Cornell Iron Works, Inc.

614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cornell Iron Works, Inc. and Shopmen's Local Union No. 547 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 4-CA-16502-1 September 19, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 30, 1988, Administrative Law Judge Russell M. King Jr. issued the attached deci- sion. The General Counsel 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 as modified and set forth below. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Austin because he engaged in a lawful strike, but recommended that Austin not be rein- stated or awarded backpay because , in his opinion, Austin's one incident of misconduct would have been sufficient alone for his lawful discharge and therefore reinstatement or backpay would consti- tute a windfall to Austin . The General Counsel contends, and we agree, that reinstatement and backpay is an appropriate remedy for the Respond- ent's unlawful conduct in this case. On February 9, 1987 , the Union commenced a strike at the Respondent's Mountaintop, Pennsylva- nia facility. Picketing took place at both of the Re- spondent's buildings. Austin was employed as a specialty worker for the Respondent for 15 years. He was a member of the Union and served as as- sistant shop steward from 1974 through 1979. Austin participated in the strike and picketed every other day in 6-hour shifts. Austin was discharged assertedly for two inci- dents that occurred while he was on picket line duty on February 23, 1987. Austin's discharge letter dated February 26, 1987, stated that on Feb- ruary 23, 1987, at approximately 10 a.m., Austin blocked a Federal Express truck attempting to enter the Respondent's building number 2. The ' In adopting the judge's finding of the alleged violation , we find it un- necessary to rely on Western-Pacific Construction , 272 NLRB 1393 ( 1984), enfd sub nom Teamsters Local 162 v. NLRB, 782 F 2d 839 (9th Cir 1986), to the extent it was overruled in Axelson. Inc., 285 NLRB 862 (1987) In any event, unlike in Western-Pacific, above, in the instant case the Respondent clearly knew of Austin's alleged misconduct at the time it occurred letter also stated that about 2 p .m. the same day Austin placed a board with nails under the Re- spondent's truck as it was entering the plant, there- by causing the tires to be flattened.2 Regarding the Federal Express truck incident, the judge found that Austin was in the Respond- ent's driveway away from the truck, and that the driver of the truck never attempted to enter the Respondent's driveway. The judge thus found that the facts did not support the Respondent 's conten- tion that Austin was "observed deliberately pre- venting a Federal Express truck from entering the premises of Cornell Iron Works," as asserted in the discharge letter . Regarding the nail board incident, the Respondent's foreman, Wormuth, testified that he was driving the Company's stake body truck, and with him in the cab of the truck were three other employees . Based on a credibility determina- tion, the judge found that Austin kicked the nail board under the rear tires of the Respondent's truck as it approached driveway number 2. The Respondent's treasurer, Connell, testified that he participated in the decision to discharge Austin, and that the Respondent's decision was based on a combination of the Federal Express truck and nail board incidents . When asked wheth- er Austin would have been discharged solely for the Federal Express truck incident, Connell stated, "I don't know . . . I can't answer that . . . I don't know." Similarly, when Connell was asked wheth- er the discharge would have occurred if Austin was involved only in the nail board incident, Con- nell replied, "I don't know . . . I can only tell you what we did." The judge found that the Respond- ent made no distinction between the two reasons stated for Austin's discharge, and that the Re- spondent therefore failed to demonstrate that it would have discharged Austin for the nail board incident alone. Although finding that the Respondent had vio- lated Section 8(a)(3) and (1) by discharging Austin,3 the judge recommended that the Respond- ent not be ordered to reinstate Austin or pay him any backpay. The judge based his recommendation on the sole proven incident of Austin's strike mis- conduct, i.e., the nail board incident. The judge found that such misconduct "would have been suf- ficient alone for his lawful discharge," and to order reinstatement and a backpay award "would consti- tute a windfall to a serious wrongdoer and would not advance the remedial purposes of the Act." 2 At the hearing the Respondent asserted that only one tire was dam- aged a No exceptions were filed to the judge's finding that the Respondent violated Sec 8(a)(3) and ( 1) by discharging Austin because he engaged in a lawful strike. 296 NLRB No. 81 CORNELL IRON WORKS We disagree with the judge's recommendation that the Respondent not be ordered to reinstate Austin to his previous position with full backpay. As indicated above, the Respondent did not view the nail board incident by itself as sufficient to war- rant discharge. Accordingly , it is appropriate that the Respondent be ordered to provide a full remedy for its unlawful conduct . See, e.g., Town & Country Nursing Home, 291 NLRB 74 fn. 1 (1988). Furthermore, the Respondent never contended to the judge, either at the hearing or in its posthearing brief, that even if the judge found the alleged vio- lation, Austin should be denied reinstatement and backpay solely because of the nail board incident. In these circumstances, it is not appropriate for the judge to substitute his judgment for that of the Re- spondent. See Owens Illinois, Inc., 290 NLRB 1193 (1988) (Board rejected judge's recommendation to deny reinstatement and backpay to employee for false testimony at the hearing because, inter alia, respondent failed to make that contention and judge's speculation as to effects of reinstatement did not meet or nullify need to meet respondent's burden to establish employee's unfitness for further employment). Finally, the judge's recommended remedy leaves the effects of the Respondent's un- lawful conduct unremedied and thus fails to effec- tuate the purposes of the Act. For all the foregoing reasons, we find , contrary to the judge, that it would not effectuate the pur- poses of the Act to require forfeiture of the Board's traditional remedy of reinstatement with full back- pay. Although we do not condone Austin's strike misconduct, we find that the conduct, under the circumstances here, does not warrant denial of the usual remedies given for the type of violation found. Accordingly, we shall modify the judge's recommended Order to provide for reinstatement and full backpay for Austin. AMENDED REMEDY We will order the Respondent to offer discrimin- atee Douglas Austin immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, with backpay to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 ( 1950), with interest to be computed in the manner prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). 615 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Cornell Iron Works, Inc., Mountaintop, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Cease and desist from (a) Discriminating against employees by termi- nating them because they engaged in a lawful strike, a concerted activity protected by Section 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Douglas Austin immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights and privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the "Amended Remedy" section of this decision. (b) Remove from its files any reference to the unlawful discharge and notify him 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 copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Mountaintop, Pennsylvania facility copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 4, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to 4 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 " 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ensure that the notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Board), on behalf of the Board's General Counsel.' The complaint alleges that the Company discharged employ- ee Douglas Austin on or about February 26, 1987 be- cause he participated in a strike (protected concerted ac- tivity), in violation of Section 8(a)(1) and (3) of the Act.2 The Company defends on the grounds that it discharged Austin because of unprotected strike misconduct, and thus alleges that its discharge of Austin did not violate the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed herein by the General Counsel and coun- sel for the Company, I make the following 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 discriminate against employees by terminating them because they engaged in a lawful strike, a concerted activity protected under the Na- tional Labor Relations Act. 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 Douglas Austin immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, 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 references to his discharge and that the discharge will not be used against him in any way. CORNELL IRON WORKS, INC. Daniel E. Halevy, Esq. and Mark E. Arbesfeld, Esq., for the General Counsel. David E. Koff, Esq., of Wilkes-Barre, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE RUSSELL M. KING, JR., Administrative Law Judge. This case was heard by me on February 29 and March 1, 1988, in Wilks-Barre, Pennsylvania. The charge was filed against Cornell Iron Works, Inc. (the Company) on March 26, 1987, by the Charging Union, Shopmen's Local Union No. 547 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO (the Union). Based on the charge, a complaint was issued on August 31, 1987 by the Regional Director for Region 4 of the National Labor Relations Board (the FINDINGS OF FACT3 1. JURISDICTION AND THE LABOR ORGANIZATION The pleadings, admissions, and evidence in the case es- tablish the following jurisdictional facts . At all times ma- terial herein, the Company, a New York corporation, maintained an office and place of business in Mountain- top, Pennsylvania, where it manufactures metal or steel doors, grilles, and related products . This facility is the only facility involved in this case. In the course and con- duct of its business operations at Mountaintop , Pennsyl- vania, the Company derived gross revenues annually in excess of $500,000, and purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Pennsylvania. As al- leged and admitted, I find that the Company is now, and has been at all times material herein , an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Also as alleged and admitted, I find that the Union is now, and has been at all times material herein, a labor ' The term "General Counsel," when used herein, will normally refer to the attorneys in the case acting an behalf of the General Counsel of the Board , through the Regional Director . This case was later consolidat- ed with Cases 4-CA-16502-6 and 4-CA-16502-7 These cases were set- tled before the hearing and were severed from this case by order of the Regional Director 2 The pertinent parts of the Act (29 U S C § 151 et seq.) read as fol- lows. Sec 8(a) It shall be an unfair labor Practice for an employer-(1) to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in Section 7 . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employ- ment to encourage or discourage membership in any labor organiza- tion.... Sec 7 employees shall have the right to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection The facts found herein are based on the record as a whole and upon my observation of the witnesses The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the wit- nesses, and the teaching of NLRB Y. Walton Mfg. Co., 369 U.S 404, 408 (1962) As to those testifying in contradiction of the findings herein, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredi- ble and unworthy of belief All testimony and evidence, regardless of whether or not mentioned or alluded to herein, has been reviewed and weighed in light of the entire record CORNELL IRON WORKS organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. BriefBackground The Company's facility at Mountaintop, Pennsylvania, consists of two separate buildings on what is known as Oak Hill Road . The first building is on the south side of Oak Hill Road and the second building (building 2) is on the north side of Oak Hill Road and west of the first building. All of the events in this case occurred at the first or second driveway or entrances to building number 2. The Company employs approximately 135 people at its Mountaintop facility. The Union represents approxi- mately 75 of these employees, 32 of which work in building 2. The supervisors in building 2 are Foreman William R. Wormuth and Assistant Foreman Roy Barry. The discriminatee in this case , Douglas Austin, has worked for the Company since September 1972. On Feb- ruary 9, 1987,4 a strike commenced at the Mountaintop facility and Globe Security Systems performed security for the Company during the strike . Some written reports were made by Globe, and apparently some video taping was done . However, no such video tapes or reports were made or resulted from the incidents involved in this case. Globe was not actually hired to monitor the picketing. During the strike, the police were called on occasion, and the Company sought and obtained a state court in- junction. Austin participated in the strike , picketing every other day for 6 hours . On the date in question, February 23, Austin picketed at building number 2 from 10 a.m. to 4 p.m. It had been snowing , and there was up to 2 inches of snow on the ground . Austin is alleged to have prevented the entry of a Federal Express delivery truck an the premises of building 2 at approximately 10 a.m., and is further alleged to have placed a board with protruding nails under the tires of a company truck en- tering the property surrounding building 2 at approxi- mately 2 p.m. As a result, and on February 26, the attor- ney for the Company drafted and sent a letter to Austin which reads as follows: On Monday, February 23, 1987 at approximately 10:00 a.m. you were observed deliberately prevent- ing a Federal Express truck from entering the prem- ises of Cornell Iron Works. On the same date at ap- proximately 2:00 p.m. you were observed placing a board with nails under the tires of a Company truck attempting to gain entrance to the Cornell premises. As a result the tires were flattened. Violence and the instilling of fear of bodily harm were the reasonable consequences and purposes of your acts. Under the circumstances such conduct clearly tended to coerce and intimidate employees in the exercise of their rights under the National Labor Relations Act. Such conduct is not protected under the Act. Therefore, you are herewith notified that you are disqualified from reinstatement when All dates hereafter are in 1987 unless otherwise stated 617 and if the current strike is ended and discharged from the Company's employ effective immediately. As a result of Austin's discharge on February 26, the Union filed the charge in this case on March 26, and the Regional Director issued the complaint on August 31. B. The Federal Express Truck Incident David Connell, the Company's treasurer, testified that at approximately 10 a.m. on February 23 he was looking out of the window in a corner office of building 2 and observed a Federal Express truck traveling east on Oak Hill Road and approaching entrance 1.5 According to Connell, there were two pickets at entrance 1, and one of these pickets was Austin . Connell testified that the truck came abreast of the driveway entrance , "stopped and . . . turned . . . cut his wheels to turn into the driveway." At that point , according to Connell, Austin "stopped in the driveway" and the truckdriver "then pulled slightly forward and Austin took two steps fur- ther into the driveway." Connell indicated that at this point the westbound lane of travel on Oak Hill Road was between the truck and Austin , and that the truck- driver then rolled down his window , but he (Connell) was unable to hear any conversation between the driver and Austin, and he did not see Austin make any gestures. According to Connell, the truck was still facing east, but there was traffic coming up behind the truck and the truck then proceeded "up the road " where it turned around in the next driveway on another company's prop- erty and drove on past building number 2 in a westerly direction on Oak Hill Road. In cross-examination, Con- nell indicated that when the truck approached, Austin took "two steps into the driveway " and not in the direc- tion of the truck. Connell indicated that he could not identify the second picketer with Austin because that in- dividual "had a hood or parka up." Also during cross- examination , Connell was asked whether or not he was concerned that Austin was on the picket line at any time during February 23, and he replied "No, I was not." The driver of the Federal Express delivery truck, James Brogan, testified that as he approached building 2 he observed "a picket line." Brogan indicated that he then rolled his window down and that the individual that was closest to the truck stated "We're on strike and ap- preciate it if you didn't deliver any packages," to which he (Brogan) replied, "No problem." Brogan testified that he then "merely turned the van around and ... left." Brogan added that he did not attempt to enter the facili- ty, did not have his "blinker" on, and that his wheels were not "cut" in the direction of building 2. Brogan fur- ther added that he did not reoognize the person he spoke to at the entrance, but that the individual "never" stood in front of his truck, indicating that the entire incident took "ten seconds." Brogan was asked how he felt during his brief conversation with the picketer, to which he replied "No unusual feelings." Brogan's manifest for that day regarding the attempted delivery reflects "On 5 A building location plat of building 2, the surrounding property, and Oak Hill Road was admitted into evidence and during his testimony, Connell located himself on that plat 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strike." During his testimony , Brogan was asked to ex- amine the building 2 location plat and to point out the driveway he stopped at. He identified the wrong en- tranoe or driveway, indicating that he turned around in driveway 1. However, Brogan was admittedly "not sure" of where his location was in relation to the plat , initially indicating that "You might have to show me where I'm at here .. .."8 Douglas Austin was a "specialty worker" and worked in building 2. He had worked for the Company since September 1972 and went out on strike with the Union on February 9. He had been an assistant shop steward from 1974 until 1979. Austin started picketing at approxi- mately 10 a.m. on February 23. He testified that three other picketers were in the area, but that he was picket- ing by himself in the driveway.' Austin related that he had a picket sign which hung from his neck with a string and that about 10 minutes after he started picketing, the Federal Express truck pulled up and the driver rolled his window down and yelled "Is this Cornell?" Austin indi- cated that he first ignored the truck and kept walking be- cause there was a large sign on building 2 which read "Cornell." According to Austin, the driver then asked him a second time if this was Cornell Iron Works, and then he turned around and stated to the driver "Yes, it is .... We're on strike here and we'd appreciate you not crossing our picket line." Austin testified that the driver of the truck then picked up his "walkie-talkie" or two- way radio and "drove off." Austin added that he could not hear what the driver said over his radio and that the entire conversation took 10 to 15 seconds , during which time his hands were in his pockets. Austin indicated that it was cold, windy, and snowing, and that at no time did the driver ever attempt to enter the driveway. Connell testified that when the driver of the Federal Express truck came to a stop on Oak Hill Road, his wheels were turned "slightly." Brogan, the driver of the truck, denied that his wheels were turned at all. I do not see any issue of credibility here. Brogan took the entire incident so lightly that he oould not remember the spe- cifics of the driveway locations. His testimonial demean- or reflected that he considered the incident as trivial. Wheels slightly turned or not, I am convinced that Austin did not convey any attempt whatsoever to block the truck as far as Brogan was concerned . According to Connell's own testimony, after the exchange between the driver and Austin, the truck "proceeded up the road and left." The undisputed facts reflect that Brogan never at- tempted to enter the driveway . Austin was in the drive- way, away from the truck, and made no motions or ges- tures toward the truck . Austin's discharge letter states that he was "observed deliberately preventing a Federal Express truck from entering the premises of Cornell Iron Works." In my opinion, the actual facts, even seen only through the eyes of Cornell, do not come close to sup- porting such a conclusion. I find that Austin did not block the truck's entrance onto company property. 6 In my opinion , Brogan's uncertainty as to where he was in relation to the plat was understandable, and in no way detracts from his other testi- mony ' None of the other three picketers named by Austin testified in the case. C. The Nail Board Incident William Wormuth is a foreman for the Company, and has worked for the Company some 22 years. On Febru- ary 23 at approximately 2 p.m., Wormuth drove a com- pany "stake" truck from building 2, out driveway 2 and then back into the abutting company lot (upper parking lot) to pick up items from a storage shed on that lot. Wormuth testified that his purpose in driving to the upper lot and the storage shed was to pick up "stock doors and a display fire shutter." Wormuth explained that he could not reach the upper storage lot through a connecting drive between building 2 and the upper lot because of snow accumulation .8 Regarding the weather, Wormuth testified that there was "slushy snow" on the ground from a snowfall the night before, and estimated the amount to be 1-1/2 to 2 inches . 9 With Wormuth in the cab of the truck were employees Roy Barry, Carl Markowski, and Jack Ronopczyk. Wormuth testified that when he approached the driveway 2 to exit onto Oak Hill Road there were pickets on both sides, and he recognized one picket as being Eugene Shinal who was very boisterous, and who was hollering and yelling things such as "Your turn is coming , you'll get yours." Wormuth related that he and his three passengers contin- ued out the driveway onto Oak Hill Road and then turned up into the adjacent lot and headed toward the storage shed. Wormuth testified that after they loaded the truck, he and his three passengers drove out onto Oak Hill Road again and proceeded to turn back into driveway 2 enroute to building 2. According to Wor- muth, as they approached driveway 2 one of the three passengers remarked "I think we're in for some trouble." Wormuth added that he noticed there was only two pickets standing face to face in the driveway, close enough together that they "funneled the truck in be- tween them." Wormuth further added that at this time nobody was yelling or hollering and no pickets were moving, and that the pickets who were facing each other in the driveway were employee Austin on the left and employee Fidishun on the right side. Austin testified that at this point he "just knew something was going on," noting that the other pickets were standing by the "shanty" watching.' ° According to Wormuth, as he went on into the driveway he "looked out the side window and [saw] Doug Austin kick a nail board under the rear tires of the truck." Wormuth described this board as a two-by-four, 2 or 3 feet long with nails ham- mered through it. According to Wormuth, there are four tires on the back of the truck, two on each side, and Wormuth indicated that Austin kicked the nail board under the rear tires on his (left) side of the truck. Wor- muth testified that he then proceeded on back to the 8 The so-called upper lot abuts the Company's lot which contains building 2 on the west side It can be reached either through an entrance from the lot on which building 2 is located, or by driving out of that lot and onto Oak Hill Road, entering the upper lot through a separate drive or entrance off of Oak Hill Road. 9 Several pictures of the truck and the surrounding area were admitted into evidence is There was a strike shed between driveways I and 2, apparently used for warming CORNELL IRON WORKS plant and as the truck was being unloaded , he "got under the truck and . . . could hear air escaping from one tire." According to Wormuth, the following morning he again checked the truck and discovered that the inside rear (left) tire was definitely flat. Wormuth testified that he had been Austin's foreman for 8 or 9 years and that his relationship with Austin was "Good ." During cross- examination, Wormuth described the board more com- pletely by indicating that the nails protruded through the two-by-four by about 4 inches all the way across the board, and that the nails were shiny. Wormuth added that as the truck went over the board he "felt a bump," but he conceded that the "bump . . . Possibly could have been [a] grate" which was in the area. Wormuth added that he did not see the board on the ground prior to the time that Austin kicked it, indicating that it was "probably covered with snow before it was kicked." Wormuth testified that after he checked the tire, he went "in the office and told them what happened ." According to Wormuth, the truck was used again on subsequent days by adding air to the punctured tire, and the tire was not fixed for "maybe even a month later," when it was then replaced with the spare and taken to a local garage for repair.' 1 Roy Barry was one of the other three employees in the truck, and he was sitting on the passenger side next to the right door. Barry testified that as they approached the entrance or driveway out of the building 2 area, he observed employee Shinal "screaming and cursing" at them, and he also heard Shinal yell "Mr. Wormuth, your day is coming." Barry indicated that after they loaded the truck and were returning down Oak Hill Road on the way to driveway 2, it was he who remarked to Wor- muth "It looks like we're in for something" because of the way the pickets were standing, and the fact that he no longer saw employee Eugene Shinal . Barry testified that as they approached the entrance or the driveway, Austin was on the left and Fidishun was on the right side of the truck and he then noticed Shinal down near the shed, away from the picket line. According to Barry, as they entered the driveway Wormuth remarked that "Doug Austin kicked a board ." Barry testified when the truck arrived at building 2, he and Wormuth "walked around the truck" but did not see any flat tires. Barry added that he did not hear any air escaping because he did not get down and crawl under the truck or "look or listen" to see if any air was escaping. Barry indicated that he did not actually see the board that Wormuth de- scribed, adding that he did not go back and look for the board.' 2 Barry conceded that there is a "gate" at the en- trance and that the truck "bumps" when it goes across that "gate." Employee Carl Markowski was also a pas- senger in the truck and testified that when they passed through the entrance on the way to the storage shed he observed "about three" pickets, one of which was "yell- ing and screaming" something like "You'll get yours, your day is coming." Markowski indicated that as they '' Neither the tire itself nor a repair bill was presented as evidence in the case. 12 No board with nails protruding through it was presented or admit- ted into evidence in the case 619 returned he noticed two pickets standing by the drive- way facing each other and not moving . Markowski re- membered one of those pickets as being Austin , and re- lated that the truck had to pass between the two pickets in order to enter the property. Markowski testified that as they entered he heard Wormuth remark "Dougy kicked a board under the tire." Markowski indicated that he did not inspect the tires on the truck but returned to work immediately. Employee John Konopczyk was also a passenger in the truck and testified that as the truck left building 2 and went through the driveway, he heard one of the pickets yell "Your day will come, Wormuth." Konopczyk further testified that as the truck returned and entered back into the driveway, he heard Wormuth say "He kicked a board under the tires ." Konopczyk tes- tified that when they got back to the plant he walked around the truck and actually leaned down and listened but characterized his inspection as not a thorough one. Konopczyk apparently heard no air leaking and went on to testify that sometime after that , he again used the truck but never had to put air into the tires , although he did not know whether any tire had been changed when he again used the truck. On February 23, Lloyd Zinck was working for Globe Security and reported for work between 3 and 3:30 p.m. at building 1.13 Zinck testified that as he entered the driveway to building 1 he had to cross a "snow bank where the township plowed the road," and as he continued through the snow there was a "thump," adding that he immediately looked in his rear view mirror and saw a "board come up out of there." Zinck described the board as either a two-by -four or a one-by-two, adding that "It had to have" nails in it, be- cause the following morning he had three flat tires on the pickup truck which he was driving . Zinck indicated that he reported this incident and also entered it in his log. Zinck conceded that he had no responsibility at building 2 that day and was not at building 2 that day, but talked by phone with other guards positioned there. Douglas Austin testified that after lunch on February 23, he went down to picket driveway 2 at building 2, and that with him was Eugene Shinal , George Fidishun and Andy Hashagen . Austin indicated that when the four started to picket, he and Hashagen were on the left (western) side of the driveway, and Shinal and Fidishun were on the right side. Austin testified that when the company truck came out of the driveway , there was no conversation between any of the picketers or the em- ployees who were in the truck, and it proceeded to go up to the storage shed where it remained for 15 to 20 minutes. Austin testified that when the truck came back through the gates it merely "Came in, went over the grates, bounced a little bit, [and] went back behind the building." Austin indicated that he was "just standing there" and that at no point did he have a board with nails in it, nor did any of the other picketers have such a board. Austin added that at no point did he see any board with nails in it in the driveway . During cross-ex- amination, Austin was asked whether any one of the 'a Building I was located on the south side of Oak Hill Road and fur- ther east of number 2 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pickets yelled at the people in the truck, to which Austin answered , "Not to the best of my recollection, no." Austin further maintained that when the truck came back and went through the driveway, all four pickets "were still there," again indicating that he and Andy Hashagen were on the left or west side of the driveway entrance.14 Employee George Fidishun testified that he, Austin, Shinal, and Hashagen were all picketing driveway 2 when the company truck left the premises and again re- turned. Fidishun indicated that he was on the right or east side of the driveway with either Shinal or Hashagen, and was not certain which one was actually with him on the east side. Fidishun indicated that Austin was across from him on the other (left or west) side of the drive- way. Fidishun testified that when the truck returned and reentered the driveway it "Just bounced when it hit the grates." Fidishun indicated that he saw no board in the area with nails in it. Fidishun was asked on cross -exami- nation whether any one of the pickets yelled or screamed at the people in the truck , to which he replied "Not that I can recall . . . . I don't remember." Eugene Shinal tes- tified as a former employee of the Company , indicating that he had been replaced in March and that he had never returned to work . Shinal testified that he, Austin, Hashagen, and Fidishun were picketing together at driveway 2 when the company truck approached to leave the area of building 2. Shinal acknowledged, as did Austin and Fidishun, that William Wormuth was the driver of the truck, and that there were three other pas- sengers in the truck . Shinal indicated that when the truck came through the driveway entrance onto Oak Hill Road, he and Fidishun were standing on the eastern side of the driveway and Austin was on the western side of the driveway with Hashagen . When Shinal was asked whether anything was said or thrown at the truck, he an- swered, "I don't really remember." Shinal testified that the truck returned to reenter the plant area approximate- ly one- half hour later and that he and Fidishun , again, were on the east side of the entrance and Austin was on the west side with Hashagen. Shinal indicated that he at no time saw any board with nails in the area . On cross- examination, Shinal was asked whether he yelled or screamed at the individuals in the truck when it left the entrance, to which he replied, "No, sir, I don't remember that." The next question to Shinal was "You don't re- member it?," to which Shinal replied, "No, sir." The question was then asked whether somebody could have yelled at those in the truck , to which Shinal answered "Possibly could have . . . I don't recall anybody yelling anything!" Shinal testified that there was radio communi- cation between the picket line at building 1 and building 2 in the form of a "walkie-talkie" system, but he did not remember whether it was in use on February 23. Regarding the nail board incident, the only two actual witnesses in the case were Foreman Wormuth and Austin himself. In the truck cab itself were passengers Konopczyk, Barry, and Markowski , all of whom testified they heard Wormuth exclaim that Austin had kicked the board under the truck . All four employees in the truck 14 Andy Hashagen did not testify in the case According to Austin, he had left the Company and was currently working in "Jersey " heard the threatening remark, and Wormuth and Barry identified picketer Shinal as the one yelling the remark. The three picketers who testified all indicated they did not see a nail board in the area. However, there had been some violence during the strike beginning at least on February 20, and Globe Security employee Zinck had experienced a nail board and three flat tires from 30 to 60 minutes earlier on the same date (February 23) at the entrance to building 1. All three picketers were asked whether any one of them yelled threatening remarks as the truck came through the gate for the first time . Austin replied "Not to the best of my recollection , no." Fidi- shun replied, "Not that I can recall . . . . I don't remem- ber." Shinal replied , "I don't really remember." As to whether the nail board was actually kicked by Austin, I credit the testimony of Wormuth over that of Austin. 115 I also find that in fact picketer Shinal did yell the remark or threat to the effect that "You will get yours" when the truck first exited the driveway onto Oak Hill Road. 15 I find that Austin did kick the nail board under the rear tires on February 23, and that thereafter Wor- muth reported the same truthfully to the Company. D. Concluding Analysis The two reasons set forth in this case for the discharge of Austin involve his blocking of the Federal Express truck and the kicking of the nail board underneath the company truck . I have found from the evidence and tes- timony in this case that Austin did not block the truck but did in fact kick the nail board underneath of the company truck. The law is clear that when an employer disciplines an employee because he has engaged in a lawful 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 employee disciplined was guilty of strike misconduct of a serious nature. General Telephone Co. of Michigan, 251 NLRB 737 (1980). However, if the General Counsel affirmative- ly shows that the alleged misconduct never occurred, then the resulting discipline or discharge is a violation of the Act. Gem Urethane Corp., 284 NLRB 1349 ( 1987); General Telephone Co. of Michigan, 251 NLRB 737 (1980); NLRB v. Rubin Bros. Footwear, 99 NLRB 610 (1952). See also NLRB v. Burnup & Sims, 379 U.S. 21 (1964); Western-Pacific Construction Materials Co., 272 NLRB 1393 ( 1984). Under the Board's holding in Clear Pines Mouldings, 268 NLRB 1044 (1984), if strike miscon- 15 Wormuth's testimony about the incident was straightforward and always consistent, even upon intense and extensive cross-examination His testimonial demeanor leads me to conclude that he was truthful about seeing Austin kick the board under the truck. Under the circumstances, his quick verbal response, overheard by his three passengers , was natural and instinctive. Austin, on the other hand, testified that he was just stand- ing there," and denied the existence of any board Austin's rather cavalier attitude reflected an intent to convey that there was simply no incident at all. His testimonial demeanor in this case further helped to convince me to accept Wormuth 's version over his denial. 16 All three picketers, Austin, Fidishun, and Shinal , were equivocal in their attempted denials that any one of the three yelled a threatening remark Shinal's "I don't really remember," when contrasted with the definite testimony of Wormuth and his three passengers , convinced me that in fact the threat was made by Shinal, especially in light of the equivocations or uncertainty of Austin and Fidishun CORNELL IRON WORKS duct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act, then such misconduct justifies discipline or discharge by the employer. I find and conclude in this case that Austin's actions regarding the nail board would have been suffi- cient justification for his discharge under the standards set forth in Clear Pines Mouldings, supra. The Company's treasurer, David Connell, testified that he participated in the decision to discharge Austin. He further testified that the discharge occurred by reason of a combination of the two incidents alleged (the blocking of the Federal Express truck and the kicking of the nail board). Connell was asked whether or not Austin would have been discharged as a result of the Federal Express truck incident only, and his reply was "I don't know .... I can't answer that . . . . I don't know." He was also asked whether or not the discharge would have oc- curred had only the nail board incident occurred, to which he replied "I don't know . . . . I can only tell you what we did." Once the General Counsel makes a prima facie showing that protected conduct was a moti- vating factor in an employer's action against an employ- ee, the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of the protected conduct. An employer cannot carry its burden of persuasion by merely showing that it had a le- gitimate reason for the action, but must show by a pre- ponderance of the evidence that the action would have taken place even absent the protected conduct. Wright Line, 251 NLRB 1083 (1980), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). In my opinion, to successfully defend the discharge in this case, the law requires the Company to demonstrate that it would have discharged Austin for the nail board inci- dent alone. However, the Company has made no distinc- tion among the two reasons stated for Austin's discharge. See Delta Gas, Inc., 282 NLRB 1315 (1987); Western-Pa- cific Construction Materials Co., supra, and Bronco Wine Co., 256 NLRB 53 (1981). Under Wright Line, supra, a judge's personal belief that the employer's legitimate 621 reason was sufficient to warrant the action taken is not a substitute for evidence that the employer would have relied on this reason alone. Considering the foregoing, I find that the Company's discharge of employee Douglas Austin was violative of Section 8(a)(3) and (1) of the Act as alleged in the com- plaint. On the foregoing findings of fact and initial conclu- sions, and upon the entire record, I make the following CONCLUSIONS OF LAW 1. That the Respondent Employer, Cornell Iron Works, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. That the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. 3. That the Respondent Employer, on February 26, 1987, violated Section 8(a)(3) and (1) of the Act by ter- minating employee Douglas Austin. 4. That the unfair labor practice found in paragraph 3, above, affects oommerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Employer has com- mitted the above unfair labor practice, I will recommend that it be ordered to cease and desist therefrom and post an appropriate notice. In my opinion, the misconduct on the part of employee Douglas Austin , which I found oc- curred in this case, would have been sufficient alone for his lawful discharge. I shall thus not recommend that the Respondent Employer offer reinstatement to employee Austin, or require that the Respondent Employer be liable for any backpay in this case . In my further opin- ion, to order reinstatement and a backpay award in this case would constitute a windfall to a serious wrongdoer and would not advance the remedial purposes of the Act, including the protection of the right of strikers while discouraging strike misconduct. See Western-Pacific Construction Materials Co., supra. [Recommended Order omitted from publication.]