Caron, an Indian Head Co.

National Labor Relations Board - Board Decisions

Nov 28, 1978

239 N.L.R.B. 495 (N.L.R.B. 1978)

CARLON, AN INDIAN HEAD COMPANY
Carton, An Indian Head Company, Division of Indian
Head, Inc. and Terry Copen, Kenneth Rarick, and
John Brewer. Cases 8-CA- 10851-1, 8-CA- 10851-
2, and 8-CA-10851-3
November 28, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On August 7, 1978, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect lo credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
MAX ROSENBERG. Administrative Law Judge: With all
parties represented, this proceeding was heard before me in
Cleveland, Ohio, on December 8, 1977, and January 10,
1978, on a complaint filed by the General Counsel of the
National Labor Relations Board and an answer interposed
thereto by Carlon, An Indian Head Company, Division of
Indian Head, Inc., herein called Respondent.' At issue is
The complaint. which issued on August 29, 1977. is based upon charges
filed on March 8, 1977, and served on March 9, 1977. in Cases 8CA
-
10851-1 and -CA-10851-2, and a charge filed on March 22, 1977. and
served on March 24, 1977, in Case 8CA -10851 3.
whether Respondent violated Section 8(aX3) of the Act by
certain conduct to be detailed hereinafter. Briefs have been
received from the General Counsel and Respondent which
have been duly considered.
Upon the entire record made in this proceeding, includ-
ing my observation of the demeanor of the witnesses as
they testified on the stand, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1 THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with its principal
office located in Beachwood, Ohio, has, at all times mate-
rial herein, been engaged in the manufacture of polyvinyl
chloride pipe at its plant in Aurora, Ohio, the only facility
here involved. During the salient period, Respondent
shipped goods valuded in excess of $50,000 from its place
of business in Aurora directly to points located outside the
State of Ohio. The complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that United Rubber, Cork,
Linoleum and Plastic Workers of America, Local 583,
AFL-CIO-CLC, herein called the Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)3) of the Act by discharging employees Terry Copen,
Kenneth Rarick, and John Brewer on or about March 3 or
4, 1977, 2 because they had, or Respondent believed that
they had, joined or assisted the Union or had otherwise
engaged in statutorily protected concerted activities. Re-
spondent denies the commision of any labor practices pro-
scribed by the statute, and therefore prays that the com-
plaint will be dismissed in its entirety.
Respondent manufactures polyvinyl chloride pipe at its
plant with a complement of approximately 85 production
and maintenance employees who are represented for the
purposes of collective bargaining by the Union. The record
discloses and I find that, since 1959, Respondent and the
Union have been parties to successive labor compacts and,
over the years, Respondent has experienced a number of
economic strikes which were called by the Union in fur-
therance of its bargaining demands.
On March 1, at the expiration of the latest contract be-
tween the parties, the Union embarked upon another eco-
nomic work stoppage which was utlimately terminated on
2 Unless otherwise indicated, all dates herein fall in 1977.
3At the hearing and in its brief. Respondent contended that the com-
plaint should be dismissed on the ground. inie, alia, that its issuance was
predicated upon a senes of fatal, procedural irregularities. In view of the
findings and conclusions hereinafter made, dismissing the affirmative plead-
ings in their entirety on substantive ground I deem it unnecessary to rule
upon this contention.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 16 upon ratification of a new agreement. It is undis-
puted and I find that this strike was punctuated by various
incidents of violence and vandalism. These occurrences
prompted Respondent to file a petition for an injunction
with a local court which, on March 15, granted a tempo-
rary restraining order proscribing this activity. However,
with the exception of the episode which triggered this pro-
ceeding, none of the miscreants were positively identified
on the record made.
When the strike began on March 1, the Union estab-
lished picket stations outside the plant from which bases its
members picketed. The patrolling was done by shifts, and
each tour was supervised by a line captain who was gener-
ally responsible for the conduct of the pickets while he was
on duty. The line captain during the early hours of March
3 was employee Kenneth Rarick. Among the other strikers
present at that time were employees Terry Copen and John
Brewer.
There is no essential dispute of fact and I find that, on
the morning of March 3, Respondent's supervisors, Jess
Dowdle, Lloyd Askew, and Richard Denny, were on duty
in the plant. Since the commencement of the strike, these
men had been working 12-hour shifts, which extended
from 8 p.m. to 8 a.m., performing some general production
work and making regular tours of the plant and property to
insure security. About 3 a.m., while the supervisors were
busily engaged in the warehouse, warning signals were
heard. After an investigation, they noted that the air sys-
tem which fed the entire plant was losing pressure. Denny
and Dowdle immediately visited the boilerroom where they
found the door unaccountably open and the boiler valve
shut off, with the result that the boiler was over pressuriz-
ing. While Denny proceeded to summon the plant engineer
for assistance, Dowdle and Askew proceeded outside the
building to inspect the premises. At approximately 3:30
a.m., they approached one of Respondent's trucks which
was parked near the sewage disposal plant and discovered
that it had been severely vandalized. Upon making a tour
of inspection of the well house and a nearby fire well and
finding no damage, Dowdle and Askew commenced to re-
turn to the damaged truck. As they were doing so, they
observed three men walking toward them along the rail-
road tracks which immediately bordered on Respondent's
property. Dowdle and Askew thereupon decided to move
closer to the tracks to ascertain the identity of the three
figures in light of the supervisors' discovery of the vandal-
ized truck and the valve shut off. In their testimony, both
supervisors unequivocally avowed that, as they neared the
tracks, they recognized strikers Kenneth Rarick, Terry Co-
pen, and John Brewer who, from a distance of less than
100 feet, began to pick up fist-size rocks from the rail bed
and throw them at the company representatives. This at-
tack continued for several seconds during which Dowdle
and Askew dodged the missiles. While neither man was hit
by the volley, the rocks struck the ground as close as 5 feet
away, landing on all sides of them. At this juncture, Dow-
dle exclaimed, "Come on, let's back off before we get hit,"
whereupon the men separated and hid behind stacks of
pipes in the vicinity. According to Dowdle, he observed
from his new vantage point that Rarick was crouched be-
hind a transformer box panel situated near the railroad
tracks. A few moments later, Dowdle circled over to
Askew's refuge and, together, they started their retreat to
the main plant building. However, Rarick, Copen, and
Brewer kept pace with the supervisors and, as the latter
proceeded to the plant, the strikers hurled additional vol-
leys of rocks in their direction. Dowdle and Askew ran the
remaining distance unharmed and, upon returning to the
plant, they turned in a report of the incident to their plant
manager. Pursuant to this report, Respondent mailed a let-
ter to each of the strikers which recited that:
This is to inform you, that effective this date, your
employment with Carlon, An Indian Head Company
is hereby terminated. The reason for this discharge is
serious misconduct on your part while engaging in
picket line activity during the early morning of March
3, 1977.4
As chronicled above, the work stoppage ended on April
16 at which time a contract settlement was reached. Of the
85 employees who participated in the strike and who had
engaged in picketing activity, only Rarick, Copen, and
Brewer were terminated.
In light of the testimonial utterances of Rarick, Copen,
and Brewer, there is no question but that these men were
engaged in picket duty along the railroad tracks during the
period from 3:30 and 4 a.m. on March 3 when the incident
reported by the supervisors occurred. Thus, Rarick, the
picket line captain during that period, testified that he, Co-
pen, and Brewer walked down the railroad tracks adjacent
to Respondent's yard on at least three occasions that
morning for the purpose of checking the yard and the back
door to observe what production activities were taking
place. Rarick also admitted that, on one such journey with
his cohorts, he noticed Dowdle and Askew in the yard and
the supervisors had a clear view of the three pickets be-
cause a pole at the fire well where the supervisors were
standing illuminated the area with five lights. Indeed, Rar-
ick corroborated Dowdle's testimony that the latter had
seen Rarick crouch behind a transformer box panel at a
time when Dowdle testimonially reported that rocks were
cascading around Dowdle and Askew. During his direct
examination, Rarick flatly denied that he had hurled rocks
at the supervisors on the night in question, and further
denied that he had observed Copen and Brewer do so, al-
though he conceded that he had observed "a few [rocks]
now and then," and even managed to describe them in
detail. On cross-examination, Rarick also initially denied
that he had seen either Dowdle or Askew near the railroad
siding or behind the railroad cars which were parked on
the siding, and denied that he had observed any truck in
Respondent's yard. However, in an affidavit which Rarick
gave to a Board agent in preparation for the hearing, Rar-
ick swore that "During that morning [March 31 we were
walking up the railroad tracks to observe any activity going
on around the plant. As we were walking back along the
railroad tracks-there were six or seven rail cars inside the
Carlon Co. fence-the forman [sic] Lloyd Askew and Jess
4 The effective date of the discharge of Rarick and Brewer. as reflected in
the letters sent to them. was March 3. Copen's termination was effective
March 4.
496
CARLON, AN INDIAN HEAD COMPANY
Dowdle came out between the railcars and the fence. Terry
Copen, myself, and maybe John Brewer were the ones who
walked down the railroad tracks. The foremen looked at us
and we looked at them. I don't recall anything being said.
I did see a company truck inside the fence."
In an attempt to overcome the testimonial assertions of
Dowdle and Askew that they had actually seen Rarick
throw fist-size rocks in their direction from the railroad
siding, the General Counsel adduced evidence from Rarick
that the picket line captain was right-handed, that he had
suffered an industrial injury to that limb, and that Rarick
could not possibly have thrown any rocks on the morning
in question. The record discloses that Rarick had filed an
application for payment of medical benefits with the Bu-
reau of Workers' Compensation of the State of Ohio due to
an industrial accident which he sustained on February 10.
The application and an accompanying medical certificate
reflect that he visited a physician on February 16 and Feb-
ruary 23. In his evaluation during the visit on February 23.
the doctor advised Rarick to "continue present regimen
[i.e., avoid strenuous use of arm, heat applications, medica-
tion]" and to "return [in] I week if necessary." In a medi-
cal note which he gave Rarick for submission to Respon-
dent, the physician reported that "Kenneth Rarick may not
use the [right] arm for any strenuous gripping, pulling, etc.
and must avoid bumping the elbow for the next 5 days."
By his own admission, Rarick did not have occasion to
visit the doctor for a further checkup during the week fol-
lowing February 23. In fact, he continued to work steadily
at the plant until the strike was called on March 1, per-
forming a wide range of movements using his throwing
arm such as driving a truck and painting. Despite his
claimed infirmity, Rarick openly acknowledged on the
stand that he was physically able to hurl rocks on the
morning of March 3.
When called as a witness, Terry Copen also confessed
that he had walked down the railroad right-of-way on two
occasions on the morning of March 3 in company with
Rarick and Brewer, and that he had spied Dowdle and
Askew in Respondent's yard. However, he, too, denied that
he had thrown any rocks at the supervisors, or that he had
seen Rarick and Brewer do so. Under letter of March 4,
Copen received word from Respondent that he had been
discharged on that date for misconduct on the picket line
on March 3.
In his testimony, John Brewer acknowledged that he had
travelled down the railroad siding with Rarick and Copen
on the morning of March 3 on at least one occasion, and
the record establishes that, on this occasion, he noticed
Supervisors Dowdle and Askew walking around the rail-
road cars. On direct examination, Brewer categorically de-
nied that he had thrown any rocks at the supervisors or
that he had seen Rarick or Copen do so. On cross-exami-
nation, Brewer was asked whether he had picked up any
objects on the railroad bed, and he responded in the nega-
tive. However, in a sworn statement given to a Board agent
during the investigation of these proceedings, Brewer re-
lated that, during his picketing tour, he "may have picked
up pieces of steel or railroad spikes just to play with them."
He then claimed that this playful gesture occurred well
before he walked along the railroad siding with Rarick and
Copen. and he could not remember whether these men also
indulged in the same pastime. On March 3. Respondent
also mailed a letter to Brewer informing him of his dis-
charge on that date for engaging in picket line misconduct.
Rounding out his testimony, Brewer failed to deny Produc-
tion Superintendent Richard Denny's averments that, on
the evening of March 7. while stationed at the plant gate,
Brewer warned Denny that "Before this thing is over with,
there is going to be blood shed."
Finally, Emanuel Hough testified on behalf of the Gen-
eral Counsel that he served as a picket from midnight to 6
a.m. on March 3 along with Rarick, Copen, and Brewer.
and that he did not observe these men throw rocks at su-
pervisors at anytime that morning. Initially, Hough pro-
claimed that any such actions of the three strikers could
not have escaped him because "they were within my eye-
sight the whole evening." However, he then acknowledged
that, during the critical period from 3:30 to 4 a.m. on
March 3. he was positioned at a picket station far removed
from the railroad track site where Rarick. Copen. and
Brewer accosted Dowdle and Askew.
I do not credit the testimony of Rarick, Copen, and
Brewer, not only because I was not impressed with either
their demeanor or candor when they testified from the wit-
ness stand, but also because their testimony was internally
inconsistent. Thus, all three men admitted that, between
3:30 and 4 a.m. on March 3, they collectively travelled
down the railroad siding adjacent to the plant yard, and
that they observed Dowdle and Askew within 100 feet of
their location. In his testimony, Rarick denied that he had
seen the supervisors in the vicinity of the railroad cars or
that any damaged truck was on the premises. He then con-
ceded that, in a sworn statement given to the Board, he
told the Government agent that he had, indeed, noticed the
supervisors in close proximity to the railroad cars and the
pickets, and that a company truck was positioned in the
yard. Rarick next sought to convey the impression that he
would have been physically unable to hurl rocks at Dowdle
and Askew, even if he had so desired, because his throwing
arm had been incapacitated as a result of an industrial
accident. However, this attempt to shield his involvement
in the rock throwing incident proved abortive on several
counts. Thus, although the attending physician directed
Rarick to return to his office within a week after his Febru-
ary 23 appointment if necessary, Rarick felt no need to
follow this direction and. in fact, continued to perform the
physically demanding duties of driving a truck and paint-
ing. Moreover, Rarick admitted on the stand that he would
have been physically capable of throwing rocks on the
morning of March 3. Furthermore, Rarick testified that,
during his interview with the Board agent, he stated that he
"thought I was fired because of my union activity and my
longevity with the company." In this connection, Rarick
recounted that he had been a member of the Union's con-
tract negotiating team for 6 years and has also held the
position of chief shop steward for 3 years. However. Rarick
confessed that he had abandoned these positons long be-
fore the current work stoppage, and that he held no union
office on March 3. Moreover. Rarick further acknowl-
edged that, during an earlier strike against Respondent
which occurred in 1974. he was immediately recalled to
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work at the conclusion of the walkout despite the fact that,
during this period, he had been both a union negotiator
and a chief shop steward.
Turning to the testimony of Copen and Brewer, both
men admitted that they had walked down the railroad sid-
ing with Rarick on the morning of March 3 and both men
denied that they had indulged in any rock throwing, al-
though they confirmed that they had spotted Supervisors
Dowdle and Askew in the plant yard on that occasion.
Brewer did admit that he seized some pieces of steel or
railroad spikes from the road bed as a playful gesture, but
claimed that this episode occurred long before he jour-
neyed down the tracks with his fellow strikers. That Brew-
er was not disinclined to indulge in picket line violence is
best exemplified by the warning which he uttered to Pro-
duction Superintendent Denny on March 7 that "Before
this things is over with, there is going to be blood shed."
In sum, I credit the testimony of Respondent's Supervi-
sors Dowdle and Askew and find that, between 3:30 and 4
a.m. on March 3, as they were engaged in a security check
in the plant yard, Rarick, Copen, and Brewer stationed
themselves on a railroad siding less than 100 feet from where
the supervisors stood and bombarded the latter with a barrage
of fist-sized rocks which the strikers had gathered up from
the railroad bed. Dowdle and Askew thereupon ran for cover
behind some pipes located in the yard and hid behind these
barricades while the missiles ricocheted off the pipes or fell
within 5 feet of the men. Finally, the supervisors retreated
to the confines of the plant where they reported the incident
to their superior and positively identified the culprits as
Rarick, Copen, and Brewer. As heretofore chronicled, Re-
spondent discharged Rarick and Brewer on March 3, and
Copen on March 4, because of this picket line misconduct.
In his complaint, the General Counsel alleges that, on
March 3 and 4, Respondent discharged Rarick, Copen,
and Brewer for engaging in a protected, concerted activity,
i.e., a privileged economic strike, and thereby offended the
provisions of Section 8(aX3) of the Act. Respondent claims
that it discharged these men, not because they embarked
upon an economic work stoppage in furtherance of their
Union's collective-bargaining demands, but solely because
they took part in the serious, unprotected misconduct of
hurling large rocks at their supervisors while on the picket
line. As I have heretofore found that the evidence supports
Respondent's claim that the three strikers had launched
these objects and that they were discharged therefor, I find
no merit in the General Counsel's contention in this re-
gard.
Reaching further into his arsenal, the General Counsel
urges that, notwithstanding the three alleged discriminatees
might be found to have indulged in the rock throwing inci-
dent, this activity was not the type of "brutal violence"
which the statute condemns. If I understand the General
Counsel's legal thesis correctly, he seems to contend that,
inasmuch as neither Dowdle nor Askew were struck by the
volley of rocks which were thrown in their direction, the
conduct of the strikers should be chalked up as mere "ani-
mal exuberance" which falls within the protective ambit of
Section 13 or 7 of the Act. To be sure, Section 13 of the Act
prescribes that "Nothing in this Act, except as specifically
provided for herein, shall be construed so as either to inter-
fere with or diminish in any way the right to strike, or to
effect the limitations or qualifications on that right." And,
of course, Section 7 of the statute invests employees with
the right "to engage in ... concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion .... " But this is not to say that all forms of conduct
which falls within the literal terms of these sections are
entitled to statutory protection. In deference to the rights
of employers and the public in general, the Board and
other tribunals have made it abundantly clear that serious
acts of misconduct which occur in the course of a strike
may disqualify a striker from the protection of the Act.5
It is now established that, "Upon proof that strike mis-
conduct on the part of a particular striker has occurred, the
burden of proving the innocence of the striker shifts to the
General Counsel who, in order to gain reinstatement for
the striker, must show that the conduct was not sufficiently
serious to justify the employer's refusal to reemploy the
striker in question." 6 In assaying the misconduct of Rar-
ick, Copen, and Brewer, it should be noted that the
Union's strike was neither caused nor prolonged by the
commission of any unfair labor practices on the part of
Respondent, and, so far as appears, the rock-throwing inci-
dent was not in response to the presence of nonstrikers or
scabs at work in the plant. When viewed against the back-
drop of the extensive vandalism and pellet-gun shootings
which occurred during the work stoppage herein, which the
state court found to be of sufficient gravity to enjoin, as
well as Brewer's threat that blood would now before the
labor hostilities ended, I am persuaded that the calculated
misconduct of Rarick, Copen, and Brewer was of such se-
verity under the circumstances as to warrant depriving them
of the protection of the controlling legislation.7 From my
reading of the Act and the interpretative decisions, I perceive
no support therein for the General Counsel's apparent asser-
tion that employees' rights under Sections 13 and 7 should
depend upon the accuracy of their aim.
Finally, the General Counsel argues that, even though
Rarick, Copen, and Brewer could have been lawfully dis-
charged for having hurled rocks at the supervisors, Re-
spondent selected these men for termination for the alter-
nate reason that they occupied prominent positions in the
Union's infrastructure, and thus violated Section 8 (aX3 ) of
the Act on this ground. I find this argument totally lacking
in substance. As I have heretofore found, although Rarick
had served as a member of the Union's negotiating team
and as the chief shop steward during the Union's strike in
1974, he held no office in that labor organization at the
times material herein. Moreover, despite his participation
5See, e.g.. Hedstrom Company, a subsidiary of Brown Group, Inc., 235
NLRB 1198 (1978); N.L.R.B v. Illinois Tool Works, 153 F.2d 811, 815-816
(7th Cir. 1946).
6See Coronet Casuals, Inc., 207 NLRB 304, 305 (1973).
7Compare N.LR.B. v. Otsego Ski Club-Hidden Valley, Inc., 542 F.2d 18
(6th Cir. 1976) (throwing eggs at vehicles); W J. Ruscoe Company v.
N.L.R.B., 406 F.2d 725 (6th Cir. 1969) (throwing gravel at nonstrikers);
Larand Leisurelies, Inc., 222 NLRB 838 (19 76) (throwing beer bottles at
cars) with N.LR.B. v. Illinois Tool Works, supra (publishing inaccurate in-
formation about employer); Terry CoacI Industries, Inc.. 166 NLRB 560
(1967), enfd. 411 F.2d 612 (9th Cir. 196%9) (using obscene language); Coronet
Casuals, Inc., 207 NLRB 304 (1973) (throwing gravel underhanded).
498
CARLON, AN INDIAN HEAD COMPANY
in the work stoppage which occurred in 1974, Rarick was
immediately recalled to work when the strike terminated.
Brewer testified without contradiction and I find that he
held no position on the Union's official roster when he was
discharged on March 3 and that, although he participated
in the 1974 strike, he, too, was recalled by Respondent.
Furthermore, Copen testified that he had occupied the role
of shop steward when the current strike began on March 1,
but revealed that there were six or eight other shop stew-
ards who participated in the strike and none of them were
discharged by Respondent. Finally, Emanuel Hough, who
held the office of president of the Union during the March
1 strike and who also engaged in picketing, was not termi-
nated. In short, I am not convinced that Respondent was
motivated in severing Rarick, Copen, and Brewer from its
employment rolls for reasons connected with their union
membership or the offices which they held in that labor
organization.
Having found that Rarick, Copen, and Brewer had en-
gaged in picket line misconduct on the morning of March 3
which was unprotected by the Act, I therefore conclude
that Respondent was legally privileged to discharge them
for this activity. Accordingly, I conclude that the General
Counsel has failed to sustain his burden of proof that Re-
spondent violated Section 8(a)(3) of the Act by terminating
these men. Consequently, I shall order that the complaint
be dismissed in its entirety.
ORDER 8
IT IS HEREBY ORDERED that the complaint herein be, and it
hereby is, dismissed in its entirety.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations fo the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
499