Clougherty Packing Co.

National Labor Relations Board - Board Decisions

Feb 15, 1989

292 N.L.R.B. 1139 (N.L.R.B. 1989)

CLOUGHERTY PACKING CO 1139
Clougherty Packing Company and Estanislao Perez
and Pedro Estopinian and United Food and
Commercial Workers International Union,
Local 770 , AFL-CIO, CLC Cases 21-CA-
24464, 21-CA-24591, and 21-CA-24650-2
February 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On July 20, 1988, Administrative Law Judge Mi
chael D Stevenson issued the attached decision
The Respondent and the General Counsel filed ex
ceptions and supporting briefs, and the Respondent
filed an answering brief to the General Counsel's
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, i and
conclusions and to adopt the recommended
Order 2
The Respondent is alleged to have unlawfully
discharged certain striking employees With respect
to employees Gama and Velasquez, the Respond-
ent claims that it had established its honest belief
that these employees had engaged in misconduct
sufficient to justify their dismissal Even if we
assume, however, that the Respondent did establish
its honest belief with respect to these employees,
we agree with the judge that the General Counsel
carried her burden and established that neither
Gama nor Velasquez had engaged in the alleged
misconduct In this regard, the judge credited both
Gama's and Velasquez' denial of involvement in
the alleged misconduct and, contrary to the Re-
spondent s assertion, these credibility resolutions, as
was the case with all the judge's credibility resolu-
tions, were based, at least in part, on the judge's
observation of the witnesses' demeanor 3
i The Respondent and the General Counsel have 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 evidence convinces us that 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
2 We have attached a new notice to employees to more fully conform
to the judge s recommended Order
3 The Respondent also contends that the wage s crediting of Gama s
and Velasquez denial of involvement in the alleged misconduct is msuffi
cient to carry the General Counsels burden of showing that these em
ployees had not engaged in the alleged misconduct citing Certainteed
Corp 282 NLRB 1101 (1987) and US Gypsum 284 NLRB 4 (1987) for
this proposition In both those cases however the judges discredited the
employees denials of involvement in the alleged misconduct Conse
quently we do not find either of those cases controlling The judge ac
The Respondent justified its dismissal of another
striker, Estopinian, as based on its honest belief that
Estopinian had thrown rocks at both Construction
Foreman John Clougherty's car and at an unidenti
fled car The judge relied solely on the misconduct
against Clougherty in concluding that Estopinian s
dismissal did not violate the Act 4 He found it un-
necessary to decide whether Estopinian's discharge
could have been based on the Respondent's honest
belief that he had thrown rocks at the unidentified
car The record shows that Estopinian threw the
rock at the unidentified car while in the presence
of other picketers We find that the Respondent's
honest belief that Estopinian threw a rock at the
unidentified car in the presence of other (albeit
striking) employees also justifies Estopinian's dis
missal This is so because, inter alia, Estopinian's
action reasonably tended to coerce those striking
employees, in whose presence he threw the rock,
from returning to work before the end of the
strike See Clear Pine Mouldings, 268 NLRB 1044,
1048 (1984), enfd mem 765 F 2d 148 (9th Cir
1985), cert denied 474 U S 1105 (1986)
In concluding that the Respondent had estab
lished an honest belief that employee Estopinian
had engaged in misconduct, the judge found that
both Clougherty and Gary Ainsworth, a hog buyer
and accountant who also witnessed the second Inci
dent, had identified Estopinian by looking at em-
ployee identification badges In this regard,
Clougherty testified that both he and Ainsworth
identified Estopinian by looking at the identifica
tion badges, but Ainsworth did not mention identi-
fying Estopinian in this manner The record shows,
however, that Ainsworth recognized Estopinian as
"Pedro" (Estopinian's first name) from offal" (the
department where Estopinian worked) and that he
identified him as the employee who threw the rock
at the unidentified car Thus, notwithstanding the
lack of clarity in the record as to whether Ains
worth identified Estopinian by looking at the iden
tification badges, Ainsworth's testimony corrobo-
rates Clougherty's identification of Estopinian as
the rock thrower As the judge found and we
agree that the Respondent's actions were based on
its good-faith belief that Estopinian had engaged in
misconduct and as the General Counsel failed to
establish that he did not, we shall adopt the judge's
recommendation to dismiss the complaint as to Es-
corded no weight at all to the contention that Gama was involved in
making a bomb No exceptions were taken to this aspect of the judge s
decision
4 We interpret the judge s conclusion that the Respondent had an
honest belief that Estopinian had engaged in the alleged misconduct as an
implicit crediting of Director of Industrial Relations William Regan s tes
timony that in discharging Estopinian he relied on eyewitness reports he
had received through the security force
292 NLRB No 122
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
topinian See Rubin Bros Footwear, 99 NLRB 610
(1952), enf denied 203 F 2d 486 (5th Cir 1953),
Furr's Cafeterias, 251 NLRB 879 (1980), enfd
mem 656 F 2d 698 (5th Cir 1981)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Clougherty
Packing Company, Vernon, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except 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 ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
tines of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against any of you for en
gaging in a strike or other concerted activity pro-
tected by Section 7 of the Act
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Pedro Gama and Luis Navarro
Velasquez immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges dis
charging if necessary any replacements for these
employees and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharges, less any net interim earnings, plus
interest
WE WILL remove from our files any reference to
the unlawful discharges and notify the employees
in writing that this has been done and that the dis-
charges will not be used against them in any way
CLOUGHERTY PACKING COMPANY
Peter Tovar and Samuel D Reyes Esqs for the General
Counsel
Thomas P Burke and Christopher A Burrows Esqs (Pettit
& Martin), of Los Angeles, California, for the Re
spondent
Michael Four Esq (Schwartz Steinsapir Dohrmann &
Sommers) and Andrea Zinder of Los Angeles, Califor
nia for the Charging Party
DECISION
STATEMENT OF THE CASE
MICHAEL D STEVENSON , Administrative Law Judge
This case was tried before me at Los Angeles California,
on February 23 24 and 25 , 1988 1 pursuant to a fourth
amended consolidated complaint issued by the Regional
Director for Region 21 of the National Labor Relations
Board on December 4, 1987, and which is based on
charges filed by Estanislao Perez (Case 21-CA-24464),
Pedro Estopinian (Case 21-CA-24591), United Food and
Commercial Workers International Union , Local 274,
AFL-CIO, CLC (Case 21-CA-24650- 2 original and first
amended) and United Food and Commercial Workers
International Union , Local 770, AFL-CIO CLC (Case
21-CA-24650-2 second amended) (Charging Parties
Local 274 or 770 or the Union) on February 5 1986
(Case 21 -CA-24464) April 4 1986 (Case 21 -CA-24591)
April 25 May 14 and November 21 1986 (Case 21-CA-
24650-2) The complaint alleges that Clougherty Packing
Company (Respondent) has engaged in certain violations
of Section 8(a)(1) and (3) of the National Labor Rela
tions Act (the Act)
Issue 2
Whether Respondent discharged certain employees
who had participated in a strike and engaged in union or
other protected concerted activities for the purposes of
collective bargaining or for other mutual aid or protec
tion
All parties were given full opportunity to participate,
to introduce relevant evidence to examine and cross ex
amine witnesses to argue orally and to file briefs Briefs
which have been carefully considered were filed on
behalf of the General Counsel and Respondent
On the entire record of the case, and from my obser
vation of the witnesses and their demeanor I make the
following
All dates refer to 1985 unless otherwise indicated
s Prior to hearing the parties reached agreement with respect to sever
al issues Accordingly after the Regional Director approved a request to
withdraw the related charges the parties entered into an informal non
Board settlement The remaining issues were litigated and will be decided
here
CLOUGHERTY PACKING CO 1141
FINDINGS OF FACT
I RESPONDENT S BUSINESS
Respondent admits that it is a California corporation
engaged in the business of processing meat products and
having a facility located in Vernon, California It further
admits that during the past year in the course and con
duct of its business it has sold and shipped goods and
products valued in excess of $50 000 directly to custom
ers located outside the State of California Accordingly
it admits and I find that it is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that United Food and
Commercial Workers International Union Local 274
AFL-CIO CLC and United Food and Commercial
Workers International Union, Local 770, AFL-CIO,
CLC are labor organizations within the meaning of Sec
tion 2(5) of the Act and as of July 1, 1986 Local 274
merged with Local 770
III THE ALLEGED UNFAIR LABOR PRACTICE
A The Facts
Respondents business occupies most of one square
block A plot of this area is reproduced in Appendix 1 to
this decision [omitted from publication] (R Exh 4) For
now, it suffices to say that the business is bordered on
the west by Soto Street on the north by Bandini Street,
and on the south by Vernon Street A main gate is locat
ed off Soto Street roughly midway between Bandini and
Vernon A second gate is located off Vernon about a
block east of Soto
On or about October 1 approximately 1000 produc
tion employees went on strike Prior to the strike one or
more union meetings were held and most of the strikers
attended Union officials advised them on various sub
sects of interest including comfortable dress and proper
behavior while on picket duty Written instructions in
English and in Spanish were also distributed (G C Exh
13) Notwithstanding these efforts, some violent behavior
did occur As a result the Company was required to
board up windows of offices fronting on Soto Street In
addition, on October 4 Respondent filed in state court a
petition for temporary restraining order (which was
granted by the state judge on the same day) and for a
preliminary injunction On October 31 after reviewing
the numerous affidavits submitted with Respondents pe
tition the state judge granted Respondents request for a
preliminary injunction, without opposition by the Union
The court ordered that pickets be limited to a maximum
of five persons per gate and that strikers refrain from en
gaging in or threatening physical violence to any non
striker their families, or to any other person seeking in
gress or egress to Respondents facilities (R Exh 5 )
There is no evidence that Respondent complained to the
court that any person including the five alleged discri
minatees in this case, violated the court s order On the
contrary, the evidence shows that for the most part pick
ets obeyed the court order during the 10 weeks the strike
lasted Compliance was especially pronounced in limiting
the number of pickets to that provided by the court
order
As a deterrent to violent behavior by pickets during
the strike, Respondent instituted certain security meas
ures in and around the premises First Respondents se
curity guards, dressed in blue uniforms were placed on
extended shifts Albert Bragg, chief of Respondents se
curity force for 21 years, worked from 5 a in to 5 p in
As a witness for Respondent, Bragg described his staff
ing arrangement To his normal force of 10 guards,
Bragg added several additional temporary guards from a
private security company Both gates were manned by at
least one security guard 24 hours per day In addition
some guards were assigned to roving patrol of the com
pany perimeter Special attention was directed to parking
lots near Soto and Vernon Streets where pickets general
ly parked their cars and frequently congregated These
lots were adjacent to a restaurant and liquor store The
security guards were connected to each other and to
Bragg by portable radio carried by each guard
When incidents occurred, they usually happened when
work shifts began and ended The morning shifts began
between 6 and 7 a in and ended between 2 30 and 3 15
p in when afternoon shift employees reported for work
During the strike, the Company maintained about 50 per
cent of normal production by using nonstriking employ
ees returning strikers, and replacement employees To
reduce congestion and confusion during shift changes
Bragg directed that employees reporting for work use
the Vernon Street gate and those leaving work use the
Soto Street gate Bragg and his subordinates attempted
to direct traffic for the entering and exiting employees as
well as to maintain order on the picket lines In addition,
frequently there were groups of strikers on either sides
of the gates who would contribute verbally to the daily
tumult at shift change
Besides the security guards, Respondent installed video
cameras focused on the two gates described above
These cameras recorded daily on video tape relevant
events One or more Respondent employees monitored
strike activities on small television screens set up in a
converted office There is no evidence that these tapes
played any significant role in the instant case
One of Respondents employees who monitored the
television screens and generally acted as a clearinghouse
for strike incident reports was Christy Glennon a wit
ness for Respondent An erstwhile engineer in Respond
ent s employ for 2 1/2 years Glennon was given his new
assignment for the duration of the strike Specifically he
was directed to receive oral and written reports from
employees, security guards, or others with respect to
strike incidents When he received oral reports of injury
or property damage he was instructed to obtain as much
information as possible with respect to all details He was
also directed to expend his best efforts to identify the
malefactor To assist in performing his duties Glennon
kept a logbook containing strike incident reports (R
Exh 7) On cross examination, it was noted that Glen
non s logbook contained numerous notations legends,
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signs marks or other material placed there by unknown
persons For this reason, and because Glennon could not
recall much that was important, the overall value of the
logbook and of Glennon s testimony was not great
The reports and logbook compiled by Glennon were
reviewed on an ongoing basis by William Regan Re
spondent s director of industrial relations and a 15 year
employee 3 When the strike was over Regan reviewed
all the evidence with respect to various strikers and de
cided the charges against 12 employees were serious
enough and that the evidence was sufficient to warrant
discharge Notices were sent to the affected employees
reflecting this decision and will be noted below in the
discussion of the specific alleged discriminatees
At hearing the alleged discriminatees and in some
cases their accusers required the assistance of a person
interpreting English to Spanish and vice versa to present
their testimony
I note that on January 26, 1987 (Tr 244), the Union
and Respondent reached a new agreement
B Analysis and Conclusions
1 The applicable legal standards
a The severity of the alleged conduct
In Clear Pine Mouldings 268 NLRB 1044 1046 (1984)
enfd 765 F 2d 148 (9th Cir 1985), the Board plurality
and concurring opinions adopted as the general standard
for striker misconduct serious enough to permit the em
ployer to refuse reinstatement or to terminate4 that em
ployee for conduct that under the circumstances exist
ing may reasonably tend to coerce or intimidate em
ployees in the exercise of rights protected under the
Act, quoting NLRB v W C McQuaide Inc, 552 F 2d
519 527 (3d Cir 1977) There can be little question that
throwing rocks or other projectiles at moving vehicles
as is alleged against four of the discriminatees or visiting
a nonstrikers home late at night under circumstances
reasonably tending to show an intent to damage his
property and/or commit physical injury as is alleged
against one of the discriminatees are acts on which an
employer may rely to terminate 5 I find therefore that
the primary issue in this case concerns the sufficiency of
the proof against the alleged discriminatees consistent
with the Board s legal standards recited below
b Burden of proof and other legal standards in strike
misconduct cases
"Section 7 of the Act gives employees the right to
peacefully strike, picket , and engage in other concerted
acavities for the purpose of collective bargaining or
a On January 18 1986 Regan suffered a serious injury while riding a
three wheel motorcycle The injury rendered him a quadriplegic During
his lengthy testimony which he gave while seated in a wheelchair
Regan did not appear to have impaired memory attributable to the acct
dent Therefore I evaluated his testimony like that of every other wit
ness
4In evaluating alleged picket line misconduct the Board applies the
same standards for both an alleged discriminatory discharge and a refus
al to reinstate case Tube Craft 287 NLRB 491 (1987)
6 See GSM Inc 284 NLRB 174 (1987) GEM Urethane Corp 284
NLRB 1349 (1987) Western Pacific Construction 272 NLRB 1393 (1984)
other mutual aid or protection Clear Pine Mouldings
supra, 268 NLRB at 1045 However striking employees
may disqualify themselves from reinstatement by engag
mg in serious misconduct Matlock Truck Body Corp,
248 NLRB 461, 472 (1980) As in all cases involving
either the discharge of or the refusal to reinstate strikers
for having engaged in such alleged acts of misconduct
while picketing, the burden of proving discrimination is
that of the General Counsel Rubin Bros Footwear 99
NLRB 610, 611 (1952) Once the General Counsel has
established that strikers were terminated or denied rein
statement for conduct related to the strike the burden of
going forward shifts to the Respondent to demonstrate
an honest belief that the strikers had engaged in strike
misconduct Rubin Bros supra, 99 NLRB at 611 If the
Respondent meets its honest belief responsibility the
burden of going forward shifts back to the General
Counsel to prove that the strikers did not in fact engage
in the alleged misconduct Axelson Inc, 285 NLRB 862
(1987)
Respondents honest belief burden does not extend to
proving that a striker did in fact engage in the miscon
duct To the extent that there is a lack of evidence after
an honest belief has been established the decision should
be for the employer, because the General Counsel has
the burden of proof to show the strikers innocence Ax
elson Inc supra An honest belief requires some speci
ficity in the record linking particular employees to par
ticular allegations of misconduct General Telephone Co,
251 NLRB 737 739 (1980)
As to the sources of information on which an employ
er may base its honest belief, the Board has permitted the
use of reports by security guards and other written re
ports Newport News Shipbuilding & Dry Dock 265
NLRB 716 718 (1982) General Telephone Co supra, 251
NLRB at 739, Giddings & Lewis Inc 240 NLRB 441
447-48 (1979) Furthermore hearsay reports by supervi
sors or coemployees have also been permitted
2 The five alleged discriminatees
a Pedro Gama
Gama was employed by Respondent since 1978 in the
smoked meats department and he joined the strike from
the beginning On January 20, 1986 a notice was sent to
him charging him with picket line misconduct, as of
October 22 (G C Exh 3) Gama did not recall if he was
at the picket line on that date Union sign in sheets for
pickets were not available for Gama nor for the other al
leged discriminatees
Respondent's evidence to support its honest belief in
the October 22 charge of picketline misconduct was sum
marized by Regan
Q Let me direct your attention to employee
Pedro Gama On what basis and what documents
did you rely on to make the decision to terminate
him?
A On a document provided by the Glendale
City Police
Q And what document was that?
CLOUGHERTY PACKING CO
A That was a deposition of-or I m not sure that
it was a deposition but an employee named Larry
Smith was arrested for making a bomb in relation
ship to threatening the plant
Q And it was a written report that you relied on
from the Glendale City Police?
A Along with talking to one of the detectives as
signed to the case yes
Q Do you know the name of that detective?
A I can t remember it offhand
Q Was he a detective of the Glendale City
Police?
A I believe he was, yes
Q Did you rely on anything else in deciding to
terminate Pedro Gama9
A Well, yes, there was-there was verification
throughout the strike that one of the vans used in
some of the strike violence, the van belonged to
Pedro Gama
Q Yes, sir I in asking you what verification you
relied on, what was it that you relied on?
A The primary document I relied on was the
one by the Glendale Police Department
Q Did you rely on any of the logs kept by
Christy Glennon in determining to terminate Mr
Gama9
A Yes I did
Q Other than the police report from the Glen
dale City Police Department the conversation you
had with the Glendale city detective and Christy
Glennon s log was there anything else that you
relied on in determining to terminate Pedro Gama?
A No [Tr 228-229 ]
In addition to the above a night foreman named James
Udell was called as a Respondent witness Udell who
worked during the strike described an incident that oc
curred on October 11, late at night at his home While
unloading groceries from his vehicle he observed a van
drive slowly past his home and stop one or two houses
down the street While the driver remained in the vehi
cle two men dressed in dark clothing emerged The two
men appeared to be carrying rocks or some kind of
shiney objects as they approached Udell s home in a fur
tive manner Udell retreated to obtain a stick from his
car but when his car light went on the two men ob
served Udell and the larger Hispanic man allegedly said
in English There he is Lets get out of here They
then returned quickly to the van and sped away For a
short distance, Udell followed them in his vehicle and
allegedly observed the van s license number On return
to his home he called the Downey California police to
report the incident and the license number He also re
ported the matter to Respondents night security supervi
sor, Joe Galluzzo a witness at the hearing The follow
ing day Udell also reported the incident to Christy Glen
non
At hearing Udell no longer had the paper on which
he had recorded the license number and could not recall
it He described both men as Hispanic one as big and
stockey, and the other as medium size Udell also de
scribed the van as orangish rustish color with a little
1143
porthole on the side, and two little windows on the side
panel in the rear
At the conclusion of Udell s direct examination the
following colloquy occurred
JUDGE STEVENSON Well maybe its late in the
day for me too, but is this going to be tied up?
MR BURKE Yes
JUDGE STEVENSON I mean it isn t tied up as of
this moment
MR BURKE This Witness does not remember off
the top of his head the license number
JUDGE STEVENSON Okay I know there was tes
timony about somebody s van, so I have that but as
we leave it here is [sic] we need someone else
to
MR BURKE There s another witness to follow
up
JUDGE STEVENSON All right
MR BURKE Its not that late in the day [Tr
4621
On cross examination, Udell first reported that he had
learned from Glennon after Udell reported to him on the
incident that a California Department of Motor Vehicle
(DMV) report traced the van to Gama (Tr 479) Later
in response to my question about a DMV report Udell
said that Glennon had never given him any information
relative to the license number Rather Udell just heard
like rumors go or whatever and somehow I heard that it
was Pedro-it belonged to Pedro Gama (Tr 483) (On
the basis, of this clarification I struck from the record
Udell s earlier testimony at 479 )
In his testimony Galluzzo gave no testimony regard
ing Gama However, Glennon did He testified with re
spect to the license number given to him by Udell
JUDGE STEVENSON When you described the in
formation from Mr Udell and a certain license
number I don t believe that you testified unless I
didn t hear it about checking the owner of the li
cense plate Did you go to the DMV of the State of
California
THE WITNESS No I did not no
JUDGE STEVENSON Did somebody do that for
the Company9
THE WITNESS Yes, I believe so
JUDGE STEVENSON Who was that?
THE WITNESS I do not recall [Tr 564 ]
In his logbook (R Exh 7 p 1) there is recorded the no
tation 73 Chevy Pedro Gama 6515 Templeton Hunt
Park ' and in the left hand margin, 2B5P 894 But
none of this was in Glennon s writing and Glennon was
unable to identify it There is also recorded a narrative in
Glennon s writing (R Exh 7, 1)
10/17/85 5 50 a in James Udell #770
At 12 30 pm, 10/17/85 2 tall well built Mexicans
(and possibly a 3rd-driver) parked 3 doors away
from victim s house and stealthily proceeded into
driveway The vandals were wearing white gloves
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and carrying something like a tire iron His wife
was in the shower at the time James heard the car
door closing and went outside A car chase ensued
with the vandals driving a rusty/orange color
Chevy van *(Lic No 2G86561)* The victim sus
pects that one of the guys was Claude Gonzalez
(#662 Hog Pusher)
73 Chevy
Pedro Gama
6515 Templeton
Hunt Park
There is a line running from the license number 2686561
to Gama s name The entire report is dated October 17
1985 which is the date that Glennon says he took the
original report, and 5 days after the date that Udell says
he gave his report to Glennon The date of the incident
is also wrong
I note that in his testimony Gama admitted ownership
of a van with license No 2G86561 He also denied being
at Udell s home at the time in question He also testified
that he did not let anyone else drive his van He further
testified that he never was questioned nor arrested by
police In rebuttal Gama added that Respondent had a
record of his license plate number since he purchased the
vehicle in 1983, so he would be able to obtain a parking
permit to park on Respondents property
I begin my analysis with a second colloquy be
tween myself and Respondents attorney following
up my remarks of the prior day quoted above
JUDGE STEVENSON Before the witness is ex
cused, Mr Burrows you were present when I in
quired of Mr Burke after Mr Udell s testimony-I
think I prefaced it by saying Maybe it s late in the
afternoon but -
MR BURROWS I remember that yes
JUDGE STEVENSON I said, Where is the connec
tion of the evidence? and he said that would be
forthcoming
MR BURROWS We believe we ve established that
connection
JUDGE STEVENSON Well would you-I don t
want you to give any closing argument at this
point but I further asked Mr Glennon if I had
missed something in his testimony when it was my
turn to ask questions, and I said something to the
effect did he call the DMV to establish the owner
ship of that license plate and he said he didn t
and-
MR BURROWS That s correct Your Honor
JUDGE STEVENSON Now just point me in a di
rection Where have you connected up Mr Udell to
Mr Gama or to anyone else in this case?
MR BURROWS Your Honor, in all frankness I
think I in in kind of a compromising position be
cause part of the connection has to do with testimo
ny that came from Mr Gama yesterday and I be
lieve if I-we d like to reserve the right to point
that out in detail in our brief I don t want to be coy
with Your Honor but-
JUDGE STEVENSON No, I think you have that
right Will you at least concede that as of right now
there is no evidence at least that I am aware of to
tie up a certain license plate which Mr Udell said
he obtained after stopping and starting three differ
ent times, to this individuals Is that right, or is that
even compromising your position further9
MR BURROWS It does, and I suppose I can go
so far as to say that the manner in which testimony
about the license plate was elicited from all wit
nesses both today and yesterday is the way in
which the connection is It s a subtle point but it s a
very important one for us
JUDGE STEVENSON All right I don t think I
have any right to press you at this time I basically
want to know if I in missing some direct evidence,
and I think I in not Really what I have to do is
wait and see your circumstantial evidence and how
you present it and how it relates to your theory so
I'll wait for the proper time [Tr 587-589 ]
Having been admonished by Respondent to wait for its
brief, I now turn to pages 15-17 of the brief for Re
spondent s theory as to Gama The brief refers first to
Regan s testimony that Gama was involved with a fellow
employee named Smith in making a bomb This evi
dence is so deficient I accord it no weight at all Nei
ther the alleged report nor the alleged author was pro
duced at hearing I find no specificity in the record to
link this matter to Gama
As to the Udell incident I find similar deficiencies
Assuming without finding that Udell provided the li
cense number in the logbook to Glennon there is no
showing how Respondent traced the license number to
Gama to establish its honest belief that Gama was at
Udell s home on the night in question At hearing Gama
matched the license plate of his van to that contained in
Glennon s journal But this comes too late to establish
Respondents honest belief as of the date of termination
Cf Western Pacific Construction 272 NLRB supra at
1393 Moreover there is no credible information at any
time that Gama was at Udell s home only that Gama s
van may have been
Respondent also notes that at hearing Udell identified
Gama as being one of the two men who came to his
home on the night in question In a very questionable
trial tactic this identification was elicited by the General
Counsel on cross examination of Udell (Tr 464) Never
theless I find the identification is of little or no value
There is no evidence that Udell told either Galluzzo or
Glennon that he could identify either or both of the men
in question As will be noted below in a discussion of Es
topinian Respondent had photographs available broken
down by departments which could have been shown to
Udell at the time Indeed the only name in Glennon s
report in Glennon s handwriting and apparently fur
niched by Udell was someone named Claude Gonzales
whoever that is All of this is not to ignore the fact that
there is no showing how Udell could have seen either or
both of the men given the dark area near his house I
further note that because no party moved to sequester
witnesses it would have been a simple matter for Udell
CLOUGHERTY PACKING CO
to know Gama not from his house but from an earlier
part of the hearing
In sum I find Respondent lacked an honest belief as to
Gama because there is no specificity in the record link
mg Gama to particular allegations of misconduct
In the alternative I find that if Respondent had an
honest belief, then General Counsel has met her burden
to prove that Gama did not in fact engage in the alleged
misconduct In this respect, I find Gama s testimony that
he was not at Udell s home on the night in question
credible, when weighed against the opposing evidence I
note the plausible explanation for Gama s license number
to be in Glennon s report-Respondent already had it in
its files I note the failure of Galluzzo to corroborate
Udell s testimony with respect to allegedly having made
a prompt report to him dust after the incident occurred
Finally, I note the many discrepancies in the evidence
(1) as between the time and place alleged in the termina
tion letter and the evidence adduced at hearing (2) as
between the date of Glennon s report and Udell s testi
mony that he reported the incident on October 12 and
(3) the failure to explain the name of Claude Gonzales or
to account for the unidentified writing in Glennon s log
For the above stated reasons, I find that Respondent
violated Section 8(a)(1) and (3) of the Act in terminating
Gama
b Luis Navarro Velasquez
Navarro was an employee of Respondent since August
1978 A participant in the strike, Navarro, was denied re
instatement in early December On January 20 1986 Na
varro was sent a termination notice for Picket Line
Misconduct alleged to have occurred on November 12
(G C Exh 8) Regan testified that his decision to terms
nate Navarro was based on reports of security guards
and eye witness reports from employees that the vio
lence occurred against (Tr 233-234) Turning to Glen
non s log I note the following entry (R Exh 7 p 7)
11/12/85 5 50 p in Felix Antonio
X
8
Reyes (New Applicant)
255-6747 201 N 50 Ave,
LA CA 90048 He had
dropped off Juan Escobar
(Night Clean up) and exiting
Soto gate N/O when a
rock was thrown by Luis
Navarro (# 1614 Sausages)
at passenger s window
Veh white Datsun B210
(BOU NYJ) Culprit was
arrested-later released 85
11520
I note a later entry on the same page apparently refer
ring to a different matter is dated November 8, 1985
Glennon could not explain the discrepancy of the later
date coming first
All agree that on November 12 Navarro along with
several others was present at and near the picket line on
Soto Street An unidentified person driving a white
Toyota with an unidentified passenger inside had dust
1145
dropped off a third man, also unidentified li As the driver
exited the Soto gate to the right i e going north, a
person in a group of five men walking south on Soto
toward Galluzzo threw a rock and broke the passenger
window of the car The group of men were standing on
the sidewalk several feet down from the gate
Galluzzo could not identify the perpetrator However,
the driver stopped his car, got out, pointed at someone,
and said , That guy just broke my window The driver
did not say a name, but Galluzzo knew who the guy
was just the way he identified him I don t remem
ber if he said a hat or the clothes he was wearing (Tr
570)
The driver got back into his car and pulled back into
Respondents yard and Galluzzo called the police The
police arrived in a few minutes but Galluzzo is not sure
if the driver talked to him Through all of this the pas
senger said nothing
In his testimony, Navarro admitted that he had been
the one accused of throwing the rock by the driver
However he denied then as he did at hearing that he
had been the culprit All agree that the police arrested
Navarro a few minutes later near the restaurant at the
corner of Soto and Vernon
The next day, Galluzzo prepared a written report
which he left on Glennon s desk when the latter was not
present This report cannot now be located
In arguing that it had an honest belief that Navarro
had thrown the rock Respondent appears to base its case
in large measure on the fact of Navarro s arrest (Br 20 )
In light of the presumption of innocence I find no infer
ence from the arrest that can be drawn to support Re
spondent s case
Respondent also appears to rely on a criminal penalty
assessed and paid because of this misconduct (Br
20) Navarro entered a plea of nolo contendere on
charges arising out of the incident This plea cannot be
used as an admission elsewhere See Tseung Chu v Car
nell 247 F 2d 929, 938 (9th Cir 1957) cert denied 355
U S 892 (1957) If the document proving the plea is not
admissible then any testimony whether or not stricken
from the record is also lacking in probative value
I find that Respondent did not have an honest belief
because there is no specificity in the record linking Na
varro to particular allegations of misconduct
In the alternative I find that if Respondent had an
honest belief the General Counsel has met her burden to
prove that Navarro did not in fact engage in the alleged
misconduct Because neither the driver the passenger
nor the arresting officer testified, and because Galluzzo
was not able to provide probative evidence I credit Na
varro s testimony that he did not throw a rock and break
the window at the time and place in question
For the above stated reason, I find Respondent violat
ed Section 8(a)(1) and (3) of the Act in terminating Na
varro
6 There is no explanation in the record for Glennon s purported identi
fication of the driver and passenger Galluzzo could not recall their
names and there is no showing he ever knew them (Ti 575) Therefore
so far as I am concerned they remain unidentified
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c Jose Melgoza
Melgoza began working for Respondent on February
7, 1970 On the day the strike started, Melgoza went on
disability The disability supposedly ended on or about
the day the strike ended During the strike Melgoza was
receiving disability payments from the State of Califor
nia For unexplained reasons Melgoza was later required
to repay the State for his disability payments and is now
in the course of doing so The doctor who treated him is
now in prison, although it is not clear whether he is
serving time for matters relating to Melgoza s disability
In any event during the strike Melgoza went to the
Company once or twice a week to participate in the
picketing In early December Melgoza went to the
Company in order to see the nurse about his disability
The nurse referred him to Regan who told him he was
fired for breaking the window of a nonstrikers car
When Melgoza asked to be confronted by his accuser,
Regan said that was not necessary Later, on January 20,
1986, Melgoza was sent a termination letter for Picket
Line Misconduct occurring on November 4 (G C
Exh 2) The evidence against Melgoza consisted of an
eyewitness report a security guard report and Regan s
own observations
This incident happened between 3 and 3 30 p in at a
time when traffic was congested due to changing work
shifts Groups of strikers stood down the street on either
side of the Soto gate and across Soto Street from the
gate Although Regan did not see Melgoza engage in
any misconduct (Tr 232), he did see him picketing short
ly before the incident and after the incident when the
nonstriking employee drove his car back to the Compa
ny, Melgoza was no longer there In addition Regan re
called the driver of the car telling him just after the inci
dent that Jose Melgoza had broken his window
The driver of the damaged car was Juan Chang a 20
year employee of Respondent Chang had gone on strike
with the others and remained out for 2 weeks He then
returned to his work as a machine operator Chang testi
feed that as he left work on the day in question he saw
Melgoza standing with two black men on Soto Street
about 50 yards from the gate As he drove about 25-30
miles per hour north on Soto Street Chang saw Melgoza
throw a rock and break the passenger side window of his
car At this time, Chang backed up his car into the yard
and reported his experience to Al Bragg chief of securi
ty After the incident Melgoza walked rapidly toward
Bandini , while the two black men remained in place
Chang testified that he knew Melgoza from work for
several years Melgoza admitted knowing Chang for 8-
10 years because they used to eat lunch together Mel
goza knew that Chang worked in the department where
they cut bacon while Melgoza worked where they cook
the bacon Also, their work lockers were in the same
room
In all material respects Chang was corroborated by Al
Bragg , who also testified for Respondent He observed
Melgoza throw the rock that broke the window Bragg
was even able to supply the names of the two black men
with whom Melgoza was standing , Larry Davis and a
man named Maurice The former still works for the
Company in the offal department The latter used to
work for the Company in the same department but now
works for the post office Neither was called as a wit
ness
Bragg was a very large mature person who testified
that of the 1000 strikers he knew about 500 by name For
about 7-8 years before the incident, Bragg had been
friends with Melgoza, even to the extent of telling him
in a friendly way shortly into the strike not to cause
trouble I found Bragg as a witness and this aspect of his
testimony very credible
Bragg was present when Chang made a verbal report
to Glennon who incorporated the report into his log
book (R Exh 7 p 4)
11/4/85
16 12 14
30
Juan Chang (smoked slab bacon #1666)
NOV 4 3 00 P M Jose Melgoza broke right
6 X
passenger window on Juan
Chang car (sliced Bacon
#1824) Logs Soto-near
main gate Vehicle light
blue 73 Amer Motors
Gremlen Lic No 844HEA
Claims $11000
Once again on cross examination Glennon was unable to
identify much of the writing and many of the marks re
lating to Melgoza (Tr 543-548) I again assign little
weight to Glennon and his logbook
In evaluating the evidence, I assume without finding
that Melgoza participated in a protected concerted work
stoppage It is unnecessary to reconcile his apparent dis
ability status with his presence on the picket line to de
termine whether he was participating in protected activi
ty or whether he was a mere volunteer (Cf Freeman
Decorating Co 288 NLRB 1235 fn 2 (1988)) The Com
pany s termination of Melgoza for picket line misconduct
is not necessarily determinative of this issue
The evidence against Melgoza provided by Chang and
Bragg is compelling However the evidence to show
that Respondent relied on Chang and Bragg in order to
terminate Melgoza is considerably less persuasive Chang
could not recall if he reported the incident to Glennon
(Tr 281-282) However, he did recall attempting to
report the matter the following day to Company Official
Anthony Clougherty Although Chang did give him the
details Clougherty did not make a written report be
cause he said he already had the written report (Tr
282) In addition, I credit Regan s testimony that Chang
told him his car window was broken by Jose Melgoza
(Tr 351) Although Bragg knew that Chang talked to
Regan he could not confirm the content of the conver
7 In rebuttal Melgoza testified that he always picketed with the same
men approximately 20 and there were no blacks in his team Apart
from the fact that picket teams were limited to five by court order and
apart from the fact that the evidence shows he was talking to Davis and
Maurice not picketing with them no member of his team was called
as a witness His denial of involvement remained uncorroborated
CLOUGHERTY PACKING CO
sation Chang did not recall talking to Regan on the day
of the incident
Having considered these discrepancies, I nevertheless
find sufficient evidence to establish an honest belief by
Respondent that Melgoza had engaged in strike miscon
duct I further find that the General Counsel has not pre
sented sufficient evidence to prove that Melgoza did not
commit the act in question Melgoza was on the picket
line on the day and time in question His denial, without
corroboration, cannot be credited in light of Respond
ent s evidence Accordingly, I will recommend to the
Board that this allegation be dismissed
d Samuel Rodriguez
Rodriguez was hired by Respondent in October 1979
He participated in the strike from the beginning On Jan
uary 20, 1986, he was sent a Notice of Termination for
Picket Line Misconduct, alleged to have occurred on
November 6 (G C Exh 5) As a basis for his decision to
terminate, Regan relied on eyewitness and a security
guard report
Respondent witness Julio Vasquez testified that he had
worked for Respondent for 8 years as a machine opera
tor For 3 days, he was on strike, but then returned to
work On November 6, Vasquez was leaving work be
tween 4 and 5 p in and left the Soto gate driving north
A passenger named Garcia was with him Vasquez testa
feed that at the time of the incident Rodriguez was about
15 yards from the Soto gate standing with three other
Latino males At the time Rodriguez threw the rock he
was about 10 feet from Vasquez and the only one wear
ing a large Mexican style sombrero Vasquez did not
know Rodriguez by name but knew him from before the
strike, when in addition to working for Respondent Ro
driguez used to sell seafood to employees as a side buss
ness The rock dented the passenger door of Vasquez
vehicle a GM Blazer
After the incident Vasquez backed up into the compa
ny premises There Vasquez reported the incident to
Bragg to Glennon and to the police who were called by
Bragg
Bragg's experience with Rodriguez began earlier that
afternoon when he observed a bulge under Rodriguez
jacket, which Bragg thought might be a gun He called
police who then patted down Rodriguez Bragg saw
them remove a slingshot from under Rodriguez jacket,
which the police gave to Bragg Although there is no
evidence that Rodriguez used the slingshot his posses
sion of it constitutes part of the charges against him In
lieu of the slingshot itself, a photograph of this object
was admitted into evidence (R Exh 6) Later that day
Bragg gave the slingshot to Regan
Also later in the afternoon Bragg observed Rodriguez
who was then only 2-3 feet from the gate throw a rock
at Vasquez vehicle After Vasquez backed up into the
lot Bragg called the police Bragg watched Rodriguez
walk south on Soto and cross over to the west side of
the street, continuing to walk past the liquor store into
the parking lot Bragg noted he was wearing his wide
brim sombrero the entire time By the time the police ar
rived, Bragg was able to tell them exactly wher Rodri
guez had gone because a security guard had Rodriguez
1147
under observation and reported by radio to Bragg who
in turn told the police where to go
Two police officers transported Vasquez and Jesus
Garcia, Vasquez passenger, to the parking lot where
Rodriquez was found drinking a soda Vasquez immedi
ately identified him from a group of three men Al
though only 10-15 minutes had elapsed since the inci
dent, Rodriguez had somehow exchanged his sombrero
for a baseball cap, which he was wearing when he was
arrested 8
Respondent also called Garcia as a witness and he gen
erally corroborated the testimony of Vasquez as to the
incident Respondents employee only since July Garcia
recalled specifically the sombrero hat worn by Rodri
guez when the rock was thrown and the baseball cap at
the time of Rodriguez arrest Furthermore although
Garcia had not been in the hearing room before his testi
mony, he was able without difficulty to identify Rodri
guez in a crowd of several Latino males as the rock
thrower
Rodriguez denied throwing the rock that damaged
Vasquez vehicle but he admitted he was present at the
time of the incident Rodriguez also heard Vasquez tell
Bragg that he had thrown the rock but he loudly pro
claimed his innocence as he left the area because his
picket assignment had ended Rodriguez went to his ve
hicle in the parking lot near Vernon and Soto where he
was found by the police drinking a soda
Regarding the sombrero Rodriquez admitted to wear
ing the hat near the picket line when the incident oc
curred and further admitted that no one else had a hat
like it Regarding the switch to a baseball cap, Rodriquez
testified that he exchanged the sombrero for the baseball
cap as a favor to an unidentified picket who was just be
ginning his shift as Rodriquez was finishing his Alleged
ly the new picket needed more protection from the sun
than the baseball cap could give I note that Rodriquez
never denied possessing the slingshot 9
In evaluating the credibility of Rodriquez I assign
little or no weight to his testimony His explanation re
garding the hat switch is preposterous I find that Rodri
quez was attempting to evade detection by police and
impede identification by Vasquez and Garcia all to no
avail On the other hand I find the testimony of Vas
quez, Garcia, and Brag convincing and credible
In Glennon s logbook a brief paragraph records the
incident in question (R Exh 7 p 5)
11/6 Julio Vasquez
Unit 694 Sammey Rodriquez #1716
3rd shift park
X
15-22-48 wearing Cowboy hat &
slingshot taken to
8 Like Navarro Rodriguez entered a plea of nolo contendere in court
to criminal charges arising out of this incident I have given it no consid
eration in evaluating the charges against Rodriguez
8 Curiously the General Counsel elected repeated denials regarding
possession of a slingshot from Melgoza who was never seen with nor
charged with possessing a slingshot (Tr 21 )
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
*15 23 00 jail for damaging his 1982
GMC van IGKKO09
On cross examination, the General Counsel pointed out
the usual deficiencies Unidentified person wrote the
name Julio Vasquez and made an X to the left of Ro
driquez name In addition Glennon could not tell what
information may have been added after he first talked to
Vasquez Notwithstanding these disturbing unanswered
questions I find a sufficient showing that Respondent
had an honest belief that Rodriquez threw the rock and
possessed the slingshot 10 I also find that the General
Counsel had not presented sufficient evidence to prove
the misconduct did not occur
For the above stated reasons I will recommend to the
Board that this allegation be dismissed
e Pedro Estopinian
Estopinian began working for Respondent in 1979 and
joined the strike from the beginning Initially Estopinian
walked picket 7 days a week, usually between 7 a m to
12 noon However, on or about November 29 Estopin
tan became disabled due to a prostrate problem After
the strike ended, Estopinian sent to the Company a doc
tor s note regarding his disability (G C Exh 11) A few
weeks later on December 28 Estopinian went to the
Company and talked to an official named Anthony
Clougherty While Estopinian was there, Regan entered
the room and told Anthony Clougherty that Jim Clough
erty had seen Estopinian throwing rocks at cars A few
minutes later Anthony Clougherty went to get Estopin
ian s foreman Joe Perez Perez told Estopinian appar
ently in Spanish, that Estopinian was on the list of per
sons who had committed acts of violence and therefore
he would not be returning to work Estopinian then left
complaining that he had committed no such act and
vowing to complain to the Union On January 20, 1986,
Estopinian was sent and subsequently received a termina
tion notice for picket line misconduct alleged to have
occurred on November 4 (G C Exh 10 )
According to Regan he relied on one or two eyewit
ness reports in deciding to terminate Estopinian In fact
there were two eyewitnesses and they testified as Re
spondent witnesses
John Clougherty is a construction foreman who has
worked for Respondent since 1974 11 On November 4
Clougherty was driving to work west on Vernon be
tween 5 30 and 6 a m About 50 feet west of the Vernon
gate, as Clougherty s car slowed to about 15 miles per
hour, a man threw a rock at Clougherty s vehicle with
such force that the rock thrower momentarily lost his
'Olt is unnecessary to evaluate the two acts independently Even if
possession by a sinker of a slingshot under clothing on or near a picket
line during a strike is insufficient by itself to terminate an employee
throwing a rock at a moving vehicle is sufficient Regarding the sling
shot I note it created a bulge under clothing creating a reasonable appre
hension by an experienced supervisor of security guards that Rodriquez
was carrying a gun This occurred in the context of a strike with repeat
ed acts of misconduct severe enough to warrant an uncontested prelim[
nary injunction and to require Respondent to board up its office windows
fronting on Soto Street
"The witness is a cousin of Respondents president Joseph Clough
erty
balance and fell out of the group towards the street so
Clougherty could see him The area was well lit by a
street light and nearby parking lot lights Clougherty
recognized the rock thrower as an employee, but did not
know his name Clougherty s car suffered a dent on the
passenger side about 2 inches below the window
After Clougherty parked his vehicle he saw Gary
Ainsworth a hog buyer and cost accountant for Re
spondent getting ready to begin his day s work Clough
erty knew that Ainsworth had worked as a security
guard for Respondent for several years prior to his
present position Clougherty told Ainsworth that his ve
hicle had been hit by a rock and requested Ainsworth to
accompany him to approach the group of strikers near
the Vernon gate to see if the person was throwing more
rocks Ainsworth agreed and the two men walked along
a chain link fence to within 10-15 feet of the strikers a
group numbering between 4-6 As they observed the
group the same man who had thrown a rock at Clough
erty s car threw another rock at and hit a car driven by
an unidentified person apparently not an employee of
Respondent s
As will be further explained below both men subse
quently identified the rock thrower as Estopinian They
knew him to have worked in Respondents offal depart
ment and they also observed Estopinian wearing the
same green hat that he always wore to work Made of
straw material, the hat was small brimmed bent down in
front with the sides up
After Clougherty and Ainsworth witnessed Estopinian
throwing the rock at the unidentified car Clougherty
told Ainsworth that was the same man who had thrown
the rock at his car Clougherty could not recall any re
sponse Both men then left the area About 7 a in that
same morning Clougherty contacted Glennon to report
what had happened About noon that day Glennon
showed both men independently of each other approxi
mately four or five ID badges measuring 2 by 3 1/2
inches and containing photographs and physical descrip
tions of employees of the offal department Both men
identified Estopinian as the rock thrower Glennon then
took Clougherty s report down in writing
Ainsworth was employed at Respondent for 15 years
As noted above he generally corroborated the testimony
of Clougherty, providing a few additional details For
example he described how Estopinian stepped east from
the group of strikers in order to throw the stone at a car
traveling about 20 to 25 miles per hour west on Vernon
Glennon s journal reflects a paragraph relating to the
incident (R Exh 7 p 3)
11/4/85
X
5
5 30 am Johnny
Clougherty
A picket threw a stone at
his black El Camiro #pick
up when passing [
indecipherable] Co W/B at
5 45a m The stone hit the
frame at base of passengers
window The culprit was
later identified
CLOUGHERTY PACKING CO
as Pedro Estopinian (#865)
who works in Offal Johnny
and Garry Ainsworth also
observed him throw a rock
at another car (small light
colored car)
On cross examination, the General Counsel established
that a number of marks, names, and interdelineations
were made by unknown persons (Tr 540-543 )
Estopinian testified that he could not recall if he was
on the picket line on the day in question However, his
normal picket time was 7 a in to 12 noon and at differ
ent times , he picketed both gates He also admitted occa
sionally wearing a hat while picketing, but not wearing
the same one all the time He owned three or four differ
ent hats with different styles As to the hat described by
Clougherty, Estopinian denied on rebuttal wearing such
a hat or even owning one Estopinian admitted that he
knew Clougherty, but not Ainsworth Estopinian denied
throwing a rock at Clougherty s car
I find that Respondent entertained an honest belief that
Estopinian committed misconduct while on the picket
line
Whether the General Counsel met her burden to prove
that Estopinian did not in fact commit the misconduct I
find the evidence presents a close case Estopinian was
51 years old at the time of the incident and struck me at
hearing as a mature individual, not given to impetuous
conduct If the evidence consisted only of Clougherty I
would have no difficulty in finding for the General
Counsel Even with Ainsworth, I had some difficulty in
visualizing the scene because the backs of the strikers
would have been toward Clougherty and Ainsworth as
they stood behind the fence However as the rock
thrower returned to the group both men had a clear
though brief opportunity to observe him under adequate
light Then their independent identification from the
badges the same day coupled with a total lack of cor
roborating evidence for Estopinian s denial compels me
to find for Respondent
In finding for Respondent I need not decide whether
strikers can be fired for throwing rocks at cars driven by
strangers to the labor dispute Instead I find that the
General Counsel failed to prove that Estopinian did not
commit misconduct against Clougherty
In light of the above, I will recommend to the Board
that his allegation be dismissed
CONCLUSIONS OF LAW
1 The Respondent Clougherty Packing Company, is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 The Unions United Food and Commercial Workers
International Union Local 274, AFL-CIO CLC, and
United Food and Commercial Workers International
Union, Local 770 AFL-CIO, CLC are labor organiza
tions within the meaning of Section 2(5) of the Act
3 By discharging and refusing to reinstate strikers
Pedro Gama and Luis Navarro Velasquez the Respond
ent has violated Section 8(a)(1) and (3) of the Act
1149
4 The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
5 Other than specifically found , Respondent commit
ted no other unfair labor practices
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act I shall recommend that Respondent be or
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act
Having found that the Respondent unlawfully dis
charged and failed to reinstate Pedro Gama and Luis Na
varro Velasquez, I shall recommend that the Respondent
be ordered to offer each of these employees immediate
reinstatement to their former jobs or if such jobs no
longer exist to substantially equivalent jobs, without loss
of seniority or any other rights or privileges, discharging
if necessary any replacements hired, and make each of
these employees whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of
discharge to the date of proper offer of reinstatement
less any net interim earnings as prescribed in F W
Woolworth Co, 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed12
ORDER
The Respondent Clougherty Packing Company,
Vernon California its officers agents successors, and
assigns shall
1 Cease and desist from
(a) Discharging or failing to reinstate any employee
for engaging in a strike or any other concerted activity
protected by Section 7 of the Act
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Pedro Gama and Luis Navarro Velasquez
immediate and full reinstatement to their former jobs or
if those jobs no longer exist to substantially equivalent
positions without prejudice to their seniority or any
other rights or privileges previously enjoyed and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in
the manner set forth in the remedy section of the deci
sion
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
12 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
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has been done and that the discharges will not be used
against them in any way
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility in Vernon California , copies of
the attached notice marked Appendix 13 Copies of the
13 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Boa d shall read Posted Pursuant to a Judgment of
notice, on forms provided by the Regional Director for
Region 21 after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable 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 Re
spondent has taken to comply
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board