Batesville Casket Co.

National Labor Relations Board - Board Decisions

Jun 28, 1991

303 N.L.R.B. 578 (N.L.R.B. 1991)

578
303 NLRB No. 93
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 administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
Batesville Casket Company, Inc. and International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America,
UAW. Case 9–CA–26375
June 28, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On February 5, 1991, Administrative Law Judge
Peter E. Donnelly issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
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 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Batesville Casket Com-
pany, Inc., Campbellsville, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached notice
is substituted for that of the administrative law judge.
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 suspend our employees thereby dis-
criminating in regard to their hire and tenure of em-
ployment in order to discourage membership in or ac-
tivities on behalf of International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers
of America, UAW, or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer to Douglas Bell, Jauhnell Cox, and
Timothy Nicholas immediate and full reinstatement to
their former jobs, or if those jobs no longer exist, to
substantially equivalent employment and make them
whole with interest for any loss of pay they may have
suffered as a result of the discrimination practiced
against them.
WE WILL remove from our files any reference to the
suspensions of Douglas Bell, Jauhnell Cox, and Tim-
othy Nicholas and notify them in writing that this has
been done and that evidence of their unlawful suspen-
sions will not be used as a basis for future personnel
action against them.
BATESVILLE CASKET COMPANY, INC.
Eric A. Taylor Esq., for the General Counsel.
Kenneth J. Yerkes, Esq., of Indianapolis, Indiana, for the Re-
spondent.
David W. Hupp, Esq., of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, administrative law judge. On timely
filed charges in the above-captioned case by International
Union, United Automobile, Aerospace & Agricultural Imple-
ment Workers of America, UAW (Union or Charging Party),
a complaint issued on June 6, 1989, alleging that Batesville
Casket Company, Inc. (Respondent or Employer) violated
Section 8(a)(1) and (3) of the Act by suspending employees
Douglas Bell, Jauhnell Cox, and Timothy Nicholas because
they had participated in the protected concerted activity of
striking against Respondent. An answer was timely filed by
Respondent, and pursuant to notice a hearing was held before
the Administrative Law Judge on August 22, 1989. Briefs
have been timely filed by General Counsel, Respondent, and
the Union, which have been considered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
The Employer is a corporation engaged in the manufacture
and sale of burial caskets at its Campbellsville, Kentucky fa-
cility. During the past year Employer sold and shipped from
its Campbellsville, Kentucky facility products, goods, and
materials valued in excess of $50,000 directly to points out-
side the State of Kentucky. The complaint alleges, the Em-
ployer admits, and I find that the Employer is an employer
engaged commerce within the meaning of Section 2(6) and
(7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
579BATESVILLE CASKET CO.
1 The parties stipulated that the strike was an economic strike.
2 All dates refer to 1989 unless otherwise indicated. 3 A video taken by Kavenaugh was introduced into evidence as J. Exh. 1.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The employees of the Respondent have been represented
by the Union since May 30, 1985, and have been covered
under the terms of a collective-bargaining agreement from
April 14, 1986, until it expired on February 26, 1989. Appar-
ently unable to reach agreement on a contract, the employees
struck on February 27, 1989.1 A 24-hour-a-day picket line
was established at the entrance to the plant.
About a month before the strike began, certain employees,
including Sue Sadler, Brenda Perkins, and Bonnie Bryant,
expressed a desire to continue working even if a strike oc-
curred and asked Jim Flowers, production manager of the
Company, if the Company would provide transportation for
them since they were afraid to use their own vehicles to
cross the picket line. Arrangements were made by Flowers
to provide such transportation. On February 27, 1991,2 the
day that the strike began, arrangements were made to send
a company van to the local National Guard Armory parking
lot to bring nonstriking employees to work. After work they
were returned to the same location. However, after the first
day, the administrators of the armory expressed a desire not
to become involved in the labor dispute and refused to let
the Armory parking lot be used to pick up nonstrikers again.
Flowers then contacted the local Best Western Motel and ob-
tained permission to use its parking lot to pick up and return
nonstrikers.
On the morning of the following day, February 28, the
company van, driven by Flowers, went to the parking lot of
the Best Western Motel to pick up nonstriking employees to
transport them through the picket line into the plant to work.
A security guard named Kavenaugh was in the passenger
seat with a video camera/recorder. According to Flowers,
there were some 6 or 7 cars and approximately 15 or 16 peo-
ple in the parking lot. Flowers also testified that he saw
striking employees Douglas Bell and Timothy Nicholas in
their vehicles. Striker Terry Davis was a passenger in Bell’s
car and striker Jeff Baxter was a passenger in Nicholas’ pick-
up truck. Bell admits that he was in the parking lot and that
it was his intention to determine which employees were not
striking, and to report that to the Union so as to be better
able to gauge the effect of the strike on productivity. Accord-
ing to Flowers, these two vehicles made a partial circle of
the parking lot, stopping while the van loaded some 10 non-
strikers for transport to the plant. While the van was loading,
according to passengers Bryant and Sadler, some unidentified
person in the group standing nearby shouted out that they
would not make it to work that morning.
After the van was loaded it pulled out of the parking lot
onto Route 55 (Broadway), the main route back to the plant.
The Bell car had pulled out before the van and both were
traveling in the same direction in the same lane, with the van
behind Bell. Nicholas, in his pickup truck, was also traveling
down Route 55 to the right of the van Bell testified that he
pulled out of the parking lot ahead of the van and so was
unaware of when it left. He went down Route 55 at speeds
of 30 to 35 miles per hour. He first noticed the van at a stop-
light when the van pulled up directly behind him. Davis tes-
tified that after leaving the parking lot, he never saw the van
again.
A video3 showing parts of the van’s return to the plant be-
gins with the van starting at a substantial distance behind
Bell’s car and catching up to it only at a stoplight, at which
time Bell changes into the right lane as the light is changing
to red, going through the caution light while the van was
stopping for the red light. It is undisputed that Bell was not
seen again after that.
Meanwhile, as to Nicholas, it appears that Nicholas left
the parking lot after the van and traveled along in the right
lane to the right rear and then beside the van as it ap-
proached and stopped at the red light that Bell had just
passed through. When the light turned green, Nicholas pulled
quickly out ahead and over into the left lane in front of the
van. There it remained for two traffic lights. There, as the
video shows, Flowers moved away from behind Nicholas and
pulled into the left turn lane where the light was still red
Nicholas passed through on the green light in the thru lane.
Thereafter Flowers made the left turn, took the next right,
and then another right returning to Route 55 and proceeding
to the plant.
Nicholas admits that he purposely accelerated to get in
front of the van at the traffic light because he wanted to get
back to the plant ahead of he van, although he testified that
there was no reason to do that and that he could have driven
in the right lane and still gotten to the plant ahead the van.
Nicholas testified that he did not block or impede the
progress of the van and that he was traveling at the same rate
of speed both before and after he got in front of the van.
Flowers testified that when they pulled out of the parking
lot, Bell was 20 or 30 feet in front of him and that thereafter
he felt as if he were ‘‘boxed in’’ since Bell was in front of
him and Nicholas to the side, and that he needed to take the
‘‘evasive’’ action described above, despite the fact that Bell
had gone ahead and was not a factor at the time the evasive
action was taken.
After evading Nicholas, Flowers returned to Route 55 on
route to the plant. Flowers testified that further down Route
55 he noticed traffic backed up and slow. He saw a pickup
truck driven by Jauhnell Cox traveling only in the left lane
in front of the van, and another car traveling slowly in the
right lane. It is undisputed that there was another car be-
tween Cox and the van. Flowers slowed down to about 15
miles per hour as he approached the slower traffic. It also
appears that at about this time, a black pickup truck had
come up along the bern on the right, spun around, and was
facing the oncoming traffic. Flowers testified that thereafter
the traffic picked up and he was able to resume speed.
Cox testified that she and her passenger, Donna McCuffey,
were traveling along Route 55 on route to the plant. There
was traffic both in front and to her side. McCuffey called her
attention to a black pickup truck that had come up on the
bern to the right and spun out. Cox said that she slowed up
a little and then went on. She first became aware of the Re-
spondent’s van when McCuffey called it to her attention just
before the corner at a traffic light where they made a left
turn up the hill into the plant. Cox made the left turn and
proceeded to the plant where she parked her pickup truck
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 268 NLRB 1044 (1984).
5 Although Bryant testified to seeing Cox in the Best Western parking lot,
a review of the relevant testimony convinces me that Bryant was mistaken.
along with the other strikers’ vehicles on the right side of the
road some distance from the plant entrance.
After the strike, the Company began to hire replacements
and on Sunday, March 19, the Union on behalf of the strik-
ing employees made an unconditional offer to return to work
and most employees returned to work on the following Mon-
day or Tuesday.
Earlier, by letter dated March 7, signed by Gary Price, Re-
spondent’s vice president for human resources, Respondent
notified Bell, Nicholas, and Cox that disciplinary action
against them was being contemplated for picket line mis-
conduct. By letter dated March 23, each received a letter
signed by Jacky Arvin, plant manager, advising them that ef-
fective March 21 they had been suspended subject to termi-
nation for misconduct during the strike and that they would
be given an opportunity to explain their actions before a final
decision about termination was made. Thereafter each was
interviewed by Respondent, shown a copy of the video, and
the alleged misconduct was discussed. On May 16, by letter
from Arvin, each was advised that they were not being ter-
minated; that their suspensions were being lifted effective
May 16, and that they were being placed on a recall list
along with other permanently replaced employees. None had
been recalled as of the date of the hearing.
B. Analysis and Conclusions
As a matter of law, economic strikers, unless they are re-
placed, are entitled to reinstatement on an unconditional offer
to return to work made by them or on their behalf. If they
have been replaced, they are entitled to reinstatement as posi-
tions become available. Striking employees who engage in
strike misconduct, however, are subject to suspension or dis-
charge and an employer may refuse to reinstate them. How-
ever, an employer who suspends, discharges, refuses to rein-
state, or otherwise disciplines a striking employee must hold
an honest belief that the striking employee has engaged in
misconduct so serious as to deprive the employee of protec-
tion under the Act. Once that ‘‘honest belief’’ has been es-
tablished, the General Counsel has the burden of going for-
ward to prove that the strikers did not engage in such mis-
conduct. Clougherty Packing Co., 292 NLRB 1139 (1989).
The standard for determining whether picket line mis-
conduct is so egregious as to suspend, discharge, or refuse
to reinstate has been set out by the Board in Clear Pine
Mouldings.4 The Board established as a criteria that disquali-
fying conduct, to justify discharge, must be such that ‘‘under
the circumstances existing, it may reasonably tend to coerce
and intimidate employees in the exercise of rights protected
under the Act.’’ The Board also held, in a departure from
precedent, that words alone could warrant a denial of rein-
statement even in the absence of physical acts. The conduct
of the alleged discriminatees must be examined according to
the criteria established the above cases.
First, Bell and Nicholas had a legitimate purpose in being
at the Best Western parking lot. They had a legitimate reason
to know how many nonstrikers were returning to work so as
to gauge Respondent’s capacity to produce and to evaluate
the overall impact of the strike.
As to the remark in the parking lot that the nonstrikers
would not make it to the plant, no one was able to identify
the speaker. Misconduct cannot therefore be assigned to any
of the alleged discriminatees herein, nor can such remark
constitute the basis for any good-faith belief that any specific
individual had engaged in the misconduct. Franzia Bros.
Winery, 290 NLRB 927 (1988).
As to the allegations of vehicular misconduct, Respondent
contends that the van was ‘‘surrounded’’ by Bell and Nich-
olas. However, the probative evidence, particularly the video,
discloses that Bell simply left the Best Western parking lot
and was driving back to the plant. As the video discloses,
there was a considerable distance between Bell and the van
and it appears that Bell was traveling at a normal, constant
rate of speed while the van was behind him. When they ar-
rived at a light, Bell changed lanes and accelerated to go
through it, leaving the van stopped at the light. Bell did not
see the van after that. If Bell had wanted to remain in front
of the van, it would have been more likely that he would
have slowed at the light so as to ensure that result. Nothing
in the manner in which Bell operated his vehicle showed that
he was making any effort to impede the progress of the van.
As to Nichols, it appears that at the light, he went to a posi-
tion in front of the van, but like Bell, did nothing to impede
the progress of the van and in fact remained in front of the
van for only a short distance to the traffic light when Flow-
ers took the detour. After that, Nicholas did not see the van
again. While Nicholas admits that he deliberately got ahead
of the van so as to arrive at the plant before it, this does not
establish that Nicholas’ conduct was intimidating. Simply
driving in front of a van for two blocks does not, without
more, establish the type of coercion sufficient to disqualify
Nicholas from further employment.
As to Cox, she was simply driving to the picket line at
the plant in her pickup truck with McCuffey. She did not
even see the van until she stopped for a traffic light just be-
fore taking a left turn from Broadway or Route 55 heading
towards the plant.5 There was another car between Cox and
the company van at that time and thereafter. On making the
turn, Cox simply proceeded, along with other traffic, at a rate
of speed that the traffic allowed with vehicles to her front
and side, and proceeded up the hill toward the plant where
she parked along the side of the road. Nothing in the record
or in the video tape even remotely suggests that Cox intimi-
dated or even attempted to intimidate any nonstriking em-
ployee, nor did she in any way impede the progress of the
van.
To the extent that traffic may have slowed down, there is
no probative evidence in the record to suggest that Cox was
responsible for the slowdown or that she otherwise took any
action which could even remotely be construed as reasonably
tending to coerce or intimidate employees in the exercise of
their Section 7 rights.
In support of its position, Respondent cites several cases
involving misconduct by striking employees in the use of
automobiles, i.e., Axelson, Inc., 285 NLRB 862 (1987); Rich-
mond Recording Corp., 280 NLRB 615 (1986), and Auburn
Foundry, 274 NLRB 1817 (1985). While I agree that vehi-
cles can and sometimes are used by strikers as an instrument
of intimidation, the Respondent’s problem is that the facts of
the instant case are totally insufficient to support any such
581BATESVILLE CASKET CO.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
7 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
conclusion. There is no probative evidence in this record
showing that Bell, Nicholas, or Cox were operating their ve-
hicles in any reckless, unsafe, or threatening manner so as
to conclude that their actions reasonably tended to intimidate
or coerce any nonstrikers. MGM Grand Hotel, 275 NLRB
1015 (1985).
In summary, I conclude that the actions of Bell, Nicholas,
and Cox were essentially innocuous and nonthreatening and
that Respondent has failed to establish any honest belief that
they were engaged in misconduct so serious as to lose their
protection under Section 7 of the Act. However, even assum-
ing that such a good-faith belief has been established, the
General Counsel has clearly met its burden of establishing
that Bell, Nicholas, and Cox did not engage in any such mis-
conduct.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent’s oper-
ations described in section I, above, have a close and inti-
mate relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices, I shall recommend that it
cease and desist therefrom and certain affirmative action de-
signed to effectuate the policies of the Act. I have found that
Respondent suspended Douglas Bell, Timothy Nicholas, and
Jauhnell Cox for reasons which are found in the provisions
of Section 8(a)(3) and (1) of the Act. I shall therefor rec-
ommend that Respondent shall make them whole for any
loss of pay they may have suffered as a result of the dis-
crimination practiced against them. All backpay and reim-
bursement provided herein with interest shall be computed in
the manner described in New Horizons for the Retarded, 283
NLRB 1173 (1987), and F. W. Woolworth Co., 90 NLRB
289 (1950).
CONCLUSIONS OF LAW
1. The Respondent 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 suspending Douglas Bell, Jauhnell Cox, and Tim-
othy Nicholas, Respondent has engaged and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Batesville Casket Company, Inc., Camp-
bellsville, Kentucky, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Suspending employees in order to discourage their
membership in or activities on behalf of International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America, UAW, or any other labor organization.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Douglas Bell, Jauhnell Cox, and Timothy
Nicholas immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent employment and make them whole for any loss of pay
they may have suffered as a result of the discrimination prac-
ticed against them in the manner set forth in the remedy sec-
tion of the decision.
(b) Remove from its files any reference to the suspensions
of Douglas Bell, Jauhnell Cox, and Timothy Nicholas and
notify them in writing that this has been done and that evi-
dence of these unlawful suspensions will not be used as a
basis for future personnel action against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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 Campbellsville, Kentucky facility copies of
the attached notice marked ‘‘Appendix.’’7 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.