Nello L Teer Co.

484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nello L Teer Company and United Mine Workers of America Case 5-CA-18853-2 October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 3 1988 Administrative Law Judge Marion C Ladwig issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings I and conclusions and to adopt the recommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Nello L Teer Company Durham North Carolina its officers agents successors and as signs shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1 (b) (b) In any like or related manner interfering with restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Substitute the attached notice for that of the administrative law judge 1 In adopting the judge s findings we do not rely on any items not ad nutted into evidence The Respondent has excepted to some of the judge s credibility find rags 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 In examining the incident involving employee Willie Hamler Jr Project Engineer Bernard Davis and Pipe Foreman Jack McElroy we find it unnecessary to determine whether Hamler s actions constituted an assault under Virginia state law Whether Hamler actually touched Davis is not determinative in this situation We agree with the judge that under the circumstances Hamler s conduct did not reasonably tend to coerce or intimidate Clear Pine Mouldings 268 NLRB 1044 (1984) enfd 765 F 2d 148 (9th Cir 1985) cert denied 474 U S 1105 (1986) 2 We shall modify par 1(b) of the judge s recommended Order to con form his injunctive language to that customarily used by the Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT discharge refuse to reinstate or otherwise discriminate against any of you for en gaging in a strike or other protected concerted ac tivity 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 offer Willie Hamler Jr immediate and full reinstatement to his former job or if that job no longer exists to a substantially equivalent posi Lion without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge less any net interim earnings plus interest WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way NELLO L TEER COMPANY Pans Favors Jr Esq for the General Counsel Elsey A Harris III Esq (Mullins Thomason & Harris) of Norton Virginia for the Respondent DECISION STATEMENT OF THE CASE MARION C LADWIG Administrative Law Judge This case was tried at Big Stone Gap Virginia on March 30 1988 The charge was filed May 12 1987 1 and the com plaint was issued July 28 On April 27 roller operator Willie Hamler Jr and other employees went on strike On May 8 after the Union made an unconditional offer to return to work the Company discharged Hamler for purported strike misconduct The primary issue is whether the Company (the Re spondent) unlawfully discharged and refused to reinstate Hamler in violation of Section 8(a)(1) and (3) of the Na tional Labor Relations Act On the entire record including my observation of the demeanor of the witnesses and after considering the briefs filed by the General Counsel and the Company I make the following 1 All dates are in 1987 unless otherwise indicated 291 NLRB No 85 NELLO L TEER CO 485 FINDINGS OF FACT I JURISDICTION The Company a wholly owned subsidiary of Koppers Company Inc is a corporation with an office in Durham North Carolina It annually performs services valued over $50 000 outside the State and has engaged in highway construction at Big Stone Gap Virginia It admits and I find that it is an employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Purported Assault on Engineer I Hamler s credited testimony During the 2 week economic strike that began April 27 roller operator Willie Hamler Jr picketed briefly about five times (Tr 10-11 29-30) About 6 30 a in on May 6 he was at the picket line when he saw Project Engineer Bernard Davis in a truck on the nearby bridge looking down the embankment and taking pictures of the pickets at the entrance to the con struction project Not wanting his picture taken Hamler climbed the embankment and walked toward the middle of the bridge where the truck (driven by Pipe Foreman Jack McElroy) was parked By that time Davis had low ered the camera toward his lap As credibly testified to by Hamler (who impressed me by his demeanor on the stand as an honest forthright witness ) he reached with his right hand into the cab of the truck to cover the camera lens and asked Davis not to take his picture (Tr 30 37-48) At that moment as Hamler testified Foreman McEI roy (a former policeman) pointed a 357 magnum revolv er at Hamler s head telling him Get your hand out of my truck or I 11 blow your black head off Hamler saw this big barrel with these four bullets in these chambers pointed straight at my head Stunned at first I couldn t move at all cause it was sticking right be tween my eyes Then I came to my senses and pivot ed around where the cab part was and if he shot me he would have to shoot me through the cab When Hamler later peeked back around McElroy told him Don t put your hands on my truck and ordered him away or be shot Hamler complied and McElroy drove away (Tr 44 50-53) Hamler had not touched either Davis or the camera (Tr 54 86 208) 2 Fabricated testimony Both Foreman McElroy and Engineer Davis clearly gave false testimony in the Company s defense McElroy claimed he raised the gun to his chest right over my shoulder away from Hamler (Tr 120) to keep Mr Hamler from getting ahold of it (Tr 119) He claimed that both Hamler s arms and his head [emphasis added] come in there doing like this grabbing (Tr 145) The gun was laying in the seat and when [Hamler] come through the truck head and shoulders [emphasis added] he was in reach of this He could have got ahold of my gun (Tr 120) Davis when asked if the gun was pointed in the direction of where Mr Hamler was standing claimed I can t say exactly what direction it was pointed (Tr 161) He claimed that Hamler s arms- not his head and shoulders-were inside the cab (Tr 168) McElroy denied that Davis had taken any pictures before Hamler came to the truck He claimed that Davis raised the camera up to start focusing it when Mr Hamler came over to the end of the bridge (Tr 135)- although he testified (Tr 119) that Hamler was saying Don t take my picture when he arrived (confirming that Davis was already taking pictures when Hamler left the picket line) Davis admitted that he had started taking pictures but that Maybe two I can t really be sure right now [how many] didn t really come out because of the fact of the distance and his use of a straight camera without a zoom lens (Tr 151 154) McElroy claimed that Hamler was acting violent (Tr 124) and It appeared to me that when he first came up to the truck that he struck Mr Davis because Mr Davis kinda fell back in the seat I thought they was fighting all the commotion in the truck took place (Tr 119) He claimed that [t]he camera came up once to the front like this and everybody s hands was on it [A]ll four hands was in there a grabbing at the camera (Tr 125) In contrast Davis claimed that Hamler reached in and grabbed my hands and teed to take the camera out of my hands I jerked away from him I slid back this way [to the left] to keep him from grabbing the camera (Tr 152) Then at that time Jack McElroy was sitting on the left He said some thing to Willie and of course Jack had the hand gun so Willie backed off (Tr 155) and we just left the scene (Tr 156) I discredit both versions of what hap pened (By their demeanor on the stand both McElroy and Davis appeared to fabricate whatever might be nec essary to support the Company s cause ) Their willingness to fabricate testimony is demonstrat ed by their claim that the truck was parked at the end of the bridge (where Hamler would suddenly appear after climbing the embankment) McElroy claimed that the truck was [a]t the end of the bridge when Hamler came over the edge of the em bankment maybe 10 foot from the door (Tr 121-122) Davis claimed that the truck [w]as on the north end of the bridge (Tr 165) A photograph of the area (G C Exh 2) clearly shows however that no pictures of the pickets could be taken from that point When shown the photograph McElroy continued to give the false testi mony claiming that the truck was on the north end of the bridge the front of the truck was right about even with that bridge guardrail (Tr 122-123) Davis however changed his testimony when he was shown the photograph He still claimed that he first saw Hamler as he was coming around the front of the truck (Tr 172 174) but we had to be back [farther on the bridge] to where we could see past this knoll a little bit (Tr 166) He admitted I don t believe you could see over the mound to where the pickets were if you was right at 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the very end of the bridge (Tr 168) Unlike McElroy Davis was willing to admit the obvious Having credited Hamler s testimony that he did not touch Project Engineer Davis I reject the Company s contention that Hamler assaulted Davis when the engi neer was taking photographs of the strikers B Picket Line Incidents On May 5 (the day Hamler took his 14-month old daughter to the picket line to show her off (Tr 68- 69)) Hamler spoke to Supervisor Dennis Bard Jr as Bard was driving out the main gate for lunch As credi bly testified by Bard Jr (who appeared to be an honest witness) Hamler said if his little girl got hurt that I would be in trouble (Tr 96-97) The child was standing beside the road (Tr 109) Hamler did not recall the inci dent (Tr 69-70 85) He did recall that the state trooper who was present told the trucks to slow down There s a kid there (Tr 209-210) On this limited testimony I infer that Hamler was cautioning Bard about his speed not making any threat concerning the strike Later that day with Hamler s wife driving the Hamlers entered the wrong trailer court looking for a friend When Hamler saw Bard Jr standing by one of the homes he told his wife Let s get out of here-don t want no problems (Tr 70-73 88-90 92-94) Bard con firmed that they said nothing to him and immediately drove back out (Tr 100) Later Bard saw the Hamlets driving behind him on the main street to and from down town Big Stone Gap but never closer than 200 feet (Tr 97-98 102-105) He conceded that if you re going to go anywhere in Big Stone Gap in the immediate downtown area then you have to go up and down that street (Tr 101) I find that Hamler s conduct did not tend to be co ercive About 12 30 p in that same day May 5 Hamler was involved in another incident at the picket line As he cre dibly recalled he was standing Right in the center of the road holding his daughter in his arms when Project Manager Dennis Bard Sr slowly drove into the project without stopping Hamler told him You shouldn t let kids go hungry but Bard just drove on by (Tr 68- 69 77) I discredit Bards claim that Hamler (with the girl in his arms) stepped out in front of the moving ve hicle causing Bard to come to a dead stop and that Hamler then walked around to the drivers side and said If my little daughter goes hungry you in big trouble - before stepping back for him to drive on in (Tr 182 191-194) Hamler credibly testified on rebuttal (Tr 207) I had a kid in my arms I don t step out-kid hurt- wouldn t do something like that He positively denied making a statement that You re in big trouble if my daughter goes hungry explaining on cross examination (Tr 210) My daughter stays with her mother-her mother draw welfare-she ain t no trouble to me (By their demeanor on the stand Hamler impressed me as being the more trustworthy witness ) C Purported Threat to Supplier The Company s only other defense for discharging Hamler is his visit sometime before May 5 to its stone supplier Rim Rock Quarry Superintendent David Barnette testified that Hamler came to the quarry s scale house and spoke to his father President George Barnette David Barnette recalled overhearing Hamler ask how long we were going to continue to haul [to] Nello L Teer And my father in formed him that we were under contract and we would haul as long as we were under contract And Mr Hamler said I hope you re getting plenty money out of it cause you re going to need it [emphasis added] My father asked him what his name was and he said I m a friend and walked out As David Barnette observed Hamler was not mad or upset or nothing He was just being real cool (Tr 113-114) (George Barnette did not testify ) Hamler positively denied telling George Barnette cause he would need it and insisted I didn t threaten nobody never threatened nobody (Tr 86 91) I just asked him how long he s going to run and he just told me as long as they keep sending the money I said I in hoping they re paying you enough cause gentleman outside people starving down there (Emphasis added) George Barnette asked What s your name? and Hamler said it really doesn t matter I was working at Nello Teer (Tr 75 91-92) As Hamler was leaving a state trooper on routine patrol (Tr 94-95 115) went in and spoke to George Bar nette and then asked Hamler his name and what he had said Hamler gave his name and address and gave full details What I meant by people starving down there Hamler said he s letting those people they re going hungry down there The kids is starving it s a shame that a man takes money for rock that is just being piled up and people down there starving The police said all right and told me to go on and I went and got in my car and left (Tr 75-77 91-92 94 ) George Barnette then telephoned the Company Project Manager Bard Senior testified Mr Barnette at the Rim Rock Quarry which is a supplier of our stone called me and said Mr Hamler had come to his office -making no mention of any threat (Tr 183) Barnette never re fused to deliver the stone (Tr 202) The Company in its brief (at 3-4) argues that Mr George Barnette must have perceived the matter as a po tential threat [emphasis added] or he would not have re quested the State Trooper to obtain Mr Hamler s name before he left the area The General Counsel argues in her brief (at 16) that if Hamler had said anything threat ening to Barnette the State Trooper who was there at the time would have arrested Hamler Both David Barnette and Willie Hamler impressed me as credible witnesses yet they had different recollections of what Hamler said in the scale house According to Hamler s recollection he was seeking George Barnette s sympathy for the strikers hoping Barnette would honor the picket line and cut the rock off (Tr 76) whereas David Barnette recalled that Hamler made what the Company refers to as a potential threat After weigh NELLO L TEER CO ing all the evidence and arguments I consider it unlikely if George Barnette had perceived the matter as a poten teal threat at the time that he would have telephoned the Company and merely reported that Mr Hamler had come to his office -instead of then reporting the pur ported threat I therefore credit Hamler s version of the conversa tion and find that he was seeking Barnette s support for the strike and not implying some kind of threat In effect by expressing hope they re paying you enough for making deliveries across the picket line he was alluding to Barnette s making money at the expense of people starving down there Moreover I find that even if David Barnette accurately recalled that Hamler said I hope you re getting plenty money out of it cause you re going to need it I find that this would have been such an ambiguous statement that it would not tend to be co ercive D Hamlers Discharge On May 8 when the strikers returned requesting rein statement the Company discharged Hamler and refused to reinstate him Project Manager Bard Sr handed him a termination form (G C Exh 3) giving Strike Miscon duct as the Reason for Termination The Company gave no other explanation (Tr 62-63 188 ) The General Counsel contends in her brief (at 16) that Hamler s conduct did not add up to serious acts of mis conduct which denied him his right of reinstatement that the Company had no basis upon which to rest an honest belief that Hamler was guilty of such coercive conduct and that the Judge should find that [Hamler] was denied reinstatement because he engaged in a pro tected strike with other employees The Company contends in its brief that Hamler was discharged because he (1) threatened George Barnette (2) threatened Dennis Bard Jr at the jobsite and then fol lowed him after work (3) threatened Dennis Bard Sr and (4) assaulted Bernard Davis It concludes (at 14) that this entire case involves a pattern of conduct and a series of escalating threats and acts any one of which would be sufficient for discharge E Concluding Findings An employer who refuses the reinstatement of strikers who have engaged in a protected strike violates § 8(a)(3) and (1) of the Act unless he can show legiti mate and substantial business justification for his actions A showing that an employee engaged in serious mis conduct constitutes such justification Newport News Shipbuilding Co v NLRB 738 F 2d 1404 1408 (4th Cir 1984) As held in Clear Pine Mouldings 268 NLRB 1044 1046 (1984) enfd 765 F 2d 148 (9th Cir 1985) the gen eral standard for striker misconduct serious enough to permit the employer to refuse reinstatement is whether under the circumstances the conduct may reasonably tend to coerce employees in the exercise of rights pro tected under the Act Tube Craft 287 NLRB 491 (1987) The Board also held in Clear Pine Mouldings 268 NLRB at 1046 fn 14 that this standard includes coercion of su 487 pervisors and other persons who do not enjoy the pro tection of the Act If an employer raises serious misconduct as a ground for refusing reinstatement the employer must show that it had an honest belief that the employee it refused to re instate was guilty of strike misconduct of a serious nature If the employer makes this showing then the General Counsel must come forward with evidence that either the employee did not engage in the alleged mis conduct or that the conduct was not sufficiently serious to preclude reinstatement The General Counsel retains the burden of proving discrimination Gem Urethane Corp 284 NLRB 1349 (1987) Applying these well established precedents I find that even if the Company held an honest belief that Willie Hamler engaged in serious acts of misconduct the Gen eral Counsel has met the burden of proving either that the misconduct did not occur or that the conduct taken singly or altogether was not sufficiently serious to pre clude reinstatement As found Hamler did not (1) coercively threaten Bar nette (2) make any threat to Dennis Bard Jr about the strike or coercively follow him after work (3) threaten Dennis Bard Sr or (4) assault Bernard Davis Concerning (1) Hamler was merely appealing to Bar nette not to deliver the stone across the picket line at the expense of the striking employees when as he credibly testified he asked Barnette how long he s going to run and expressed the hope they re paying you enough be cause of the people starving down there Moreover even if Barnette s son accurately recalled that Hamler said I hope you re getting plenty money out of it cause you re going to need it this would have been such an ambiguous statement that it would not reasonably tend to be coercive Concerning (2) Hamler was cautioning Bard Jr about the speed he was driving when he told the supervisor that if his little girl [standing beside the road] got hurt that [Bard] would be in trouble The state trooper who was present had told drivers to slow down There s a kid there Bard admitted that Hamler later said nothing to him and that they immediately drove back out (when Hamler realized that his wife had driven into the wrong trailer court) and also admitted that the Hamlers were never closer than 200 feet when he saw them behind him on the way to and from downtown Hamler s conduct did not reasonably tend to be coercive Concerning (3) I have discredited Bard Sr s claim that Hamler holding his 14 month old daughter in his arms stepped out in front of Bard s moving vehicle causing Bard to stop momentarily and said If my daughter goes hungry you in big trouble Hamler cre dibly testified that he was already standing in the center of the road that he instead told Bard You shouldn t let kids go hungry and that Bard just drove on by without stopping There was no threat Concerning (4) Davis and Foreman McElroy clearly gave false testimony about the incident in which McEI roy pointed a 357 magnum revolver at Hamler s head and told him Get your hand out of my truck or 111 blow your black head off Hamler credibly testified that 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he did not touch Davis when he reached into the cab of the truck to cover the camera lens and asked Davis not to take his picture Hamler did not assault Davis I therefore find that Willie Hamler Jr who had en gaged in a protected strike with other employees was entitled to reinstatement Accordingly I find that by dis charging and refusing to reinstate him the Company vio lated Section 8(a)(1) and (3) of the Act CONCLUSIONS OF LAW By discharging and refusing to reinstate Willie Hamler Jr on May 8 1987 the Company violated Section 8(a)(1) and (3) of the Act REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act The Respondent having discriminatorily discharged an employee must offer him reinstatement and make him whole for any loss of earnings and other benefits com puted on a quarterly basis from date of discharge to date of proper offer of reinstatement less any net interim earnings as prescribed in F W Woolworth Co 90 NLRB 289 (1950) plus interest as computed in New Ho rizons for the Retarded 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed2 ORDER The Respondent Nello L Teer Company Durham North Carolina its officers agents successors and as signs shall 1 Cease and desist from (a) Discharging refusing to reinstate or otherwise dis criminating against any employee for engaging in a strike or other protected concerted activity 2 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 (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 Willie Hamler Jr immediate and full rein statement to his former job or if that job no longer exists to a substantially equivalent position without prej udice to his seniority or any other rights or privileges previously enjoyed and make him whole for any loss of earnings and other benefits suffered as a result of the dis cnmination against him in the manner set forth in the remedy section of the decision (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 him in any way (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its office in Durham North Carolina and send by certified mail to each of its Big Stone Gap Vir ginia employees copies of the attached notice marked Appendix 3 Copies of the notice on forms provided by the Regional Director for Region 5 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspic uous places including all places where notices to employ ees are customarily posted Reasonable 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 2 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