General Chemical Corp.

76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD General Chemical Corporation and International Chemical Workers Union, Local 25. Case 32- CA-8404 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 4, 1987, Administrative Law Judge Jay R. Pollack issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in opposition to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, General Chemical Corporation, Pittsburg, California, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order. Adel Sotolongo, Esq., for the General Counsel. John D. McLachlan and Ned Fine, Esqs. (Fisher & Phil- lips), of San Francisco, California, for the Respondent. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge . I heard this case in trial in Oakland , California, on June 22 through 25, and July 1 , 1987. On November 26, 1986, the Regional Director for Region 32 of the National Labor Relations Board issued a complaint and notice of hearing based on unfair labor practice charges filed by Interna- tional Chemical Workers Union , Local 25 (the Union) on September 23, 1986. Thereafter the Union filed amended charges on October 10, 1986, and February 20, 1987, and the Regional Director issued amended complaints on February 2 and April 17, 1987. The complaint alleges that General Chemical Corporation (Respondent) violat- ed Section 8(a)(5), (3), and (1) of the National Labor Re- lations Act (the Act). The parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, and to file briefs . Posttrial briefs were filed on behalf of the General Counsel and the Respond- ent. Based on the entire record , on the briefs filed by counsel, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION Respondent is a Delaware corporation with a facility in Pittsburg, California, where it is engaged in the nonre- tail manufacture and processing of chemicals . During the 12-month period preceding issuance of the complaint, Respondent purchased and received goods, materials, and supplies valued in excess of $50,000 directly from suppliers located outside the State of California. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, the answer admits, and I find that at all times material , the Union has been a labor or- ganization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues As discussed above, Respondent is engaged in the manufacture and processing of chemicals . Respondent's production and maintenance employees have been repre- sented by the Union for many years. In April 1986, Re- spondent acquired the Pittsburg , California facility from Allied Chemical Corporation . Following its acquisition of the plant, Respondent recognized the Union as the ex- clusive bargaining agent of the employees and began ne- gotiations for a new collective-bargaining agreement in May 1986. Negotiations between Respondent and the Union became deadlocked by late July, and on August 18 Respondent made its final offer to the Union . Thereaf- ter, on August 22 Respondent unilaterally implemented its final offer. On September 4, at approximately 2 p.m., the Union went on strike. The strike lasted until Friday, September 19, at approximately 5:30 p.m., when the Union informed Respondent that it accepted Respondent's final offer and that the employees would unconditionally return to work on Monday, September 22. The employees returned to work at approximately 7 a.m. on September 22. On this date Respondent informed the Union that employees Larry Barela, Dan Ramirez, Bill Scheffler, J. T. Stone, and Diane "Cookie" Strock were terminated for conduct they allegedly engaged in during the strike. The Union promptly filed grievances on behalf of the discharged employees. Respondent later informed the Union that employees Joe Leonguerrero and Ron Smith would be suspended for 3 days without pay for walking off their jobs on September 4 without first following Respondent 's CP department relief proce- dures. The Union filed grievances on behalf of Leon- guerrero and Smith . Respondent has agreed to arbitrate the grievances concerning the suspension of Smith and Leonguerrero but has refused to arbitrate the grievances concerning the discharges of Barela, Ramirez , Scheffler, Stone, and Strock. The General Counsel and the Union contend that Re- spondent unlawfully terminated Barela, Ramirez, Scheffler, Stone, and Strock for their conduct in viola- 290 NLRB No. 13 GENERAL CHEMICAL CORP tion of Section 8(a)(3) and (1) and unlawfully suspended Leonguerrero and Smith for their strike activities. Re- spondent, on the other hand, contends that the five em- ployees engaged in strike-related misconduct and there- fore lost the protection of the Act. With respect to the suspension of Leonguerrero and Smith, Respondent con- tends that the two employees were suspended for violat- ing a safety rule, which rule Respondent contends need not be subservient to the employees' right to strike. Fur- ther litigated at the trial was the issue of whether Re- spondent violated Section 8(a)(5) and (1) by refusing to arbitrate the discharges of the five employees B. The Facts 1. The suspensions of Leonguerrero and Smith As stated earlier, on August 22, Respondent unilateral- ly implemented its final contract proposal At the time of the implementation of Respondent's final proposal, the Company was expecting and was prepared for a strike. Supervisors were in the plant around the clock and addi- tional supervisors had been brought in from Respond- ent's other facilities. However, the strike which began on September 4 was not expected by management The strike was signaled by the Union's president activating the emergency alarm which caused employees and supervisors to proceed to the water tower near the front gate of the plant in ac- cordance with the emergency procedures in effect for the plant Neither hourly employees nor salaried employ- ees had any advance knowledge of the commencement of the strike Respondent manufactures a wide variety of chemicals, which include electronic, sulfuric, nitric and acetic acids, ammonium hydroxide, and other products. Hydrochloric acid is used in the process. Different blends (150 to 160) of products are manufactured in the CP department of the plant alone. A great number of the chemicals pro- duced in this plant are considered extremely hazardous and could constitute a hazard not only to employees but also to individuals living in the vicinity of the plant. Because of the dangers involved, Respondent has maintained rules that operators in the control room may not leave their jobs unattended. Both operators involved here, Leonguerrero and Ron Smith, admitted that it was a longstanding rule that an operator had to be properly relieved before leaving his or her work station. The pur- pose of the rule is for the operator to inform his or her relief operator of the status of the chemical process. Leonguerrero testified that he had not yet been briefed so that the prior shift operator rather than himself had left without proper relief Smith testified that the union president directed him not to notify his supervisor before leaving the plant . Respondent contends that these em- ployees could have avoided discipline if they had only notified the supervisor, James Craig, that they were leav- ing the plant on strike. Craig could have been contacted by pager. It would have taken no more than 5 to 15 min- utes for the employees to contact Craig. The operators could have also avoided discipline by shutting down their equipment. Three other control room operators participated in the strike but were not disciplined. These 77 operators shut down their equipment or notified their su- pervisor Respondent's supervisors, Craig and Costello, were in the CP control room within minutes of the strike start- ing, and they proceeded to assume control of the oper- ations immediately. Craig and Costello were required to spend several hours inspecting the CP room for leakage or damage However, there was no damage to equipment or to the product as a result of the strike The Union filed timely grievances concerning the sus- pensions of Leonguerrero and Smith At the time of the instant hearing, the grievances were set for arbitration However, the only issue before the arbitrator was wheth- er the employees had engaged in the conduct for which they were disciplined. The issue presented here, whether Respondent's discipline of the two employees infringes on their Section 7 rights, is not before the arbitrator. For this reason, Respondent abandoned at the trial its conten- tion that the allegations concerning the suspension of Leonguerrero and Smith should be deferred to arbitra- tion. 2. Larry Barela's discharge As stated above, the strike which began on September 4 took Respondent by surprise The strike became vio- lent almost immediately after its commencement. Within the hour, supervisors' cars leaving the plant were hit by stones. Mass pickets blocked the road leading to the plant from the main access road. A truck occupied by two supervisors was struck by a baseball bat wielded by a striking employee i Supervisors and nonstriking em- ployees received numerous threats to their own safety as well as to the safety of their families. During the first day of the strike, numerous vehicles belonging to super- visors were damaged. The violence on the first day of the strike resulted in strong police presence for the re- mainder of the strike. On September 5, a temporary restraining order was issued in the Superior Court of Contra Costa County and on September 19, 1986, a preliminary injunction issued against the Union prohibiting the strikers from damaging the property of the company or its employees, custom- ers, and vendors, and limiting the number of picketers to two on each side of the entrance to the plant. Respondent discharged Larry Barela because of four incidents which will be discussed in chronological order. On September 5, John McLachlan, Respondent's attor- ney, left the plant between 6 and 7 p.m. McLachlan testi- fied that his car was stopped by 10 to 15 picketers While McLachlan was stopped, he was approached by an indi- vidual wearing a black T-shirt with an arm in a sling, who bent down near the left rear tire. McLachlan heard the sound of air rushing out of his tire shortly afterward. The individual then walked around McLachlan's car and bent down next to the front right tire, and McLachlan again heard air coming out of that tire McLachlan got a good look at the individual involved. Although McLachlan did not know Barela at the time of the incident, he described the individual involved to a ' The termination of that employee is not at issue in this case 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD company supervisor and was told that the person was probably Barela. McLachlan gave a report to the Contra Costa Sheriffs Department which described the person as having a ponytail and a mustache . Barela had short hair and a full beard. McLachlan did correctly describe Barela's dark features . McLachlan later gave the police a second report . This report described Barela as having long hair, a full beard, a "Fu-Manchu" type mustache, and dark skin. McLachlan testified at the hearing that the individual involved in the tire-slashing incident was in fact Barela. Barela testified that he did not slash the tires of McLachlan's vehicle or any other vehicle . He stated that he had never seen McLachlan before the hearing. He further denied ever having a knife or other sharp object during the strike or that he wore his arm in a sling. I find McLachlan to be a much more credible witness than Barela and I credit his testimony . Despite the dis- crepancies in McLachlan 's description of the suspect in the two police reports, I am still convinced that Barela is the individual he observed at the tire -slashing incident. Barela, on the other hand, was not a credible witness and, as will be seen below, attempted to deny all wrong- doing. On September 8, McLachlan drove a car through the picket line with two passengers, Bob Brevard, the Re- spondent's director of manufacturing, and William Thomas, Respondent's vice president. A white pickup truck with Washington state license plates2 drove in front of McLachlan's car. According to Brevard, the white pickup truck was going extremely slow and would not let his vehicle pass. On several occasions the white truck pulled onto the shoulder of the road and acceler- ated rapidly throwing gravel at McLachlan's vehicle. After I to 2 miles, the driver of the white truck threw a smoking object (later identified as a cherry bomb) out of his window. After Brevard's vehicle passed over the object, Brevard heard a small explosion underneath a car which was traveling behind McLachlan's car on the road . After McLachlan passed the truck, Brevard ob- served Barela in the driver's seat. McLachlan corrobo- rated Brevard's testimony. Barela testified that he drove a white pickup truck with Washington license plates. However, he denied driving the vehicle in front of the car driven by McLachlan and in the manner described above . Barela denied driving slowly, denied driving on the shoulder to throw gravel, and denied throwing any cherry bombs. Barela attempted to explain the exploding noise by saying that the truck had engine difficulties and would "cut out" as well as backfire. Further , Barela testified that the white truck was often used by others during the strike to pick up supplies. I credit the testimony of Brevard and McLachlan over that of Barela. Brevard and McLachlan testified in a straightforward manner . Barela, on the other hand, was not credible and often relied on the eccentricities of his stepfather's truck to explain his alleged misconduct. 2 Such a truck is owned by Barela', stepfather and was used by Barela and others during the strike Tom Ornellas, a contract truckdriver, testified that on September 8, while he was stopped on the picket line, he was threatened by Barela. According to Ornellas, Barela said he was going to "get" Ornellas and beat the hell out of him. Ornellas testified that Barela said "We are going to beat the hell out of you " and that Barela and Diane Cookie" Strock were" leading the band" in making vari- ous threats against him. Barela denied threatening Ornellas in any way and denied saying anything to Ornellas. In an affidavit given shortly after these events, Ornellas alleged he was threat- ened by Strock but made no mention of any threats by Barela. Further, Ornellas' testimony is contradicted by Glenda Butler and Strock. Based on Ornellas' affidavit and the testimony of Butler and Strock , I do not credit Ornellas' testimony that he was threatened by Barela on September 8 or 9. However, I do credit Ornellas' testi- mony regarding an incident that occurred on September 9 involving Barela's driving. Ornellas testified that on September 9, after he left Re- spondent's plant, he noticed five vehicles, including. a white pickup truck, behind him . When Ornellas pulled onto the shoulder of the road , the five vehicles would do the same thing. Ornellas was supposed to stop and ex- change vehicles with one of his employees but instead drove down the highway toward Martinez, California. As Ornellas drove up the ramp to the highway, he no- ticed that only the white pickup truck was still behind him, now at a very close distance. The white truck passed Ornellas' truck and cut him off several times. Ornellas exited the highway and drove toward a high- way patrol station . The white pickup truck backed up and took the same exit as Ornellas. Ornellas observed the white truck with its hood up at a location across from the highway police station. Ornellas identified Barela as the driver of the truck. Barela admitted driving the truck on the date in ques- tion, but attempted to blame these events on mechanical difficulties. According to Barela, the truck started having mechanical difficulties and started to backfire, which caused Barela to pull to the side of the road . While he was at the side of the road , he observed Ornellas get out of his truck and exchange vehicles with his driver. The truck resumed its course and passed Barela . Barela's truck restarted and Barela continued in the same direc- tion as the truck. Barela passed the truck but once again began experiencing mechanical difficulties . Barela pulled to the shoulder of the road . Barela then noticed Ornellas following him in a car. Barela exited the highway to see if the car would follow. According to Barela , the car fol- lowed him and then proceeded to the highway police station. Ornellas spoke to a highway patrol officer and then the officer approached Barela. Before the hearing, Barela gave an affidavit denying that this incident occurred at all. Months later, Barela gave a second affidavit attempting to explain away the incident. I find Barela's testimony to be inherently in- credible. His truck has mechanical difficulties whenever Barela needs an excuse for his conduct . I find his expla- nation too convenient and far less plausible than Ornel- las' testimony. GENERAL CHEMICAL CORP 3. The discharge of Dan Ramirez On September 4 after the strike was initiated by the activation of the emergency alarm, Neftah Nevarez, su- pervisor in the CP department, observed Dan Ramirez throw his hardhat and safety glasses into a dumpster. Ne- varez testified that he followed Ramirez to the changing room. When Nevarez arrived at the door of the chang- ing room, he saw a large number of employees and real- ized for the first time that a strike was in progress. As Nevarez was walking away, Ramirez was close to him and called him "wet back," "fuck head," and "son of a bitch." According to Nevarez , Ramirez said, "Why don't you say something so I can kick your ass" and then bumped Nevarez with his shoulder. Nevarez walked away from Ramirez but Ramirez continued calling him names. Ramirez testified that as he was walking out of the changing room to leave the plant, Nevarez put his hand on Ramirez' shoulder and told him to go back to work. Ramirez said, "We are on strike, Nef, let me through." Nevarez held his hand against Ramirez' chest and insist- ed that he go back to work. Ramirez told Nevarez to let him through, to "get the fuck out of my face." Nevarez continued to follow Ramirez and Ramirez repeated, "Get the hell out of my face." Ramirez denied threaten- ing Nevarez in any way. Nevarez appeared to be an honest and forthright witness and I credit his testimony over that of Ramirez. Jeffrey Hushion, a lab technician, testified that on Sep- tember 4 he attempted to enter the plant. While Hushion was stopped at the picket line, he was confronted by a "mob" of pickets. During the time that Hushion was stopped, Ramirez told him that if he went into the plant, when Ramirez came back to work, he would find Hu- shion and "cut off his balls." Ramirez produced a utility knife with an exposed blade and threatened to damage Hushion's car. Shortly thereafter, Hushion stepped out of his vehicle and spoke to Leonguerrero. Leonguerrero asked Hushion not to enter the plant that day but rather to go home and return at another time. Hushion returned to his vehicle and went home. Hushion further testified that on September 9 when he was crossing the picket line, Ramirez said, "Jeff, you got no balls. Your balls are mine." Ramirez testified that he was one of the many pickets who approached Hushion's vehicle. According to Rami- rez, he told Hushion that the employees were on strike and that Hushion should "get the fuck out of here." Ac- cording to Ramirez, Hushion was nervous and upset, and got out of the car to speak to Leonguerrero. Ramirez denied brandishing a knife on the picket line. The General Counsel presented witnesses Joe Leon- guerrero, Bob Lujan, Glenda Butler, and Charles Battle in an attempt to rebut Hushion's testimony. However, none of these witnesses recalled hearing what Ramirez actually said nor could they deny that he pulled a knife. To the extent that Battle testified that Ramirez did not threaten Hushion or brandish a knife, his testimony is discredited. All these witnesses confirmed that a mob surrounded Hushion's car and that Hushion was intimi- dated. 79 Hushion's testimony is credited over that of Ramirez. Hushion's testimony is more reliable than the other wit- nesses who were in the area but did not actually see or hear Ramirez. I find that Ramirez engaged in the mis- conduct attributed to him by Hushion 4. The discharge of Bill Scheffler Phil Ulichney, Respondent' s plant manager at the time of the strike, testified that on September 4, he was coming back into the plant when he was stopped by Barela and Ramirez . According to Ulichney, while Ra- mirez was making some remarks to him, he heard some- thing hit the car and he looked in his rearview mirror. Ulichney saw Scheffler walking away from the car. Ulichney later inspected the car and noticed a dent about 3 inches in length near the tail-light. Ulichney admitted that he did not see Scheffler strike the car nor did he see Scheffler with any object in his hand that might have struck the car. Ulichney admitted there were at least a dozen employees within a few feet of his car, but he only recalled Scheffler as being on the passenger side of the vehicle. Scheffler testified that he was on the passenger side several feet away from the vehicle while Ramirez was talking to Ulichney but that nothing happened to Ulich- ney's vehicle while he was there. Scheffler denied strik- ing Ulichney's vehicle. I find insufficient evidence to es- tablish that Scheffler struck Ulichney's vehicle. James Foster, supervisor, testified that on September 4 around 7.30 p.m. he was stopped on his way back into the plant. Foster testified that Scheffler kicked the door of Foster's vehicle and had to be restrained from kicking the vehicle again by an unidentified picketer. James Craig, supervisor, testified that he was leaving the plant with Joe Marquez, a production supervisor, when he observed the picketers at Foster's vehicle. Craig testified that Scheffler threatened to go to Craig's home to "fuck" Craig's wife and also "kick [Craig's] ass." Craig testified that on his way back into the plant a couple of hours later, his left rear door window was broken. According to him, he saw Scheffler running along with the vehicle and heard him say that he was going to go home and "fuck" Craig's wife. Craig's testi- mony was contradicted by Marquez, who testified that Scheffler was first seen on the right side of the vehicle, after the window was broken and after the vehicle had sped away. Thus, according to Marquez, Scheffler did not run alongside the vehicle nor could he have broken the window. Scheffler testified that he did not say anything to Craig when Craig left the plant. When Craig returned to the plant, Scheffler said to Craig, "Why don't you go home and fuck your wife instead of crossing the picket line." Scheffler denied threatening Craig in any manner. Scheffler denied kicking Foster's vehicle. Glenda Butler testified that Scheffler did not kick Foster's vehi- cle and that she was in a position to see Scheffler had he kicked the vehicle. Diane Strock was present at the time but did not recall seeing Scheffler. Robin Saunders, a service accounting clerk, testified that as she was leaving Respondent's plant on September 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 19, she stopped her car before she could turn into the oncoming traffic. According to Saunders, Scheffler's ve- hicle "bumped" the back of her car and continued to push her car into the ongoing traffic. While Scheffler was driving in this manner, Art Aria, another striker, shouted "thanks Robin, thanks Robin." Scheffler testified that he and Aria were driving home that evening and that he saw Saunders . Scheffler denied bumping Saunders' vehicle or attempting to push her into traffic. Aria, no longer employed by Respondent, did not testify . I find Saunders to be a credible witness and credit her testimony over ScheMer's denial. 5. The discharge of J. T. Stone Brevard testified that on September 83 he was leaving the plant with McLachlan (who was driving) and an- other passenger, Bill Thomas, when they were stopped on the picket line. According to Brevard, Stone, who was speaking in a loud voice, said that Respondent had taken the food out of his family's mouth, and got very "belligerent." Stone then allegedly said, "You sorry fat son of a bitch, we know where you live and we're going to get your ass." Brevard finally testified that Stone had to be escorted away from the picket line by two picket- ers. McLachlan corroborated Brevard's version of these events to some extent . McLachlan did not recall Stone's exact words but recalled his emotional and loud tone of voice. McLachlan recalled Stone saying something like "I'm going to get you." Thomas, the other passenger, did not testify. Stone admitted calling Brevard a liar, a crook, and a thief but denied threatening Brevard or saying he was going to "get him." Stone testified that he said Brevard was taking the food out of his family's mouth and that he opened his wallet to illustrate the point. O'Farrell testi- fied that Stone was emotional and loud and that he talked with his hands but that Stone did not threaten Brevard. Further, O'Farrell denied having escorted Stone away . O'Farrell testified that he simply put his hand on Stone's shoulders and told Stone that "it wasn't worth getting that upset." John Moore, another picketer, corroborated Stone's and O'Farrell's testimony that al- though Stone was loud and emotional , he never made any threats against Brevard or said that he was going to get him. Based on the testimony of O'Farrell and Moore, I find that Stone did not threaten Brevard . Rather, I find that Stone, speaking in a loud voice and gesturing, called Brevard names and accused him of taking food from his family. However, I credit Stone's denial that he ever threatened to get Brevard . Although McLachlan did cor- roborate Brevard's testimony regarding Stone's tone of voice, I was not convinced that McLachlan had any in- dependent recollection of Stone's words. In my view, McLachlan did not want to contradict Brevard. In any event, I find the testimony of O'Farrell and Moore to be 9 Stone testified that this incident took place on September 11. Because there is no dispute that Stone had a conversation with Brevard , the date is irrelevant reliable and I therefore credit Stone 's account of this in- cident. Gary Christiansen, a driver for an independent courier service, testified that on September 15 he was stopped on the picket line. While stopped , Christiansen was ap- proached by a large black man (later identified as Stone). According to Christiansen, he asked Stone how the strike was going. Stone then asked Christiansen if he could carve his initials on the truck. Stone then asked if Christiansen's boss would mind "if the truck got all fucked up" and then struck the truck with his fist. Thereafter, Stone walked in front of the truck and then to the right rear side of the truck. Christiansen could not see Stone but he heard a "thud" coming from the rear right side of the truck. Christiansen checked the vehicle after leaving the plant and found a hole on the right rear. According to Christiansen, there was no sheriff present on the picket line during this incident . Christiansen did not impress me as a credible witness. He could not or would not recall what took place before Stone's remarks and alleged hitting of the truck. Stone testified that he approached Christiansen on the picket line and that the driver asked him the reason for the strike. Stone then gave Christiansen a flyer explain- ing the Union's reasons for the strike. Christiansen asked if there had been any violence on the picket line, and Stone replied that he had heard that there had been vio- lence early on in the strike but there had been none that day and that the sheriff was present. Christiansen then asked Stone what would happen if he ran through the picket line (with his truck). Stone said that if anyone tried that, he would leave his initials on the truck and asked Christiansen what his boss would say if he re- turned with a truck "all fucked up." Christiansen said he did not care about the truck, only himself. Stone denied walking to the passenger side of the vehicle and denied doing any damage to the truck . Stone heard the impact on the rear passenger side of the vehicle but was on the opposite side of the truck at the time. Mike Christopher, another picketer, corroborated Stone's testimony. Christopher testified that he and a sheriff were standing right behind Stone . Christiansen asked Stone why the employees were striking and what Stone would do if Christiansen attempted to run the picket line. According to Christopher, Stone said he would leave his initials on the truck only after Christian- sen asked what Stone would do if Christiansen did not wait at the picket line but attempted to drive through.' Christopher testified that he and Stone were on the op- posite side of the truck when it was struck and that Stone did not hit the truck with his fist or anything else. I did not find Christiansen to be a credible witness. Rather, I find Stone's version of these events to be more logical. Further, Stone's testimony was corroborated by Christopher, whom I find to be a credible witness. I, therefore, credit Stone's testimony over that of Christian- sen. At that point in the strike , the sheriff made each vehicle await 5 min- utes of picketing and then required the pickets to allow the vehicle to pass. GENERAL CHEMICAL CORP 6. The discharge of Diane "Cookie" Strock Ornellas testified that he was stopped on the picket line on September 8 by approximately 15 pickets. Ac- cording to Ornellas, while on the picket line. Strock said that the picketers were "going to get you Ornellas and beat the shit out of you." Strock said that she knew where Ornellas lived and that he could not hide from the picketers. Strock further said the picketers would put a bomb in Ornellas' house. She also threatened to run a forklift through the front end of his truck and that Or- nellas' truck would never be loaded again. After crossing the picket line and loading his truck, Ornellas was again stopped on his way out of. the plant . According to Ornel- las, Strock and Barela "who were leading the band" said to him that Ornellas should not bring his truck back or else he would have to buy a new one. Ornellas was friendly with Strock before the strike and she was appar- ently the only one in the mob he could identify. It is my impression that Ornellas attributed many of the remarks made by the mob to Strock, the one person who stood out in his mind Ornellas further testified that on the next day, Septem- ber 9, Strock again threatened him. According to Ornel- las, Strock said the other picketers would drag Ornellas out of the truck and hold him while Strock "beat the shit out of him." Strock said "she would cut off his dick and stick it in his mouth so that he would know what a cock- sucker felt like." Once again Strock told Ornellas not to bring his truck back or else it would be damaged. After crossing the picket line, Ornellas went to load his truck in the plant According to Ornellas, Strock was standing 100 to 120 yards away and yelling "yeah you motherfucker, you better not bring that truck out, you better have your safety belt on.. . . I'm going to drag your ass out of there." He further testified that she raised her arm and pointed an object at him, but that he could not make out the object because she was so far away Strock, on the other hand, testified that on September 8 she merely shouted "Tommy 0 is a scab."5 According to Strock, on September 9, she was one of several pick- eters when Ornellas stopped. Strock asked Ornellas to turn around because the employees, including Strock, had always treated him well and had loaded his truck first She asked Ornellas "to be a man" and said that if "Fatty" Dullums, the person who loaded trucks during the strike, loaded Ornellas' truck, he would probably drive a forklift right through the truck. Strock admitted calling Ornellas a "stupid fucker" and a "scab." She fur- ther admitted telling Ornellas that after the strike she would no longer do him favors and would load him last rather than first. Strock denied threatening Ornellas. After Ornellas crossed the picket line, Strock, accom- panied by Glenda Butler and Julie Damron, walked down to the plant in an attempt to find out who was loading the truck. However, Strock was about 200 yards away from Ornellas and not in the location claimed by Ornellas. According to Ornellas, she looked through bin- oculars but was unable to distinguish any of the persons 5 Ornellas first testified that these events took place on September 8 and 9 However, during cross-examination , he stated that these events all took place on a single day 81 at the loading dock. She denied making any remarks to Ornellas at that time and testified that she was too far away to even attempt to speak to him. Finally, Strock denied saying anything to Ornellas on his way out of the plant that day She recalled that others called him "scab" and "shrimp." Glenda Butler corroborated Strock's testimony that Strock asked Ornellas not to cross the picket line be- cause the employees had done him favors in the past. According to Butler, Strock told Ornellas that Dullums might drive the forklift through Ornellas' truck because Dullums could not drive a forklift. Strock told Ornellas that he was not a man and that "he had no balls." Butler accompanied Strock to the place where she attempted to watch the loading dock. According to Butler, Strock made no remarks from that point and that Ornellas was too far away for any comments to have been made. Julie Damron further denied that Strock threatened Ornellas According to Damron, Strock told Ornellas that employees had done favors for him in the past but would not do so after the strike. Damron admitted that some of the male picketers said to Strock "Do you want us to hold him down for you" and that Strock replied, "No, he's just a pussy. If I wanted to I could kick his ass " Damron further admitted that the picketers heckled and insulted Ornellas Strock called Ornellas names and told him that Dullums would probably drive a forklift through Ornellas' truck. Further, Damron corroborated the testimony of Butler and Strock that Strock did not yell to Ornellas when Ornellas was at the loading dock. I credit the testimony of Damron and Butler that Strock did not make the remarks attributed to her by Or- nellas. Rather, I find Ornellas attributed remarks made by other picketers to Strock. I credit Strock's versions of these events. I further credit Damron's testimony that Strock told the male picketers that if she wanted to, "she could kick his [Ornellas'] ass." I cannot credit Ornellas' testimony regarding the inci- dent at the loading dock. The credible testimony estab- lishes that Strock simply was not at the location or loca- tions that Ornellas attempted to place her. Further, Strock was too far away to yell to Ornellas. Although Strock had binoculars with her, I find nothing threaten- ing in such conduct. C. The Refusal to Process and Arbitrate the Grievances Concerning the Discharges Following the discharges of Barela, Ramirez, Scheffler, Stone, and Strock, the Union filed grievances contesting all five terminations. It is undisputed that Re- spondent refused to arbitrate the grievances. Respondent takes the position that the employees were discharged before there was a contract containing an arbitration pro- vision. Further, Respondent argues that even if it was obligated to arbitrate the grievances, its refusals to arbi- trate would constitute a contract violation but not a vio- lation of the Act. Although the contract was not executed by the Union until January 8, 1987, the Union and Respondent have agreed that the effective date of the contract is Septem- ber 22, 1986. The contract by its terms was effective as 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of September 22. Although the Union attempted , before January 1987, to make the contract retroactive to Sep- tember 19 (to cover these grievances with more certain- ty), the Union agreed to and signed the agreement retro- active to September 22. Respondent contends the dis- charges took place on September 19 rather than Septem- ber 22. On September 19, when the Union agreed to accept Respondent's proposed contract and return to work on September 22, Respondent indicated that certain employ- ees would not be reinstated due to strike misconduct. However, it was not until September 22 that Respondent revealed the names of the employees who were not eligi- ble for reinstatement . The Union and the General Coun- sel contend that the discharges of the five employees took place on September 22 and are, therefore, covered by the grievance and arbitration provisions of the current collective-bargaining agreement. Respondent accepted and processed all other griev- ances filed by the Union after September 22, including the grievances concerning the suspensions of Leonguer- rero and Smith. Respondent accepted and processed grievances filed after September 22, even prior to the execution of the contract by the Union. D. Discussion and Conclusions 1. The discharges At the end of an economic strike , an employer, unless justified by legitimate and substantial business reasons, must reinstate striking employees, lest their discharges penalize the employees for exercising their right to strike under Sections 7 and 13 of the Act. Associated Grocers of New England v. NLRB, 563 F.2d 1333 (1st Cir . 1977); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378-379 (1967). A showing that a striking employee has engaged in serious picket line misconduct justifies a refusal to re- instate after the strike is over . Clear Pine Mouldings, 268 NLRB 1044 (1984). The general rule regarding strike misconduct is that an employer must demonstrate an honest belief that an em- ployee has engaged in strike misconduct . Once an em- ployer establishes this belief, the burden shifts to the General Counsel to prove that the employee was not en- gaged in the alleged strike misconduct or that the mis- conduct was not sufficiently serious to place the employ- ee beyond the protection of the Act . Rubin Bros. Foot- wear, 99 NLRB 610 (1952); General Telephone Co., 251 NLRB 737 (1980); Axelson, Inc., 285 NLRB 862 (1987). In Clear Pine Mouldings, supra, the Board adopted the following objective test for determining whether verbal threats by strikers directed at fellow employees justify an employer's refusal to reinstate: Whether the misconduct is such that , under the cir- cumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act. [268 NLRB at 1046.] The Board went on to hold that it would "fashion reme- dies and policies which will discourage unfair labor prac- tices and the resort to violence and unlawful coercion by employers and employees alike." In case of picket line and strike misconduct, the Board will deny "reinstate- ment and backpay to employees who exceed the bounds of peaceful and reasoned conduct." Id. at 1047. In the instant case, Respondent has established an honest belief that each employee has engaged in strike misconduct. The question presented is whether each em- ployee, based on all the credited evidence, has engaged in misconduct sufficient to place the employee beyond the protection of the Act. Applying the above standards to the instant case, the conduct of striker Larry Barela in slashing tires on McLachlan's vehicle, driving in such a manner as to throw gravel at Brevard's vehicle, throwing a smoking object toward Brevard's vehicle, following Ornellas' truck, driving in a reckless manner, and attempting to cut off Ornellas' vehicle constitutes serious strike miscon- duct warranting Respondent's refusal to reinstate Barela at the conclusion of the strike. Barela's conduct is inherently coercive and intimidat- ing regarding the exercise of employees' Section 7 rights to refrain from striking or other protected activities. Bar-- ela's misconduct was not directed at nonstriking employ- ees of Respondent but at an attorney , a supervisor, and an independent contractor . However, the same objective standard applies to the assessment of strikers' verbal and nonverbal conduct directed against persons who do not enjoy the protection of Section 7 of the Act. Clear Pine Mouldings, supra, 268 NLRB at 1046 fn. 14; PBA Inc., 270 NLRB 998 (1984). The credited testimony establishes that striker Dan Ra- mirez called Supervisor Neftali Nevarez various obscene names. Further, Ramirez challenged Nevarez to say something so that Ramirez could "kick his ass." Finally, Ramirez bumped Nevarez in an attempt to punch the su- pervisor into a fight. Nevarez walked away and Ramirez once again called him names. With respect to the September 4 incident involving Jeff Hushion, I found that Ramirez threatened Hushion while a mob surrounded Hushion's car. Further, I find that Ramirez produced a knife during the incident. Ac- cordingly, I find that Ramirez has engaged in miscon- duct exceeding the bounds of peaceful and reasoned con- duct. I shall, therefore, recommend that the allegations of the complaint regarding his discharge be dismissed. The conduct of striker Bill Scheffler in using his vehi- cle to push the vehicle of nonstriking employee Robin Saunders into ongoing traffic was a reckless act, intended to cause and causing fear in Saunders. Such conduct is inherently coercive and intimidating with respect to the exercise of employees' Section 7 rights to refrain from engaging in the strike or other protected activities. I find this conduct sufficient to warrant denial of reinstatement and backpay. I, therefore, find it irrelevant that the Gen- eral Counsel established that Scheffler did not damage the automobiles of Ulichney and Craig. The credited testimony establishes that Stone called Brevard a thief, liar, and crook . Further, Stone took out his wallet to demonstrate that Brevard had taken money from his family. Stone waved his hands and was very GENERAL CHEMICAL CORP emotional. "However, I find that Stone did not threaten Brevard. Based on the credible evidence, I do not find that Stone's conduct reasonably tended to coerce or intimi- date employees in the exercise of Section 7 rights. Al- though Stone may have insulted Brevard and subjected him to name calling, which Brevard need not suffer in the absence of a strike, Stone's conduct did not rise to the level of serious strike misconduct. No threats were uttered and no threatening gestures were made. The emotional tone of voice and nonthreatening gestures do not amount to force or coercion. With respect to the incident involving Christiansen, the courier driver, I find that Stone did not threaten Christiansen. Christiansen challenged Stone by asking what would happen if he, Christiansen, ran the picket line. In answer to that question, Stone's spontaneous comments that he would leave his initials on the truck, do not appear coercive or intimidating. I do not find Stone's comments about damage to Christiansen's truck coercive in the context of Christiansen's question about what would happen if he drove through the *picket line. The credited evidence establishes that Stone was not re- sponsible for the damage to Christiansen's truck The comments to Christiansen, when placed in con- text, do not amount to threats or intimidation. Christian- sen, in effect, threatened to drive through the picket line. The spontaneous response that Stone would carve his initials in the truck or that the truck would be damaged do not coerce employees in the exercise of Section 7 rights. Such remarks only threaten employees who en- danger peaceful pickets. I find that Stone did not engage in misconduct sufficiently serious to deny him reinstate- ment after the strike. I therefore find that Respondent's discharge of Stone violated Section 8(a)(3) and (1) of the Act. As mentioned earlier, Diane Strock called Ornellas, an independent contractor, names such as scab and shrimp. Further, in concert with other picketers, Strock said that she needed no help in beating up Ornellas and that she could easily do so if she wished. I further found that Strock did not threaten Ornellas as alleged nor did she follow him in a threatening manner. It is my belief that Ornellas heard threatening remarks and insults directed at him. However, it is unjust to hold Strock accountable for such remarks simply because she was the only person Ornellas could identify The question presented is wheth- er Strock's conduct, in the context of the unruly picket- ers, is sufficient to warrant the denial of reinstatement. In my view her conduct, while insulting and abusive, did not amount to restraint or coercion. It is well settled that the use of epithets, vulgar words, or profanity does not deprive a striker of the protection of the Act. NLRB v. McQuaide, Inc., 552 F.2d 519 (3d Cir. 1977); Linn v. Plant Guards, 383 U.S. 53, 60-61 (1966). Accordingly, I find that Strock did not engage in misconduct sufficient to warrant the denial of reinstatement and that, there- fore, Respondent violated Section 8(a)(3) and (1) of the Act by discharging her 83 2 The suspensions of Leonguerrero and Smith As the General Counsel correctly argues, it is well set- tled that the act of going on strike is protected concerted activity, regardless of the lack of prior notice to the em- ployer, or the impact it may have on the employer's pro- duction, or the severe inconvenience that it may likely cause. Johnny Johnson Tire Co., 271 NLRB 293, 295 (1984); Go-Lightly Footwear, 251 NLRB 42 (1980), Poly- tech, Inc., 195 NLRB 695, 696 (1972). The Board has held that the effect of such a work stoppage of produc- tion is incidental and does not preclude protection of the Act so long as the employees involved take reasonable precaution to avoid imminent danger to the employer's physical plant which foreseeably would result from a work stoppage. See Marshall Car Wheel & Foundry Co., 107 NLRB 314 (1953). However, in Terry Poultry Co., 109 NLRB 1097 (1954), the Board held that a work stoppage was unprotected because it violated a longstanding rule of the employer requiring employees to tell their foremen or fellow em- ployees if they are leaving the production line. The Board found the rule to be a reasonable one consistent with the right of an employer to enforce reasonable rules governing the conduct of its employees on company time even though such rules may limit the statutory right of employees to engage in union or concerted activities I find Respondent's conduct to be consistent with the principles of the cases cited by the General Counsel and the Terry Poultry case Respondent, using dangerous chemicals in its CP department, had a longstanding, well-publicized rule requiring operators to be properly relieved before leaving the plant. The purpose of Re- spondent's rule is to ensure safety to the equipment, the plant, and the general public. The burden imposed on employees to meet the re- quirement of the rule was minimal. The employees could have avoided discipline by notifying their supervisor of the status of the chemical process or by shutting down their equipment. Communication to their supervisors would have taken no longer than 15 minutes. The employees did not take the reasonable precautions mentioned in the Johnnie Johnson and Marshall Car Wheel cases. Although no actual damage took place, that is not the test There was a reasonably foreseeable possi- bility of danger-the purpose of the rule When balanced against the significant danger involved, even accounting for the low probability of danger (known to the employ- ees but not the supervisors), the restrictions placed on the employees' right to engage in union activities appear minimal. In this case, the danger was eminent (signifi- cant) rather than imminent (impending). However, Re- spondent's rule was designed for safety purposes and did not require anything more than the reasonable precau- tions mentioned in the cases cited by the General Coun- sel. Further, in this case, there is no evidence that Re- spondent was motivated by any purpose other than en- forcement of its longstanding safety rule. Other strikers avoided discipline by compliance with the rule. More- over, the penalty invoked, a suspension, was not dis- criminatory and, therefore, should not restrain or coerce 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees in the exercise of Section 7 rights. Respond- ent clearly indicated that the discipline was imposed for violation of the safety rule and for no other reason. Fi- nally, Respondent has agreed to arbitrate these suspen- sions under the collective-bargaining agreement. 3. The refusal to arbitrate As mentioned earlier, the General Counsel contends that Respondent's refusal to arbitrate the grievances over the five discharges constitutes a violation of Section 8(a)(5) of the Act. Respondent, on the other hand, con- tends that the discharges took place before the effective date of the contract and, therefore, was not subject to the grievance and arbitration procedures of the contract. Secondly, Respondent contends, assuming the discharges are grievable, that the refusal to arbitrate a specific grievance or type of grievance is not a unilateral change in violation of Section 8(a)(5) and (1) of the Act. The Board has long held that Congress specifically re- jected a proposal that every breach of a labor contract gives rise to an unfair labor practice. See, e.g., Packing- house Workers (Wilson & Co.), 89 NLRB 310, 317 (1950). Further, it is well settled that the refusal to arbitrate a single grievance, even if the refusal is a contract breach, is not in itself an unfair labor practice. Mid-American Milling Co., 282 NLRB 926 (1987). This precedent was recently reaffirmed in Indiana & Michigan Electric Co., 284 NLRB 53 (1987), and Dallas Morning News, 285 NLRB 53 (1987). Although a breach of a labor contract is not ipso facto an unfair labor practice, it does not follow that when an employer unilaterally effects a change which has a con- tinuing impact on a basic term or condition of employ- ment, it must be ruled out as an unfair labor practice simply because it happens also to be a breach of con- tract. C & S Industries, 158 NLRB 454, 458 (1966). See also B. N. Beard Co, 231 NLRB 191 (1977). Where a breach of contract substantially infringes on the statutory right of a bargaining representative or amounts to a sub- stantial renunciation of the principles of collective bar- gaining, the Board has found a violation of the Act. See, e.g., Sea Bay Manor Hone, 253 NLRB 739, 740-741 (1980); Papercraft Corp., 212 NLRB 240 (1974). In the instant case, Respondent has not refused to take all, or even most, grievances to arbitration. Cf. Para- mount Potato Chip Co., 252 NLRB 794 (1980). Rather, Respondent has accepted grievances and agreed to arbi- tration except on a very narrow and specific grievance matter. See Whiting Roll Up Door Mfg. Corp., 257 NLRB 734 (1981); and Bacardi Corp., 286 NLRB 422 (1987). Re- spondent has refused to arbitrate the discharges because they occurred before the effective date of the contract and its grievance-arbitration provisions . Thus, assuming Respondent is incorrect whether the contract covers the discharge disputes, Respondent has not repudiated or ab- rogated the grievance-arbitration procedures. Hence, the record establishes at most a breach of contract, but does not establish that Respondent committed an unfair labor practice.6 Accordingly, I shall recommend dismissal of this allegation of the complaint. CONCLUSIONS OF LAW 1. Respondent General Chemical Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging employees Diane Strock and J. T. Stone, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. By discharging employees Larry Barela, Bill Scheffler, and Dan Ramirez, Respondent did not violate the Act. 6. By suspending employees Ron Smith and Joe Leon- guerrero, Respondent did not violate the Act. 7. Except as specifically found above, Respondent did not violate the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Having found that Respondent unlawfully discharged its employ- ees J. T. Stone and Diane Strock, I shall order Respond- ent to offer Stone and Strock immediate and full rein- statement to their former positions of employment or, if those positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make Stone and Strock whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, with interest to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950); and New Ho- rizons for the Retarded, 283 NLRB 1173 (1987).' On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 6 See also Malnte of Wisconsin, 198 NLRB 241 ( 1974), enfd in relevant part 494 F.2d 1136 (D.C. Cir 1974), which held that an employer's refus- al to comply with an arbitration award was not an unfair labor practice Enforcement of the arbitration award was held to be better left to the usual court processes Under New Horizons, interest is computed at the "short-term" Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C H 6621 Interest on amounts accrued before January 1, 1987 (the effective date of the amendment), shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). " If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses GENERAL CHEMICAL CORP 85 ORDER The Respondent, General Chemical Corporation, Pitts- burg, California, its officer, agents, successors, and as- signs, shall 1 Cease and desist from (a) Discouraging the protected concerted activities of its employees by discharging employees for having en- gaged in lawful strike activities. (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 Diane Strock and J. T Stone 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 privi- leges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (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) Post at its facility in Pittsburg, California copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notice$ are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 " IT IS FURTHER RECOMMENDED that the complaint alle- gations not specifically found here be dismissed APPENDIX NOTICE To EMPLOYEES POST 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 or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT discourage the protected concerted ac- tivities of our employees by discharging employees for having engaged in lawful strike activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Diane Strock and J T. Stone immedi- ate 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 and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earn- ings, plus interest WE WILL remove from our files any reference to the discharges of Strock and Stone, and WE WILL notify them in writing that this has been done and that evi- dence of these unlawful discharges will not be used as a basis for future personnel action against them. GENERAL CHEMICAL CORPORATION