Franzia Brothers Winery

FRANZIA BROS. WINERY 927 Franzia Brothers Winery and Winery, Distillery & Allied Workers Union, Local No. 186, Distill- ery, Rectifying, Wine & Allied Workers Inter- national Union, AFL-CIO. Cases 32-CA-8794, 32-CA-8795, and 32-CA-8798 August 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 1, 1988, Administrative Law Judge David G. Heilbrun issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings, " and conclusions2 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, Franzia Brothers Winery, Ripon, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. fornia, on 15 October 1987. The charges were filed by Winery, Distillery & Allied Workers Union, Local No. 186, Distillery, Rectifying, Wine & Allied Workers Inter- national Union, AFL-CIO (the Union), 18 March 1987, and the consolidated complaint was issued 27 May 1987. The primary issues are whether Franzia Brothers Winery (Respondent) suspended and then discharged Robert Whitley, Richelle Beckerdite, and Donald Treadway be- cause of claimed strike misconduct, which the General Counsel asserts was not in fact engaged in or , alternately, not sufficiently serious to warrant their termination or loss of striker reinstatement rights, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. On the entire record, including my observation of the demeanor of witnesses, and after consideration of briefs filed by General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a California corporation with an office and place of business in Ripon, California, where it is en- gaged in the production and nonretail distribution of wine and related products. During a recent past repre- sentative 12-month period, Respondent sold and shipped goods valued in excess of $50,000 in the course and con- duct of its business operations directly to customers lo- cated outside California. On these admitted facts I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and, as is also admitted, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. s Even if the Respondent had established that it had an honest belief that the discriminatees had engaged in picket line misconduct , we agree with the judge that the General Counsel proved that the alleged miscon- duct did not occur, i.e., that the credited evidence showed that employee Beckerdite was not involved in the incidents relied on by the Respondent and that the incidents involving Treadway and Whitley on which the Re- spondent relies were purely defensive reactions to actions by others and did not rise to the level of misconduct. Accordingly, on that basis, we adopt the judge's decision that the Respondent violated Sec . 8(axl) and (3) of the Act when it suspended, discharged, and refused to reinstate Robert Whitley, Richelle Beckerdite, and Donald Treadway because of their strike-related activities. David Dominguez, for the General Counsel. Richard H. Harding and Mark E Robson (Littler, Men- delson, Fastiff & Tichy), of Walnut Creek, California, for the Respondent. Victor C Thuesen, of Petaluma, California, for the Union. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. These cases were tried in hearings held at Ceres, Califor- nia, on 10 and 11 September 1987 and at Modesto, Cali- II. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's facility is situated along the southern side of a mainly rural stretch on east-west running State Highway 120. A continuous flow of general traffic uses this two-lane road, and Respondent's prominent activities for the area results in considerable vehicular turning into its premises by employees and those arriving on business, including truckers. A guardhouse is located somewhat down the entering driveway. At the associated exit point, a stop sign controls departing traffic before any right or left turning onto Highway 120. As a full-scale producer of wine and related products, Respondent is a member of the Winery Employers Asso- ciation (WEA), an organization existing for at least col- lective-bargaining purposes. Pursuant to this membership the WEA, by its designated spokesperson, acted as sole and exclusive bargaining representative for Respondent. In summer 1986, contract renewal negotiations took place between the WEA and the Union. When an exist- ing contract expired on 31 July 1986 , negotiations never- theless continued between the parties.' As a phase of this bargaining process the union-repre- sented employees of Respondent commenced a strike on 1 All dates and named months are in 1986, unless otherwise indicated. 290 NLRB No. 113 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Tuesday, 26 August. This was a critical seasonal point in Respondent's operations, for the annual "crush" of grapes was underway and major adversity could result from perishable losses. At commencement of the strike there were approximately 250 employees in the plant bargaining unit, and practically all of them went on strike. Respondent also employed approximately 125 sal- aried employees in supervision , marketing, and clerical functions. At its inception the strike resulted in the massing of pickets at Respondent's main gate and auxiliary entrance. On Sunday, 31 August , the Union organized its picketing with strike leaders and shift captains. A strike leader's function was to prepare picketing schedules and maintain general communication with those on strike . The shift captain was to oversee a particular 4-hour timespan by maintaining appropriate control over strike activities and be chiefly representative of the Union for that shift. Respondent reacted to the strike by an immediate cam- paign of hiring replacement employees, and through their use, coupled with long hours worked by salaried employees, continued to operate . Additionally, it in- creased the number of security personnel provided by American Protective Services (APS), and generally re- quired closer monitoring of the premises with more de- tailed reporting of happenings associated with the strike. Respondent's executive and management hierarchy during this period was headed by Arthur Ciocca, its San Francisco-based president who also heads a separate entity called The Wine Group, Ltd. Day-to-day oper- ations at the winery were run by Senior Vice President Lynn Bates, while Personnel Manager Kikuye Joyce Stonehocker fulfilled various employee relations func- tions including coordination of on -premises food service and dealings with APS . Initially the increased security function called for preparation of daily activity reports by the officers; however, these reports proved too de- tailed for Respondent's later objective of securing injunc- tive relief from a state court with respect to occurrences of the picketing . In this vein, a temporary restraining order (TRO) was secured on 9 September , and later that month a superseding preliminary injunction . To support such action by the court, extracts were made from earli- er daily activity reports as separately written special inci- dent reports, in which the complained of strike activities were described , These special incident reports thus evolved as the preferred form of recording by APS per- sonnel for noteworthy occurrences . Respondent's chief liaison with APS was to its Modesto-based assistant branch manager, Donald Ferris. In turn, the service at this client's premises was overseen by Security Captain Cruz plus lieutenants John Dawson and Victor Munoz. The Union ended its strike effective 3 October. Re- spondent promptly returned its striking employees to work to the extent needed , dismissing temporary replace- ments in the process. An exception applied to several persons concerning whom suspensions were issued while individual consideration was given to documented re- ports of their activities as chronically and specifically manifested during the strike. In consequence of this, four persons were denied employment on the assigned basis of strike misconduct. Three of the persons in this group are those to which this proceeding pertains. In each instance, they received a letter dated 8 October from Bates in which the specific accusations found sufficient by Re- spondent for such action were listed. B. Basis of Analysis 1. Robert Whitley The described letter to this individual enumerated the following bases for a denial of reinstatement because of claimed "strike misconduct": (1) [M]ultiple instances of blocking traffic crossing the picket line and dangerously blocking the view of drivers of vehicles crossing the picket line; (2) brandishing your picket sign in a threatening and dangerous manner and intentionally attempting to strike a security guard with the picket sign; (3) wielding your picket sign in a dangerous manner and threatening to strike individuals with it; and (4) generally harassing , verbally abusing, and/or threatening the well-being of individuals crossing the picket line. In Whitley's case the evidence principally concerned an episode on 25 September when a sheriff's department officer was called to the scene because of claimedly un- authorized movement by picketers contravening terms of the injunctive order . Discussion ensued between this offi- cer and Whitley, with at least picketer Jean Eisenga par- ticipating marginally. As this transpired, security guard Mario Brock, acting at his lieutenant's direction, maneu- vered with a video camera to obtain a visual record of Whitley engaging in this discussion. Whitley reacted in equal determination not to be pictured by continuous turning away, ducking, and covering his face with his picket sign . This effort and countereffort lasted nearly 10 minutes, with Whitley becoming increasingly vocal by calling out profane protests about the attempt to clearly show him on film. In the course of Brock's objective, his camera came to within a foot of Whitley 's face. The cul- mination was a flurrying movement by Whitley in which his picket sign was poked toward and up to the lens of Brock's camcorder. Whitley testified that he had personal objection to the prospect of being so pictured, and felt "intimidated" for an extended time by Brock's relentless pursuit. He denied striking Brock or his camera, and denied any aggressive movements of his picket sign . Whitley testified that his conduct was strictly that of avoidance , and that he cou- pled the protests voiced to Brock with a running en- treaty that the sheriff's department officer with whom he was speaking use police authority to stop the camera. Whitley is corroborated by Eisenga, who added that APS personnel had never before used a camera by ap- proaching so closely to an individual being photo- graphed. Witnesses Darla Bell and Fatima Faria also cre- dibly described that picture-taking had always previously been done from a distance of approximately 20 feet. Brock testified that his purposes were to fulfill an order that Whitley's face be shown while in conversation with a law enforcement officer at a point in time subse- FRANZIA BROS. WINERY 929 quent to issuance of the injunctive relief. In this sense he tried only to find a moment and an angle that would record Whitley's presence. Brock believed that Whitley may have hit the video camera at a point late in the epi- sode, when he suddenly and angrily moved toward Brock while also swinging the picket sign forward. Former APS security guard Louisa Dorton testified to being present and seeing this incident culminate by Whit- ley swinging his picket sign at Brock. On a separate general accusation against Whitley, Re- spondent's eyewitness is Dorton. In her assignment to Respondent's facility during the strike, Dorton had been primarily a recorder of events and activities . In this ca- pacity she had written a special incident report dated 15 September, reporting that Whitley and another male picket had blocked incoming traffic and also blocked the view available to drivers by the positioning of picket signs and standing overly close to the vehicle. Dorton also elaborated on a group of photographs introduced into evidence by Respondent, by testifying that they de- picted the different moments that she personally recalled as amounting to the reported blockings in which Whitley participated. Whitley denied engaging in the "dangerous act" of blocking the vision of drivers attempting to leave the fa- cility. He asserted that to the contrary, and as an assist- ant strike captain aware of the state court order, his reg- ular picketing activity was proper at all times. Frank Isaia picketed on the same shift with Whitley. He testified to being in close proximity with Whitley 99 percent of the time and to never seeing him block traffic or attempt to obstruct the view of drivers. 2. Richelle Beckerdite Beckerdite was a striker who served simultaneously as a strike leader and shift captain when picketing from 4 to 8 p.m. The letter to her enumerated the following bases for a denial of reinstatement because of claimed "strike misconduct": (1) Multiple instances of blocking vehicles crossing the picket line and/or dangerously blocking the view or drivers of vehicles crossing the picket line; (2) multiple instances of spitting on vehicles crossing the picket line; (3) harassing, verbally abusing and/or threatening the well-being of individuals crossing the picket line, including the use of inflammatory racial epi- thets and threats to the life of individuals crossing the picket line and their families. In support of its decision here Respondent advanced the testimony of various witnesses, security service re- ports regarding Beckerdite, and a transcript of testimony by now-unavailable APS guard Homer Cleveland. David Wittig testified that he was employed as a security offi- cer for a month's stint at Respondent's facility while the strike was in progress. He mainly worked a 12-hour shift of 6 p.m. to 6 am. He recalled Beckerdite from his first day on the job as most vocal among the numerous pick- eters. Wittig acquired a familiarity with Beckerdite based on her name being told to him by another guard as he checked in for his first night of work . Wittig testified that from his guard station "quite a distance " from the picketers he could frequently hear Beckerdite yelling profanity at incoming replacement workers and loudly claiming to know the whereabouts of their families. Wittig adopted the contents of daily activity reports dated 31 August and 2 September as his own recollec- tion of Beckerdite's loud vituperation, veiled threats, and sarcastic yelling that arriving "wetback bitches [have] fun filling out those wetbacks applications ." Wittig fur- ther adopted the recordings of Beckerdite having called persons crossing the picket line "motherfucker" and "fucking assholes [who were] going to get your ass kicked [after having] your nose punched," as well as scathingly asking whether any such "scabies [could] read or speak English [or] like your picture taken." A sepa- rate report by APS guard Glenda Gray recited that on 26 August Beckerdite had spat on cars entering the plant. The transcript of Cleveland's testimony at an un- employment insurance appeals hearing showed that Beckerdite had repeatedly blocked the view of a driver at the picket line on 26 August. This testimony was con- sistent with security reports written by Cleveland on or concerning Beckerdite's conduct on 26 August. Gwendolyn Lovett testified that she is an experienced employee of APS, and was assigned to Respondent's fa- cility during the strike. Her duty station was the main gate for routine logging and to record unusual events on a shift from 11 p.m. to 7 a.m. Familiarity with Beckerdite originated on her first day of service at this client when "everybody was telling me about her" concerning "how she talked and everything." Lovett adopted the contents of several security service reports regarding Beckerdite, as what she remembered happening by directed state- ments of Beckerdite to people in the plant or crossing the picket line and occasionally amplified with a bull- horn. These statements included what was adopted by Wittig, as well as numerous obscene insults. Stephen Robert Corbett testified that he had 2 months of employment with Respondent in the summer of 1986, beginning several weeks before the strike started. As a probationary employee he elected not to join the strike, and remained in his position of wine cellar laborer on what became a 7-day-per-week graveyard shift during the strike. Corbett's practice was to arrive for work around 11:30 p.m. He is a large man, 6 feet in height and weighing 265 pounds at the time . Corbett testified that on about 20 occasions as he would drive through the picket line arriving for work, Beckerdite yelled "abu- sive" obscenities at him and continued her loud "shout- ing" or bullhorn-amplified comments as he reached his parking place and proceeded toward the winery building at a point about 1500 feet from where Beckerdite stood with the group of approximately 25 night picketers. The specifics of his recollection was that her "repertoire" of statements included calling him a "fat assed redneck motherfucker," that "your mother and wife suck donkey dicks," and that "I'm going to stick you" and "my broth- er is going to be out fucking your wife tonight while you're in there working so how do you like that? ... 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD we know where you live and we will visit your wife " Corbett's familiarity with Beckerdite arose on the first night of crossing the picket line when he asked his super- visor about "the crazy lady with the big mouth" and was told that this person with long, dark hair was Beckerdite. Diana Banks testified that she began a marketing posi- tion with Respondent on 28 August and, on leaving work at approximately 4:30 p.m. on her first or second day, experienced loud statements made to her by Becker- dite as her car reached the exiting point to the highway. Banks recalled Beckerdite's unsolicited approach to her closed driver's side window, and the shouted insults of "fucking bitch." "cunt [who] liked to fuck dogs," and "low life" whose license plate number they knew and from which Beckerdite "was going to come get me." Banks testified that Beckerdite's outburst lasted 10 or 15 seconds with some of the phrasing repeated, and oc- curred in the context of 10 to 15 picketers present plus a bearded man also shouting obscenities from the other side of her car. Banks' familiarity with Beckerdite is based on her being "pointed out" by a coworker. Beckerdite herself denied ever before seeing Corbett or Banks, plus expressly and relatedly denying that she made the statements attributed to her by any of the wit- nesses for Respondent. Additionally, she denied blocking the view of drivers spitting on cars, or use of language attributed to her at other times in the security service re- cordings accumulated by Respondent. Contrarily, she testified to being a calming influence on strike activities, intending only to allow permissible picketing conduct on her shift or when present. Regarding attributed epithets recorded as occurring on 4 September at approximately 10:30 p.m. midnight, Beckerdite testified that she was simply not present at such a date and time because of late-night care responsibility for her school-age daughter. On another reported occasion of verbal threats occurring on 31 August at 11:35 p.m., Beckerdite testified that a foot injury of the day before had forced her to go home early in the evening and turn over her assigned picket shift to another striker. Beckerdite is corroborated in her denial of the charged misconduct by several witnesses . First among these was Sue Michelucci, an 8-year employee who served the strike as a shift captain on alternating nights as this struc- tured scheduling began on 31 August. Michelucci denied that observing that Beckerdite blocked the view of driv- ers, threatened any person's physical safety, or made racial slurs. Concerning the evening of 31 August Miche- lucci asserted that Beckerdite simply was not there about the reported 11:35 p.m. time, because she herself had covered as a replacement. Picketer Vera Sumpter also denied ever seeing conduct by Beckerdite of the type for which she was accused, while Theresa Burleson corrobo- rated the unlikelihood that Beckerdite was presently late in the evening of 31 August. Peter White lives with Beckerdite as her boyfriend. He was also a striking employee of Respondent who briefly took reinstatement when the strike ended. During the strike he functioned as an assistant strike leader and shift captain for the 8 p .m. to midnight assignment. White de- scribed this arrangement as one permitting he and Beck- erdite to share the total after-school and evening care of her daughter. White testified that after the Union's meet- ing of 31 August he and Beckerdite stopped briefly at the picket line, but because of her foot injury she left by 7 p.m. at the latest. He also testified concerning Re- spondent's recorded episode of 4 September, asserting that Beckerdite could not have been present at the stated 10:30 p.m. time because the school year had begun and under their sharing arrangement covering the consecu- tive picket shifts Beckerdite would not have remained in the vicinity past 9 p.m. White added general denials of the accusations that Beckerdite had made racial slurs: threatened physical harm to anyone's person, wife or family; blocked incoming or outgoing vehicles; or ever obstructed the view of a driver in passage. 3. Donald Treadway The letter to this individual enumerated the following bases for a denial of reinstatement because of claimed "strike misconduct": (1) unprovoked physical assault on an individual crossing the picket line about September 2, 1986; (2) generally harassing , verbally abusing, and/or threatening the well-being of indivuduals crossing the picket line; (3) photographing and listing the vehicle license numbers of individuals crossing the picket line and threatening their well-being. Here Respondent's evidence is principally an eyewit- ness to the momentary episode of 2 September when an altercation developed suddenly as replacement employee Arthur Maldonado arrived for work. According to Wittig he observed the incoming employee unexplainably stop just on the plant driveway and as a beer can lay behind his car. Wittig testified that as he watched from about 20 feet away the driver opened his car door to alight. He recalled strikers congregating around the vehi- cle, and that as the driver stepped out Treadway force- fully punched his face without provocation. Wittig testi- fied that this caused the person to sit back down in the car holding his face as another guard quickly moved in telling him to drive on inside. After momentary recovery from the punch, Maldonado did so. Treadway's version is that the arriving individual had turned recklessly off the road in endangerment of pick- ets. Treadway shouted to "slow your goddamned ass down," and with this the car abruptly stopped and its very large, glasses-wearing driver menacingly emerged. Treadway described the situation as a 2-second-long epi- sode in which he had no retreat movement because of picketers clustered around him, and his reflex action was to hit the person stopping his forward momentum. An APS lieutenant appeared immediately to take a picture of the scene, and when he departed Treadway asserted that he was consolingly congratulated by other security offi- cers, including a guard believed to be Jake Lewallen. Treadway added that during his 14-year employment as a truckdriver with Respondent he had never before been involved in a physical altercation. Striker Eva Sousa testified that she was present during this incident. She recalled a car's sudden stop after it had FRANZIA BROS. WINERY pulled into the driveway overly fast from the highway. Sousa testified that the driver belligerently emerged saying "who is the motherfucker that hit my car?" as he lunged toward Treadway. She saw Treadway hit the person and guards instantly converged to hurry him back into his car and have him drive on inside. Her view of the episode had been from about 10 feet away on the passenger's side of the car in question. Michelucci also testified as an eyewitness to the Tread- way incident. She heard the described exchange of yells between Treadway and the driver, then saw the latter jump out of the stopped car and go "right towards Don." She recalled Treadway being pinned where he was, and that he hit the "huge" adversary leading to the arrival of guards including Lewallen. C. Trial Methodology, Issues, and Contentions The parties stipulated that for purposes of this litiga- tion the General Counsel possessed a prima facie case in terms of showing an 8(a) (3) violation concerning each of the persons involved. On that basis the opening phase of hearing was conducted by Respondent, as it thus first presented evidence with regard to circumstances of each discharge and the manner of reaching managerial deci- sion for each case. This approach recognized and utilized Board law on the subject. In Rubin Bras Footwear, 99 NLRB 610 (1951), the nature of each party's burden of proof is de- lineated. When the instance, as here, is denial of rein- statement because of claimed strike misconduct, an em- ployer burden of going forward with the evidence is then created. The crux of this burden is to demonstrate an honest belief that the individual had engaged in par- ticular strike misconduct. This employer burden of per- suasion about an honest belief on the subject does not extend to proving that those discharged did in fact engage in the misconduct. Relatedly, the establishment of this honest belief shifts the burden of persuasion back to the General Counsel to prove that the striker involved did not in fact engage in the claimed misconduct. Should evidence under this shifted burden be lacking on the issue, the matter is resolved favorably to the employer in reflection of the General Counsel's obligation to carry the ultimate burden of proving that unlawful discrimina- tion has occurred. See Schreiber Mfg. Y. NLRB, 725 F.2d 413 (6th Cir. 1984). The essence of meeting an employer honest belief burden is found in the following passage from General Telephone Ca of Michigan, 251 NLRB 737, 739 (1980): [T]he burden of establishing an "honest belief" of misconduct requires more than the employer's mere assertion that an "honest belief' of such misconduct was the motivationg force behind the meting out of discipline. Meeting the burden also requires more than a general statement about the guidelines used in establishing the alleged "honest belief." Rather, it requires some specificity in the record, linking par- ticular employees to particular allegations of mis- conduct. 931 From this settled structuring, the issues of the case evolve as (1) whether Respondent has demonstrated its honest belief in the strike misconduct of each dischargee, and (2) if so, whether the General Counsel has effective- ly proven that such repugnant conduct did not in fact occur. Respondent contends that the numerous written re- ports of misconduct, input of eyewitnesses, the viewable videotape,2 and its orderly deferral of decision until mul- tiple executive or advisory review was completed, leads to the "inescapable conclusion" that a proper harboring of honest belief in each instance has been shown. Relat- edly, Respondent contends that the General Counsel has failed to negate the fact of picket line misconduct by each of the three individuals. The General Counsel contends that Whitley has been easily cleared of all general accusations, and that con- cerning the videotaped incident he was provoked into animated conduct, which was excusable by its spontanei- ty and essential lack of aggressiveness. Regarding Beck- erdite, the General Counsel contends that any verbalisms that she in fact uttered were not of a nature as reason- ably would tend to coerce or restrain the Section 7 rights of other employees. In Treadway's case the Gen- eral Counsel contends that classic self-defense behavior is all that was involved, and that Respondent should suffer an adverse inference on this issue by failure to call as its witness the apparently available person that was struck. D. Credibility Resolution of the sharp conflicts in testimony is essen- tial to reaching decision here. Demeanor factors are highly significant in this process, while inferable prob- abilities become a secondary part of the reasoning. I gen- erally discredit Respondent's witnesses Wittig, Lovett, Dorton, Brock, Corbett, and Banks. Wittig was inexperi- enced in the security process into which he entered, and I did not find his description of the Treadway incident to be candid, convincing, or free of doubt on his own part. Lovett and Dorton each manifested with a decided un- certainty to their testimony, and an inclination to assume more than pure observation could establish. Lovett, in particular, was unconvincing on standard demeanor grounds of hesitancy and seeming lack of an accurate memory. Brock exhibited a degree of defensiveness re- garding his role in the Whitley incident, and tellingly shifted the meaning and emphasis of his testimony as it unfolded during the respective phases of examination. With respect to Corbett and Banks, their identification of Beckerdite as utterer of extreme vituperation was based on insufficient personal knowledge.3 Undoubtedly each s Consideration of what can be seen on videotaped film has previously been approved in the evaluation of claimed strike misconduct . Clayton Y. Gold Bond Bldg. Product; 2 IER Cases 1171 (USDC, E.D. Mich. 1987). 3 The General Counsel renews a motion to strike the testimony of both Corbett and Banks. Contrary to arguments made, I do not find the order in which they were called as irregular. Respondent had no obiligation to advance all evidence supportive of its claimed honest belief in strike mis- conduct, and could properly instead use these witnesses for rebuttal-type purposes. See Rubin Bros, supra at 611. 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of these witnesses experienced namecalling of the nastiest variety; however, I am unpersuaded that Beckerdite was the source. Given the unruly context of what their em- ployment situation suddenly became, the hectic cluster- ing of strange and hostile persons at the picket line point, and the limited visibility associated with nighttime inci- dents, I am convinced that both Corbett and Banks are mistaken in their testimony against Beckerdite. On pure demeanor grounds I am skeptical of Corbett's offerings because of the fanciful manner in which presented and a palpable eagerness to claim more than seems likely. In Banks' case, the resolution is more difficult because of her candid-appearing manner. Nevertheless, I believe she has yielded to suggestibility inherent in this situation, and do not accept the ultimate truth of her testimony. The credibility resolution above dovetails with my im- pressions of witnesses for the General Counsel. The dis- chargees each impressed me as being forthright, alertly correct in their assertions, and honest intentioned. I also accept the integrity of testimony by Michelucci, White,4 Isaia, and Bell, as most persuasive from among the nu- merous witnesses called by the General Counsel for the object of defeating Respondent's defense. E. Analysis There is established doctrine for evaluating the con- duct of picket line activity, apart from the technical prin- ciples under which cases such as this are litigated. Plain- ly the strike scene at its outset involved unregulated be- havior by the large group of persons that appeared at the facility during the immediate days following inception. Typical techniques of a spirited or inspirational nature were present, such as a daily flag display, use of insignia by pickets, and concentrated efforts to influence arriving persons that the strike's objectives should be preferred. Nor was it a quiet scene, as Beckerdite herself recalled the use of bullhorns and the calling out of obscenities by strikers. Sufficient action and stimulus was generated that countering behavior was also caused, as when Maldon- ado essentially screeched his car to a stop to alight angri- ly, and as with Corbett's admission of probably having answered back at his verbal tormenter to "fuck yourself or something." Additionally, Respondent has presented a detailed re- construction of the plantsite, the clearance at the high- way's edge, and planes of view as drivers might experi- ence them in difficult and fast-changing circumstances of the picketers' conduct. But photographs, stipulations, and episodal description are only a context for fundamental questions of whether particular strikers engaged suffi- ciently or at all in impermissible conduct. Ultimately the information sources must all coalesce in terms of an em- ployer's honest belief of misconduct as this leads to the issue of whether in fact it occurred. Regarding the sounds of purposeful strike action, the Supreme Court has noted that Federal labor policy gen- erally contemplates "freewheeling use of the . .. spoken word," "uninhibited, robust, and wide-open debate in 4 In White's case I have specifically weighed his personal allegiance to Beckerdite, and puzzling minor vacillations in bow he recounted the facts. Overall, however, I am influenced to fully credit his testimony labor disputes," and use of "intemperate, abusive or in- sulting language." Letter Carriers v. Austin, 418 U.S. 264, 272, 273, 283 (1974). This reflects the Board's own long- held recognition that a reality of labor relations is its ex- changes by heated and bitter language. While not con- doning such behavior the Board once characterized this reality in the following passage: [I]t is common knowledge that in a strike where vital economic issues are at stake, striking employ- ees resent those who cross the picket line and will express their sentiments in language not altogether suited to the pleasantries of the drawing room or even to courtesies of parliamentary disputation. Thus, we believe that to suggest that employees in the heat of picket-line animosity must trim their ex- pression of disapproval . . . would be to ignore the industrial realities of speech in a work day world. . .. [Longview Furniture Co., 100 NLRB 301, 304 (1952).] Clear Pine Mouldings, 268 NLRB 1044 (1984), refined the doctrine by specifically holding that utterances could lead to legitimate denial of reinstatement to strikers whose strike-related misconduct under the circumstances reasonably tended to coerce or intimidate other persons in the exercise of their rights protected under Section 7 of the Act.5 A concurring opinion in Clear Pine Mould- ings urged that the McQuaide test be applied with aware- ness of the often "tense, angry, and hostile confronta- tions" of a picket line in which "emotions run high and threats are hurled that connot reasonably be interpreted as auguries of violence." In a comparable vein it has been noted that a truly "serious threat" is one that "may draw its credibility from the surrounding circumstances and not from the physical gestures of the speaker." Asso- ciated Grocers of New England v. NLRB, 562 F.2d 1333, 1336 (1st Cir. 1977). I hold that the General Counsel prevails on both issues presented here. The accumulation of materials by Re- spondent and an initial consideration they were given does not rise to the level of an honest belief in the mis- conduct of each discharged person. There was no atten- tion given to the fact that Beckerdite was generally co- operative and dutiful in response to particular requests of security personnel that some untoward situation be recti- fied, nor was her version of the facts solicited. Further, the decision-making process is itself suspect, because even though Stonehocker described its sequence, Ciocca contradicted her concerning whether he had been instru- mental as final authority on the cases. As with Becker- dite neither Whitley nor Treadway was sought out for a hearing of his version on the unique episodes involved. The security apparatus in place for the strike was itself prone to recordmaking for this sake alone, and I note here that an APS lieutenant, as Treadway credibly re- called, photographed "the vineyard" long after dynamics of his Maldonado altercation had ceased. Nor is there a "linking" of Beckerdite to the more ominous utterances 5 This holding took its rationale from NLRB v McQuaide, Inc., 552 F.2d 519 (3d Cir. 1977), denying enf. in part 220 NLRB 593 (1975) FRANZIA BROS. WINERY heard, or a showing that she, in "particular," was the actual speaker rather than a known personality of promi- nent influence on, and in connection with, the picket line. I believe the evidence showed that Respondent dis- tanced itself from the security function, and artificially relied on drily formalistic documentation in lieu of a sin- cere wish to obtain the truth. Cf. Tube Craft, Inc., 287 NLRB 491 (1987). Even should an honest belief have been present, I re- latedly hold that the strike misconduct of these accusa- tions did not in fact occur in the three instances. Whit- ley's case is one in which the subjective experience of having watched the videotape is part of the factfinding process. I can only make an impartial characterization of it, and in doing so describe seeing an increasingly exas- perated individual bobbing, twisting, glaring, and shield- ing himself relative to the picture-taking effort until that one final movement which was more of defiance than of assault. What Respondent has taken from this film ex- cerpt and its other sources of information does not amount to a "brandishing" or "dangerous [wielding]" of a picket sign, and given the nature and time length of what Whitley experienced it would seem his behavior was but a normal reflex following excitable buildup of this type. Cf. Olympic Limousine Service, 278 NLRB 932, 943 (1986), and cases cited. In making argument on Whitley's case, Respondent has misplaced a reliance on Carpenters (Reeves, Inc.), 281 NLRB 493 (1986), for this decision applied Section 8(b) of the Act to conduct on behalf of a picketing labor organization and does not ad- dress issues of individual strike eligibility for reinstate- ment. Further, the holdings in Preterm, Inc., 273 NLRB 683 (1984), enfd. in relevant part 784 F.2d 426 (1st Cir. 1986), are unavailing because there are unprovoked grab- bing and shaking of a nonstriking employee was "clear- ly" found to have been "intimidating and coercive con- duct." The General Counsel has established that other enumerated accusations against Whitley did not actually occur. In Beckerdite's case I find from her testimony, and that of credible corroborating witnesses, that she neither blocked the view of drivers of vehicles nor spat on these vehicles. Regarding the more vivid and critical accusa- tion of claimed verbal abuse, I find it was not Beckerdite who so behaved and those persons claiming otherwise do so in error. Cf. Gem Urethane Corp., 284 NLRB 1349 (1987). 1 recognize that credited testimony toward the unlikelihood of Beckerdite being present at the time of reported incidents on 31 August and 4 September is not fully dispositive. As strike leader she had random com- ings and goings, consistent even with White's testimony that she might "pop in" at shift change. However; Re- spondent's own evidence shows that simultaneous yelling by a "male striker" overlapped Beckerdite's own report- ed words on 31 August at 11 :29 p.m. (R. Exh. 19). Cf. MGM Grand Hotel, 275 NLRB 1015 (1985). Regarding Treadway, I credit the composite of evi- dence showing his striking of Maldonado was a standard act of self-defense, and find no basis for discipline against him. It cannot be said he engaged in strike misconduct when his only notable act was to forcefully repel an ap- parent attacker. As with Whitley, the other enumerated 933 accusations against Treadway were proven by the Gen- eral Counsel to be hollow. On a collateral point the Union , exercising its full standing as Charging Party , made a record on the matter of whether Ciocca had assured assembled employees there would be no strike-misconduct discharges as he met with them in the immediate euphoria when the strike ended on 3 October. This meeting, and a larger one that followed directly, involved Ciocca taking the opportuni- ty to communicate directly to Respondent's employees that he was generally gratified to learn the strike was over. An activating factor here was then -pending advice by the WEA that striking employees of member employ- ers would be permanently replaced on or after 6 Octo- ber, a tactic that had been withheld up to that point. However, at Respondent's facility a more pointed con- cern was with rumors that the employer harbored plans to penalize certain individuals for their strike activities. On this subsidiary issue I credit Sousa, Michelucci, and Bell, who each testified persuasively that Ciocca was asked if discharges were contemplated and he answered in the negative. Ciocca vigorously denied that the sub- ject arose; however, I am satisfied from the demeanor of his testimony that he was in error. It is also highly likely that the subject would have been raised , because Tread- way in particular had let it be generally known how he was apprehensive that the earlier Maldonado incident would haunt him. Additionally, Respondent had itself raised this specter in a general letter to striking employ- ees dated 12 September. I consider the issue academic, however, because there is an insufficient link to what Ciocca might have said under these circumstances and the methodically struc- tured manner in which Stonehocker marshaled , synthe- sized, and routed those materials seeming to be signifi- cant in determining the several terminations. Based on rulings made in the course of trial the Union is not able to raise this matter as a theory of condonation, but in- stead advances it only for makeweight purposes. Accord- ingly, I do not rely on this aspect of the record as a reason supportive of the violations found present. CONCLUSIONS OF LAW 1. Franzia Brothers Winery is an employer engaged in commerce within the meeting of Section 2(2), (6), and (7) of the Act. 2. Winery, Distillery & Allied Workers Union, Local No. 186, Distillery, Rectifying, Wine & Allied Workers International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By suspending, discharging, and denying reinstate- ment to Robert Whitley, Richelle Beckerdite, and Donald Treadway because of their strike-related activi- ties, Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act. THE REMEDY Having found the Respondent has engaged in certain unfair labor practices, I find it necessary to order it to 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cease and desist therefrom and take affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent unlawfully suspended, discharged, and refused to reinstate Robert Whitley, Ri- chelle Beckerdite, and Donald Treadway to employment at all times from and after 4 October, I shall recommend that Respondent be required to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them. Backpay shall be com- puted as set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded.° On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Franzia Brothers Winery, Ripon, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending, discharging, or refusing to reinstate employees for striking or for engaging in strike-related conduct unless such employees engaged in misconduct that under the circumstances may reasonably tend to coerce or intimidate other employees in the exercise of their rights protected under the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Robert Whitley, Richelle Beckerdite, and Donald Treadway immediate and full reinstatement to their former position or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previ- ously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of the dis- crimination 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) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 283 NLRB 1173 (1987) Interest will be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S C § 6621 7 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 (d) Post at its facility in Ripon, California, copies of the attached notice marked "Appendix."8 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 notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply." 8 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 9 The General Counsel requests a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil procedure subject to the supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of this case, I find it unnecessary to include such a clause Accordingly, I deny the General Counsel's request See Cherokee Marine Terminal, 287 NLRB 1080 (1988) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has 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 discharge or discipline employees for engaging in a lawful economic strike or their strike-relat- ed activities, unless such employees engage in miscon- duct that under the circumstances may reasonably tend to coerce or intimidate other employees in the exercise of their rights protected under the Act. 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 Robert Whitley, Richelle Beckerdite, and Donald Treadway immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previous- FRANZIA BROS. WINERY 935 ly enjoyed and we will make them whole for any loss of WE WILL notify each of them that we have removed earnings and other benefits resulting from their dis- from our files any reference to these discharge and that charge, less any net interim earnings, plus interest, the discipline will not be used against them in any way. FRANZIA BROTHERS WINERY