Town And Country Nursing Home, Inc.

74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Town and Country Nursing Home, Inc and United Steelworkers of America, AFL-CIO-CLC, and its Local 13594 Case 7-CA-26246 September 30 1988 DECISION AND ORDER APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 6 1987 Administrative Law Judge Bernard Ries issued the attached decision The Re spondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings and conclusions' 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 Town and Country Nursing Home Inc Midland, Michigan its officers agents successors and assigns shall take the action set forth in the Order except that the attached notice is substituted for that of the ad ministrative law judge The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT discharge employees because of lawful activities on behalf of United Steelworkers of America AFL-CIO-CLC and its Local 13594 or any other labor organization WE WILL NOT in any like or related manner interfere with restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL make Karen Rosenbrock whole for any loss of pay she may have suffered because we terminated her with interest and WE WILL remove from our personnel files any reference to her August 13 1986 discharge and notify her of this action and of our intention not to rely on such discharge in future personnel actions TOWN AND COUNTRY NURSING HOME INC Richard F Czubaj Esq for the General Counsel Mary W Kole Esq and Michael J Kole Esq of Mid land Michigan for the Respondent William R Wittbrodt of Bay City Michigan for the Union DECISION STATEMENT OF THE CASE i The judge found that sinking employee Rosenbrock s carrying though not brandishing a rubber mallet near the driveway where sinkers were stopping automobiles would reasonably tend to have an intimidating effect on nonstrikers and therefore was unprotected under Clear Pine Mouldings 268 NLRB 1044 (1984) We find it unnecessary to pass on this finding because even assuming Rosenbrock engaged in the alleged mis conduct we agree with the judge for the reasons stated by him that the Respondent violated Sec 8(a)(3) and (1) of the Act by discharging her on August 13 1986 Thus although the Respondent established an honest belief that Rosenbrock engaged in two specific acts of alleged miscon duct in early June (including the mallet incident) the Respondents coad ministrator Kole testified that Rosenbrock would not have been dis charged but for subsequent reports of continuing improper picketing The Respondent however has not explained these subsequent reports and has not established that the alleged improper picketing was unpro tected or that it had an honest belief that Rosenbrock was involved in such picketing We therefore agree with the judge that the discharge of Rosenbrock was unlawful Similarly we adopt the judge s recommends tion that the Respondent be ordered to make Rosenbrock whole for loss of earnings from the date of her discharge to the date she was offered reinstatement In this regard we note that the Respondent did not view the two prior incidents of alleged misconduct specifically attributed to Rosenbrock as sufficient to warrent discharge BERNARD RIES Administrative Law Judge This matter i was tried in Midland Michigan on 2 June 1987 i The original charge filed in this case on 26 June 1986 was Case 7- CA-25972 alleging violations of Sec 8(a)(1) (3) and (5) Subsequently on 21 August 1986 the Union filed an amended charge in Case 7-CA- 25972 alleging violations of the same sections and a complaint issued on 26 August 1986 Thereafter the Union filed a second charge (Case 7- CA-26246) again alleging violations of Sec 8(a)(1) (3) and (5) includ mg an assertion of discrimination against employee Karen Rosenbrock The outstanding complaint in Case 7-CA-25972 was on 19 November 1986 consolidated by the Region with issues found meritorious in the second charge The Respondent then filed charges against the Union in four cases that contained allegations that were deemed by the Region to have merit and were consolidated with the outstanding CA complaint on 27 January 1987 and 27 March 1987 Pending settlement of the four CB cases on 28 May 1987 the Regional Director severed those cases from the consoli dated complaint and postponed them indefinitely Thereafter a complete settlement of Case 7-CA-25972 and a partial settlement (including eight striker misconduct issues) of Case 7-CA-26246 were consummated leav mg as the only viable issue the alleged discrimination against Karen Ro senbrock as claimed in Case 7-CA-26246 Continued 291 NLRB No 10 TOWN & COUNTRY NURSING HOME 75 The sole issue presented is the legality of the discharge of striker Karen Rosenbrock on 13 August 1986 2 Briefs have been received from the General Counsel and the Respondent Having considered the transcript the exhibits the briefs and my recollection of the de meanor of the witnesses I make the following FINDINGS OF FACT s I MATERIAL BACKGROUND Respondent operates a nursing home in Midland Michigan In the course of bargaining for a new collec tive agreement the Union went on strike early in the morning of 7 June 1986 at the time of the hearing the strike was still in progress Mary Kole is vice president of the corporation and co administrator of the Home she is also an attorney who served as Respondents principal lawyer (and wit ness) in this proceeding Mary s son Michael has served as the nego iator of the contract he is also an attorney who conducted the examination of his mother when she appeared as a witness in the case The parties stipulated that the strike which began on 7 June was in law and fact an unfair labor practice strike The original answer to the complaint admitted that on or about 12 June Mary Kole discharged an employee asser tedly because she caused in excess of $500 damage to an automobile that on or about 13 June Kole discharged a striking employee for repeatedly threatening to kill the family members of a nonstriker and that about mid June Kole fired a striking employee for causing damage in excess of $500 to a company vehicle Respondent also admitted in another answer that it discharged for miscon duct one employee on or about 16 July and five more on or about 13 and 15 August but did not specify the rea sons II THE DISCHARGE OF KAREN ROSENBROCK On 13 August while still on strike nurse s aide Karen Rosenbrock received the following telegram from Mary Kole We completed our investigation of your conduct and actions on the picket line On June 7 1986 you struck a car dnvin [sic] by Michael Sullivan Said car was damaged This together with other acts of misconduct is not peaceful picketing Because of your actions as stated above your employment with Town and Country Nursing Home Inc is tenni nated effective immediately A The Applicable Law In Clear Pine Mouldings 268 NLRB 1044 1046 (1978) the Board held following NLRB v W C McQuaide 552 F 2d 519 527 (3d Cir 1977) that the appropriate test for determining whether an employer may refuse to rein Accordingly I deem all the settled cases to be severed from the com plaint except the single issue so remaining under Case 7-CA-26246 and I have amended the caption accordingly 2 As amended at the hearing All subsequent dates refer to 1986 3 Errors in the transcript have been noted and corrected state a striker who engages in misconduct is as follows [W]hether 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 4 Respondent here has advanced acts of misconduct by Rosenbrock which it asserts justified her discharge those most litigated are that on 7 June she struck the automobile of a nonstriking employee with a picket sign causing some damage to the car and that on 8 June she appeared in the vicinity of the picket line displaying a sledgehammer in such a manner as to reasonably tend to coerce nonstriking employees Although the Board did not refer in Clear Pine to the procedure to be applied in cases such as this United States Gypsum 284 NLRB 4 (1987) establishes that it in tends to adhere to the approach long ago evolved in cases of this nature as expressed in General Telephone Co 251 NLRB 737 738-739 (1980) 5 The law is clear that when an employer disciplines an employee because he has engaged in an econom is strike such discipline violates Section 8 (a)(3) and (1) of the Act An employer may defend its action by showing that it had an honest belief that the em ployee disciplined was guilty of strike misconduct of a serious nature If the employer is able to estab lash such a defense then the General Counsel must come forward with evidence that either the em ployee did not engage in the conduct asserted or that such conduct was protected The burden then shifts back to the employer to rebut such evi dence 10 10 Rubin Brothers Footwear Inc 99 NLRB 610 (1952) Amen can Cyanamid Company Inc 239 NLRB 440 (1978) See general ly NLR B v Burnup & Sims, Inc 379 U S 21 (1964) I The alleged damage to a nonstrikers car Respondent produced evidence that provided a basis for an honest belief that Rosenbrock about 1 20 p in on 7 June struck the automobile of orderly Michael Sul livan with a picket sign and inflicted some minor damage Kole testified that Sullivan so reported to her to the best of her memory however Sullivan who had only been working at the Home for about 2 weeks was unable to name the striker who had committed the act and he was forced to point her out to one of the supervi sors who then identified her as Rosenbrock In notes that she was keeping contemporaneously Kole wrote Karen hit Margaret Sullivans car on 4 In so holding a principal intention of the Board was to overrule ear her cases which had held that mere verbal threats by strikers not ac companied by any physical acts or gestures that would provide added emphasis to the words did not constitute disqualifying conduct Clear Pine supra at 1045 and fn 8 S In view of this approach perhaps a more precise statement of the Clear Pine holding is Whether the employer had an honest belief that the discharged employee had engaged in strike related conduct which would reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act and General Counsel has not shown that belief to be erroneous 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6/7/86 6 Kole credibly testified that because Michael Sullivan had been employed for such a brief time she in quired around about his trustworthiness and was satis fled with the responses As with other employees who had assertedly been the object of misconduct Kole had Sullivan make an affidavit (used in support of a com plaint for an injunction) on 9 June which confirmed that on 7 June as he drove into the east driveway of the Home Rosenbrock struck the rear window and tailgate of his [1976 Chevrolet] Vega with a picket sign using both the sign portion and wooden pole portion of the sign causing a scratch through the paint on the tailgate of his vehicle ' The foregoing evidence (I will discuss the testimony of Pamela Ockerman hereafter) furnished sufficient grounds for concluding that Respondent harbored an honest belief' that Rosenbrock had willfully damaged Sullivan s automobile on 7 June General Telephone supra dictates that at this point the burden shifts to the General Counsel to come forward with evidence that either the employee did not engage in the conduct asserted or that such conduct was protect ed To satisfy this obligation General Counsel present ed Rosenbrock who while admitting that she and other pickets were at that stage of the strike blocking cars in the driveways said that she did not take the sign [she] had and scratch any car Rosenbrock seemed to be quite staunch in her denial and on the face of her testi mony I found no reason to disbelieve her Following the scheme of General Telephone Respond ent undertook the burden which then shifts back to the employer to rebut such evidence 8 The only ostensi bly direct evidence presented for this purpose was that of Business Manager Pamela Ockerman Ockerman gave the following testimony about the pertinent incident of 7 June which occurred as she sat with a patient in a little enclosed fenced area about 50 feet9 from the entrance to the east driveway Q Directing your attention to the date of June 7 were you familiar with a Michael Sullivan who was working at the facility? A Yes I was 6 Margaret Sullivan is the wife of Michael Sullivan she also worked at the Home Respondent attempted to offer this affidavit as probative evidence of the facts recited A representation was made that Respondent had been unable to subpoena Sullivan or to obtain subpoenas until the Thursday preceding the hearing because of the Board not being sure what room they were going to use Immediately on receipt of the subpoenas Sulli van s was put into the hands of the local sheriffs department which found that Sullivan had removed his trailer from his last known address and had left only a post office box as a forwarding address It was my view that in the case of a witness as important as Sullivan it was incumbent upon Respondent to move expeditiously to ascertain his present location so that when a subpoena became available service could be effected immediately This failure of preparation I held could hardly serve as a basis for an exception to the general rule that the admission of such an out of court statement which would deprive The General Coun sel of his invaluable right to cross -examine Sullivan is improper I did however receive the document for the limited purpose of establishing that Respondent held an honest and objective belief that Rosenbrock had engaged in misconduct at the time she was discharged 8 The ultimate burden of persuasion of innocence of course never leaves the General Counsel 9 1 derive this figure from a scale map of the nursing home (R Exh 1) \Q Did you on that date about 1 20 in the after noon observe anything happening to his automo bile? A Yes Q Could you tell the Court what that was? A He was coming in the driveway closest to Rockwell Road which is the east drive and as he was coming in Karen Rosenbrock hit the rear window of his car and the back of the car the rear end of it with a picket sign that had the strike you know and the Local number on the sign And she did hit the car and then he proceeded into the drive to park because he was entering for work Q Did he come and say anything about this mci dent? A Yes he did At that time I went out and looked at the-there was a small dent and a scratch in the rear of his car Ockerman made a good impression on the witness stand Her seemingly clear testimony was however per haps irretrievably confused by the subsequent testimony given by Mary Kole Kole it should be noted acted as Respondents trial attorney in calling and questioning Ockerman When Kole later testified however she was asked whether as part of the Sullivan automobile investi gation she had spoken with Ockerman and two other employees regarding the incident She replied Not regarding the car no Perhaps because the other em ployees named were involved in the asserted sledgeham mer act of misconduct rather than the one involving the Sullivan car and perhaps because Kole had not noticed Ockerman s name included in the group I assumed in view of Ockerman s testimony that Kole had misunder stood the question When I later attempted to clarify my confusion on the matter however Kole did not help MR CZUBAi Nothing further JUDGE RIES You say you didn t talk to Pam Ockerman about the denting of Mr Sullivan s car? THE WITNESS I did talk to her about the denting of the car JUDGE RIES Oh you did? THE WITNESS Yes JUDGE RIES I see THE WITNESS We talked about everything that was going on JUDGE RIES Well and what did she tell you about it? THE WITNESS That she observed the damage on the car and that it was dented and scratched She was upset about it and told me what had happened JUDGE RIES Did she tell you-what did she tell you had happened? THE WITNESS She said that Mike Sullivan told her that Karen Rosenbrock had scratched and dented his car and she went out and looked at it and it was scratched and dented There were times- JUDGE RIES She said that Mike Sullivan told her that? THE WITNESS Yes [Emphasis added ] TOWN & COUNTRY NURSING HOME Thus Ockerman appeared to be testifying that she had observed the incident (as quoted above) but Kole the attorney who not only elicited that testimony from Ock erman but had also personally participated importantly in the aftermath rather emphatically indicated that Ocker man had not personally witnessed the event but had been informed of its details by Sullivan 10 Given Ockerman s apparent sincerity I can only con elude that taking into account the obvious hectic nature of the first few days of the strike as Kole put it and the fact of testifying nearly 1 year after the event Ockerman (and Kole) were not sure of what they saw and what they were told-it has probably become a blur in both their minds Ockerman s testimony that there was a small dent and a scratch in the rear of Sullivan s car does not comport with the statement in Sullivan s affida vit that the picket sign caus [ed] a scratch on the tail gate of his vehicle It may well be that Ockerman did witness a disturbance at the driveway but has at present blended together in her mind what she actually ob served and what she eventually found out about Sulli van s identification of Rosenbrock This is suggested by the fact that while Ockerman appeared to be saying that immediately following the incident Sullivan came to speak to her about it Q Did he come and say anything about this mci dent's A Yes he did At that time I went out and looked at the-there was a small dent and a scratch in the rear of his car Kole testified that Ockerman went out and looked at the car immediately after [Sullivan ] reported this to Kole 11 10 Elsewhere in the transcript Kole testified that during the strike If somebody else observed [an incident] I sometimes would write it out and document that they observed it but later I asked the people to write it out for me Respondent offered no contemporaneous note that Ockerman had reported the Sullivan incident nor did it offer as corroboration of Ockennan s testimony (or as further evidence of its honest belief in Rosenbrock s guilt) any affidavit made by Ockerman implicating Rosen brock in the incident i Similarly Kole s recollection indicated confusion When she was first asked on direct examination about the Sullivan incident she spoke of Sullivan entering the room and saying that his car had been struck This colloquy followed Q Did he say by whom? A Karen Rosenbrock Q Did he say when? A When he came in On cross examination however the sequence of events became less clear Kole testified that because frequently the person who had the injury happen wouldn t know what [sic] the person who did it was they would find some veteran employee point to the suspect on the picket line and ask for an identification In the case of Sullivan Kole testified [I]t was either he said Karen Rosenbrock though he-more likely it happened that he took somebody to ascertain her identity whether he actually did so or not Kole [did]n t know A few minutes later howev er Kole reported the conversation rather differently She began with a quote of a question by her to Sullivan as to how he knew it was Rosen brook and she quoted his reply as being that he saw her do it According to Kole she then asked how he knew it was Rosenbrock and she had him replying that either Dorothy or Janet had told him That s who it is 77 Considering these deficiencies in the testimony offered by Respondent I am dubious about the value of Ocker man s identification of Rosenbrock as a picket sign wield er who deliberately scratched and/or dented Sullivan s 1979 Vega (which unless Sullivan is an exceptionally careful and fortunate driver had probably amassed its fair share of scratches and dents by 1986) Other testimo ny about relevant circumstances favor Rosenbrock s denial One was that on 7 and 8 June there were gener ally police cars parked at both driveways to the Home at shift change to observe the activities of the picketers which would likely have served as a deterrent to the conduct of which Rosenbrock stands accused A second circumstance is based on Ockerman s de scription of the scene As Sullivan slowly entered the driveway there were some pickets still in front of the car and others (the pickets totalling 5 or 6 in number) all around it Rosenbrock was standing on the driver s side another striker was behind her someone else was standing behind the car and there were a couple up on the passenger side of the car With pickets in front of the car as Sullivan was easing in it is difficult to imagine that he had a real opportunity to concentrate on who was doing what in the rear of the car Looking from the front about 50 feet away with picketers in front of the car Ockerman would seem to have the same problem of ascertaining who if anyone hit the car The word hit moreover is not self defining There was no description either by Ockerman or in Sullivan s affidavit of what sort of motion was used One can mad vertently hit a moving vehicle with a picket sign even as one is stumbling to get out of its way that would not constitute willful misconduct I conclude that counsel for the General Counsel has carried his burden of establishing that Rosenbrock did not strike and damage Sullivan s automobile 2 The sledgehammer/mallet incident The discharge telegram earlier quoted makes refer ence to other acts of misconduct by Rosenbrock At the hearing it developed that this phrase was intended to allude to a claim that as Mary Kole characterized it in her notes for 8 June Karen Rosenbrock stood swinging what appears to be a sledgehammer in a threatening way Again based on not only Kole s own perception of the incident but also on reports given to her by others I am inclined to believe that Respondent held an honest belief that Rosenbrock had engaged in such conduct Kole testified that on 8 June Maintenance Supervisor Kenneth Skutt and his wife Gail came to the office Gail told Kole that a nurse s aide-identified to Kole as Ro senbrock12-was carrying a sledgehammer on the picket line When Kole looked she saw Rosenbrock with what I thought was a sledgehammer When Kole first saw Rosenbrock she was walking on the lawn between the two vehicle entrances carrying the hammer and swinging it back and forth At times Kole said the 12 Kole did not personally know Rosenbrock although she had been in Respondents employ for over a year 11 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hammer would be swung like the pendulum of a clock but at other times Rosenbrock would swing it back and over her head -Kole could not however recall whether the latter happened when a car was there She also saw Rosenbrock walk across the driver entrances with the instrument but was not swinging it on such occasions Ockerman testified that she saw Rosenbrock on 8 June swinging a sledgehammer back and forth at her side as though she was going to hit something with it She fur ther testified that she saw Rosenbrock stand at a drive way and swing the tool and then she d walk across the drive and then come back sometimes when cars were present When Rosenbrock occasionally put the hammer over her shoulder she would do so with two hands but otherwise she carried it with one On and off Ockerman thought she probably saw Rosenbrock holding the hammer for at least a couple of hours on 8 June Gail Skutt testified that she was with her husband when he drove into the facility about 12 20 p in She saw Rosenbrock standing right on the edge of the dnve way close enough to touch with a hammer swinging it back and forth about a foot or two each way in an underhand fashion She also saw Rosenbrock as she and her husband departed but did not see any tool in her hand at that time 13 Rosenbrock testified that on 8 June she was carrying not a sledgehammer but a short handled rubber mallet (black Craftsman brand about 15 inches long with a head shaped like that of a sledgehammer) which she was using to pound into the ground stakes bearing strike signs She said that because of windy conditions the signs were being whipped around and while her hus band went to get some tape to secure the signs to the posts she did carry the mallet back and forth and she may have been standing beside the driveway At no point she testified did she step on the pavement with mallet in hand because she feared being accused of hit ting someone s car or doing anything She was aware at the time of the frequent presence of the police She con ceded that while waiting for her husband to return with the tape she may have swung the mallet above her shoulder but not in a threatening posture Rosenbrock also conceded that the mallet which is used for bump ing cars out is strong enough to do some damage which is why she took care to avoid accusations by keeping it away from the driveways The General Counsel also adduced the testimony of striker Edwin L Coons who recalled that shortly into the strike although he was not quite sure when 14 Rosenbrock brought to the picket line a rubber mallet maybe about 12 inches in length which he saw her use to pound a picket sign into the ground He could re member only one sign for which she used the mallet and he also recollected her saying It 11 be dust my luck somebody will report me swinging the hammer at some 19 The record does not disclose the time at which the Skutts left the premises 14 On cross Koons said that he believe[d] the signs were placed in the ground a couple weeks after the strike began body At that point she thought it would be prudent to put the mallet in her car which she did Koons said he had seen Rosenbrock off and on during the day (many times she was out of his range of vision) but the only time he saw her with the mallet was when she was pounding the sign into the ground First I am inclined to believe that Rosenbrock and Koons were telling the truth that the tool carried by the former on 8 June was a rubber mallet not a sledgeham mer Gail Skutt who had the closest view of it of any Respondent witness never referred to the tool as a sledgehammer At first she called it a hammer a big hammer and later said It could have been a mallet I in not really for sure Her answer to a question as to whether the handle was over 2 feet long was I wouldn t know I don t think so Ockerman repeatedly called it a sledgehammer (my husband has one) and guessed a length of three and a half four feet probably She gave the color as black however Mary Kole seemed uncertain about the nature of the instrument she testified that she observed [Ro senbrock] swinging what I thought was a sledgeham mer-but today in court I ve heard testified was not The pattern thereafter was consistent I did observe myself Karen swinging the-I thought it was a sledge hammer It looked like a sledgehammer but I don t know Whatever it was anyhow- swinging what I thought was a sledgehammer Perhaps what may have given Kole second thoughts was her own testimony contrary to Ockerman s that I did not see her take both hands and swing it over her shoulder I did see her bring it up over her shoulder but I did not see her taking both hands and swinging it over her shoulder That recollec tion of a one handed swing onto the shoulder must have made clear to Kole the unlikelihood that Rosenbrock was carrying a tool as heavy as a sledgehammer There was uncertainty among the witnesses about the time at which the Union first drove the signs into the ground but it was probably very soon after the strike began No witness contends that Rosenbrock was seen with any sort of tool for more than a few hours on a single day and I am inclined to believe that it was indeed a rubber mallet which she brought to the prem ises for the purpose of pounding signs into the ground 15 Somehow I find it most difficult to conceive that Rosen brock was strolling around the picket line swinging a sledgehammer under the watchful eye of the local con stabulary Kole testified in response to leading questions that she saw Rosenbrock cross both driveways with the mallet 16 in her hand that she saw that every car that came there was stopped during the time that Rosen brock was holding the mallet 17 and that Rosenbrock 5 On brief Respondent questions why the mallet was not introduced into evidence The answer may turn on trial preparation At the tearing counsel for the General Counsel asked Rosenbrock if she still had the mallet at home and she said she might be able to find it As noted above there originally were a total of nine sinker misconduct cases to be litigat ed until shortly before the hearing was to begin 18 Respondent counsel s word 17 Respondent counsels word TOWN & COUNTRY NURSING HOME 79 was in close proximity to the stopped cars Ockerman also testified that Rosenbrock with tool in hand would walk across the drive and then come back when cars were present Rosenbrock on the other hand testi fled thrice with emphasis that at no time did I walk across the driveway with that rubber mallet She did volunteer however prior to the testimonial appearance of Gail Skutt I may have been standing beside [the drive way] but I was not blocking or right on it Skutt s sub sequent testimony when called by Respondent at least partially confirmed Rosenbrock s insistence that she stayed off to the side In my judgment Rosenbrock s testimony that she did not actually step onto driveways carrying the mallet on 7 June should be credited We are left however with the fact that as Gail Skutt testified and Rosenbrock nearly conceded she did stand near the cars which were being blocked holding a rubber mallet which admittedly did look like a sledgehammer but it didn t have a long handle and was strong enough to do some damage Under its present view of the law would the Board con sider such conduct sufficient to justify the termination of an employee? Under Clear Pine supra it would appear that the Board would find a reasonable tendency to intimidate in the carrying of a rubber mallet next to a driveway in which the cars of nonstrikers are being stopped The opinion signed by Chairman Dotson and former Member Hunter in Clear Pine expressly states that strikers have no right to carry or use weapons or other objects of intimidation (Emphasis added ) The concurring opinion by former Members Zimmerman and Dennis took no specific issue with this declaration and referring to the facts of the case concluded The Act does not extend its protections to such obviously frightening conduct as carrying and swinging a weapon using it to inflict damage and threatening to kill a nonstnker 18 Keco Industries 276 NLRB 1469 (1985) involved inter alia a striker who was seen by some security guards (but not by nonstrikers) for a few brief moments with a 22 caliber pistol tucked into his belt The Board held that the mere fact that the striker carried and displayed a weapon in the vicinity of the plant entrance used by non strikers satisfied the criteria laid down in Clear Pine Id at 1469 19 See also Southwest Forest Industries 273 NLRB 765 (1984) In the instant case while I find that Rosenbrock did not bring the mallet to the picket line for the purpose of frightening nonstrikers she must have realized as she stood by the driveway with mallet in hand that the tool (which she conceded could cause damage) would reason ably have tended to have a certain intimidating effect on passing employees And while she neither used nor bran dished the mallet those circumstances were not mean ingful to the Board in Keco Moreover the fact that this was a limited occurrence for a brief period on a single day seemed to be of no consequence in either Keco or E A 18 Obviously the use of the conjunction was not intended to mean that all of these circumstances had to obtain in order to constitute sufficient misconduct 9 Remanded sub nom Lima Y NLRB 819 F 2d 300 (D C Cir 1987) for further analysis by the Board Clear Pine See also GSM Inc 284 NLRB 174 (1987) where a striker disqualified himself for reinstatement when he slapped the hood of a car as it was leaving the plant but cf Roto Rooter 283 NLRB 771 (1987) where the Board emphasize [d] that Myles misconduct was [not] an isolated outburst Assuming arguendo that the latter language in Roto Rooter was meant to afford a lib eral dimension to the strict phrasing of the Clear Pine standard (an assumption which the later GSM case ap pears to belie) I would be hard put to classify the mallet holding as an isolated outburst The recent precedents thus seem to point the way to a conclusion that Rosenbrock engaged in punishable mis conduct when on 8 June she stood near the driveway holding the mallet 3 The mass blocking As earlier set out the 13 August telegram to Rosen brock specifically cited the alleged striking of Sullivan s car and other acts of misconduct At no time in the pleadings or at the trial did Respondent catalog what other acts of misconduct it had relied on in firing Ro senbrock It was brought out at the hearing through cross examination of Rosenbrock that the strikers delib erately obstructed traffic through the gates Rosenbrock testified that during the first day of the strike cars were being blocked for various periods A policy of blocking for one minute per car was then adopted until the police were called and we were harassed a lot And then we decided to hold them up longer We might as well hold them up as long as we could because we knew the police would be there shortly Presumably the blocking ended soon thereafter counsel for Respondent represent ed that when Respondent sought an injunction the par ties had agreed to stipulate to an order In Clear Pine the Dotson Hunter opinion stated that one of the activities which strikers have no right to perform is to block access to the employers premises Clear Pine supra at 1047 20 In this case however there is no indication that one of the reasons Rosenbrock was discharged in August was her participation in the blocking in June The record plainly implies that all the strikers took part in the blocking and none of them was fired simply for impeding access Kole s notes in evi dence refer to Rosenbrock swinging what appears to be a sledge hammer 21 and also striking the Sullivan car but make no reference to her participation in blocking and at trial Kole s direct examination leading up to the question of what provoked the sending of the discharge notice dealt only with the mallet and Sullivan s car damage with the latter receiving the heaviest empha sis 22 20 Except for a refusal to adopt certain of the analysis in the Dotson Hunter Clear Pine opinion the Zimmerman Dennis opinion agreed with Dotson Hunter [i]n all other respects See Clear Pine at 1049 fn 7 21 This note has three stars next to it which Kole testified were placed there by a person who was at that time assisting us a Mr Joseph Clark the stars were his indications that they were important 22 Tr 78-80 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I conclude accordingly that Rosenbrock s participa tion in the blocking played no significant role in the de cision to terminate her B Concluding Analysis Despite my foregoing conclusion that the mallet inci dent probably constitutes under prevailing law a legiti mate basis for Rosenbrock s discharge other circum stances in the case lead me to believe that the discharge must be considered a violation of Section 8(a)(3) As previously set out although shortly after the strike began on 7 June three employees were quickly dis charged (according to Respondents answer to the first complaint one on or about 12 June for striking an auto mobile with resultant damages exceeding $500 another on or about 13 June for repeatedly threatening to kill the family of a nonstnker and the third in or about mid June for causing more than $500 damage to the automo bile of a nonstnker) Rosenbrock was not terminated until 13 August Kole explained that at the beginning of the strike she was very reluctant to discharge any body The three early discharges involved conduct that [she] couldn t condone at all and that I knew hap pened that I personally knew happened but discharges in other less compelling cases might be thought to cause more trouble than they resolved people would feel very uncomfortable about it and perhaps become more violent if you will and that it would only precipi late anger When asked what changed her mind on 13 August regarding Rosenbrock Kole replied Subse quent reports of continuing what I termed improper picketing and prevailed upon by others that this was sen ous and should be dealt with If it wasn t it was incon sistent and I had to agree that that was accurate As I read the foregoing Rosenbrock s perceived mis conduct on 7 and 8 June did not fall into the category of behavior which Kole couldn t condone at all it was at least conduct which was not so egregious that it de served immediate reprisal But there came a time in August when other factors tipped the scale against Ro senbrock [s]ubsequent reports of continuing improper picketing and a need to act consistently The need for consistency is not clear By drawing a line in June between Rosenbrock and the strikers who were fired at that time for damaging cars Kole had al ready decided that the cases were different There is no record indication of what inconsistencies arose between June and August with respect to discipline meted out to others vis a vis the previous failure to punish Rosen brock Moreover we know nothing about the subsequent re ports of continuing improper picketing first re ferred to by Kole as a reason for changing her mind with respect to Rosenbrocks employment Whatever these reports were they plainly played a triggering role in the decision to fire Rosenbrock and yet Respondent has completely failed to establish that it had as required by General Telephone an honest belief that Rosen brock played any part in such activities 23 Respondent having failed to do so (and Rosenbrock having more over generally denied that during 7 June through 13 August she engage[d] in any other acts of violence or misconduct on the picket line ) it cannot be concluded that Rosenbrock s termination was instigated by an honest belief that she had participated in subsequent ac tivities which reasonably tended to coerce or intimidate employees Kole s own testimony is that the discharge would not have occurred had it not been for those strike related but unexplained activities As was held in Drug Research 233 NLRB 253 260 (1977) enfd 621 F 2d 806 (6th Cir 1986) (Judge Kennedy dissenting on this point) Re spondent however failed to establish at the hearing the factual nature of the misconduct which it believed Ste yens had engaged in In the absence of such a showing the burden should not shift 24 Accord General Telephone Co supra at 739-740 (when Respondent has failed to identify the alleged misconduct of each employee it creates an impossible task for the General Counsel to show that the employees did not engage in such miscon duct) Accordingly the discharge of Karen Rosenbrock on 13 August 1986 was violative of Section 8(a)(3) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 United Steelworkers of America AFL-CIO-CLC and its Local Union No 13594 are labor organizations within the meaning of Section 2(5) of the Act 3 By discharging Karen Rosenbrock on 13 August 1986 Respondent violated Section 8(a)(3) and (1) of the Act 4 The unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent unlawfully discharged Karen Rosenbrock on 13 August 1986 I shall recom mend that it be ordered to make her whole for any loss of earnings she may have suffered from 13 August 1986 to 10 December 1986 the date of Respondents offer of reinstatement with interest in accordance with F W Woolworth Co 90 NLRB 289 (1950) and New Horizons for the Retarded 283 NLRB 1173 (1987) 25 23 Of course if the continuing improper picketing pertained to activities of other strikers rather than Rosenbrock then the termination of Rosenbrock would unquestionably have violated Section 8(a)(3) 24 Having so concluded I have not considered here the possibility of applying the balancing test enunciated in NLRB v Thayer Co 213 F 2d 748 753 (1st Cir 1954) under which sinker misconduct is weighed against the unfair labor practices which precipitated the strike As to whether the Board still follows Thayer see Clear Pine 268 NLRB at 1047 1049 Southwest Forest Industries supra at 765 fn 5 25 See generally Isis Plumbing Co 138 NLRB 716 (1962) The remedy does not include an order of reinstatement or backpay in excess of that stated because the parties stipulated that on 10 December 1986 letters of reinstatement (presumably valid offers in the absence of any qualifica Continued TOWN & COUNTRY NURSING HOME 81 I shall also recommend that Respondent be required to post appropriate notices On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed26 ORDER Respondent Town and Country Nursing Home Inc Midland Michigan its officers agents successors and assigns shall 1 Cease and desist from (a) Discharging employees because of any lawful ac tivities on behalf of United Steelworkers of America AFL-CIO-CLC and its Local Union No 13594 or any other labor organization (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against her in any way 2 Take the following affirmative action necessary to effectuate the policies of the Act tion by the General Counsel ) were sent to all of the sinking employees including Ms Rosenbrock According to Abilities & Goodwill Inc 241 NLRB 27 fn 5 (1979) If a discharged sinker responds to the employer s offer of reinstatement by continuing to withhold his or her services the employers backpay obligation tolled and the employee resumes the status of a sinker 26 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 (a) Make Karen Rosenbrock whole in the manner set forth in the remedy section of this decision (b) Remove from its files any reference to the dis charge of Karen Rosenbrock on 13 August 1986 and notify her in wasting that this expunction has been made and that evidence of this unlawful discharge will not be used as as basis for future personnel actions against her (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its place of business in Midland Michigan copies of the attached notice marked Appendix 27 Copies of the notice on forms provided by the Regional Director for Region 7 after being signed by the Re spondent s authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 27 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