Alto-Shaam, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1992

307 N.L.R.B. 1466 (N.L.R.B. 1992)

1466
307 NLRB No. 216
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The Respondent has excepted to the judge’s finding in connection
with the discharge of employee James Jaeger that off-duty deputy
sheriffs employed and subject to direction by the Respondent cannot
be considered impartial witnesses whose testimony should be ac-
corded special weight as law-enforcement personnel. The judge
found that Deputy Sheriff Paul Renkas did not actually see the al-
leged collision on July 2, 1990, between Steve Maahs’ car and Jae-
ger’s leg and foot, about which he testified. Thus, as to that incident,
Renkas’ impartiality is not at issue. Deputy Sheriff James Materna
was the only witness who testified that Jaeger engaged in threatening
physical movements against the Respondent’s labor consultant,
James Schalow, on July 16, 1990. The judge noted that the Respond-
ent did not present witnesses to corroborate Materna’s account of the
events, even though there were seven individuals present on July 16.
Thus, the judge credited Jaeger’s testimony that he did not phys-
ically threaten Schalow. Under these circumstances, we affirm the
judge’s credibility resolution and his conclusion that Jaeger was
discriminatorily discharged and did not engage in conduct by which
he forfeited his eligibility for reinstatement.
In addition, the Respondent has excepted to certain inferences
drawn by the judge. It is the judge’s duty as the trier of fact to de-
cide whom to believe, to reconcile conflicting evidence, and to draw
reasonable inferences from the evidence in a case. Such inferences
are entitled to deference if they are supported by substantial evi-
dence on the record as a whole. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466 (9th Cir. 1966). We find no basis in the record
for rejecting the inferences drawn by the judge.
2 We do not rely on the investigatory affidavit of employee Doreen
Held. The affidavit was offered, but was not admitted into evidence.
3 All dates are in 1990 unless otherwise indicated.
4 The other two employees are Michael Hlavenka and Douglas
Owens. The complaint does not allege that the Respondent violated
the Act in regard to Hlavenka and Owens.
5 The third employee is Barbara Depies. The complaint does not
allege that the Respondent violated the Act in regard to Depies.
Alto-Shaam, Inc. and United Steelworkers of Amer-
ica, AFL–CIO–CLC. Case 30–CA–11019
July 24, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 22, 1991, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this deci-
sion,2 to modify the recommended remedy, and to
adopt the recommended Order as modified.
The complaint alleges, inter alia, that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by twice
terminating employee Kristeen Peckstein because of
her union and other protected concerted activities. The
judge found that the Respondent’s first discharge of
Peckstein was unlawful and ordered her reinstated with
backpay from that date. The Respondent excepts. It
contends that Peckstein’s postdischarge threat against
fellow employee Doreen Held during a July 6, 1990
visit to Held’s home was sufficiently egregious to jus-
tify its refusal to reinstate Peckstein. We find merit in
the Respondent’s exception.
The relevant facts are as follows. In June 1989, the
United Steelworkers of America (the Union) demanded
the discharge of four employees, including Peckstein
and employee Doreen Held, for nonpayment of dues.
The Respondent refused. While the matter was pending
before an arbitrator pursuant to the parties’ collective-
bargaining agreement, the Union commenced an eco-
nomic strike against the Respondent on July 2, 1990.3
Peckstein and the two other employees named in the
Union’s discharge demand4 joined the strike and the
picket line at the Respondent’s facility. Held crossed
the picket line and continued working.
At this point, the Respondent notified the Union that
it intended to terminate Peckstein, Held, and the other
two employees pursuant to the Union’s June 1989 de-
mand. The Union objected and requested that the Re-
spondent await the arbitrator’s decision before acting.
Nonetheless, on July 3 the Respondent notified
Peckstein and the two other employees that it was ac-
ceding to the Union’s demand to terminate their em-
ployment. It did not terminate Held, however, a fact
apparently either unknown by Peckstein at that time or
unconfirmed.
On July 6, Peckstein, Scott Westfahl, and one other
striking employee5 visited Held at her home to solicit
her support for the strike, discuss the Respondent’s
contract offer, and determine whether Held had been
discharged by the Respondent in response to the
Union’s June 1989 demand, as had Peckstein. Except
for Held’s small child, there was no one else at home.
It is undisputed that Peckstein did most of the talking
during the entire visit. Held informed the group that
she had not received a discharge notice. After some 20
to 30 minutes of discussion, Held reiterated her refusal
to join the strike. Peckstein responded to Held, ‘‘Well,
if you valued your life.’’ Peckstein and the other two
employees left without further conversation. Held testi-
fied that the incident ‘‘scared’’ her and that she did not
exactly understand what Peckstein meant by the state-
ment. She reported the threat to a supervisor, to the
Respondent’s plant manager, and to the police. She
then left town for the weekend.
1467ALTO-SHAAM, INC.
6 The Respondent similarly discharged Westfahl, as explicated by
the judge. We affirm the judge’s decision as to Westfahl for the rea-
sons set forth by the judge.
7 268 NLRB 1044 (1984).
8 Surely, Held was not responsible for Peckstein’s discharge, and
Held did nothing to provoke Peckstein. Unlike the present case, in
both Blue Jeans Corp., and Precision Window Mfg., the alleged
‘‘threats to Kill’’ by which it was asserted that employees forfeited
their reinstatement rights were, respectively, an ‘‘emotional . . .
temporary aberration’’ and a ‘‘rambling, semicoherent mix of insult
and threat’’ directed at supervisors while on the employers’ premises
and were uttered in spontaneous reaction to the employees’ discrimi-
natory discharges. Thus, in those cases, the Board concluded that
employees did not forfeit their rights to reinstatement. Member
Raudabaugh dissented in Precision and would have found the
‘‘threat to kill’’ disqualifying in that case.
By letter of July 13, the Respondent discharged
Peckstein6 for ‘‘serious strike misconduct’’ without
further explanation, even though it had not rescinded
its July 3 discharge notice.
The judge found, and we agree, that the Respond-
ent’s professed capitulation on July 3 to the Union’s
discharge demand was a sham. The judge relied on the
Respondent’s yearlong resistance to the Union’s dis-
charge demand prior to the strike, its subsequent deci-
sion to discharge targeted employees who went out on
strike at the same time it permitted nonstriking em-
ployees to continue working, its failure to explain its
selectivity, and its failure to establish that it would
have discharged the strikers in the absence of their
support for the strike. The judge concluded that the
Respondent unlawfully discharged Peckstein because
of her union and protected, concerted activity of join-
ing the strike.
We agree with the judge that as of her discharge on
July 3, Peckstein was a discriminatorily discharged
employee eligible for reinstatement with backpay. The
judge correctly held that the Clear Pine Mouldings7
standard for reinstatement of employees accused of
strike misconduct does not apply to the alleged mis-
conduct of strikers after they have been
discriminatorily discharged. We also agree with the
judge that Peckstein’s visit to Held’s home for the pur-
poses stated was protected, concerted activity. Further,
we agree with the judge that Peckstein’s closing re-
mark—‘‘Well, if you valued your life’’—reasonably
may be interpreted as a threat of physical harm if Held
continued to cross the picket line. Finally, we agree
with the judge that the Respondent’s purported dis-
charge of Peckstein on July 13 was not a discharge or
termination but, rather, a refusal to reinstate. Thus, the
issue correctly posed by the judge was whether
Peckstein should be denied the usual remedies of rein-
statement with backpay by virtue of her conduct during
the July 6 visit with Held. The judge concluded that
Peckstein’s conduct was not so outrageous as to render
her unfit for employment. Here we part company with
the judge.
In determining whether backpay and reinstatement
are appropriate remedies where discriminatees engaged
in subsequent misconduct, the Board ‘‘looks to the na-
ture of the misconduct and denies reinstatement in
those flagrant cases ‘in which the misconduct is violent
or of such character as to render the employees unfit
for further services.’’’ C-Town, 281 NLRB 458 (1986),
quoting J. W. Microelectronics Corp., 259 NLRB 327
(1981). The Board takes into account whether the mis-
conduct was an ‘‘emotional reaction’’ to the employ-
er’s own unlawful discrimination against the employee.
Blue Jeans Corp., 170 NLRB 1425 (1968), citing
NLRB v. M & B Headwear Co., 349 F.2d 170, 174
(4th Cir. 1965).
Here Peckstein and two other strikers confronted
Held at her home when no one except Held’s small
child was nearby. For some 20 to 30 minutes Peckstein
attempted to talk Held into changing her mind and
joining the strike. Held protested that she could not af-
ford to strike because she had to support her child.
When Held remained firm in her decision to refrain
from participating in the strike, Peckstein responded,
‘‘Well, if you valued your life.’’ As the judge found,
Peckstein’s statment, ‘‘Well, if you valued your life,’’
may reasonably be interpreted as a threat of physical
harm if Held continued to cross the picket line. Fi-
nally, it cannot reasonably be said that Peckstein’s
threat against Held’s life, delivered 3 days after
Peckstein’s discharge, was the kind of emotional reac-
tion, contemplated by the Board in Blue Jeans Corp.,
supra, and Precision Window Mfg., 303 NLRB 946
(1991), that would not warrant forfeiture of her rein-
statement rights.8
We find that by her substantial threat against Held
on July 6, particularly under the circumstances of its
delivery, Peckstein rendered herself unfit for further
service. Thus, she has forfeited her right to reinstate-
ment and backpay after that date. Fiber Glass Systems,
278 NLRB 1255 (1986). We modify the recommended
remedy accordingly and adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Alto-
Shaam, Inc., Menomonee Falls, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified below.
1. Substitute the following for paragraphs 2(a) and
(b).
‘‘(a) Offer Scott Westfahl and James Jaeger imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
1468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I agree with my colleagues’ decision in all other respects.
1 All dates are for 1990 unless otherwise indicated.
2 The official transcript of proceedings is corrected.
rights and privileges previously enjoyed, and make
them whole for losses they suffered by reason of the
discrimination against them, as set forth in the remedy
section of the decision.
‘‘(b) Remove from its files any reference to the ter-
minations of Scott Westfahl and James Jaeger, and no-
tify each of them in writing that this has been done
and that evidence of their unlawful termination will not
be used as a basis for future personnel actions against
them.’’
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) Make Kristeen Peckstein whole, with interest,
for any loss of earnings and other benefits suffered as
a result of her unlawful discharge on July 3, 1990,
until her July 6, 1990 threat directed against Doreen
Held.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER DEVANEY, dissenting in part.
Contrary to the majority, I would adopt the judge’s
finding that the Respondent violated Section 8(a)(3)
and (1) of the Act by refusing to reinstate employee
Peckstein.1 Although I do not condone Peckstein’s re-
mark to Held, I agree with the judge that it was not
of such a serious or flagrant nature as to warrant with-
holding the Board’s traditional reinstatement remedy.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in United
Steelworkers of America, AFL–CIO–CLC, or any
other labor organization, by discharging, terminating,
denying reinstatement rights, or otherwise discrimi-
nating against employees because of lawful strike,
picketing, or other union conduct.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Scott Westfahl and James Jaeger im-
mediate and full reinstatement to their former jobs or,
if such jobs no longer exist, to substantially equivalent
positions, without prejudice to the seniority or other
rights and privileges previously enjoyed, and make
them whole, with interest, for losses they suffered by
reason of the discrimination against them.
WE WILL remove from our files any reference to the
terminations of Scott Westfahl and James Jaeger, and
notify them in writing that this has been done and that
evidence of their unlawful termination will not be used
as a basis for future personnel actions against them.
WE WILL make Kristeen Peckstein whole for any
loss of earnings and other benefits resulting from her
unlawful termination on July 3, 1990, and occurring
until her July 6, 1990 misconduct.
ALTO-SHAAM, INC.
Melvin L. Ford, Esq., for the General Counsel.
Roland Steinle, Esq. and James C. Schalow, of Menomonee
Falls, Wisconsin, for the Respondent.
John Cleveland, of Brookfield, Wisconsin, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Milwaukee, Wisconsin, on March 7 and 8, 1991.
The charge was filed on July 24, 1990, by United Steel-
workers of America, AFL–CIO–CLC (Union).1 The com-
plaint, which issued on September 5, alleges that Alto-
Shaam, Inc. (the Company or Respondent) violated Section
8(a)(3) and (1) of the National Labor Relations Act. The gra-
vamen of the complaint is that the Company allegedly twice
terminated employee Kristeen Peckstein, and terminated em-
ployees James Jaeger and Scott Westfahl because of their
union and other protected concerted activities. The Com-
pany’s answer denies the commission of the alleged unfair
labor practices, and affirmatively alleges in sum that: (1) the
Company initially terminated Peckstein on demand by the
Union, for failure to pay dues; (2) the three employees en-
gaged in unprotected strike misconduct; and (3) the allega-
tions of the complaint should be referred to arbitration under
the Collyer doctrine. On motion of General Counsel, other
assertions made by way of affirmative defense were stricken
by order of Associate Chief Administrative Law Judge John
M. Dyer dated February 22, 1991.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
On the entire record in this case2 and having considered the
briefs submitted by General Counsel and the Company, I
make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation, maintains an office and plant
in Menomonee Falls, Wisconsin, where it is engaged in the
manufacture and distribution of food service equipment and
related products. In the operation of its business, the Com-
pany annually purchases and receives at its Menomonee Falls
facility goods valued in excess of $50,000 directly from
points outside of Wisconsin. I find, as the Company admits,
1469ALTO-SHAAM, INC.
that it is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, the Strike, and the Terminations of
Peckstein and Westfahl
1. The facts
At all times material, the Union was the collective-bar-
gaining representative of the Company’s factory employees.
In 1987, at a time when there was a collective-bargaining
contract in effect, several of the unit employees, including
Kristeen Peckstein, resigned from union membership. The
Company and the Union subsequently executed a contract
containing a maintenance-of-membership clause (sec. 3.2),
which provided as follows:
It shall be a condition of employment that all employ-
ees covered by this Agreement who are members of the
Union in good standing on the effective date of this
Agreement, or who thereafter become members of the
Union, shall remain members in good standing in the
Union as prescribed by the Constitution.
In June 1989, the Union requested that the Company dis-
charge four employees ‘‘for their failure to maintain their
membership status at least to the extent of paying monthly
dues.’’ The employees were Peckstein, Doreen Held (then
Doreen Held Yetka), Douglas Owens, and Michael Hlavenka.
The Company refused, and the Union filed a grievance over
that refusal. The Company asserted that its refusal was prop-
er because: (1) the neutrality clause of the contract precluded
the Company from granting the Union’s request; (2) the
Union failed to prove that the employees were union mem-
bers in good standing as of the effective date of the contract
(July 8, 1987) or thereafter became members; and (3) the
dues-checkoff provisions of the contract were not determina-
tive of the matter. The Union grieved the matter to arbitra-
tion. The matter was heard before an arbitrator on May 21,
1990, and the arbitrator set a briefing schedule. Before the
parties submitted briefs, the contract expired by its terms
(June 30). On Monday, July 2, the Union commenced an
economic strike and picketing at the Company’s facility.
Peckstein, Owens, and Hlavenka joined the strike, but Held
crossed the picket line and remained at work. At this point
the Company notified the Union of its intention to terminate
the employees involved in the grievance. The Union ob-
jected, and requested that the Company wait until the arbi-
trator ruled, and that the employees not be terminated. Nev-
ertheless, by letters dated July 3, the Company notified
Peckstein, Owens, and Hlavenka that it was acceding to the
Union’s demands and terminating each of them. The Com-
pany did not terminate Held. The strike ended on July 13,
when the Union on behalf of all striking employees made an
unconditional offer to return to work. Strikers began return-
ing to work on Monday, July 16. Although ostensibly termi-
nated, Owens and Hlavenka returned to work. The Company
never rescinded Peckstein’s termination. However by letter
dated July 13, the Company notified Peckstein that she was
‘‘terminated effective July 13, 1990 for serious strike mis-
conduct.’’ By letter dated July 23, the Union informed the
arbitrator and the Company that it was withdrawing its griev-
ance. In its answer to the present complaint, the Company
asserted by way of affirmative defense that the Union’s origi-
nal request for Peckstein’s termination was an unfair labor
practice because ‘‘the real intent was to coerce and intimi-
date Kristeen Peckstein to pay dues, and to use such situation
to attempt to intimidate and coerce other employees by set-
ting a precedent in this matter.’’ In this proceeding, the Com-
pany offered no explanation as to why the three strikers, but
not Held, were terminated on July 3, or why Owens and
Hlavenka were able to return to work when the strike ended,
without being rehired.
On July 13, the Company also terminated striking em-
ployee Scott Westfahl. Company President Jerry Maahs testi-
fied in sum that the Company terminated Peckstein and
Westfahl on the basis of a report he received that Peckstein,
accompanied by Westfahl and a third striking employee
(Barbara Depies) threatened Doreen Held at her home.
Depies quit her employment on July 9, before the strike
ended. Maahs testified that he was unaware of any other
threats by Peckstein or Westfahl. He did not personally speak
to Held about the matter.
With regard to the alleged threat, Doreen Held testified in
sum as follows: She did not join the strike, and worked on
July 2. However she did not work for the balance of that
week, because she had no babysitter on July 3, the plant was
closed on July 4, and she was on vacation for the balance
of the week. On Friday, July 6, at about 4:30 to 5 p.m.
Peckstein, Depies, and a third employee (whom she did not
know but learned to be Westfahl) pulled up into the drive-
way of her home. Peckstein and Held had been friends. Held
went to the window and told them she didn’t want any trou-
ble. They said they wanted to talk to her, and she let them
in. They remained for some 20 to 30 minutes. Peckstein did
most of the talking. She showed Held her termination letter,
and asked if Held had received such a letter. Held said she
had not, and they told her to check her mailbox. She did, but
there was no letter. They asked Held to join the strike. Held
said she could not afford to do so. The conversation contin-
ued along this line. Finally Peckstein said, ‘‘Well, if you val-
ued your life.’’ At this point Peckstein said ‘‘Let’s go,’’ and
the three striking employees left. The conversation broke up
between 6 and 6:30 p.m. However, in her affidavit to the
Board, Held said the employees left about 7:30 p.m. Held
further testified that she called Debra Zimmerman, a friend
and company supervisor, who told her to call Plant Super-
intendent Gregory Lamondo. She was not able to reach
Lamondo until 8:30 to 9 p.m. He advised her to call the po-
lice, which she did. The police arrived at about 9 p.m. and
took her report, but she did not make a formal complaint.
Held told Zimmerman, Lamondo, and the police that
Peckstein, but not Depies or Westfahl, threatened her. Later
that evening Held went to a friend’s home, where she re-
mained for the weekend. Lamondo testified that Held called
him about 9 p.m., told him that Peckstein, Depies, and
Westfahl threatened her, and he advised her to notify the po-
lice. The Company did not question or otherwise contact the
striking employees or the Union about the matter.
1470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Held, who was presented as a company witness, was not ques-
tioned about Westfahl’s role in the conversation. However, in her in-
vestigatory affidavit Held corroborated Westfahl’s testimony con-
cerning his lack of involvement. Held stated: ‘‘During this time
Westfahl said nothing except ‘hi’ to my son. He simply sat on my
couch and played with my son.’’ General Counsel objected to the
Company’s proffer of the affidavit, and I sustained the objection.
Therefore, although I credit Westfahl’s testimony concerning his lack
of involvement, I have not taken Held’s affidavit into consideration
in making that determination.
Peckstein, Depies, and Westfahl testified in sum as fol-
lows: On July 6 they were at the picket line. They decided
to go to Held’s home to talk to her about honoring the picket
line, the Company’s offer in negotiations, and whether Held
received a termination letter. They first had dinner, and then
proceeded to a tavern near Held’s home, where they thought
they might find her. She was not there. They each had a
drink with dinner and at the tavern, but remained sober. They
proceeded to Held’s home, arriving about 7:30 (Peckstein
testified they arrived about 7:30-7:45 p.m., Depies testified
that they arrived about 7 p.m., and Westfahl testified they ar-
rived between 7 and 7:30 p.m.). They saw her car in the
driveway. Held came to the window and yelled that she
didn’t want an argument or a fight. They said they were not
there for that, and just wanted to talk about joining the strike.
She let them in, and they gathered in the living room where
they remained for some 15 to 45 minutes. (Peckstein testified
it was 30 to 45 minutes, Depies testified about 30 minutes,
and Westfahl testified about 20 minutes.) Peckstein did most
of the talking. Held’s young son immediately befriended
Westfahl, and thereafter Westfahl functioned primarily as a
babysitter, remaining out of the conversation.3 Peckstein
asked if Held received the same termination letter as did
Peckstein, Owens, and Hlavenka. Held checked her mailbox
and reported that there was no letter. Peckstein and Depies
tried to persuade Held to join the strike. They also talked
about the Company’s offer. Held maintained that she could
not afford to join the strike. There was no agreement. The
conversation was polite, and there was no yelling. They did
not threaten Held, or make the closing remark attributed to
Peckstein by Held.
Peckstein applied for unemployment compensation. The
Company contested the application on the ground that
Peckstein was terminated for misconduct. The Wisconsin Un-
employment Compensation Division allowed benefits, hold-
ing that: ‘‘The first discharge on 7/3/90 is the one that ap-
plies for unemployment compensation purposes, not the sec-
ond one on 7/13/90. An employee cannot be discharged
twice without having been rehired in between the discharges.
It has not been established the first discharge was for mis-
conduct.’’ The Company did not appeal from this determina-
tion.
I credit the testimony of the three striking employees con-
cerning their purpose in visiting Held, and the subject matter
of their conversation. Held had already made up her mind
not to join the strike, and was not much interested in the de-
tails of what Peckstein had to say, including the Company’s
contract proposal. She admitted in her testimony that her
recollection was vague about the details of the conversation.
I also find that the striking employees were at Held’s home
between about 7 and 7:30 p.m. and remained for 20 to 30
minutes. Held’s estimate of the timing was plainly erroneous.
The strikers could not have arrived between 4:30 and 5 p.m.,
remained for 20 to 30 minutes, and left between 6 and 6:30
p.m. Moreover, Held stated in her affidavit that they left
about 7:30 p.m., which was probably correct. However, I
credit Held’s testimony that Peckstein ended the conversation
by saying, ‘‘Well, if you valued your life.’’ Held impressed
me as a candid person. Held and Peckstein were or had been
friends. I find it unlikely that Held would knowingly make
a false accusation against Peckstein. Held was also careful to
make clear that Depies and Westfahl did not threaten her. In
light of Held’s testimony, I find that she told the Company
that only Peckstein threatened her, and I do not credit
Lamondo’s testimony that she said all three employees
threatened her.
2. Analysis and concluding findings
All the alleged unfair labor practices, i.e., the terminations
of Peckstein, Westfahl, and Jaeger, occurred at times when
there was no collective-bargaining contract in effect between
the Company and the Union. Therefore the subject matter did
not arise under a contract, and deferral to arbitration is not
warranted. Indiana & Michigan Electric Co., 284 NLRB 53,
60 (1987). Moreover, the Company’s discharge of Peckstein
was a repudiation of the arbitration process then in progress.
For this additional reason, deferral would not be warranted.
I find that the Company violated Section 8(a)(3) and (1)
by discharging Peckstein on July 3. The discharge was un-
lawful for several reasons. First, as of July 3 there was no
outstanding union request for Peckstein’s termination. The
parties had agreed to submit the matter to arbitration, and on
being notified of the Company’s intention, the Union re-
quested that the Company wait until the arbitrator ruled, and
that Peckstein and the other employees not be terminated.
Therefore the Company had no basis for asserting that it was
discharging Peckstein pursuant to a union-security agreement.
Indeed, as the Company itself argued in the grievance pro-
ceeding, the contract contained a neutrality clause which re-
quired it to remain neutral with respect to union membership.
Instead the Company, acting on its own initiative, discharged
Peckstein, ostensibly for her lack of union membership. Such
conduct constitutes discrimination in regard to tenure of em-
ployment to encourage or discourage membership in a labor
organization. Therefore the Company violated Section
8(a)(3). Second, on the basis of its own assertions, the Com-
pany had in the words of the statute, ‘‘reasonable grounds
for believing that membership was denied or terminated for
reasons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.’’ In the
grievance proceeding the Company argued that the Union
failed to prove that Peckstein and the other employees were
members in good standing as of July 8, 1987, or became
members thereafter, and therefore required to pay dues under
the maintenance-of-membership clause. In its answer to the
complaint, the Company asserted in sum that the Union’s
original demand was arbitrary, discriminatory, and unlawful.
The Company’s position with regard to the employees’ obli-
gations, whether or not correct, was reasonable. Having taken
that position, the Act required the Company to stay its hand
until the matter was resolved through arbitration, or, as hap-
pened, the Union withdrew its request. Having failed to do
so, the Company violated Section 8(a)(3). Third, and most
1471ALTO-SHAAM, INC.
fundamentally, I find that the Company’s professed capitula-
tion to the Union’s demand was a sham and pretext. The
Company discharged Peckstein, Owens, and Hlavenka be-
cause they joined the strike. For over a year the Company
stubbornly resisted the Union’s request that the employees be
terminated for nonpayment of dues. As soon as the three em-
ployees demonstrated their support for the Union by joining
the strike, the Company suddenly became a champion of
compulsory unionism, discharging the three employees in
disregard of the Union’s request that they not be terminated.
However, the Company did not terminate Held, who crossed
the picket line, and offered no explanation for its selectivity.
When the Union abandoned its strike, the Company per-
mitted Owens and Hlavenka to return to work, but professed
to again discharge Peckstein. On the basis of the timing of
the Company’s actions, and its discriminatory action in ter-
minating strikers but retaining the nonstriker, General Coun-
sel presented a prima facie case that the Company discharged
Peckstein because of her protected union and concerted ac-
tivity in joining the strike. In light of the Company’s failure
to explain and justify its discriminatory pattern of conduct,
the Company failed to meet its burden of establishing that
it would have terminated Peckstein in the absence of her sup-
port for the strike. Therefore the Company violated Section
8(a)(3) and (1) of the Act.
This brings me to the matter of the second ‘‘termination’’
of Peckstein. I find that Peckstein’s closing remark, ‘‘Well,
if you valued your life,’’ although vague and tentative, could
reasonably be interpreted by Held as a threat of physical
harm if she continued to cross the picket line. Therefore
Peckstein’s threat ‘‘had a reasonable tendency to coerce and
intimidate [Held] in the exercise of her rights under the
Act.’’ Clear Pine Mouldings, 268 NLRB 1044, 1048 (1984),
affd. 765 F.2d 148 (9th Cir. 1985). Peckstein’s threat was
comparable to a threat found by the Board to be coercive in
Clear Pine Mouldings (striker Sittser telling a nonstriking
employee that she was taking her life in her hands by cross-
ing the picket line and would live to regret it).
In cases involving alleged strike misconduct by current
employees (here, Westfahl and Jaeger), the allocation of bur-
den of proof and burden of going forward with the evidence
may be summarized as follows: General Counsel must first
establish a prima facie case consisting of (1) the employees,
to the employer’s knowledge, were engaged in a lawful
strike; (2) an unconditional offer to return to work was made
for or on behalf of employees; and (3) the employer failed
or refused to reinstate the employees. The burden then shifts
to the employer to establish that it held an honest belief that
the striking employees who were denied reinstatement en-
gaged in misconduct of such a serious character as to justify
the employer in denying them their jobs. Once having estab-
lished such an honest belief that the employees engaged in
the strike misconduct, and were refused reinstatement there-
for, the employer (absent other considerations not here al-
leged, e.g., disparate treatment, condonation, or unfair labor
practice strike), is normally absolved from liability unless
General Counsel affirmatively proves that the employees did
not in fact engage in such misconduct. See General Tele-
phone Co. of Michigan, 251 NLRB 737 (1980), enfd. 673
F.2d 551 (D.C. Cir. 1981); National Steel Corp., 242 NLRB
294, 298 (1979). See also NLRB v. Burnup & Sims, 379 U.S.
21 (1964). In General Telephone Co. of Michigan, supra, the
Board held with respect to the employer’s burden:
The burden of establishing an ‘‘honest belief’’ of
misconduct requires more than the employer’s mere as-
sertion that an ‘‘honest belief’’ of such misconduct was
the motivating force behind the meting out of dis-
cipline. Meeting the burden also requires more than a
general statement about the guidelines used in estab-
lishing the alleged ‘‘honest belief.’’ Rather, it requires
some specificity in the record, linking particular em-
ployees to particular allegations of misconduct.
The above rules have since been modified in an important
substantive respect, with respect to the definition of ‘‘mis-
conduct of such a serious character’’ as to justify denial of
reinstatement. In W. C. McQuaide, Inc., 220 NLRB 593, 594
(1975), enf. denied in pertinent part 552 F.2d 519, 527–528
(3d Cir. 1977), the Board held in sum that verbal threats by
strikers, ‘‘not accompanied by any physical acts or gestures
that would provide added emphasis or meaning to [the]
words,’’ do not constitute serious strike misconduct warrant-
ing an employer’s refusal to reinstate the strikers. However,
in Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984),
affd. 765 F.2d 148 (9th Cir. 1985), the Board rejected this
standard, holding instead that the test for determining wheth-
er verbal threats by strikers directed at fellow employees jus-
tify an employer’s refusal to reinstate is ‘‘whether the mis-
conduct is such that, under the circumstances existing, it may
reasonably tend to coerce or intimidate employees in the ex-
ercise of rights protected under the Act.’’
If the above standards were applicable to Peckstein, I
would find that the Company did not violate the Act by ter-
minating her on July 13. On the basis of reports received by
company supervisors, the Company could honestly believe
that Peckstein engaged in unprotected strike activity which
would justify denial of reinstatement. General Counsel failed
to prove that Peckstein did not engage in such misconduct.
However, those standards are not applicable to Peckstein. As
of July 3, Peckstein’s status was that of a discriminatorily
discharged employee who was entitled to the usual Board
remedies of reinstatement with backpay. The Company’s ac-
tion on July 14 was not a discharge or termination. The
Company had already terminated Peckstein. Rather by its
July 13 letter the Company in substance refused to reinstate
Peckstein. The Michigan Unemployment Compensation Divi-
sion recognized as much. As the Division correctly held:
‘‘An employee cannot be discharged twice without having
been rehired in between the discharges.’’ The Company
never rehired Peckstein. Therefore the issue presented is
whether Peckstein, by reason of her misconduct on July 6,
should be denied the usual remedies of reinstatement with
backpay for her discriminatory discharge on July 3. The
Board has in some cases exercised its discretion to deny rein-
statement to a discriminatee who engaged in outrageous con-
duct which rendered the employee unfit for employment,
where (as here) such misconduct occurred after the discrimi-
natory termination or was unknown to the employer at the
time of the termination. See East Island Swiss Products, 220
NLRB 175 (1975), involving conviction for misappropriating
funds, and O. R. Cooper & Son, 220 NLRB 287 fn. 1
(1975), involving intentional destruction of employer’s prop-
1472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 North Cambria Fuel Co., 247 NLRB 1408 (1980), enfd. 645
F.2d 177 (3d Cir. 1981), relied on by the Company (Br. 29), is not
in point. In that case the Board found the employer had reason to
believe that all the participating pickets (except one who left before
the misconduct began), were involved in rock throwing, and General
Counsel failed to prove that any of them did not engage in such mis-
conduct. Buffalo Concrete, 276 NLRB 839, 842 (1985), revd. in per-
tinent part 803 F.2d 1333, 1340 (4th Cir. 1986), cited by General
Counsel (Br. 18), is also distinguishable on its facts. In that case a
striker, Johnson, was present when another striker assaulted a non-
striker. While this conduct was occurring, Johnson told another strik-
er, ‘‘Don’t get on the radio.’’ The court, in disagreement with the
Board, found that Johnson thereby associated himself with the as-
sault, and therefore the employer lawfully refused to reinstate John-
son. Unlike the present case, North Cambria and Buffalo Concrete
did not involve strikers who were present but demonstrably did not
participate in or associate with the improper conduct.
erty. The standard for determining whether a discriminatee
has engaged in conduct which renders the employee unfit for
employment, is much stricter than that for determining
whether an employer may refuse to reinstate a current em-
ployee by reason of strike misconduct. Coercive strike mis-
conduct does not per se preclude reinstatement of the
discriminatee. In Dalton Telephone Co., 82 NLRB 1001,
1006 (1949), enfd. 187 F.2d 811 (5th Cir. 1951), the Board
held that an unfair labor practice striker (who together with
the other strikers had been unlawfully denied reinstatement,
was not rendered unfit for reinstatement by reason of the fact
that she pleaded guilty to a charge of assault and battery on
a nonstriker). In Hotel Roanoke, 293 NLRB 182 (1989), the
Board held that an unfair labor practice striker was entitled
to reinstatement, notwithstanding that she told a nonstriker
‘‘I’ll beat your ass.’’ In Shell Oil Co. v. NLRB, 196 F.2d 637
(5th Cir. 1952), the court held that proven theft did not pre-
clude reinstatement of a discriminatorily discharged em-
ployee.
I find that Peckstein did not engage in strike-related mis-
conduct of such an outrageous character as to render her
unfit for employment. Her threat to Held was vague, general-
ized, and unaccompanied by any gesture or act of violence.
This was a single, isolated statement. The strike ended a
week later, and is long since over. Prior to Clear Pine
Mouldings, the threat would not have even precluded rein-
statement of a currently employed striker who had not been
the victim of a discriminatory discharge. Therefore I find that
the Company violated Section 8(a)(3) and (1) by refusing to
reinstate Peckstein, and that by reason of her unlawful dis-
charge on July 3, she is entitled to the usual remedies of re-
instatement with backpay.
With respect to Westfahl, I find that the Company failed
to demonstrate it had an honest belief that Westfahl engaged
in serious strike misconduct which would justify denial of re-
instatement. The Company knew at most that Westfahl was
present when Peckstein made the alleged threat. This alone
would not give rise to a good-faith belief that Westfahl par-
ticipated in or was responsible for such misconduct. See
General Telephone Co. of Michigan, supra. Assuming that
the Company did have a good-faith belief, I would find that
General Counsel carried its burden of proving that Westfahl
did not participate in and was not responsible for the mis-
conduct. Peckstein, Depies, and Westfahl agreed that they
would visit Held for the purpose of talking to her about join-
ing the strike, the Company’s contract proposal, and whether
Held received a discharge letter. Such conversation con-
stitutes protected activity under Section 7 of the Act. They
did not agree to threaten her or engage in any other improper
conduct. Held invited the three employees into her home. At
the end of the conversation Peckstein took it on herself to
make an improper threat. By this time Westfahl had excluded
himself from the conversation, was barely listening to what
was said, and was substantially engaged in babysitting. He
was not responsible for or a party to Peckstein’s improper re-
mark. Therefore I find that the Company violated Section
8(a)(3) and (1) by terminating Westfahl.4
B. Termination of Jaeger
1. Jaeger’s discharge and the events of July 2
Employee James Jaeger joined the strike and participated
in the picketing. By letter dated July 13, the Company noti-
fied Jaeger that he was terminated as of that date ‘‘for seri-
ous strike misconduct.’’ Company President Maahs initially
testified that Jaeger was terminated ‘‘because of an incident
involving him claiming that my son,’’ (meaning Company
National Sales Manager Steve Maahs) ‘‘hit him going
through the picket line.’’ President Maahs testified that he
considered the allegation to be false, and there was no other
specific reason for the termination. President Maahs volun-
teered that there was a pattern of vandalism, with tacks
thrown under tires and tires slashed. However, Maahs as-
serted that Jaeger was not terminated because of other em-
ployees’ alleged misconduct. After further questioning on the
reason for Jaeger’s termination, President Maahs added, al-
most as an afterthought, that part of the incident involved
Jaeger pounding and jumping on Steve Maahs’ car.
The incident in question occurred on July 2, the first day
of the strike. The Company procured the services of
Waukesha County deputy sheriffs in connection with the
strike. These deputy sheriffs served on a volunteer basis,
after or before their regular work shift. The Company paid
them directly at rates negotiated by the Company and the
Waukesha County sheriff. They were responsible for keeping
the peace on the picket line, maintaining crowd control, pro-
tecting persons and property, and initially, to direct traffic in
the plant area. After July 2, the Menomonee Falls police as-
sumed responsibility for directing traffic. However, on July
2, there were no municipal police at the strike scene. Deputy
Sheriff Paul Renkas testified that he tried to reduce the level
of profanity because of the presence of children in the area.
He told the Union that he would arrest all the pickets if they
engaged in profanity or suggestive physical gestures. The
evidence indicates that at least to some extent the deputy
sheriffs acted in accordance with the Company’s instructions
or requests. As will be further discussed, on July 16 (after
the strike ended) the Company summoned two deputy sher-
iffs to be present when Jaeger was informed of his discharge.
The complaint does not allege, nor is it necessary to deter-
mine whether the deputy sheriffs acted as company agents.
However, as the Company presented two deputy sheriffs as
witnesses in connection with the Jaeger termination, I find it
necessary to consider the weight to be accorded their testi-
mony by reason of their status as deputy sheriffs. As trained
law enforcement officers, I find that their testimony as to ob-
jective factors such as distances and dimensions is entitled to
1473ALTO-SHAAM, INC.
5 Company counsel prepared a rough diagram of the facility area,
which he used in questioning witnesses. However, he mismarked
north and south, causing some confusion during cross-examination of
General Counsel’s witnesses. The diagram was corrected during the
testimony of Deputy Sheriff Renkas, the Company’s first witness
concerning the Jaeger incident.
6 Company counsel represented that Deputy Sheriff Ehlers was un-
able to testify because of his illness. I have not drawn any inference
by reason of his failure to testify.
7 In connection with the incident, ‘‘Maahs’’ refers to Steve Maahs.
particular significance. However, as they were paid directly
by the Company, and acted to some extent at the Company’s
direction, I find that they cannot be regarded as wholly im-
partial witnesses, in the same sense that I would regard the
local police. Therefore on the critical questions of what Jae-
ger and Steve Maahs did or did not do, I find that their testi-
mony is not entitled to any special weight.
The Company’s facility is located on Water Street, which
is east of the plant, running in a north-south direction.5 There
is a parking lot, normally used by factory employees, located
southeast of the facility. South of the facility and factory em-
ployees’ parking area is a driveway leading to Water Street.
The driveway is about 12 to 15 feet wide, reaching a width
of about 16 feet at Water Street, i.e., the driveway is wide
enough to accommodate two lanes of cars. At the southeast
corner of the driveway, where it intersects with Water Street,
there is a decorative island, some 3-1/2 to 4-1/2 feet wide
and 12 feet long, consisting of a mound covered with rocks
and shrubbery. South of the driveway is a parking area nor-
mally used by office personnel. Cars here are parked perpen-
dicular to the driveway. There is no barrier between the
driveway and the office parking area and the driveway. Cars
normally back out and proceed east on the driveway to
Water Street. There is another access to Water Street located
south of the office parking area. This access was closed dur-
ing the strike, although some personnel occasionally made
use of the access. Factory employees normally worked from
7 a.m. to 3 p.m., although some worked overtime. Office
personnel normally worked from 8:30 a.m. until (at least on
July 2) shortly before 5 p.m.
On July 2, between 4:30 and 5 p.m., about 20 pickets were
gathered at the entrance to the driveway, yelling, shouting,
carrying picket signs, and marching across the driveway.
There were also spectators and two deputy sheriffs (Renkas
and Ehlers) on duty. A total of about 30 persons were
present in the area of the driveway entrance. At about 4:50
p.m. cars lined up in the driveway preparatory to leaving the
facility. The deputy sheriff followed a practice of letting the
pickets make one circle of the driveway entrance in front of
each exiting vehicle, and then permitted the driver to exit
onto Water Street. General Counsel presented three witnesses
concerning the incident (Jaeger, Union Representative Robert
Glaser, and striker Bradley Paul). The Company presented
four witnesses concerning the incident (Steve Maahs, Deputy
Sheriff Renkas, and office personnel Karen Lindberg and
Rene’ Conrad.6 As will be discussed, only Jaeger was in a
position to see exactly what happened, although Steve Maahs
and possibly Conrad were in a position to see part of the in-
cident.7
Steve Maahs testified in sum as follows: At about 5 p.m.
he pulled out of the office personnel parking area and pro-
ceeded down the driveway toward Water Street, about 50
yards away. He was in a line of cars proceeding on the right
(south) side of the driveway. Karen Lindberg was driving in
front of him and Rene’ Conrad in back of him. Cars were
parked on both sides of the driveway. Lindberg proceeded up
to Water Street and there stopped for about 3 minutes.
Maahs stopped behind her. The deputy sheriffs permitted the
pickets to circle the driveway entrance. They then directed
the pickets to stop. All but one congregated on the left
(north) side of the driveway. Jaeger went to the right side
near the decorative island. Lindberg proceeded out and south
on Water Street, and Maahs moved up to take her place at
the head of the line. He remained stopped for 6 to 8 seconds,
and then proceeded ahead, intending to turn right on Water
Street. At this point Jaeger, who had a picket sign in his
right hand, clenched his left fist, and struck the hood of
Maahs’ car with that fist. The hood buckled. Maahs later
found a slight dent in his car. Jaeger did not make any sud-
den movement. He was 3 to 6 inches from Maahs’ car.
Maahs later found a slight dent in his car. Maahs was close
to Jaeger because of the large group of pickets on his left.
Maahs proceeded away from the plant and said nothing to
anyone about the matter until July 5, when he returned to
work. At that time he learned that Jaeger complained to the
police that Maahs struck him with Maahs’ car. On July 10
Maahs, accompanied by company counsel, gave a written
statement to the Menomonee Falls police department. In that
statement Maahs said that he did not remember with which
hand Jaeger struck his hood. He also said that he did not
know if any part of his car struck Jaeger, and did not know
that anything happened until he returned to work on July 5.
In his investigative affidavit to the Board’s Regional Office,
dated August 21, Maahs stated that Jaeger had a picket sign
in his right hand, made a fist with his left hand, and ap-
peared to jump up and slam his left hand into the car’s hood.
Maahs added that this was the only contact between Jaeger
and Maahs’ vehicle.
Deputy Sheriff Renkas testified in sum as follows: At
about 4:50 p.m. cars leaving the facility were as directed,
lined up on the right side of the driveway. All cars came
from the factory parking area. There were no cars parked in
the office parking area. Maahs’ was the second or third car
in line. The deputy sheriffs permitted the first car to exit, and
then the second, as the pickets at this point refrained from
marching across the driveway. Maahs’ car was the next car
in line. Jaeger was the only person on the south side of the
driveway. Renkas did not recall that Jaeger had a picket sign.
Maahs proceeded ahead at less than 5 miles per hour. At this
point Jaeger, who had been about 3 feet from Maahs’ car,
made a ‘‘surge’’ or ‘‘sudden movement’’ toward Maahs’ car.
Renkas, who was watching both sides of the picket line,
heard ‘‘some type of contact, or thump.’’ Jaeger was not be-
hind Renkas when he heard the thump. Jaeger screamed vio-
lently. His body rotated toward the decorative island, and
Jaeger jumped up and down on the paved area. Maahs pro-
ceeded south on Water Street. Renkas stopped traffic, sum-
moned Jaeger, and turned over traffic direction to Deputy
Sheriff Ehlers. Jaeger yelled that he was hit by Maahs’ car.
Renkas asked what happened. Jaeger first said that he was
hit by the rear bumper, but later said the tire ran over his
foot. He said the injury was to the top of his right foot.
Renkas asked if he wanted medical attention. Jaeger was un-
certain, although Renkas offered to accompany him to the
1474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hospital. Renkas said that if Jaeger was not injured, he could
be charged with obstruction of a police officer. Jaeger de-
clined medical attention. Renkas asked to examine Jaeger’s
foot, and had him remove first his shoe and then his sock.
Renkas observed no signs of injury, no marks on the shoe
or sock, and only ‘‘a sweaty foot with impressions of cotton
from the socks on.’’ Renkas was requested to and gave a
written statement to the Menomonee Falls police in connec-
tion with Jaeger’s complaint. Renkas stated: ‘‘at approxi-
mately 16:55 hrs. I was observing the striking picketers on
the north side of the drive. Behind me I heard a car accel-
erating and a thump. When I turned around I observed the
car leaving south on Water Street and [Jaeger] yelling and
jumping up and down.’’ Renkas said nothing about Jaeger
making a lunge or sudden movement. Renkas’ notes of his
interview with Jaeger indicated ‘‘pain on top of right foot,’’
‘‘run over,’’ and ‘‘may have struck on bumper.’’ There was
no reference to ‘‘tire’’ or ‘‘rear’’ bumper. I find that Renkas’
statement to the police is a more reliable indicator of what
he saw and heard than his own prepared testimony in this
proceeding. In light of the admissions in his statement, I find
that Renkas did not see the incident between Maahs and Jae-
ger.
Company Marketing Coordinator Karen Lindberg testified
in sum as follows: She was first in line waiting to exit the
driveway. Maahs was directly in line behind her, the line
being on the right side of the driveway. The deputy sheriffs
stopped her, and she remained for about 2 minutes while the
pickets circled the driveway entrance. When the officers mo-
tioned her to to proceed, she moved slowly forward and
turned left onto Water Street. She did not know the factory
employees, and did not see the incident between Maahs and
Jaeger. Rene’ Conrad, then a company office employee, testi-
fied in sum as follows: Maahs had been parked in the factory
employees’ lot. She was the third in a line of cars exiting
the driveway. The officers permitted the car in front of her
to go. At that time there were about two strikers on the right
side of the car. As the car proceeded slowly ahead and
turned right, one of the strikers ‘‘apparently just leaned him-
self into the car,’’ and then grabbed his leg or knee, saying
‘‘I’m hurt.’’ Conrad subsequently testified that the striker
‘‘lunged’’ into the car. Conrad expressed the opinion that the
striker was faking an accident, and testified that she did not
see any contact between the striker and the car. She testified
that the striker did not hit the car with his fist, and that she
never said the striker threw himself on the car. However, in
her affidavit to the Board’s Regional Office, Conrad stated
that ‘‘the guy who said he got hit threw himself on Steve’s
car.’’
James Jaeger testified in sum as follows: On July 2 he ar-
rived on the picket line at about 9 a.m. and remained all day.
Cars began leaving at about 5 p.m. They were lined up on
the left (north) side of the driveway. There were some 20 to
30 pickets in the driveway area. At the time of the incident,
Jaeger was on the south side of the driveway near the deco-
rative island. He was holding a picket sign (poster board on
a stick). There were pickets on both sides of the line of cars.
However, Jaeger could not say how close the nearest picket
was to him. The pickets made a loop and then moved out
of the way of the line of cars. A car, which he subsequently
recognized as Maahs’, pulled out of the office parking area,
and proceeded down the south side of the driveway, past the
line of cars, accelerated to a speed of about 25 miles per
hour, and ‘‘caught me in the, my right leg and foot as he
went by.’’ The lowest part of the car, near the headlight,
possibly the bumper, struck Jaeger’s foot and lower leg. The
impact knocked Jaeger slightly off balance, but he continued
to hold his picket sign. Maahs spun his wheels and sped
down Water Street without stopping. Jaeger did not strike
Maahs’ car, although he may have touched the car when he
jumped out of the way. As Maahs proceeded down the drive-
way, Jaeger initially assumed that Maahs would slow down
or stop. Jaeger tried to move out of Maahs’ way when the
car was about 15 feet away. Jaeger sustained a contusion to
the top (instep) of his right foot. He subsequently felt his
foot throbbing when he arrived home. The bruised area was
purple for about a week. There was initially slight swelling,
but no break in the skin. His foot was red, but this may have
been from wearing his shoe all day. That evening Jaeger
went to a clinic. However, he did not describe what if any
treatment he received. Jaeger told the deputy sheriff that
Maahs hit him with his car. Jaeger did not otherwise describe
their conversation. Jaeger also made a report to the
Menomonee Falls police.
Union Representative Glaser testified in sum as follows:
On July 2 he was at the picket line when the incident oc-
curred. He saw a car approaching the driveway. He heard a
sound, like something hit. He turned and saw Jaeger ‘‘being
propelled backward.’’ He did not know whether Jaeger
jumped. Striker Bradley Paul’s testimony was confused and
contradictory. Paul initially testified that at the time of the
incident he was close to Jaeger, and that he saw Maahs
‘‘backing out of his parking spot heading toward us.’’ Paul
subsequently testified that he was on the driver’s side of the
car, i.e., on the opposite side from Jaeger. Paul variously tes-
tified that there were no cars lined up in the driveway, that
there were a few cars in the driveway, and that no cars
exited before Maahs. Paul further testified in sum as follows:
He did not see Jaeger hit, and he did not see any contact be-
tween the car and Jaeger, because the hood of the car
blocked his view. However, he heard a thud and saw Jaeger
spinning around. Jaeger backed toward the decorative island.
Maahs appeared to be driving at about 10 to 15 miles per
hour, but not more than 15 miles per hour. In light of the
testimony of Glaser and Paul, it is evident that neither saw
what actually happened.
Jaeger and Maahs each filed a charge with the
Menomonee Falls police department. Jaeger charged that
Maahs struck him with his car, and Maahs charged that Jae-
ger made a false report. The police declined to prosecute ei-
ther charge. The Company failed to present any corroborative
evidence to support Maahs’ assertion that Jaeger slightly
dented the hood of his car. The Company presented no pho-
tographs of the hood, and Maahs never repaired the alleged
damage. As indicated, Maahs admitted that until he learned
that Jaeger complained to the police he was inclined to ig-
nore the whole matter. General Counsel failed to present any
corroborative evidence to support Jaeger’s assertion that he
sustained a contusion on his foot. No photographs were taken
of his foot, and no evidence was presented concerning treat-
ment if any and diagnosis at the clinic. Jaeger authorized re-
lease of the clinic’s records, and General Counsel had the
clinic’s report in its possession. However, General Counsel
1475ALTO-SHAAM, INC.
did not offer the report in evidence, either independently or
through testimony.
There are elements of truth in the testimony of the wit-
nesses. However, I find that none of the witnesses presented
an accurate description of what happened. Witnesses for each
side contradicted themselves and each other all over the lot.
However, I find that their collective testimony enables me to
determine what probably occurred and what probably did not
occur. I find that Jaeger did not dent the hood of Maahs’ car,
slightly or otherwise. As indicated, Maahs’ assertion in this
regard was totally uncorroborated. His inclination to ignore
the matter, and not even mention it, was inconsistent with
that assertion. Jaeger was holding a picket sign in one hand,
and never let go of the sign. Therefore it is unlikely that he
could have struck the car with sufficient force to dent the
hood. I further find that Jaeger did not sustain any injury. As
indicated, Jaeger’s assertion in this regard was totally
uncorroborated. Moreover, Jaeger’s description of the contact
between himself and the car, was inconsistent with injury to
the instep of his foot. If Jaeger were struck by the area of
the car near the headlight, then any injury would be to his
leg, and not the instep of his foot. Moreover, if Maahs were
proceeding at 25 miles per hour, then Jaeger probably would
have suffered a fracture or other serious injury, and not
merely a minor bruise on his foot. Even if I credited Jaeger’s
testimony concerning the alleged bruise, it is evident (and
even striker Paul conceded), that Maahs must have been pro-
ceeding at a relatively low rate of speed.
The evidence indicates that there was considerable conges-
tion and crowding at the driveway exit to Water Street. All
the pickets except Jaeger were congregated on the north side
of the driveway. Maahs admitted in his testimony that he
tried to avoid the large group of pickets on his left, that he
intended to turn right, and that he came within a few inches
of Jaeger, who was in a narrow area between the car and the
decorative island. Jaeger admitted that he may have touched
Maahs’ car when he jumped out of the way. Their testimony
points the way to the actual facts. I find that Maahs was pro-
ceeding in a line of cars exiting from the south side of the
driveway. It is unlikely that the deputy sheriffs would direct
outgoing traffic to proceed on the left side of the driveway.
As Maahs proceeded out the driveway, attempting to avoid
the congregated pickets on his left, he unintentionally
brushed against Jaeger on his right. Jaeger, believing that
Maahs tried to run him down, angrily hit the hood of Maahs’
car with his fist, but did no damage. This was the noise
which the witnesses heard. It is unlikely that the slight im-
pact between Maahs’ car and Jaeger’s body caused an audi-
ble noise. Jaeger, who had been on the picket line all day,
easily confused the fatigue pains in his feet with a belief that
they were caused by the impact of Maahs’ car.
Returning to the testimony of President Maahs, I find in
light of that testimony, that the alleged misconduct for which
Jaeger was assertedly discharged, consisted of his accusation
that Steve Maahs hit him. The Company did not terminate
Jaeger because he allegedly pounded or jumped on Steve
Maahs’ car. If Jaeger did not accuse Steve Maahs of hitting
him, the entire incident would have been disregarded. As in-
dicated, Steve Maahs never even intended to mention the in-
cident to anyone. Assuming, arguendo, that Jaeger’s action in
hitting the car played a role in his discharge, I would find
that (1) the Company did not have an honest belief that Jae-
ger engaged in coercive strike misconduct of such a serious
nature as to justify denial of reinstatement, and (2) the evi-
dence demonstrates that Jaeger did not engage in coercive
misconduct. As found, Jaeger, acting in the mistaken belief
that Steve Maahs tried to run him down, angrily struck one
blow at Maahs’ car with his bare fist, doing no damage.
Maahs attached no significance to the incident. So far as in-
dicated by the present record, no one other than Maahs saw
Jaeger hit his car. As indicated, Rene’ Conrad testified that
she did not see Jaeger hit the car. In these circumstances,
Jaeger’s spontaneous response cannot be viewed as coercive
misconduct which would warrant denial of reinstatement. See
and compare Newport News Shipbuilding Co. v. NLRB, 738
F.2d 1404, 1409–1410 (4th Cir. 1984) (employer not justified
in terminating striker who forced one departing vehicle to
slow down, rapped her fist against the windows of two de-
parting vehicles, and bit and kicked a police officer who
tried to arrest her); Pace Oldsmobile, 256 NLRB 1001, 1011
(1981), enfd. in pertinent part 681 F.2d 99 (2d Cir. 1982)
(employer not justified in denying reinstatement to striker
who hit window of employer’s showroom without damaging
window).
As for Jaeger’s charge that Maahs hit him, i.e., the pro-
fessed reason for Jaeger’s termination, the pertinent Board
policy was recently restated in Wabeek Country Club, 301
NLRB 694 (1991). ‘‘Within the area of concerted activities,
false and inaccurate statements are protected so long as they
are not malicious.’’ Jaeger’s allegation did not rise to the
level of a maliciously false statement. First, the accusation
was technically true, because Maahs’ car brushed against
Jaeger as Maahs exited the driveway. Second, Jaeger had a
mistaken although good-faith belief that Maahs intentionally
struck him, causing injury to his foot. His accusation was not
malicious, i.e., it did not constitute ‘‘the intentional doing of
a wrongful act without just cause or excuse, with an intent
to inflict an injury or under circumstances that the law will
imply an evil intent.’’ Black’s Law Dictionary, 5th Edition,
definition of ‘‘malice.’’ Therefore Jaeger’s accusations that
Maahs struck and injured him, constituted expressions of
opinion in connection with the strike, which are protected ac-
tivity under Section 7 of the Act. By terminating Jaeger for
making these accusations, the Company violated Section
8(a)(3) and (1).
2. The events of July 16 and whether Jaeger is entitled
to reinstatement with backpay
As Jaeger was discriminatorily and unlawfully terminated,
he is entitled to the usual remedies of reinstatement with
backpay, unless he subsequently engaged in outrageous mis-
conduct which rendered him unfit for employment. The
Company contends that by reason of an incident which oc-
curred on July 16, Jaeger would not be entitled to those rem-
edies even if his discharge was unlawful.
On Monday, July 16, Jaeger returned to work with other
strikers. His termination notice arrived in the mail that day.
At the time he reported to work he was unaware of his ter-
mination. He found his timecard had been pulled. Three wit-
nesses testified concerning the ensuing events: Jaeger, Coun-
ty Deputy Sheriff James Materna, and Dennis Jansen, a com-
pany supervisor who is presently in training to succeed Plant
Superintendent Lamondo. Most of the material operative
facts are undisputed, although one critical fact is in dispute.
1476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jaeger testified in sum as follows: Lamondo told him he
no longer worked there. Jaeger asked why. Lamondo an-
swered ‘‘because I said so.’’ Jaeger suggested this was no
reason. Lamondo asked if he would talk to Company Labor
Relations Consultant James Schalow. Jaeger agreed. He wait-
ed for about 15 minutes. Lamondo returned with Schalow
and two deputy sheriffs. Jaeger asked why he was fired.
Schalow answered that he was fired for serious strike mis-
conduct. (In his affidavit to the Board, Jaeger stated that
Schalow said he was fired for ‘‘serious misconduct on the
picket line.’’) Jaeger asked what he did. Schalow repeated
that he was fired, spelling the word. He was yelling. Jaeger
asked whether it was because he was hit by a car. Schalow
answered no, that Jaeger was a liar, and that he pounded on
the car with his fist and picket sign, denting the hood. Jaeger
called Schalow a ‘‘fat fucking pig.’’ Schalow told Jaeger to
leave. Jaeger went for the door, but was grabbed by the dep-
uty sheriffs. They twisted his arm, called him a troublemaker
and an asshole, frisked him, including his private parts, and
handcuffed him. Jaeger asked why he was arrested. They
said because of his vulgar language. Jaeger replied that they
called him an asshole. The Menomonee Falls police arrived,
and the deputy sheriffs transferred custody of Jaeger to the
police. Jaeger was cited for disorderly conduct. Jaeger was
convicted and fined $85 for disorderly conduct, specifically,
being loud or boisterous in a public or private place. Jaeger
was never charged with attempted assault.
Supervisor Jansen testified in sum as follows: On July 16
at about 2:45 p.m. he was present in Lamondo’s office. Also
present were Jaeger, Lamondo, two other company per-
sonnel, and two deputy sheriffs. Schalow arrived a few min-
utes later. Jaeger came in and asked why he was terminated.
Lamondo said he was fired, and would receive a letter. Jae-
ger again asked why he was fired. Lamondo said he would
get Schalow to come and explain the reason. After Schalow
arrived there was a discussion which got heated. Jansen put
his head down. When he looked up Jaeger was being hand-
cuffed and taken away. Jansen’s testimony has no probative
value. His testimony concerning the initial conversation be-
tween Jaeger and Lamondo was hearsay. That conversation
took place at the timeclock. Jansen was not a party to their
conversation. Jaeger was in Lamondo’s office because
Lamondo arranged for him to meet there with Schalow. As
for what transpired between Jaeger and Schalow, Jansen saw
and heard nothing or chose not to see or hear anything.
Deputy Sheriff Materna testified in sum as follows: On the
afternoon of July 16, he was present in a company office
with the deputy sheriff Brian Gerr, Jaeger, Schalow, and four
or five other persons. The Company requested the deputies’
presence because ‘‘there might be some problems with a
party.’’ When the deputies arrived Jaeger and Schalow were
talking. Schalow raised his voice toward the end of the meet-
ing. When the deputies arrived Jaeger was being terminated.
Schalow told Jaeger at least three times that he was termi-
nated. He spelled the word ‘‘fired.’’ Jaeger insisted he was
not fired. Schalow requested him to leave. Jaeger said he
would not leave, and called Schalow a fat fucking pig. At
this point the deputies told Jaeger he should leave. Jaeger
said he would not leave until he was ready. Jaeger was seat-
ed about 6 feet from Schalow. He got up, and lunged toward
Schalow, with one hand toward Schalow’s throat. The depu-
ties grabbed Jaeger when he was about 2 feet from Schalow.
Jaeger struggled and used profanity toward the deputies.
They frisked his entire body, arrested him, and turned him
over to the local police. They charged him with disorderly
conduct because he was loud and unruly, specifically, be-
cause of the profanity he used toward the deputies. Jaeger
was not charged with assault or attempted battery.
The only material fact question presented by the events of
July 16, concerns what if anything Jaeger did when he arose
from his seat. This boils down to a credibility issue between
Jaeger and Deputy Sheriff Materna. Although there were
seven persons in the room besides Jaeger (Schalow, four
company personnel, and the two officers), the Company pre-
sented only two as witnesses to the event. Only Materna pro-
fessed to see what happened, and only he testified that Jaeger
made any kind of threatening physical movement toward
Schalow. Lamondo was presented as a company witness, but
was not asked about the July 16 events, although he was in-
volved in those events. Schalow, together with Attorney
Steinle, presented the Company’s case in this proceeding, but
did not testify. The Company excused Deputy Sheriff Gerr
as a witness, asserting that his testimony would have been
repetitious. Considering that Materna’s testimony concerning
the matter was totally uncorroborated, the excuse is not per-
suasive. The Company did not call as witnesses the other
two company personnel who were present. I find that the
Company’s failure to question Lamondo about the matter, al-
though he was presented as a company witness, warrants an
inference that his testimony would have been unfavorable to
the Company. Martin Luther King, Sr. Nursing Center, 231
NLRB 15 fn. 1 (1977).
I credit Jaeger’s testimony concerning his conversation
with Lamondo, which led to the meeting with Schalow. That
testimony was contradicted only by Jansen’s hearsay testi-
mony. I find, as Jaeger admitted, that he called Schalow a
fat fucking pig. I further find that he physically resisted the
officers and swore profusely at them. However, I find that
he got up to leave and did not physically threaten Schalow
in any way. It is significant that Jaeger was charged only
with disorderly conduct by reason of his abusive language to-
ward the officers. If Jaeger had attempted to strike or throttle
Schalow, he probably would have been charged with assault
or attempted battery. There was no such charge. It is also
evident that the officers regarded Jaeger’s language toward
Schalow as simply an overheated portion of their conversa-
tion, and not as a basis for a charge of disorderly conduct.
As Jaeger and Schalow were seated in close proximity, it
would have been easy for the officers to mistakenly assume
that Jaeger was menacingly heading toward Schalow. There-
fore they quickly grabbed Jaeger.
I find that Jaeger did not engage in outrageous misconduct
which rendered him unfit for employment. First, Jaeger was
provoked into using strong language. He was discriminatorily
discharged, and not notified of his discharge before returning
to work on July 16. Lamondo and Schalow treated him in
an insulting and demeaning manner. They acted as if it were
none of his business to know the reason or reasons for his
termination. Schalow shouted at him and acted as if Jaeger
did not know the meaning of the word fired. It is not surpris-
ing that Jaeger responded in language common to the factory
workplace. Had Lamondo or Schalow quietly and calmly ex-
plained the Company’s professed reason for his termination,
the meeting would not have taken on the dimensions which
1477ALTO-SHAAM, INC.
8 NLRB v. National Furniture Mfg. Co., 315 F.2d 280, 286 (7th
Cir. 1963), relied on by the Company (Br. 56–57), did not present
a situation comparable to that of Jaeger in the present case. In Na-
tional Furniture the court, in disagreement with the Board, held that
a discriminatee engaged in a course of conduct which indicated ‘‘a
basic antagonism’’ between the employee and the employer ‘‘that
would preclude future harmonious relations between them.’’ The em-
ployee not only repeatedly insulted the employer’s general manager,
including remarks at the unfair labor practice hearing, but also dis-
paraged the employer’s business to one of its customers. In the
present case Jaeger made one provoked outburst which would not
preclude him from the faithful performance of his work. Indeed the
court observed that this was not simply ‘‘a conflict of personalities
growing out of a disagreement as to labor policies.’’ The instant case
presents nothing more.
9 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
it did. Jaeger also believed that he was unjustly roughed up
and abused by the officers, including invasion of his private
parts, and responded with what he regarded as appropriate
language. His behavior in this regard was a matter between
himself and the law authorities, and did not render him unfit
for employment. His one outburst at Schalow did not con-
stitute grounds for denial of reinstatement and backpay to a
discriminatorily discharged employee. In Hit ’N Run Food
Stores, 231 NLRB 660, 664 (1977), the Board held that a
discriminatee was entitled to full reinstatement, notwith-
standing that on her return to work she accused the employ-
er’s president of stealing firm funds, and cursed the employ-
er’s general manager in language comparable to that used by
Jaeger. Hit ’N Run presented a more persuasive case for de-
nial of reinstatement than the present case. In Hit ’N Run,
the employee directed her language at high level supervisors
with whom she would be in regular contact. In the present
case, Jaeger was talking to an outside consultant with whom
he normally would not have contact in his work.8 Therefore,
I find that Jaeger is entitled to the usual remedies of rein-
statement with backpay.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminatorily terminating and refusing to reinstate
Kristeen Peckstein, Scott Westfahl, and James Jaeger, there-
by discouraging membership in the Union, the Company has
violated and is violating Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, the Company has engaged, and is engaging, in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (3) of the Act, I shall recommend that
it be required to cease and desist therefrom and from like or
related conduct, and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Company discriminatorily termi-
nated and refused to reinstate Kristeen Peckstein, Scott
Westfahl, and James Jaeger, it will be recommended that the
Company be ordered to offer them immediate and full rein-
statement to their former jobs, or if such jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of earnings and benefits that they may
have suffered from the time of their discharge to the date of
the Company’s offer of reinstatement. I shall further rec-
ommend that the Company be ordered to expunge from its
records any reference to their unlawful terminations, to give
each of them written notice of such expunction, and to in-
form them that its unlawful conduct will not be used as a
basis for further personnel actions against them. See Sterling
Sugars, 261 NLRB 472 (1982). Backpay shall be computed
in accordance with the formula approved in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).9
It will also be recommended that the Company be required
to preserve and make available to the Board, or its agents,
on request, payroll and other records to facilitate the com-
putation of backpay and reimbursement due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Alto-Shaam, Inc., Menomonee Falls,
Wisconsin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in United Steelworkers of
America, AFL–CIO–CLC or any other labor organization, by
discharging, denying reinstatement rights, or otherwise dis-
criminating against employees because of lawful strike, pick-
eting, or other union activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Kristeen Peckstein, Scott Westfahl, and James
Jaeger immediate and full reinstatement to their former jobs,
or, if such jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them whole for
losses they suffered by reason of the discrimination against
them as set forth in the remedy section of this decision.
(b) Expunge from its files any reference to the termi-
nations of Kristeen Peckstein, Scott Westfahl, and James Jae-
ger, and notify each of them in writing that this has been
done and that evidence of their unlawful termination will not
be used as a basis for future personnel actions against them.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
1478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 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
National 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.’’
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due.
(d) Post at its Menomonee Falls, Wisconsin place of busi-
ness copies of the attached notice marked ‘‘Appendix.’’11
Copies of the notice on forms provided by the Regional Di-
rector for Region 30, after being signed by Respondent’s au-
thorized representative, shall be posted by Respondent imme-
diately 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 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 Respondent has taken
to comply.