in evidence showed that picketing was,, for the most part, conducted in the street, not on the Re- spondent's property, although it would take a surveyor's instrument to define the precise boundary line, because the Respondent's driveway ran right into Baker Street and curbing along that street was either nonexistent or difficult to observe. No sidewalk runs along Baker Street to separate either the Respondent's building or- the vacant lot next door from the street itself. Pickets pa- trolled back and forth across the 10- to 15-foot entrance in either twos or threes and, with small exception, kept moving There were no instances of linking arms ,to pre- vent passage of vehicles, although there is some evidence that some pickets stood for short periods of time in the street at the driveway intersection until police directed them to move. There is no evidence of a refusal on the part of any picket to obey police instructions.9 The incidents of January 2 and 3, relied on by the Re- spondent, are the subjects of verbal descriptions con- tained in the transcript. On the afternoon of January 2, the first day of picketing; a Preston delivery truck drove up to the premises, observed the pickets, and parked on Baker Street in front of the building. Lindenberg asked Gronofsky to move the pickets, who were patrolling in front of the driveway entrance Gronofsky refused, whereupon Lindenberg asked the truckdriver to run them over. The truck backed into the parking lot across the street from the plant and waited. On one occasion he advanced halfway across the street, stopped, and backed into the parking lot. The Respondent called the police and the police instructed the pickets to cease patrolling long enough to permit the truck to enter. They did so and the truck entered the' premises On January 3, a Smith Transfer truck drove up to the entrance of the plant and, on observing the pickets, parked at the curb in front of the building. The Respond- ent's attorney asked Gronofsky to have the pickets cease patrolling at the entrance of the plant long enough to permit the truck to enter. Gronofsky refused, so the Re- spondent again called the police. When the police ar- rived, the pickets, at police direction, ceased patrolling long enough to permit the truck to enter and it did The events of January 8, 9, and 10 are, for the most part, contained on videotapes that are in evidence. The events depicted on tape are supplemented by testimonial comments by La Boda. They all concern short interrup- tions of the progress of delivery trucks. On January 8, a driver, who was apparently pointed the wrong way on the one-way street, drove across the vacant lot next to the Respondent's property and entered the driveway in this manner, thus bypassing the pickets. On the afternoon of January 9, a GMC truck leaving the premises was 9 Across the street from the Respondent's building is an employee parking lot Occasionally a tractor-trailer driver would back into that lot from Baker Street and position himself so that he could drive across Baker Street into the driveway and head down the driveway without the necessity of making a sharp right turn from Baker Street Such a turn would either risk hitting the building or require the driver to-cut across the vacant lot on the other side of the driveway that belonged to another owner Drivers of smaller vehicles simply drove west on Baker Street (a one-way street) and made a right turn into the driveway` TUBE CRAFT 497 stopped briefly by a picket who spoke to him while standing in the driveway . When the police instructed her to move, she did so and the truck left. The following morning, a Bonnie Speed delivery truck backed into the parking lot and faced the driveway across Baker Street. He began entering the street and the pickets maintained their patrol in the street back and forth across the en- trance way. The police arrived shortly thereafter, the pickets ceased their patrol momentarily , and the truck entered the Respondent's premises A repetition of this event took place later in the morning with a flatbed truck owned by Bonnie Speed. The driver approached the area in the street where the pickets were walking. The pickets kept on walking so the driver backed into the lot across the street . He waited until the police ar- -rived. The police directed the pickets to cease walking long enough to permit the truck to enter . They did so and the truck proceeded across Baker Street and down the driveway. On January 24, at the end of the' day, strike replace- ments Mary Ann Rasmussen and Sandra Hall left the building shortly after the 4.30 p m . quitting time . Strike replacements had been instructed to avoid pickets and were counseled to arrive and leave in pairs or in greater numbers. They went to the parking lot across the street, found that one of the three entrances to the lot was blocked by one of the striker's cars, and left by way of another exit . Their normal driving course would take them from the side streets on which the plant and the parking lot were located to Lake Avenue and then to Detroit Avenue . Both Lake and Detroit are busy arterial roads having high volumes of rush hour traffic which are controlled by frequent stop lights Rasmussen noticed that striker, Ed Steele, was stopped at one light near the plant and claims that he followed her for a block, at which point she4ost track of him. She then noticed a car parked at another nearby intersection driven by Phil Emmert, the son of striker Alice Emmert. Alice Emmert was riding in the front seat as a passenger . The Emmert car proceeded along Detroit Avenue for 'nearly a mile at a distance of two car lengths from her own car . Rasmus- sen was riding in tandem with Hall and stopped at a traf- fic light, opened the window of, her car, and told Hall that the Emmerts were following her. Until this time, Hall was unaware of this fact. Strikers also were in the habit of arriving and leaving in pairs. A. Emmert left the picket line at the same time striker Betty Schumaker did Their purpose was to drive as close to each other as possible to the intersection of 117th Street and Interstate 71, at which point the Em- merts would -turn left and head east while Schumaker would take the Interstate south to Strongsville This is just what , they did. Both of them drove along Detroit Avenue about the same time Rasmussen and Hall did. $ However, they turned off of Detroit Avenue at 98th Street, while Rasmussen kept on going straight to the nearby suburban town of Lakewood , where she went to a police station and complained about being followed. Hall also turned off Detroit Avenue shortly after the Emmerts did and went in another westerly direction. It is difficult to follow the Respondent 's assertion of egregious misconduct on the part of A Emmert for being a passenger in a car driven by her son . If unlawful following could be found on this set of facts, it would have to be attributed to Phil Emmert, not to his mother. However, all that occurred here was a coincidence of strikers and nonstrikers leaving the plant premises at the same time and traveling short distances in heavy traffic on a snowy day along the same well-traveled major thor- oughfare to their respective destinations . Only hypersen- sitivity on the part of Rasmussen made this event into anything more than a routine commutation in bad weath- er. The above-recited events certainly do not amount to egregious misconduct on the part of strikers and it is stretching it to assert that the actions attributed to them amounted to misconduct at all. - However , the lapse of time which occurred between the events relied on by the Respondent for denying reinstatement to strikers and their discharge for strike misconduct makes it clear that the reasons asserted by the Respondent in its discharge letters of December 30 were wholly pretextual. Re- spondent was well aware of the events it relied on for discharging strikers at the time these events took place. Indeed, it had videotapes of many of then . Rather than removing offending strikers from its payroll as a re- sponse to their activities , it told the Union on January 9 that it would simply "reserve its right" to do so and, in effect, see what happened Reserving the right to dis- charge a striker- for egregious strike misconduct rather than exercising that right with reasonable promptness is clear indication that getting rid of strikers - rather than strike misconduct was what the Respondent had in mind nearly a year later when it decided to act . i ° La Boda knew long before he received the Union's December 9 letter that the strikers wanted their jobs back. The fact that he received a renewed request at that time added nothing to his understanding of their desires. i i The only new occurrence taking place in December 1985 was that three of the strikers appeared at the unfair labor practice hearing in Tube Craft I and testified for the General, Counsel. On the basis of the foregoing findings of fact and the entire record considered as a whole, I make the follow- ing CONCLUSIONS OF LAW 1. Tube Craft, Inc. is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, Local 8703 is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3 By discharging Alice Emmert, Edward Steele, Ruth Kelly, Betty Wallace, and Betty Schumaker because of 10 La Boda testified that he had actually decided to fire the strikers at some undefined point in time much closer to the picket line events of January 1985 This well-kept secret is not supported by any objective evi- dence and I discredit his testimony in this regard 11 The Board held in the aforementioned McQuaide case that an un- conditional request for reinstatement does not require employees to for- feit their right to strike if the request is denied See 220 NLRB 593, 609 (1975), and cases cited there 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their union sympathies and union activities, the Respond- ent here violated Section 8(a)(1) and (3) of the Act. 4. The aforementioned unfair labor practices have a close, intimate, and adverse effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take certain affirmative actions necessary to effectuate the policies of the Act. The evidence both in this case and in Tube Craft I discloses a continuing disposition on the part of the Respondent to violate the Act and to infringe on the rights of its employees in serious and repeated ways. Ac- cordingly, I will recommend to the Board a broad 8(a)(1) order designed to suppress any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). I will recommend that the Respondent be required to offer reinstatement to the five named discri- minatees if and when positions become available for them, and that their names be placed on a preferential hiring list for that purpose . I will further recommend that they be made whole for any loss of pay or benefits that he may have suffered by reason of the discrimina- tions found here, in accordance with the formula set forth in the Woolworth case,12 with interest thereon at the adjusted prime rate used by the Internal Revenue Service for the computation of tax payments. Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). I will also recommend that the Respondents be required to post the usual notice advis- ing their employees of their rights and of the results in this case. [Recommended Order omitted from publication ] 12 F W Woolworth Co, 90 NLRB 289 (1950) 0