Bingham-Willamette Co.

National Labor Relations Board - Board Decisions

Apr 14, 1986

279 N.L.R.B. 270 (N.L.R.B. 1986)

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guy F. Atkinson d/b/a Bingham-Willamette Compa-
ny and Willamette Lodge No . 63, International
Association of Machinists and Aerospace Work-
ers. Cases 36-CA-4802 and 36-CA-4812
14 April 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 29 August 1985 Administrative Law Judge
Harold A. Kennedy issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs, and the Respond-
ent filed an answering brief to their exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
Contrary to our dissenting colleague, we agree
with the judge that the Respondent did not engage
in unlawful disparate treatment by its actions as to
strikers Robert J. Pierce and Michael Jewett and
nonstriker Daniel A. Gruver. The judge properly
decided that the Respondent could view the mis-
conduct of Gruver, for which he was given a 2-
day suspension, as not rendering him unfit for
future employment in light of his prompt apology
for the assault on a striker and an offer of restitu-
tion for any loss of personal property sustained by
the latter. Nor do we question the judge's decision
as to the propriety of the Respondent's determina-
tion that Pierce and Jewett, who did nothing im-
mediately or soon after the occurrence of their mis-
conduct to alleviate its coercive impact, were un-
suitable for further employment.
As it is clear that the Respondent had a reasona-
ble and sound basis for its dissimilar, but nondis-
criminatory, treatment of the employees who en-
gaged in misconduct, we adopt the judge's finding
that the denial of reinstatement of Pierce and
Jewett did not violate the Act.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER JOHANSEN, dissenting.
I cannot agree with my colleagues' adoption of
the administrative law judge's finding that the Re-
' Member Dennis adheres to her concurring opinion in Clear Pine
Mouldings, 268 NLRB 1044 (1984)
spondent did not engage in disparate treatment in
violation of Section 8(a)(3) and (1) of the Act by
refusing to reinstate strikers Robert J. Pierce and
Michael T. Jewett for engaging in picket line mis-
conduct while merely suspending for 2 days non-
striker Daniel A. Gruver who engaged in more se-
rious misconduct.
The record shows that on 18 April 1983 about
300 of the Respondent's 450 employees engaged in
an economic strike which ended on 16 April 1984
when the Union made an unconditional offer on
behalf of the strikers to return to work.
While the strike was in progress the three em-
ployees in question engaged in certain picket line
misconduct. Thus, on 3 June 1983 Pierce threw
eggs at some cars of nonstrikers and beat on a van'
carrying nonstrikers or replacements as it proceed-
ed through the Respondent's parking lot.2 On 12
August 1983 Jewett, who was serving as a picket
line captain, slapped or struck nonstriker Gruver3
in the face as he drove his open convertible car to
the parking lot.
On Saturday evening, 3 September 1983, Gruver
and a friend, both of whom had been drinking,
drove to a parking lot across from the premises
where they saw a parked car. Upon ascertaining
from its occupant, Ralph Pease, that he was on
picket duty, Gruver forced him down in the seat
and, according to Gruver, intended to "scare"
Pease by pretending he had a gun and telling Pease
that Gruver "might as well blow [Pease] away"
with it.4 In addition, Gruver's friend "took"
Pease's glasses , car keys, and registration card
which he threw away after they left. On the fol-
lowing afternoon Gruver telephoned Pease, who,
according to Gruver, was "still shaken up," and
apologized, offering to pay for the articles in ques-
tion. When Gruver called again, he was told by
Pease's wife, who was "hysterical," not to call
again and "leave her husband alone."
On 6 September 1983, Gruver reported the fore-
going episode to Randall who, as indicated above,
issued a notice to Gruver suspending him for 2
days for "harassing" Pease in violation of the
court's order of 15 July 1983.5 Thereafter, a circuit
' David L Randall, the Respondent's personnel manager, testified that
he was not sure whether Pierce used a club or his fist
2 At the Respondent's request, the Circuit Court of the State of
Oregon issued on 15 July 1983 an order enjoining conduct other than
peaceful picketing
3 Gruver had participated in the strike for 14 weeks but returned to
work in July 1983
4 Randall testified that Gruver was about 30 years old and somewhat
heavier than Pease who was in his midfifties
5 The notice also warned Gruver that any further action by him
against a picketer , which was "not taken in self defense may result in
an additional suspension or termination "
279 NLRB No. 37
BINGHAM -WILLAMETTE CO.
court proceeding was brought against Gruver by
the State of Oregon at the behest of the Union.
Gruver was ordered to appear in mid-September
regarding his assault on Pease to show cause why
"he should not be held in contempt for intentional-
ly and wilfully disobeying" the court's order of 15
July 1983. Gruver, whose attorney was supplied by
the Respondent which paid part of the latter 's fees,
appeared and pleaded the Fifth Amendment.
As already indicated, the Respondent' s lenient
treatment of nonstriker Gruver was in sharp con-
trast to the Respondent's resort to the extreme
sanction of refusing to reinstate the two strikers.
Thus, when Pierce applied to Randall for reinstate-
ment on 15 August 1984, the latter admitted that
he was a good employee but nevertheless barred
him from returning to work because of his conduct
more than a year earlier. Similarly, when Jewett
applied for reinstatement in September 1984 and as-
sured Randall that he could get along with every-
body, Randall replied that he liked Jewett's "good
attitude" but would not allow him to return to
work even though he was a good employee be-
cause he "walked too intensively on the picket
line" and had engaged in misconduct on one occa-
sion during the strike.
It is established that an employer may refuse to
reinstate those employees who coerce other em-
ployees with respect to the exercise of their Sec-
tion 7 rights by engaging in violence against them
or instilling a fear of bodily harm in them.6 How-
ever, it is also well established that employers may
not engage in disparate treatment of strikers and
nonstrikers who are equally culpable of miscon-
duct.7
Although the judge acknowledged that non-
striker Gruver engaged in serious misconduct, the
judge concluded that it did not render him unfit for
future employment because he had apologized and
offered restitution to the employee whom he had
assaulted . Yet the judge found in agreement with
the Respondent that the misconduct of strikers
Pierce and Jewett made them unsuitable for further
employment despite Randall 's admission that they
were both good employees and his approval of
Jewett's "good attitude" in pledging not to cause
any problems in the future.
As indicated above, an employer may not abuse
the right to discipline employees who engage in
coercive picket line conduct by meting out harsher
treatment to strikers than to nonstrikers when they
are equally culpable. Here, it is manifest that
Gruver's unprovoked and vicious attack on a de-
fenseless middle-aged fellow employee who was
6 See Clear Pine Mouldings, 268 NLRB 1044 (1984)
1 See Garrett Railroad Car v NLRB, 683 F 2d 731 (3d Cir 1982)
271
peacefully and lawfully picketing was far more
blameworthy than the conduct of Pierce and
Jewett. Gruver's apology appears to have been
prompted not so much by genuine contrition as by
a fear of losing his job and a desire to avoid crimi-
nal prosecution. In any event, his apology for his
assault of Pease did nothing to lessen its coercive
impact and therefore did not constitute a valid
basis for treating him more leniently than the strik-
ers. It is also evident from the Respondent's solici-
tude in furnishing him with an attorney and paying
part of the latter's fees that the Respondent singled
out nonstriker Gruver for favored treatment.
The sharp contrast between the Respondent's
special consideration for and assistance to non-
striker Gruver and its refusal to reinstate strikers
Pierce and Jewett clearly demonstrate that the Re-
spondent's motive for barring them from their jobs
was not their misconduct. Rather, the Respondent
was motivated by the fact that Pierce and Jewett,
unlike Gruver who had ceased his participation in
the strike, had "walked too intensively" on the
picket line and had continued their participation for
its full duration.
In sum, I would find that the Respondent's dis-
parate treatment of strikers Pierce and Jewett was
discriminatorily motivated and that its refusal to re-
instate them violated Section 8(a)(3) and (1) of the
Act. I would therefore require the Respondent to
offer them reinstatement and make them whole for
any loss of earnings.
Dale B. Cubbison, for the General Counsel.
Lester V. Smith, and Marianna Kanwit, of Portland,
Oregon, for the Respondent.
Donald S. Richardson, of Portland, Oregon, for the
Charging Party.
DECISION
HAROLD A. KENNEDY, Administrative Law Judge.
Respondent is charged in this proceeding with violation
of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act' by refusing to reinstate two of its employees,
Robert Pierce and Michael Jewett, following a strike.
According to the complaint, Respondent refused to re-
instate Pierce and Jewett on 15 August 1984 and 17 Sep-
tember 1984, respectively, because they
joined, supported, or assisted the Union, and en-
gaged in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection,
and in order to discourage employees from engag-
' Sec 8(a)(1) makes it an unfair labor practice for an employer "to
interfere with, restrain , or coerce employees in the exercise of the rights
guaranteed in Section 7 " Sec 8(a)(3) makes it an unfair labor practice for
an employer "by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or discour-
age membership in any labor organization
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing in such activities or other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection.
The case came on for hearing in Portland, Oregon, on
14 May 1985. Pierce and Jewett appeared and testified
for the General Counsel as did David Randall, Respond-
ent's personnel manager, and another employee, Leon
VanWoerkom. Randall was recalled to testify as a de-
fense witness, along with two other employees of Re-
spondent, Daniel Gruver and Neil Morgavi.
Many of the allegations of the complaint are not in dis-
pute. Respondent's answer admitted that it is an Oregon
corporation , that it manufactures pumps and pump parts,
and that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.2 Re-
spondent also admitted that the Union is a "labor organi-
zation" as that term is defined in the Act and that Dave
Randall at all times material has been the firm 's person-
nel manager and an agent and supervisor of Respondent.
Finally, Respondent admitted that it refused to rein-
state Pierce and Jewett as alleged, but it denied that such
conduct constituted unfair labor practices as averred in
the complaint.
Dave Randall testified that during the past 11 years he
has been personnel manager for Respondent, which em-
ploys approximately 450 employees in its machine shop
and welding fabrication shop. In 1983, following the ex-
piration of a collective-bargaining agreement between
the Union and Respondent, about 300 employees went
on strike.3 About a year later, about 16 April 1984, the
Union abandoned the strike and wrote Respondent that
all striking employees were offering unconditionally to
return to work. The positions of some strikers had been
filled, but eventually a number of employees were rein-
stated. Respondent refused to hire back Pierce and
Jewett, both of whom had refused to cross the picket
line that had been set up during the strike.
Randall testified that he made the decision not to rein-
state Pierce and Jewett, and that he did so because of
their "misconduct." Randall was questioned at some
length about incidents involving the two unreinstated
employees and conversations he had with them concern-
ing such incidents. Randall also testified concerning inci-
dents involving another employee, Dan Gruver, who
had been given a 2- or 3-day suspension but was other-
wise retained on the Company's payroll.4 Randall said
2 Respondent 's answer also admitted that its business during the year
preceding the issuance of the complaint involved the purchase and deliv-
ery to its Oregon facilities "goods and materials valued at in excess of
$50,000 directly from sources outside said state, or from suppliers within
said state which in turn obtained such goods and materials directly from
sources outside said state "
8 The collective -bargaining agreement was executed by Respondent
and the Metal Trades Council, which included six different unions-the
Machinists, Boilermakers , Electricians , Operating Engineers , Teamsters,
and Painters The agreement expired on 31 March 1983, and the Council
struck Respondent shortly thereafter
4 Randall stated that Gruver was suspended for 2 days and also denied
an overtime day at time-and-a half Gruver testified he honored the
picket line for about 14 weeks and then returned to work
he knew Pierce to have been a shop steward at one time
while employed by Respondent.
Randall acknowledged talking with Pierce on more
than one occasion after the strike had begun. Randall re-
called a particular telephone conversation he had with
Pierce in mid-August 1984 which ended with Pierce's
termination . The conversation lasted a half an hour or
so, and Pierce "persisted in wanting an answer as to
whether or not he was going to be eligible to return."
Randall said he discussed with Pierce the fact that he
considered Pierce guilty of strike misconduct which
Randall described as consisting of throwing of eggs at
cars and beating upon a van as it proceeded through Re-
spondent's parking lot. Randall said he told Pierce about
these acts, and Pierce did not deny engaging in them.
Quoting from Randall 's direct testimony:
I was amazed. In the conversation, Pierce made no
defense other than the fact there were other individ-
uals who had done things worse than he'd done.
That was the sum total of his defense. I said Bob, I
said, normally I'd like to have the individual here
with me when we sit down and talk about these
things and you respond to the evidence that I have
against you. I'd like to hear your side of the situa-
tion. He says I need an answer right now. He says
I've got to get on with the rest of my life. If I'm
not coming back there, I need to have an answer,
and he pressed and he pressed, pushed me into a po-
sition where I gave him a response. I said if you
have no other defense other than there are other in-
dividuals who are in here who did worse things
than you did, and without any examples-he would
not give me any examples-I said I have no choice
but to sustain termination.5
Randall stated that Pierce had something in his hand but
he could not see what it was It was reported later to
him, according to Randall, that the moving van, driven
by an employee named Gary Peterson, had "brushed a
picketer or bumped a picketer," but Randall did not see
it occur. Randall recalled that there was a cloud of dust,
numerous pickets in the area and some egg throwing.
Asked if the egg-throwing incident and the "beating on
the van" were "the only reason[s] for discharge Pierce,"
Randall agreed : "That's right."
Randall was shown certain photographs taken on the
day of the incident, which Randall thought was 3 June
1983. He indicated that the photos show Pierce "running
after the van." Other photos show, he said, an employee
named Brad Schilber beating on the van with a stick.
Schilber was rehired by Respondent after the strike.
Randall said he confronted Schilber with information
about Schilber's misconduct Schilber told Randall that
5 Randall testified that he never indicated he would take Pierce back
Randall said
My standard position , because there were a lot of people, there were
a couple hundred people, maybe not all of which wanted to come
back, but about 200 people affected, some which wanted to come
back, and my response to them was the same It was that I didn't
have anything right now As we had something, we'd bring them in,
sit down and discuss about merits or return
BINGHAM-WILLAMETTE CO.
he had been bumped or brushed by the van and that he
chased after it because he was "mad." Randall said he
was sure that he had seen Pierce chase after the van and
hit it; also, that he saw Pierce, among others, throw eggs
at Neil Morgavi's vehicle. Persons other than Pierce
who had thrown eggs were not returned to work, Ran-
dall said. In questioning Randall, the Union indicated
that an employee named Ken Bartley had been allowed
to return to work and promoted in spite of misconduct
on his part. Randall indicated, however, he had investi-
gated such claim and found "Bartley's vehicle implicat-
ed" but not him.
Randall conceded that he was aware at the time of the
interview with Pierce that approximately a year earlier a
fellow employee named Gruver had been involved in an
incident (referred to as the "Gruver-Pease incident") in
which Gruver had been engaged in misconduct. The in-
cident occurred while the strike was on and after Gruver
had decided to cross the picket line at Respondent's busi-
ness to return to work. The incident took place on a
weekend in September 1983 at a time when Gruver was
not expected to be in the area of Respondent's business.
Randall described the Gruver-Pease incident as follows:
My investigation revealed that Mr. Gruver and a
friend came down one Saturday evening to
Bingham-Willamette Company and confronted an
individual by the name of Ralph Pease, who was a
picketer, in his automobile. I don't know what Mr.
Pease was doing. I don't know if he was just sitting
there, reading, sleeping or what he was doing. But,
Mr Gruver came upon him, went inside the car,
and talked to him about why was this thing going
on as long as it was going, didn't he see that it
wasn't going to go anywhere, that it was over; and
he proceeded to-I think he indicated to me that he
grabbed the man by the-he has afraid of being rec-
ognized, so he grabbed the man by the collar, or
the shirt or Jacket, or whatever her [sic] had on,
here in front, and pushed him down into the seat
and indicated to him that he had a gun, I believe,
and that it was his intent to-well, what did he say?
He said something about-actually, I don't think at
this point-no, that didn't come out at that point.
He indicated he said some things, made some ges-
tures like he had something in his pocket, like he
had a gun, and he indicated that he didn't under-
stand this thing going, and that they didn't seem to
be succeeding, and that why didn't it all just end.
Then he proceeded to leave, and his-
JUDGE KENNEDY: Gruver did?
THE WITNESS: Yeah, he and his friend left. I
don't know where his friend had been all this time,
although I think he was there, because his friend
was the guy, as I understood it, who picked up this
man's keys so he couldn't follow, and I believe his
eyeglasses, and they left.
BY MR. CUBBISON
Q And his wallet?
A. I'm not sure, may have had his wallet.
Q. Car registration?
273
Car registration? I don't know about car registra-
tion.
While contending that "there were lots of things that
provoked Mr. Gruver to do what he did," Randall con-
ceded that his investigation persuaded him that Pease
had done nothing to provoke the attack and that Gruver
was "culpable."
On cross-examination by the Union, Randall stated
that "Gruver came into my office on Monday morning
right after the incident and volunteered that he had been
involved in something that he was ashamed of the previ-
ous weekend; "that he had told Mr. Pease he had a gun,"
although he did not; and that a "friend" of Gruver (who
was never identified) took certain personal items of
Pease, apparently including eyeglasses , car keys, and car
registration . The articles were thrown out of the car as
they drove away. Gruver later attempted to locate such
items and return them to Pease but he was unable to do
so.
Under questioning by Respondent's attorney, Randall
testified that Gruver had told him that Gruver and his
friend had been drinking on the night of the Gruver-
Pease incident . Gruver apologized to Mrs. Pease, appar-
ently in vain, and explained that he would try to find the
missing items and pay for any damage.6
With respect to Jewett , Randall said he met with
Jewett on 14 September 1984 and discussed misconduct
that had occurred during the strike. Jewett told Randall
during the interview, Randall said, that he (Jewett)
struck Gruver one day as Gruver drove an open car (a
"Volkswagon convertible with the top down") through
the Company's parking lot. Jewett told him , Randall as-
serted, that "he had moved out of the way to avoid
being struck by Gruver as he entered the parking lot,
and as he wheeled and pivoted around, his hand struck
Gruver."
Randall said he did not know at the time of the inter-
view with Jewett but learned later from an NLRB agent
that Jewett was the picket line captain during the strike.
Randall told Jewett at the time of the interview that
there was no problem with Jewett's performance on the
job.
Randall testified that the interview with Jewett ended
much the same way the interview did with Pierce
"except in Pierce's situation he'd pressed for a decision
right away." Jewett's response to Randall's questioning
about the incident, according to Randall, " was, again,
that there were individuals out there who had done
worse things than he had done, and that all he'd done
was avoid being struck by the vehicle, and he had
6 A hearing was held in a state court at which the Gruver-Pease inci-
dent was pursued but, according to Randall, no decision was made "one
way or the other as to whom done what to who to that situation " Affi-
davits were filed with the court by Mr and Mrs Pease , and Respondent
submitted two affidavits signed by Gruver Mr and Mrs Pease both tes-
tified but "Gruver took the Fifth "
Randall agreed on cross-examination by the Union that the name of
Pease was not among those given to the court who had engaged in con-
duct that showed a need for injunctive relief Randall agreed that
Schilber, the employee shown in the photo hitting the van, was rehired
by the Company "after his situation was reviewed "
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wheeled and hit him." Randall said he asked Jewett if
there were witnesses who would support Jewett's ver-
sion , and Jewett replied, "No, I was walking picket by
myself." Randall said he promised Jewett he would in-
vestigate, and he did so. Randall talked with a security
guard, a Pinkerton employee, and Gruver who, accord-
ing to Randall, offered a similar version : there "was a
car coming into the driveway , under control , at a slow
rate of speed, and Jewett struck at him. Gruver pulled in
about 10 to 15 feet and got out of his car." Randall said
he talked to others , including Mike Richardson and Ken
Classen, but they "didn't have anything to contribute."
On cross -examination by the Union , Randall said his
investigation of the Gruver-Jewett incident disclosed that
after Gruver drove through the gate he stopped his vehi-
cle and got out and held a "fishwhacker" club.
Randall agreed that Pierce and Jewett were both good
employees-as he considered Gruver to be. Added Ran-
dall: "Being a good employee had the same bearing on
Gruver's situation as it had on the other two."7
Leon VanWoerkom testified that he had worked for
Respondent at one time and was employed by the Com-
pany in 1983 when many of its employees went out on
strike. He said he was present at the picket line, standing
at the gate, on the day striking employees chased a blue
van as it exited from Respondent's parking lot. Accord-
ing to VanWoerkom, the van "kind of bolted at us kind
of unexpected . . . and actually run over my foot." Van-
Woerkom indicated he was not hurt as he was wearing
steel-toed shoes at the time. He had a camera with him
and took certain photos of the scene, including Respond-
ent's Exhibits 3, 4, and 5. VanWoerkom identified Pierce
in the photos; he said Pierce had run toward the van but
"never quite made it to the van before he started pulling
away."
Robert Pierce said he went to work for Respondent in
1965. He joined the Union, became a shop steward, and
joined other employees in striking Respondent in April
1983.8 He picketed Respondents plant, usually on Friday
nights. As the following quotation from his direct testi-
mony indicates, he testified that he was involved in two
picket line incidents:
Q. While you were serving picketing duty, were
you involved in an incident involving eggs?
A. Yes.
Q. When?
7 Testifying later on defense, Randall identified a diagram showing the
layout of the Company's plant and parking lot which are adjacent to the
Port of Portland (R Exh 9) The diagram shows the location and width
of the gates through which persons or vehicles may enter onto Respond-
ent's property from Front Avenue, also the location of guard stations at
two of the gates Randall said the stoke activities took place at gate I
and that he was able to observe them from the area marked "Main
Office " Randall indicated that it was a "very intense, very excited" situ-
ation at the beginning of the strike before a court injunction issued
"There had been paint-filled eggs, nails, firecrackers, rocks, threats," he
said
a Pierce said he dealt with Respondent's personnel director, Dave Ran-
dall, several times in connection with grievances filed Randall said he
"came out really well most every time " Randall said he resigned as
steward about a year prior to the strike
A. When we had a mass picket one time. When
they had that mass picket deal, somebody handed a
couple of eggs. I lobbed them over the fence.
Q. Was that the first day that replacements start-
ed coming through the picket line?
A. Probably was, probably was.
Q. Were you involved in any other picket line in-
cidents involving a van being driven through the
picket line?
A. Yes, I was.
Q. Do you remember when?
A. Oh, that was probably about June, I think.
Q. What time of day?
A. Probably about 3:30 in the afternoon, approxi-
mately.
Q. Where?
A. At Bingham-Willamette, at the last gate on
the property.
Q. Tell the Judge what happened at that time.
A. Well, what happened was a van come flying
out of that gate at a high speed, and there was sev-
eral of us standing there. There was an opening,
with some on this side and some that side, and he
come flying out, and he almost hit two or three of
us on this side. The guys jumped back on the other
side. Then he went out in the street and went down
the street, got caught in traffic, and a number of us
starting running in that direction, you know. One
guy caught the van, and he was beating on it with a
club, and another one threw something. By the time
I got down there, the van had shot across the street,
hit the curb, and was going head-on to traffic down
the street, but I never did reach the van myself.
Q. Is that the only incident that you were in-
volved in with the van?
A. Yeah, I think so. I'm sure.
After the strike Pierce called Respondent's personnel
director, Dave Randall, a number of times in an effort to
get reinstated. In response , Randall would report that
there were no openings. Pierce said he recalled on one
occasion, some time in 1984 after speaking to his fore-
man, Dick Matheson, that Randall had indicated that
there were certain incidents that affected Pierce's recall.
Randall referred to a beating on a van with a club and
some shots being fired at the van; also to the fact that
there had been some nails in the street. Pierce denied to
Randall hitting a van with a club or knowing about any
gun shots . Pierce also indicated to Randall that he could
have kicked some nails out of the way or picked them up
but denied that he would have placed any nails in the
street.
According to Pierce, Matheson and another company
official, Vern Coleman, indicated some support for
Pierce's recall . Pierce related his conversations with
Coleman on direct to be as follows:
First, when I called Coleman he wasn't in his office,
and then he called me back at home, and then I told
him what was going on and that I would to come
back to work again . He told me that he'd speak to
Randall and see. I think it was the second conversa-
BINGHAM-WILLAMETTE CO
tion that I was talking to him to see what he had
found out after he talked to Randall , and he said I
mentioned it to him , but he says Hal Williams, I
can't override Hal Williams , or something like that.
He says why don 't you come in and see Hal Wil-
liams? And I said well , I'm not going to kiss his
rump to get my job back , even though I need the
job as bad as I do. You know . So, that was the end
of that conversation.
Pierce was questioned further on cross -examination
concerning his egg-throwing during the strike. He ac-
knowledged that he threw a couple of eggs but said he
did not know where they landed . He also acknowledged
hitting a windshield with an egg one day when someone
"cussed" him but that occurred , he thought , "on a differ-
ent date "
Michael Jewett started working for Respondent in
1976. He joined the Union and was a picket captain
during the strike against Respondent . Jewett was named
chief union steward and filed charges against five or so
union members for crossing the picket lines.9
Jewett spoke with a company official about returning
to work for Respondent around September 1984 and was
referred to Personnel Manager Randall . Jewett and Ran-
dall had a conversation a few days later which Jewett
described as follows:
Q Will you tell the Judge , in detail , what you
said to Randall and Randall said to you?
A Okay. When we first started off, I told him
that I 'd like to see if I could have my job back. I
told him that the strike was behind me, that I could
live within all the new rules of the company and I
could accept my wages that they would offer me. I
told him that I could get along with everybody,
that there wouldn 't be no problems of any sort. I
told him the strike was over . He said that he liked
my attitude , he thought I had a really good attitude
about returning to work . He said that they were
going to be hiring then to 15 pump mechanics in
the near future . Then he said but you had some
problems on the picket line, you had several infrac-
tions on the picket line . I told him no, I only know
of one, and I told him about the Dan Gruver inci-
dent that I had . I told him that Dan was coming at
me in his car , and I jumped back and I backhanded
him. Then Mr . Randall said well , Dan has a differ-
ent version Then I said, we went to court around
September 9 of 1983 , and I told him that Dan
Gruver took the Fifth Amendment and wouldn't
testify I told him that the guard said that Gruver
hit me . I told him that the guard said he broke up a
fight, and there was no fight , and I said that was a
little unfair , that I couldn ' t come back to work be-
cause of that incident.
Then he said well , there 's a lot more infractions,
too. He said you have several infractions on the
picket line I asked him well , what were they, and
9 Randall said he had not known Jewett was a union steward until
NLRB agent had advised him of that fact
275
he said well-and he didn 't really say anything, and
then he finally said well , we didn 't like the manner
that you walked on the picket line, you walked too
intensively on the picket line. I told him I just
walked normally . I told him that it was my job to
walk the picket line.
So, then , we started talking about employment
again , and he said well , I do need ten or 15 more
people , and he said but you did break the law. The
he said well , maybe you better quit because we
don't have to terminate you or fire you. This time
we'll give you an option to quit . I told him that I
didn't really want to quit.
Then I brought up about me taking over the
duties of chief steward . Our steward found a job
and he couldn't take over anymore , so I took over
all his duties. This was about February of `84. I told
him is this one of the reasons why I wan't going to
get re-employed . He says no, the strike is over, that
doesn 't matter . He says your picket line violence is
the primary concern.
Then I brought up the Dan Gruver incident,
when Dan Gruver attacked Ralph Pease , and Mr.
Randall says well, I'm not going to talk about an-
other employee 's problem , but he just then said that
Dan had a lot of problems and he wouldn't go into
the Dan Gruver incident with Ralph Pease.
Then he says, well, he kind of confused me at the
time in our conversation , because there 's a couple
times he told me to quit or to be terminated, and
then there was a couple times saying well, I do
need some good mechanics . He says well, we could
use your services . He said I'll think about it over
the weekend , so maybe you better not quit or be
terminated . He said he would think about it over
the weekend , and he told me to call him back on
Monday.
So, then, I called him back on Monday, and he
told me that it was in the company 's best interests
not to hire me back, that I'd broken the law, and he
gave me one more chance to quit or to be terminat-
ed again and I just told him to do what you have to
do. I told him it wasn 't fair . I said what about Dan,
and he said well, the company has taken position.
That was the end of our conversation.
On cross-examination , Jewett was questioned further
about his confrontation with Gruver during the strike
when the latter drove his open car through the gate of
Respondent 's parking lot. Jewett said he thought Gruver
was trying to run him down . Jewett said he jumped out
of the way and "threw " a backhand which "landed in
[Gruver 's) face." Gruver has estimated the speed of his
car differently (20-30 mph and 30-40 mph). Gruver
stated that he stopped his vehicle and started waving a
24-inch billy club at Jewett. Words were exchanged, but
there was no physical contact. A guard appeared, and
Jewett "took off."
Dan Gruver testified that he had worked for the Com-
pany for 6 years, first as an apprentice helper and later as
a welder.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gruver said he honored the picket line at the begin-
ning of the strike but later crossed it and returned to
work. He stated that he worked the swing shift during
the strike when "numerous things happened ." He said an
egg was thrown into his car ; also rocks , smoke bombs,
and fireworks were thrown at his car. Most of the inci-
dents occurred at night when he got off work and he
could not recognize the people involved. However, he
said he saw Russ Jewett strike him on one occasion
when he drove his car into the company parking lot.
Gruver said he was driving 5 to 10 miles per hour and
saw Jewett walking back and forth. Gruver said:
He was standing there, just kind of walking back
and forth, with his sign . I slowed down and I had
my blinker going, and just as I went to turn over
the sidewalk, he come up to my car, and said a few
words and smacked me.
Gruver stated that Jewett's blow broke Gruver's sun-
glasses and left him in kind of a daze. Gruver stopped his
car and, holding a fishwhacker club, "exhanged names"
with Jewett. Jewett said he made reports to the company
guard office nearby, Personnel Manager Dave Randall,
and the local police.
Gruver also testified concerning his part in the
Gruver-Pease incident which he said occurred over a
Labor Day weekend. Quoting from Gruver's direct testi-
mony:
Well, I'd been out helping this friend of mine move
all day, and we'd had enough alcohol to drink, and
later on that night we went out and we had a
couple more drinks. Then I just-I don't know
why, but I just got a crazy idea to come down to
work and see what was going on. So, I came down
to work, and there was one car sitting in the park-
ing lot across from Bingham-Willamette, and we
went up to the car and asked the guy why he was
picketing, told him it was a waste of time, that he
was just losing money, and he agreed. He said yeah,
you know, that's true. And we asked him why he
was out there, you know, so late at night picketing.
He said well, this is my shift, so that was that. Then
we exchanged a few more words, and then I made
him get in the back seat of his car. I was talking to
him in the back seat of the car, and I had him down
in the back seat, but I had my hands kind of on his
coat, holding him down. Just to scare him, I told
him that I had a gun, and he believed me. I didn't
have anything near a gun with me.
Well, while I was talking to him in the back seat,
this friend of mine took his keys and his glasses, and
that I didn't know until we further got down the
road, and then he opened the window and threw
them out. I said, what'd you do? He goes, oh, I
took his keys and glasses. I said oh, no, and this
was, like 3:00 in the morning.
Q. The next day, what did you do?
A. I felt really bad. It really bothered me that-I
mean , after I sobered up it bothered me, and I
thought I have to contact this gentleman and apolo-
gize. I went out that Sunday evening and looked-
see, I didn't know exactly where this friend of mine
threw this stuff out of the window, but, you know,
I knew around the area, and I looked. So, I called
up Mr. Pease Sunday, later in the afternoon, and
said this is so and so, and I'm really sorry for what
happened. He was still shaken up. I said if there's
any way-I'll accept responsibility as far as, you
know, paying for what was taken. He says, well, I
just want my stuff back, and I said well, I'll try and
find it again. I went out looking today, and I'll try
to find it. So, what I did was I went and got ahold
of this friend of mine and we both went out and
looked, and where he threw them was over this like
a viaduct-bridge type like thing where-it was, like,
where hoboes live, and that kind of stuff. But, there
was trail. I mean , we tore brush out of there and
everything trying to find this guy's stuff. What evi-
dently happened is these hoboes that were living
under the bridge heard us stop or heard this stuff
hit the ground.
Q. But, you never found it?
A. No, we never did.
Q. Did you ever have occasion to talk to Mr.
Pease again?
A. Yes, I did. I called him the next-in fact, that
night, after my friend and I went and looked, which
was Monday, I called him again and said I can't
find your stuff, and I will pay for everything that
was taken. Well, at this time his wife got on the
other phone and she was hysterical, and she told me
not to call anymore, not to do anything, just to
leave her husband alone. I said okay, I'm very very
sorry, I know I did wrong. That was the end of
that.
Gruver said he reported to work on Tuesday following
Labor Day and promptly reported the incident to Dave
Randall.
Gruver agreed on cross- examination that he had given
statements to the Company but not to an agent of the
NLRB. He had indicated he was willing to be a witness
for the Company in court but pleaded the Fifth Amend-
ment when he appeared in court. Gruver identified
Charging Party's Exhibit 2 as a written suspension notice
he received after the Gruver-Pease incident. 10
Neil Morgavi testified he went to work for Respond-
ent in June 1983 during the strike. He indicated it was
difficult getting through the picket line in the early days
of the strike . Morgavi said:
The first day I started, in the morning it wasn't
bad. That afternoon was terrible. There was people
10 The suspension, termed a "Performance Deficiency," is dated 9 Sep-
tember 1983 and states that Gruver was given a 2-day suspension without
pay Gruver said he thought he had been suspended for 3 days
Randall testified that he gave Gruver the suspension notice on 9 Sep-
tember He explained that although the notice indicates that Gruver was
suspended for Thursday and Friday, 8 and 9 September, he was also
denied time-and-a-half work on Saturday, 10 September Randall said
"Under our implemented proposal, if you didn't work the working day
before a weekend, you didn't get to work the weekend "
BINGHAM-WILLAMETTE CO
surrounding and hindering us from leaving the com-
pany, beating on our cars with picket signs and that
hands and feet, just general harassment , verbal
abuse , damage to vehicles. Some were flat tires. On
another occasion-I'm trying to think of the specif-
ic day, I think it was the following Monday. We
started on a Friday. The following Monday, when I
was trying to enter work, I had my antenna ripped
off; my rear view mirror severely damaged, it was
gust barely hanging on ; two flat tires up front; later
that afternoon, paint damage , paint thrown on my
car; eggs ; more dents in the car from people kicking
and beating on it with signs-things of this nature.
Morgavi identified the tan Plymouth appearing in Re-
spondent's Exhibits 6, 7, and 8 as a vehicle belonging to
him. He thought that the pictures were taken on the first
day of the strike-a day when his car was "bombarded
with eggs and spit." He did not identify any person who
had his car, however.
Careful review of the record persuades me that Re-
spondent's personnel manager , Dave Randall , made the
decision not to reinstate Robert Pierce and Michael
Jewett because he genuinely believed that each of them
had engaged in picket line misconduct . And each of
them did. In the case of Pierce, the misconduct consisted
of throwing of eggs and beating upon a van driven by
Gary Peterson, an employee of Respondent. In Jewett's
case the misconduct consisted of hitting Gruver, a non-
striking employee at the time, in the face as he drove his
vehicle onto the Company's parking lot.
Although Pierce denied at the trial that he had hit the
van, the only real defense he had advanced to Randall
during the August 1984 meeting was that other strikers
had done "things worse than he." Pierce admitted
throwing eggs on two different occasions. On one such
occasion he hit a windshield with an egg. I have difficul-
ty accepting his testimony that on the other occasion he
simply lobbed over the fence two eggs, which, according
to him, "somebody just handed" to him, without any
thought of hitting anything.' I I accept Randall's testimo-
ny that he saw Pierce run after and strike at Peterson's
vehicle. I reject the contrary testimony of Pierce and
VanWoerkom that Pierce never caught up to the van.
Randall , an impressive witness , had a good view of the
incident as he witnessed the incident from his nearby
second story office. Pierce did not deny hitting at the
van when interviewed by Randall about being recalled,
according to the credible testimony of Randall. It is ap-
parent from VanWoerkom's own testimony that he
would have had difficulty viewing all of the ongoing ac-
tivities as he was busily engaged in taking pictures. And,
of course, the fact that no pictures were taken showing
Pierce hitting Peterson's van does not establish that it did
occur.
As for Jewett, his account of the incident involving
him and Gruver impressed me a being implausible and
not credible. If Gruver had been driving through the
parking lot as fast and in the manner as Jewett
11 Photos in evidence show egg shells on Morgavi's car with Pierce
nearby
277
claimed, 12 he would have surely jumped out of the way
as fast as he could. 13 I cannot accept Jewett's assertion
that he thought Gruver was trying to run him down
with a fast moving car and that he simply "backhanded"
him in the face-knocking Gruver's glasses off-"acci-
dentally" and in "frustration."
There is no credible evidence that Randall's action in
refusing to take back either Pierce or Jewett was moti-
vated by any antiunion purpose or concerted activities
on the part of either Randall, Pierce, or Jewett. Randall
was not aware that Jewett was a steward until an agent
of the NLRB told Randall of the fact, and Pierce's serv-
ice as a steward had ended a year or so before the strike.
The Union asserts that by allowing Dan Gruver, Dan
Bartley, and Brad Schilber to return to work while deny-
ing employment to Pierce and Jewett Respondent en-
gaged in "flagrant disparate" treatment and in violation
of the Act. I reject such contention. The difference be-
tween Pierce and Jewett and the other three employees
was not simply that the first two were strikers and the
others were not.14 The record indicates that Respondent
12 Jewett estimated Gruver's speed at 30-40 miles per hour at one time
and at 20-30 miles per hour at another time
's As Respondent 's states in its brief (p 32) "First, any reasonable
person who justifiably believed they were about to be run over by a ve-
hicle would not swing around and hit the driver of the vehicle 'out of
frustration' but would put his energies into trying to get out of the vehi-
cle's path "
14 That was the point in NLRB Y Great Dane Trailers, 388 U.S 26
(1967), cited by the Charging Party Union, which is inapposite here
Similarly, the Board's decision in New Galax Mirror Corp, 273 NLRB
1232 (1984), and the rule quoted from Garrett Railroad Car v NLRB, 683
F.2d 731 (3d Cir 1982), do not conflict in any way with the Respond-
ent's decision not to recall Pierce and Jewett or my decision herein ap-
proving such actions The General Counsel had not proved in New Galax
Mirror Corp, as here, that the respondent employer had engaged in un-
lawful disparate treatment in denying reinstatement of a stnker (Danny
Anders) And it is to be noted that the court in Garrett Railroad Car
unheld the cited employer's decision not to recall two strikers because
their misconduct (involving rock throwing and interference with safe use
of the highway)
Counsel for the General Counsel, in arguing this case at the close of
the trial, sought to dismiss the misconduct of Pierce and Jewett as "a
little animal exuberance on the picket line " The record indicates tht the
strike at the time relevant herein involved considerable violence Eggs
and other objects had been thrown, prompting the Company to seek a
court injunction During his argument the General Counsel's counsel
cited the New Galax Mirror and Garrett Railroad Car cases, along with
two other cases, Hedstrom Co, 235 NLRB 1198 (1978), enfd 629 F 2d
305 (3d Cir 1980), and Stroehmann Bros. Co, 271 NLRB 578 (1984) Nei-
ther Hedstrom nor Capital Bakers aids the General Counsel's (or the
Union's) cause Hedstrom involved the issue of whether a striker, Rena
Ritchey, had received a valid offer of reinstatement In Capital Bakers,
the Board held that blocking an exit at an employer's business was suffi-
ciently serious to justify denying reinstatement of a sinker The Board
said
Applying the Clear Pine test to the present case, we find that
Davis' acts exceeded the bounds of peaceful picketing and persuasion
and were unprotected Davis' acts of intimidation and violence-
blocking a truck's exit from the Respondent's plant, jumping on the
truck and pounding on the truck's window-are each sufficient to
warrant discharge, for each of these acts reasonably tended, under
the circumstances, to coerce or intimidate Accordingly, we con-
clude that the Respondent's discharge of Davis did not violate the
Act
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had no proof that Bartley had engaged in any picket line
misconduct. Schilber's conduct in chasing after the van
and hitting it was certainly more justified than Pierce's.
Schilber was bumped by the van and was understandably
"provoked" to take the "spontaneous" action he did. See
Newport News Shipbuilding v. NLRB, 738 F.2d 1040 (4th
Cit. 1984). It is true that Gruver's unprovoked assault on
Pease was serious, and the Company's suspension of him
was less severe discipline than the action taken against
Pierce and Jewett. Even so, Gruver's situation was dif-
ferent. After sobering up, Gruver realized his mistake
and immediately apologized to the Company and to
Pease, the striker he assaulted , and offered restitution.
Gruver's misconduct, which was not condoned by the
Company, did not, under the circumstances, render him
unfit for future employment as the Company in fact de-
termined. Randall could properly decide, as he did, the
misconduct of Pierce and Jewett on the picket line,
which unquestionably coerced nonstriking employees,
made both employees unsuitable for further employment.
See Newport News Shipbuiding, supra. Thus I find that
Respondent's denial of reinstatement of Pierce and
Jewett involved no violation of the Act. See Clear Pine
Mouldings, 268 NLRB 1044 (1984). 15
15 Quoting from the Board's decision in that case
We believe it is appropriate , at this point , to state our view that
the existence of a "strike" in which some employees elect to volun-
tarily withhold their services does not in any way privilege those
employees to engage in other than peaceful picketing and persuasion.
They have no right , for example, to threaten those employees who,
Based on the foregoing, I make the following
CONCLUSIONS OF LAW
1. Respondent Bingham-Willamette Company is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, Williamette Lodge No. 63, International
Association of Machinists and Aerospace Workers, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not been shown to have engaged in
any unfair labor practice alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
It is ordered that the complaint issued against
Bingham-Willamette Company be dismissed.
for whatever reason, have decided to work during the strike, to
block access to the employer's premises, and certainly no right to
carry or use weapons or other objects of intimidation As we view
the statute, the only activity the statute privileges in this context,
other than peaceful patrolling, is the nonthreatening expression of
opinion, verbally or through signs and pamphleteering, similar to
that found in Section 8(c)
16 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses