Concord Control, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1977

228 N.L.R.B. 1484 (N.L.R.B. 1977)

1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K-D Lamp Division, Concord Control, Inc.' and Hugh
McQueary . Case 9-CA-9769
April 14, 1977
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On September 14, 1976, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the Charging
Party filed a brief in opposition to Respondent's
exceptions, and the General Counsel filed a brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent , K-D Lamp Division, Concord Control, Inc.,
Cincinnati, Ohio, its officers, agents, successors, and
assigns , shall take the action set forth in the said
recommended Order, as so modified:
1. Delete paragraph 1(b) and reletter accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
Respondent 's name appears as corrected at the hearing
z The Respondent 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 to
credibility 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 (C A 3, 1951) We have
carefully examined the record and find no basis for reversing her findings
3 We agree with the Administrative Law Judge that Respondent violated
Sec 8(a)(1) of the Act by refusing to reinstate and discharging Charging
Party Hugh McQueary, a longtime employee and strike leader, after he
made an unconditional offer to return to work The record, based on the
credited testimony , clearly demonstrates that McQueary did not engage in
any strike misconduct a year prior to his offer to return to work , as alleged
by Respondent , and therefore McQueary did not remove himself from the
protection of the Act. See N L R.B v Burnup & Sims, Inc, 379 U S 21, 23-
24 (1964), Fayette Manufacturing Company, 187 NLRB 775 (1971) In this
light, and in view of the fact that the remedy remains the same, we find it
unnecessary to decide whether or not Respondent violated Sec 8 (a)(3) of
the Act, as alleged in the complaint , nor do we find it necessary to pass on or
228 NLRB No. 194
consider the Administrative Law Judge 's recommended modifications of
Rubin Bros. Footwear, Inc., 99 NLRB 610, 611 (1952).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the
opportunity to present their evidence, it has been
decided that we violated the law by refusing to
reinstate and by discharging Hugh McQueary after
he stopped striking. We have been ordered to post
this notice. We intend to carry out the order of the
Board and abide by the following:
WE WILL NOT discharge or refuse to reinstate
any employee because he has engaged in a
protected strike.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL offer Hugh McQueary reinstatement
to his old job or, if that job no longer exists, to a
substantially equivalent job, and make him whole,
with interest, for loss of pay resulting from his
discharge and failure to obtain reinstatement.
The National Labor Relations Act gives employees
the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from any such activities.
Our employees are free to exercise any or all of
these rights, including the right to join or assist the
UAW or any other union. Our employees are also
free to refrain from any or all such activities except
to the extent that union membership may be required
by a collective-bargaining agreement as a condition
of continued employment as permitted by the
proviso to Section 8(a)(3) of the Act.
K-D LAMP DIVISION,
CONCORD CONTROL, INC.
K-D LAMP DIVISION
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard at Cincinnati, Ohio, on July 21, 1976,
pursuant to a charge filed on October 30, 1975, and a
complaint issued on April 30, 1976. The question presented
is whether K-D Lamp Division, Concord Control, Inc.,'
herein Respondent, violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (hereinafter
called the Act), by refusing to reinstate and discharging the
Charging Party, employee Hugh McQueary, allegedly
because of misconduct in connection with a protected
economic strike.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent, the Charging Party, and counsel for the
General Counsel (hereinafter called the General Counsel),
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Massachusetts corporation which
manufactures automobile headlights and related equip-
ment at its Cincinnati, Ohio, location, the location involved
in this proceeding. During the 12-month period preceding
the issuance of the complaint, a representative period,
Respondent sold and caused to be shipped, from its
Cincinnati plant to points outside Ohio, goods and services
valued at more than $50,000. I find that, as Respondent
concedes, Respondent is engaged in commerce within the
meaning of the Act, and that assertion of jurisdiction
herein will effectuate the policies of the Act.
The International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW) and its Local 1258, herein collectively called the
Union, and each part thereof, are a labor organization
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. McQueary's Discharge
At all times material herein, the Union has been the
exclusive representative of Respondent's production and
maintenance employees, including McQueary. The Union
has entered into successive written collective-bargaining
contracts with Respondent, the most recent of which was
effective from June 8, 1971, through August 7, 1974. About
August 8, 1974, about 140 of Respondent's production and
maintenance employees, including McQueary, began a
protected economic strike at Respondent's Cincinnati
Respondent 's name appears as corrected at the hearing
z Several strikers were then assigned as pickets Two would picket along
Henry Street for about an hour, and then would be relieved for about an
hour
3 This finding , based on the probabilities of the situation , is supported by
Leurck's direct testimony that he assigned "men" to help out Barber and by
the testimony of Dugan and Security Officer Clifford Nuckols that two
employees later helped Barber push his car I believe McQueary was in error
in testifying that a second employee did not start to help Barber until some
time later
1485
plant. A day or two later, Respondent began to advertise
for strike replacements. The replacements started coming
in about August 12, 1974. By that date, Respondent had
engaged a private security company, Nuckols and Associ-
ates Security Incorporated of Cincinnati and Dayton, to
provide guard service during the strike.
Respondent's Cincinnati plant occupies the entire south
frontage of Henry Street, which is one block long and is
intersected by Race Street on the east and Elm Street on
the west. A sidewalk extends the complete length of the
south side of Henry Street. Toward the west (Elm Street)
end of Henry Street is a company shipping yard which
extends all the way to the Henry Street sidewalk. Some-
what east of the shipping yard entrance on Henry Street is
a doorway from the plant building onto the Henry Street
sidewalk. Further east, and near Race Street, is a driveway
leading from Henry Street to Respondent's employee
parking lot on the comer of Henry and Race Streets. Some
distance south of Henry Street is a pedestrian entrance
from the employee parking lot into the plant. Except for
the shipping yard entrance, the parking lot driveway, and
the doorway between them, the entire south edge of the
Henry Street sidewalk is abutted by either the plant
building or a fence.
On the morning of August 12, 1974, the Henry Street side
of the plant was being picketed by McQueary and
employee Dennis Dugan.2 At 6:30 or 7 that morning, when
strike replacement Douglas Barber was driving east along
Henry Street, his car broke down in front of Respondent's
shipping yard. Dugan, who at that time did not know that
Barber was a strike replacement, helped him push his car to
the curb east of the shipping yard. Barber then entered the
plant through either the pedestrian entrance from the
parking lot or the Henry Street doorway between the
shipping yard and the parking lot driveway. He ap-
proached Personnel Manager Frank Leurck, who is
admittedly a supervisor, and reported that Barber's car had
stalled on Henry Street. Leurck advised Barber to put his
car into Respondent's parking lot in order to avoid possible
damage to the vehicle. Leurck assigned two employees to
help Barber move the car.3
Barber and these two employees then left the building
through the door to the employee parking lot.4 On reaching
the driveway, Barber said that they were going to push his
car into the parking lot, and asked Nuckols to "watch and
see that nothing goes wrong." He said that he would. The
three then went out the driveway and started to push
Barber's car from the Henry Street curbside eastward into
the employee parking lot. Barber opened the driver's side
front door, whose window was open, and steered the car
with his right hand while pushing it with his left hand. The
other two employees pushed from behind. Because a car
was parked on Henry Street in front of Barber's car, the
Leurck was not asked about the race of these employees . McQueary and
Nuckols testified that both were black. Dugan testified that one was white
While I credit McQueary and Nuckols in this connection, this issue is
material only for purposes of credibility.
4 My finding that they used this door is based on the testimony of
McQueary and, in effect, Nuckols Dugan was not sure whether the
nonstrikers used that door or the pedestrian door, somewhat west of the
parking lot, which led directly to Henry Street
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three men had to push his car some distance into the street,
which has a slight upgrade going east. At this time,
McQueary and Dugan were walking along the Henry
Street sidewalk wearing picket signs. At the parking lot
gate, 75 to 150 feet from Barber's car, were two off-duty
pickets (both women) and three security guards-Nuckols
and Volmer, who both wore civilian clothes, and an
unidentified third guard in uniform.5
As Barber's car was being pushed along Henry Street,
McQueary cut into the street. I resolve infra the sharp
dispute between the witnesses about just what happened
then. However, it is undisputed that he and Barber had a
scuffle, which broke up around the time that one or more
security guards reached the car. Barber and others then
pushed his car into the employee parking lots Nuckols
testified that thereafter, "The fellows went on into work,"
by which I infer he meant Barber and the two employees
who had helped him push his car.7
About 10 minutes later (according to Dugan) or an hour
later (according to McQueary), a police car drove up to
McQueary, who was still picketing along Henry Street. In
the police car were at least one policeman8 and, three
civilians; namely, Barber and the two employees who had
helped him push his car.9 The police asked for McQueary's
name and address and said that "this fellow back there in
the back seat of his car was going to get a warrant for"
McQueary. McQueary gave this information, and asked if
he "had any rights in this thing." The police replied that he
did, and asked him, Dugan, and "a couple of the other
people that were there" what had happened. McQueary
told the police that Barber had tried to hit McQueary with
a club, and asked the police to confiscate it to be used, if
need be, as evidence in a court proceeding against Barber.
The police asked Barber about the matter. He took them to
his car in the parking lot, removed a club from his car, and
gave it to a policeman.10 Later, Nuckols orally gave the
police his version of what had happened.
Personnel Manager Leurck testified that at some unspe-
cified hour on August 12 after he directed two employees
to help Barber push his car, Barber approached Leurck.
Leurck testified that although nobody was holding Barber
up, he "was in sad shape. [He ) could hardly stand it . . . he
S My finding that the uniformed guard was there is based on the
testimony of McQueary, whom I regard as a more reliable witness than
Nuckols Some corroboration for McQueary's testimony in this respect is
provided by Dugan's testimony that "guards" eventually ran to Barber's car,
in view of Nuckols' testimony that at this time a moving picture camera was
being operated by Volmer, the only other guard whose presence Nuckols
conceded. My finding that Dugan was walking along the sidewalk is based
on his and McQueary's testimony For demeanor reasons, I do not credit
Nuckols' testimony that until McQueary grabbed Barber, Dugan was with
the two female pickets who were facing Nuckols, with their backs to
Barber's car , and "harassing" Nuckols I credit McQueary and Dugan in
this respect even though Dugan testified that they were then patrolling
together, while McQueary testified that they were then patrolling in opposite
directions Either version is consistent with the testimony of both of them
that Dugan was near Barber's car when McQueary grabbed Dugan,
McQueary credibly testified that the pickets sometimes used one patrolling
system and sometimes the other, and the hearing took place about 2 years
after the incident in view of McQueary's testimony that he was near the
east end of Henry Street when he saw Dugan and Barber pushing Barber's
car from the west end of Henry Street, and Dugan's testimony that he did
not see McQueary, I am inclined to accept McQueary's version of the
patrolling system then being used
6 My finding in this sentence is based on McQueary's and Dugan's
undenied testimony
could navigate, but just barely." Leurck further testified
that, in his estimation, Barber was not at that time in any
condition to push a car. On direct examination, Leurck was
not asked what explanation, if any, Barber gave for his
condition. When asked on cross-examination, "You didn't
ask him any questions before you sent him to the doctor?"
he merely replied, "I asked him what was wrong with him
and he told me." Leurck further testified that Barber asked
to be sent to a doctor, and that Leurck sent him in a cab to
Respondent's then industrial relations doctor, Dr. Samuel
W. Bell. In addition, Leurck testified that he and Barber
walked just outside the side door, that Barber pointed to
McQueary as the picket who had "attacked" Barber, and
that Leurck was able to identify McQueary. Leurck
testified that this identification was made before he sent
Barber to the doctor, but was not asked about the time
interval. The record fails to show when Barber returned to
work following his examination by Dr. Bell. However, as
described in detail, infra, after examining and treating
Barber, Dr. Bell forwarded a report form to Respondent
which specifically states , "No compensation for lost time
will be paid on this application," and which contained an
entry by Dr. Bell, "Never returned for further care since
initial visit." Moreover, no workmen's compensation
payments for lost time were ever made to Barber.
Leurck testified that the two employees who had helped
Barber push his car and (perhaps) another, unidentified
employee told a secretary what had happened during the
Barber-McQueary incident, that the secretary typed up
what they had said, that the employees then signed what
she had typed, and that such documents were then given to
Respondent's production manager . Leurck also testified
that Barber similarly dictated and signed a statement on a
form which Respondent filled out for the Occupational
Safety and Health Administration about "the fact he was
pushing a car and he was attacked by a picketer." For
unexplained reasons, these documents were not produced
7 I see nothing in the record to support the assertion in Respondent's
brief that Barber "was taken inside the plant "
8 McQueary testified that there was one, and Dugan that there was more
than one Nuckols' testimony in this respect is unclear . I find it unnecessary
to resolve this conflict.
9 My finding as to the civilians' presence is based on McQueary's
testimony, which I credit in this respect for the reasons summarized at In 10
infra.
10 McQueary , Dugan, and Nuckols all testified that the police retrieved a
club from Barber's car . Nuckols did not explain how the police found out
which car was Barber 's. Dugan implicitly corroborated McQueary's
testimony that Barber pointed out his car to the police However, when
asked whether Dugan saw Barber at the time the police arrived, Dugan
initially testified , "I can't remember I believe he was inside the plant." On
cross-examination, Dugan testified that the police went inside the plant to
get Barber, and that "I think " Barber was with the police when they went to
get the club . Nevertheless , in view of Dugan 's initial uncertainty about when
Barber first met with the police in Dugan 's presence , I credit McQueary's
testimony that Barber and the two employees who helped him push his car
were in the police vehicle when it drove up to McQueary. I believe Dugan
erred in testifying that only the police were in that vehicle
K-D LAMP DIVISION
and Respondent's production manager was not called as a
witness.ii Nuckols testified that the same day the incident
occurred he prepared "notes" about it, "Descriptions of
things, where it took place, where I was stationed, where I
observed." He further testified that on September 10, 1974,
he took these "notes" to the Hamilton County Municipal
Court, where he used them to testify against McQueary in a
criminal proceeding described infra; but that, at the time of
the July 1976 hearing before me, Nuckols did not know
where these "notes" were. Nuckols also testified that on the
basis of these "notes," within the week after this incident
occurred he made a report about it to Respondent.
Nuckols initially testified that this report was in writing,
but later testified that he could not remember whether it
was written or oral. In addition, Nuckols testified that he
could not remember the identity of the company represen-
tative to whom Nuckols made his report. Personnel
Manager Leurck, who was Respondent's only other
witness, testified that Nuckols did not make any report to
him. Respondent did not produce any written report from
Nuckols, and did not explain its failure to produce the
company representative or representatives to whom Nuck-
ols made his alleged report. As to the content of this report,
Nuckols testified that it corresponded to his account of the
incident on direct examination, which account is summa-
rized infra. However, as detailed infra, the version of the
August 1974 incident which Nuckols gave at the July 1976
hearing before me differed in certain particulars from his
versions at the September 1974 criminal trial and in his
February 1976 affidavit to a Board investigator. Nuckols
further testified as follows:
Q. (By Mr. Fox) Were there movies or photographs
made of this incident?
A. This incident?
Q. Yes. I'm talking about August the 12th, 1974?
A. Yes, there was.
Q. Yes, and of course-
JUDGE SHERMAN: Which were taken-movies or
photographs or both?
THE WITNESS: Both throughout the strike, movies
and photographs were taken.
Q. (By Mr. Fox) I'm talking about this incident.
You've got that on film, right?
A. Please?
Q. You've got that on film, this incident with Mr.
McQueary, right?
A. It was taken on film.
Q. All right, the $64.00 question-would you
produce the film?
1487
JUDGE SHERMAN: You stated both movies and still
photographs.
THE WITNESS: Right.
JUDGE SHERMAN: Which did you refer to when you
stated the roll did not develop, the movies or the still
photographs?
THE WITNESS: On this incident, the movie film roll
did not develop.
JUDGE SHERMAN: How about the still pictures?
THE WITNESS: There were no still pictures of this
particular incident. It was taken by Mr. Volmer at the
right-hand side of me with a movie camera. We shot
hundreds of dollars of film that particular incident and
we didn't get all of it back.
Q. (By Mr. Fox) What part of the incident did you
get back; would you produce that?
A. Didn't get any of that back.
Q. You told me when I examined you before that
you took still photographs and movies of the incident,
didn't you get the stills back either?
A. No, we didn't take stills of the incident.
Q. That was incorrect when you told me that
before?
A. We took movie films.
After the Barber-McQueary incident, and prior to
August 26, 1974 (infra, fn. 14), Respondent received a form
from its industrial relations doctor, Dr. Bell, containing the
printed heading, "State of Ohio Bureau of Workmen's
Compensation . . . Application for Payment of Medical
Benefits." The form further contained the printed entry,
"This application is to be used in injury cases where ONLY
MEDICAL EXPENSES are involved. No compensation
for lost time will be paid on this application." The form
contains the following typewritten assertion, which I find
was signed by Barber 12 but which at the hearing was not
offered to prove the truth of the matter asserted, " 'Push-
ing my car up street with fellow friends, and in front of
company trying to get into parking lot when a striking
employee grabbed me and pinned my arms down and hit
me in the testicles with fist & twisted me and pushed me
into the car and closed the door on me and struck my
upper back in the kidneys.' Bruises of lower back, genitalia,
right hip and right upper leg." The report further contained
the following entries, signed by Dr. Bell and received to
show the truth of the matter asserted: 13
A. The film did not develop. 1. Describe injury (anatomical damage) and give
Q. Was there a technical difficulty?
A. I don't know. The film, when it was to be picked
up at the supplier, that part of the film was not there.
diagnosis. . . . Bruises of the lumbrosacral area
of the back and right latissimus dorsi area,
i hi i h ll h dQ. Just that part of the film? p an r g t upper eg.gen ta ia, rig t
A. The whole roll.
11 Barber and the two employees who helped him were no longer in
Respondent's employ at the time of the July 1976 hearing Barber quit on
September 4, 1974, and Respondent was unable to locate him I draw no
inference from their failure to testify
12 I so find by companng his purported signature on the document with
his signature on his application blank, which Leurck saw him sign
13 See, infra, fn 26.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Provide brief prognosis and advise if further
treatment or medication is indicated. . . . Never
returned for further care since initial visit.14
First Fee Bill for not more than Two Weeks' Treatment
(Itemized)
Date . . . 8-12-74. Where rendered . . . Office.
Description of treatment . . . Examination, liniment,
cold compresses, anodyne. Amount . . . $12.00. Total
... $12.00.
This $12 fee was paid to Dr. Bell from a state fund
maintained at least in part by payments from Ohio
employers, including Respondent. This payment aside,
Respondent never paid Barber anything in connection with
his injuries . Leurck testified that the $12 payment may
have affected Respondent's financial obligations toward
the state fund. He further testified that he is "fairly
knowledgeable" about Ohio workmen's compensation
laws, and that he believed that such laws were applicable to
the incident in the middle of Henry Street, a public
thoroughfare, prior to working hours.
On September 10, 1974, McQueary and Barber were
tried before the Hamilton County Municipal Court,
Hamilton County, Ohio, Criminal Division, on assault and
battery charges. Both were acquitted. Nuckols and Dugan
were among the witnesses. No member of Respondent's
management was present during the trial. Leurck testified
that he "heard" that "Neither party [was] found guilty,"
but did not specify when he learned the results.
The picketing ended in May 1975, and the strike ended
about August 29, 1975. Sometime in August 1975,
McQueary telephoned Respondent about coming back to
work. He was advised that he "would have to come in and
sign an unconditional statement in order to be put on the
list to be called back to work." On August 29, McQueary
received the following letter, all of which is mimeographed
except for the date and the addressee' s name and address:
We are writing to acknowledge that you have
contacted us about returning to active service with our
company. [At] the present time , we have no openings in
your department.
If you are interested in returning to active employ-
ment unconditionally, please come to the plant, ask for
me, and sign the proper form so that your name can be
added to those on the recall list. In the event of a future
job opening, first consideration will be given to those
on the recall list for those in the department where the
opening is available.
Sincerely,
/s/ Lee Seiler
Manager of Operations
That same day, McQueary went down to the plant and
talked to Leurck. Leurck told him that he was just about
ready for recall, stated that he would be returned to the
department he had worked in when the strike started, and
explained certain differences between existing and pres-
trike terms of employment. Leurck said nothing about any
misconduct by McQueary. McQueary took a blank
"unconditional release to return to work" form home, filled
it out over the weekend, and turned it in on Tuesday,
September 2.
Leurck testified that in mid- September 1975, he went to
Respondent's "owner" and president, Andrew Stone; told
Stone that Leurck needed a certain number of additional
employees; and asked Stone whether budgetary considera-
tions permitted him to bring that number back. Leurck also
testified that he told Stone that McQueary was "due for a
call-back." Still according to Leurck, Stone "brought out
the fact [McQueary] did have an incident that was serious,
that cost us money," and questioned Leurck about "the
legality of bringing [McQueary] back since the incident
was of such a serious nature." This testimony aside, Leurck
did not testify what, if anything, was said by him or Stone
about what McQueary did. Leurck further testified that
after an undisclosed interval, and "after, I believe,
discussions with our legal counsel," Stone decided "that
when Mr. McQueary would be called back, that we would
notify him that under these conditions we couldn't accept
him." Stone did not testify, nor was his absence explained.
Before it transpired that Stone and not Leurck made the
decision not to recall McQueary, Leurck testified that
McQueary was denied reinstatement because of "a violent
act as we saw it of strike misconduct" which caused
"[b]odily harm to the man he attacked," and that
Respondent's basis for this conclusion was that "[w]e had
to send the man to the doctor." Then, and still before
mentioning Stone, Leurck testified (in response to a leading
question on direct examination , which question, however,
was not objected to) that Respondent relied on the
unproduced employee statements already referred to and
on (in effect) the previously described application for
payment of medical benefits. In connection with the entries
on this application, Leurck testified, ". . . if you are
familiar with medical terms, you know how serious
[Barber's injury] was. I can't tell you; I'm not a physician."
There is no evidence that Stone ever saw any of these
documents. Leurck testified that McQueary was never
interviewed about the matter. When asked why not, Leurck
testified, "He was on the other side of the fence at that time
... we were interested in the people that were working for
us, and he was on strike-not working for us at that time."
Nor did management ever ask Dugan about the incident.
By letter dated October 6, 1975, 5 weeks after the end of
the strike, Leurck advised McQueary:
'' The form instructs the physician to return it to the employer within 2
weeks after date of first treatment
K-D LAMP DIVISION 1489
After receiving your request for reinstatement, we
were advised by our attorney that by engaging in
serious strike misconduct , you disqualified yourself for
reinstatement and lost any legal right that you had to
return to active employment with K-D Lamp Compa-
ny. Therefore, we are writing to inform you that we will
not reinstate you to active employment and that you
should consider the employment relationship as sev-
ered.
McQueary filed the charge herein about 3 weeks later, on
October 30, 1975.
Prior to the strike, McQueary had worked for Respon-
dent for 22 years. His most recent job had been in the
pressroom. He had been a union member for 20 years, and
was at one time a temporary steward. He picketed
throughout the period that picket lines were maintained.
Moreover, on Monday mornings, because McQueary was
usually the first to reach the union hall and had a key, he
usually opened up the hall, which was in full view of
Respondent's personnel office. About 40 to 50 strikers
applied for reinstatement after the end of the strike.
McQueary was the only one denied reinstatement on the
asserted ground of strike misconduct. Aside from the
incident of August 12, 1974, there is no contention or
evidence that McQueary engaged in misconduct during the
strike, which, as noted, ended about August 1975. At the
time of the hearing, McQueary's brother was working for
Respondent as a foreman, a position he had held for 20 or
25 years.
B. The McQueary-Barber Incident
McQueary, Dugan, and Nuckols were the only three
witnesses who testified about what actually happened in
front of the plant on August 12. All three of them testified
that McQueary eventually assumed the position of stand-
ing behind Barber and holding his arms pinned to his sides
in what Dugan and Nuckols described as a "bear hug" and
McQueary as a "hug." 15 However, there are significant
conflicts in the testimony about the events which immedi-
ately preceded and followed the "bear hug." McQueary
testified that Barber was pushing and steering his car with
the door only partly open; that McQueary walked around
the front of the car and approached Barber, intending to
dissuade the pushers, including Barber, from working; that
Barber thereupon pushed the car door open and hit
McQueary's arm with it, without, however, injuring
McQueary; that McQueary told him in a voice of
15 Respondent 's brief misreads the record in asserting that "McQueary
was certain that both of his hands were above Barber 's shoulders."
(Emphasis supplied.) Respondent's counsel asked McQueary, "So you had
both arms down below your shoulders, is that correct9" In the portions of
the transcript cited in Respondent's brief, McQueary replied, "Well, they
were down, yes -No, it couldn't be if I had it around his shoulders because
he was a little taller than me My hands couldn't have been down below my
shoulders " (Emphasis supplied )
i6 P 104, 1 23, of the transcript is hereby corrected to read as follows
"Mr Barber, that he was not going to get this car in the lot, 'I'm going to
kick his ass,' and called him 'scab.' " Cf. p 105,11 24 to 106,1 6, p 112, 11
8-9
17 Nuckols' preheanng affidavit states that McQueary said, "You are not
going to move this car anywhere "
18 McQueary, whom I regard as a more reliable witness than Nuckols,
estimated the distance between the driveway and Barber's car as 150 feet
"surprise" to "watch" the "damn door"; and that before
the scuffle, McQueary said nothing else. Dugan testified
that he saw McQueary cut into the street, that Dugan was
about 10 feet from McQueary as he reached Barber, that
Dugan did not hear either of them say anything, and that
before McQueary reached Barber, Dugan saw nothing with
regard to the car door (see infra, fn. 22). Nuckols testified
that Barber was pushing the car with the door "completely
open." Nuckols further testified that, when approaching
Barber, McQueary said, "You are not going to get this car
in the lot," called Barber a "scab," and said, "I'm going to
kick his ass." 16 Nuckols did not attribute the first
statement to McQueary in Nuckols' testimony at the
criminal trial, and did not attribute the other two to
McQueary either at the criminal trial or in Nuckols'
prehearing affidavit. 17 It seems to me highly probable that
on these occasions Nuckols would have mentioned at least
the "kick" remark if it had in fact been made. Moreover,
Nuckols testified that when he heard these remarks, he was
standing at the parking lot driveway 75 feet from
McQueary and was being "harassed" by uncomplimentary
remarks from nearby pickets.18 Furthermore, McQueary
credibly testified without contradiction that cars were
parked along the south curb of Henry Street between
Barber's car and the parking lot driveway, where Nuckols
was standing when he allegedly heard these remarks.
Under these circumstances, it seems to me unlikely that
Nuckols could have heard what McQueary said, or could
or would have observed how far open the car door then
was.19 In view of these circumstances, and after consider-
ing the witnesses' demeanor, I credit McQueary and
discredit Nuckols. While Dugan was likely in a position to
hear what McQueary said, McQueary's recollection was
generally superior to Dugan's.
Nuckols testified, and McQueary in effect denied, that
when approaching Barber, McQueary hit him with the car
door by shoving it into him. In the criminal trial, when
Nuckols was asked, ". . . did you see anybody push the
door?", he replied "No sir." Moreover, Nuckols' prehear-
ing affidavit states, "The picketer did not make any contact
with the door." I am not impressed with Nuckols' attempt
to explain the facial inconsistency between his testimony
before me and his affidavit by stating that the Board agent
was asking him whether Barber provoked the attack.2° Nor
am I impressed by his attempt to explain the facial
inconsistency between his testimony before me and his
testimony at the criminal trial.21 In view of Nuckols'
inconsistencies about this matter, and after considering the
witnesses' demeanor, I discredit Nuckols' testimony in this
19 While Nuckols eventually ran up to the car to break up the Barber-
McQueary scuffle, by that time Nuckols would likely have been too
distracted by the scuffle to notice the position of the car door
25 "My explanation up here simply means that the door was completely
open and completely extended to where it could not go forward anymore
and Mr McQueary in coming round the car did not make contact with the
door as Mr Barber had been accused of shoving the door into him The
door was already extended That's what I was trying to tell [the Board
agent] in the statement that the door was all the way open and fully
extended and the contact that was made was not that of them both coming
into each other at the same time "
zi "What I was indicating I was trying to show that this situation was not
brought about by two individuals who were on strike , okay-and in doing
(Continued)
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect, credit McQueary's denial, and find that McQueary
did not hit Barber with the car door.22
McQueary credibly testified that he is right handed, that
he is 5 feet 7 inches tall, and that at the time of this incident
he was 38 years old and weighed 170 pounds. McQueary's
and Dugan's credible testimony establishes that Barber
was then 25 to 30 years old, was at least 5 feet 10 inches
tall, and weighed between 150 and 160 pounds.23
McQueary testified that after he told Barber to watch the
"damn door," Barber reached down under his seat and
brought out a foot-long pipe (18 inches, according to his
prehearing affidavit) wrapped in white tape, with a string
attached to it. Dugan testified that he was standing on the
sidewalk and parallel to the front part of the car, that he
observed the incident by looking across the hood and
across the metal part of the opened left-front door, and that
he saw a 10- or 12-inch stick or pipe wrapped in white.
Nuckols testified that until McQueary grabbed Barber,
Dugan and he were both near the parking lot drive; that
this was about 25 yards away; and, in effect, that Nuckols
did not see a blackjack or club in or around Barber's
automobile until the police later removed from Barber's car
an unwrapped blackish brown "stick" 6 or 7 inches long.
Nuckols' prehearing affidavit states, "I stayed until the
police came and I do not recall seeing them take a club
from the driver or car." In view of the inconsistency in this
respect between Nuckols' testimony and his affidavit, and
after considering the witnesses' demeanor, I credit
McQueary's and Dugan's testimony about Barber's posses-
sion of this club and about its physical description, credit
McQueary's testimony about where Barber got it, and
discredit Nuckols' testimony about what the object looked
like and when he first saw it.
Nuckols testified that without any apparent provocation
whatever by Barber, McQueary walked around the car
door and effected the "bear hug" from behind Barber. Still
according to Nuckols, he then ran about 75 feet to
McQueary and Barber and twice told McQueary to get his
hands off Barber, that he was going to get the car into the
lot and go to work. Nuckols then testified that "after a
couple of seconds," McQueary let Barber go. Dugan gave
similar testimony about the means by which McQueary
effected the "bear hug." However, Dugan (contrary to
Nuckols) testified that before being subjected to the "bear
hug," Barber picked up a white stick about 10 or 12 inches
long. Dugan further testified that Barber raised it to at least
so, I didn't want it to indicate to the Courts or this testimony that the door
was being opened at the same time Mr McQueary was coming around and
making contact with the door That's what this means exactly "
22 Dugan testified that, when Barber picked up the club, Dugan was
looking over the car door and it was "about half open." This testimony is
equally consistent with McQueary's testimony that Barber had just hit him
with the car door and with Nuckols' testimony that McQueary had just hit
Barber with it
23 Barber's employment application , which contains statements as to
these matters, was received in evidence solely to provide an exemplar of his
signature
24 When asked how long McQueary held Barber, Dugan replied, "Not
very long The guards were down at the other end of the street, and they
started running down to break it up " When asked what McQueary did
when the guards arrived on the scene, Dugan testified, "As best I remember,
it was broken up He let him go "
25 In so finding, I am aware that Nuckols and Dugan had only limited
opportunity to observe the incident
the level of the car dashboard but did not hold it above his
shoulder. Dugan also testified that McQueary "may have
squeezed" Barber, but that Dugan did not hear anyone say
anything and did not remember whether Barber dropped
the club. Dugan's testimony is unclear about whether
Nuckols affirmatively intervened to break up the scuffle.24
McQueary testified that Barber drew the club back "in a
striking position," whereupon, to keep Barber from hitting
him with the club, McQueary moved toward him, grabbed
Barber's right hand with his own right hand, pulled the
club down, pulled Barber toward him and around so that
Barber's back was at least partly facing McQueary, put his
left hand around Barber's left shoulder and his neck, and
told him to drop the club. Still, according to McQueary, he
thereafter squeezed Barber, shook him, and told him to
drop the club, which eventually fell to the street. McQueary
testified that he heard the security guards running toward
him, and when Barber dropped the club, McQueary
"stepped back and walked back over to the sidewalk
because I didn't know what they were going to do."
The foregoing inconsistencies between Dugan and
McQueary's testimony are significant principally in con-
nection with Respondent's contention that both of them
were untruthful in connection with Barber's use of the club,
and, therefore, that I should credit Nuckols' testimony that
no club was used. However, I conclude that these
inconsistencies are less significant than Nuckols' evasions
about the club issue. To the extent that McQueary's
testimony in the foregoing paragraph differs from Dugan's
testimony, I credit McQueary, who had both a better
opportunity to observe the incident and more reason to
remember it. I attribute Dugan's errors in this connection
to the fact that his view was partly blocked by the car and
the car door and, as he testified, "we're talking about
something that happened so quickly . . . and we're talking
about 2 years ago."
McQueary testified that he did not hit or knee Barber. I
credit such testimony, which is partly corroborated by
Nuckols' testimony that he did not see McQueary hit, knee,
or kick Barber, and Dugan's testimony that he did not see
any blows struck by anyone.25
In contending that McQueary and Dugan substantially
understated the extent of the force which McQueary
exerted on Dugan, Respondent heavily relies on the entries
in the application for payment of medical benefits.26
However, the record establishes that a significant portion,
26 Leurck testified that as a matter of business practice, when Dr. Bell
was acting as Respondent's industrial doctor he would fill out such a form
(regarding an employee who had been "hurt on the premises") and forward
it to Leurck, who, if he regarded as proper the medical charge set forth
thereon, would sign the form and send it to the State Bureau of Workmen's
Compensation for payment from state funds. In accordance with Rule
803(6) of the Federal Rules of Evidence , this form was received in evidence
to prove the truth of the matter asserted , with the exception of part 7
thereof, which Respondent 's counsel stated was being offered, not to
establish the truth of the matter asserted, but to show Respondent's basis for
acting as it did. Part 7 consists of a typewritten statement, in a space
customarily filled out by the doctor's nurse , purporting to describe Barber's
injuries and how he received them, and signed by him Respondent's brief
seems to contend that part 7 should also be received to establish the truth of
the matter asserted I decline to accept this portion of the exhibit for this
additional purpose I doubt the " trustworthiness" under Rule 803(6) of
Barber's report , in view of his interest in obtaining free medical treatment
and in advancing his projected legal proceeding against McQueary by
K-D LAMP DIVISION
if not all, of the injuries recited in this form were not
inflicted by McQueary. Leurck testified that, when Barber
reported to him at an unspecified hour the physical
problems which led Leurck to send him to Dr. Bell in a
cab, Barber could hardly walk and was in no condition to
push a car. However, it is undenied that immediately after
the incident, Barber participated in pushing his car into the
parking lot and then-without any assistance , so far as the
record shows-went in to work. Moreover, it is undenied
that Barber was in front of the plant with the police no
more than an hour after the incident. This interval was
almost certainly too short to permit Barber to proceed to
the doctor by cab, sign a report of the events, undergo a
physical examination and treatment, and then return; and,
in fact, Leurck's testimony in itself strongly suggests that
there was an interval of "a few hours" between the
McQueary-Barber incident and Dr. Bell's examination.
Indeed, even the version of the incident most favorable to
Respondent (namely, Nuckols' testimony) is difficult, if not
impossible, to square with the injuries reported by Dr.
Bell.27
C. Analysis and Conclusions
The undisputed evidence establishes that McQueary
engaged in a strike protected by Section 7 of the Act, that
he unconditionally applied for reinstatement , and that
Respondent refused. Such evidence establishes prima facie
that by refusing to reinstate McQueary, Respondent
violated Section 8(a)(1) and (3) of the Act.28 The only issue
presented here is the sufficiency of Respondent's strike
misconduct defense.
As to this defense, both briefs take as a point of
departure Rubin Bros. Footwear, Inc., 99 NLRB 610, 611
(1952),29 where the Board held:
concealing any provocation by Barber.
Moreover, Respondent's failure to offer part 7 at the hearing to establish
the truth of the matter asserted may have led the General Counsel or the
Charging Party to omit some evidence, examination, and argument which
they might otherwise have advanced. For example, the General Counsel and
the Charging Party possessed a transcript of Barber's testimony at the
criminal trial , but did not offer it into evidence . See Rules 806 and
801(d)(1)(A) of the Federal Rules of Evidence. Cf. Local 901, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America
[El Imparcial, Inc.] v Raymond J Compton, 291 F 2d 793, 796-797 (C.A 1,
1961); N.L.R B. v Local 490, International Hod Carriers, Building and
Construction Laborers Union [Deckmann-Pickens-Bond Construction Co.] 300
F 2d 328, 332-333 (C A 8, 1962).
27 The only below-the-waist contact testified to by Nuckols was
McQueary's alleged pushing of the door into Barber Even if this contact
had occurred, it could not likely have accounted for all of the injuries
reported by Dr . Bell, which encompassed the front , the back , and the right
side of Barber's body below the waist In any event, the tardiness of
Nuckols' testimony about the door leads me to infer that the door was not
referred to in any report he may have made to Respondent about the
incident.
21 N L R B v Fleetwood Trailer Co, Inc, 389 U S 375, 378 (1967)
29 Enforcement denied 203 F 2d 486 (C.A. 5); followed, Cambria Clay
Products Co, 106 NLRB 267, 270-271, modified 215 F 2d 48, 53-54 (C.A
6); N. L. R. B. v. Plastic Applicators, Inc, 369 F.2d 495, 498 (C A 5, 1966), see
also N. L. R. B. v. Burnup and Sims, Inc, 379 U.S.21 (1964)
30 See, e g , The Coachman's Inn, 147 NLRB 278, 304-305, In 93 (1964),
enfd. 357 F.2d 134 (C.A 8, 1966); Kayser-Roth Hosiery Company, Inc., 187
NLRB 562, 562, 567, enfd in part 447 F 2d 396 (C A 6,1971), Firestone Tire
& Rubber Co., 187 NLRB 54, 59 (1970), enforcement denied 449 F.2d 511
(C A 5, 1971), Udylite Corp, 183 NLRB 163, 180 (1970), remanded sub non
1491
... the honest belief of an employer that striking
employees have engaged in misconduct provides an
adequate defense to a charge of discrimination in
refusing to reinstate such employees, unless it affirma-
tively appears that such misconduct did not in fact
occur. . . . once such an honest belief is established,
the General Counsel must go forward with evidence to
prove that the employees did not, in fact, engage in
such misconduct. The employer then, of course, may
rebut the General Counsel's case with evidence that the
unlawful conduct actually did occur.
Initially, Respondent contends, and the General Counsel
and the Charging Party deny, that Respondent entertained
an "honest belief' that McQueary engaged in strike
misconduct. I am not clear from the cases whether the term
"honest belief' is limited to the state of mind of the person
or persons who made the decision not to reinstate (here,
Company President Stone), or whether it extends to the
state of mind of the corporation as a whole where, as here,
Respondent is a corporation. Nor am I clear regarding the
related issue of whether, assuming that Respondent
entertained an "honest belief' of misconduct, Respon-
dent's action against the employee must have been
motivated thereby. Likewise, I am unclear whether an
"honest belief' of misconduct is shown by a sincere but
unreasonable belief.30 I need not and do not determine
these matters here, as I conclude that Respondent has
failed to make a sufficient showing under any of these
criteria.31 Contrary to Respondent, I read Rubin Bros.
requirement that an honest belief be "established" as
calling for such a showing by a preponderance of the
evidence rather than merely by substantial evidence.32 In
any event, I conclude that "honest belief' has not been
sufficiently shown under either standard.
International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America 455 F.2d 1357 (C.A.D.C, 1971); Shattuck Denn Mining
Corporation, 151 NLRB 1328, 1339 (1965), enfd. 362 F.2d 466 (C A 9,
1966); Stewart Hog Ring Co., Inc, 131 NLRB 310, 313, 336 (1961); MR &
it Trucking Co., 178 NLRB 167, 173, enfd. in part 434 F 2d 689 (C.A. 5,
1970); Titan Metal Mfg. Co., 135 NLRB 196, 207 (1962), Lock Joint Tube
Co, 127 NLRB 1146, 1150 (1960); Wichita Television Corporation, d/b/a
KARD-TV, 122 NLRB 222, 226-227 (1958), enfd 277 F.2d 579 (CA 10,
1960), cert. denied 364 U.S. 871; American Tool Works Co, 116 NLRB 1681,
1691 (1956).
31 Were I to make such a determination , I would conclude from the
general thrust of the cases cited supra, In 30, that the "honest belief' must
have been entertained by the person or persons who made the discharge
decision , that such persons must have been motivated by their "honest
belief' in making the decision, and that the "honest belief" must have been
reasonable as well as sincere. Cf. Celanese Corporation of America, 95 NLRB
664,673 (1951).
32 See also Udyhte, supra, 455 F.2d at 1367. Cf. N L R B v Great Dane
Trailers, Inc, 388 U S 26, 34 (1967) (" . . once it has been proved that the
employer engaged in discriminatory conduct which could have adversely
affected employee rights to some extent, the burden is upon the employer to
establish that he was motivated by legitimate objectives since proof of
motivation is most accessible to him"), Fleetwoo4 supra, 389 U.S at 378
("The burden of proving justification is on the employer ") In urging that
Respondent need show only "substantial evidence" of an honest belief,
Respondent relies on Morrison -Knudsen-Strabag, 204 NLRB 312 (1973).
However, that decision dealt with the burden of proof as to the fact of
misconduct . As to this issue, the Board reiterated its Rubin Bros holding
that the burden was on the General Counsel to show that the alleged
discnminatee did not in fact engage in misconduct.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The decision not to reinstate McQueary was made by
Company president Stone, who unexplainedly did not
testify. The record is almost wholly devoid of evidence
regarding either what information Stone received before he
made this decision or what he believed McQueary had
done. Moreover, his failure to testify deprives me of the
benefit of demeanor evidence in ascertaining his real
motives. Furthermore, the only evidence produced by
Respondent bearing on McQueary's conduct consisted of
the application for payment of medical benefits form,
Nuckols' testimony about the incident and what he
reported to Respondent, and Leurck's testimony regarding
his observation of Barber's condition and Barber's identifi-
cation of McQueary. However, it is virtually impossible to
square Nuckols' version of the incident with the version
signed by Barber, which, inter alia, fails to name
McQueary. Further, assuming with Respondent that all of
Barber's injuries were inflicted by McQueary, Leurck's
observations and the statements on the application regard-
ing the scuffle and Barber's injuries are almost impossible
to square with either Nuckols' version of the incident or
with the fact that immediately following the scuffle, Barber
walked into the plant unassisted. The inconsistencies in this
material become even more pronounced in view of my
inference (supra, fn. 27) that Nuckols' report to Respon-
dent did not mention the car door. In addition, Leurck and
Respondent' s counsel stated that, when Respondent
discharged McQueary, it was aware of his acquittal on the
criminal charge and, further, was aware that like charges
(also dismissed) had been filed against Barber too, a
circumstance suggesting at least the possibility of a self-
defense contention by McQueary. Nonetheless, Respon-
dent admittedly never asked McQueary for his version of
the incident; indeed, Respondent never mentioned the
incident to McQueary at any time before his discharge, and
gave no specifics about it even in the discharge letter. The
absence of evidence that Respondent made any effort to
reconcile the material adverse to McQueary, in the face of
his acquittal, leads me to conclude that there is not even
substantial , let alone preponderating, evidence that Re-
spondent entertained an honest belief that he had miscon-
ducted himself. My conclusion in this respect is reinforced
by Respondent's unexplained failure to produce other
material which it admittedly obtained a few days after the
incidents namely, the reports of the two employees who
helped Barber push the car, Barber's report of the incident
on a form which Respondent submitted to the Occupation-
al Safety and Health Commission, and Nuckols' contem-
poraneous written report of the incident or (if the report
was oral) the testimony of the member of management to
which it was made.33 I infer that, if such evidence had been
adduced, it would have been unfavorable to Respondent.34
33 In addition, the record suggests that Respondent may have had in its
possession, or available to it, a report by another, unidentified employee
about the incident, still photographs of the mcident, a movie of part of the
incident, and the contemporaneous notes on which Nuckols based his
report
34 Golden State Bottling Company, Inc v N LR B, 414 U S 168, 174
(1973), N LR B v Ohio Calcium Company, 133 F 2d 721, 727 (C A 6);
International Union, United Automobile, Aerospace, and Agricultural Imple-
ment Workers [Gyrodome Co. of America] v N L R B, 459 F 2d 1329, 1335-
39 (C A.D C, 1972)
Respondent having failed to make a sufficient showing of
honest belief of misconduct, the General Counsel was
under no duty to go forward with the evidence to prove
that McQueary had not in fact engaged in misconduct.
Barrus Construction Co., 193 NLRB 410, 421 (1971). In any
event , I find that the record preponderantly shows that
McQueary was innocent of any misconduct. More specifi-
cally, I find that McQueary' s actions were motivated solely
by a desire to protect himself against Barber's unprovoked
assault on McQueary with an iron pipe, and that
McQueary reasonably believed that the force which he
exerted on Barber was proportional to the danger threat-
ened.
At the hearing, I questioned the equity of requiring
McQueary preponderantly to prove his innocence, where a
month after the incident McQueary was acquitted of
criminal charges based thereon, Respondent was aware of
such acquittal, and Respondent never mentioned the
incident to McQueary until discharging him 14 months
later, and more than a month after McQueary requested
reinstatement . Respondent's brief correctly asserts that
under existing case law, the burden of showing innocence
remains on the employee even after his acquittal, although
the fact of such acquittal may be evidence material to
determining whether the employer had a good-faith belief
in misconduct and whether it in fact occurred.35 Respon-
dent's brief further asserts, with authority which tends to
support this position, that the burden of showing innocence
remains on the employee notwithstanding the length of the
interval between the employer's learning of the alleged
misconduct and lus advising the employee that such
misconduct will or may affect his reinstatement nghts.36
In the instant case , McQueary has sustained the burden
of showing innocence notwithstanding any reliance by him
on his prompt acquittal and Respondent's 14-month
silence . However, I respectfully suggest that the Board may
wish to modify Rubin Bros. so as to impose on the employer
the burden of showing guilt, if the employer fails to advise
the employee, within a reasonable time after the employer
learns of the alleged misconduct and/or of the acquittal,
that the incident may imperil the employee's job. The
requirement that the employee prove innocence departs
from the prevailing American approach that a man is to be
presumed innocent until the contrary is shown. The
apparent anomaly in the Rubin Bros. line of cases is
maintained not only because they involve only employers
with good-faith belief in misconduct,37 but also because of
the employee's ordinarily superior access to proof of the
facts.38 However, any inherent advantage thus initially
possessed by the employee can be diminished or overborne
by an employer who preserves his own evidence (perhaps
selectively) and, by keeping to himself his intention
eventually to raise the misconduct issue , diminishes the
35 Industrial Cotton Mills, 102 NLRB 1265, 1270 (1953), enfd as
modified 208 F 2d 87 (C A. 4, 1954), cert denied 347 U S 935, Tidewater Oil
Company, 145 NLRB 1547, 1551, 1556 (1964); Linden Lumber Div, Summer
& Co, 190 NLRB 718, 728-732 (1971), afTd 419 U S 301
36 Morrison-Knudsen, supra, 314
37 See Burn up & Sims, supra, 23
38 See Ohio Associated Telephone Co v N L R B, 192 F.2d 664 (C A 6),
decided about 7 months before Rubin Bros Cf Great Dane, supra, in 32
K-D LAMP DIVISION
likelihood that the employee will also preserve his evidence.
Under such circumstances, an employee's very innocence
of even arguable misconduct might interfere with his
ability eventually to make out his case. Furthermore,
among the purposes of the rule against double jeopardy is
to enable the acquitted defendant to enjoy peace of mind.
While undoubtedly weakened by any employer right to
discharge the defendant nevertheless, this purpose is
further undermined by conditioning the employee's job
rights on his later bringing in, without prior notice and no
earlier than the perhaps unpredictable development of a
job opening, appreciably more evidence than had been
required for his earlier acquittal. So far as I am aware, the
only legitimate purpose served by an employer's present
unimpeded right to withhold a misconduct claim until a
job is available for the employee is the employer's ability to
avoid "borrowed trouble"-that is, to avoid disputes about
the reinstatement rights of employees for whom no jobs
may ever be available or who may never wish to return. I
regard such an employer interest as less important than the
statutory interest in reassuring employees that they will not
be discharged because of false charges of misconduct in
connection with protected concerted activity (see Burnup &
Sims, supra, 23). I am not suggesting any additional
limitation on an employer's privilege to discharge employ-
ees who engage in strike misconduct 39 I am merely
suggesting that under certain circumstances, even an
employer with an honest belief in such misconduct should
have the burden of showing that such misconduct oc-
curred.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) of
the Act by refusing to reinstate and discharging Hugh
McQueary.
4. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Because the unfair
labor practice found consists of the discharge of and
refusal to reinstate an employee in violation of Section
8(a)(1) and (3) of the Act, and because Respondent did not
have a good-faith belief that the employee engaged in
misconduct connected with his protected activity, a broad
order is called for. SKRL Die Casting, Inc., 222 NLRB 851
(1974); Brom Machine and Foundry Co., 222 NLRB 74
39 As Respondent points out, in a criminal case the prosecution must
sustain a much higher burden of proof than must be sustained by a party in
a civilproceeding
40 The backpay period is to begin on the date that McQueary requested
reinstatement, because Respondent has not affirmatively shown that no
vacancy was available on that date See Fleetwood, supra, 389 U S at 378-
379, fn 4 However, Reseondent has the right during compliance
proceedings to prove Leurck s and counsel's assertion before me that the
first vacancy arose after August 29.
1493
(1976). Accordingly, I shall recommend that Respondent
be required to cease and desist from infringing on
employee rights in any other manner. I shall also
recommend that Respondent be required to offer
McQueary immediate and full reinstatement to the job
which he was unlawfully denied, or, in the event such job
no longer exists, a substantially equivalent job, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he
would have earned, but for the discrimination against him,
from August 29, 1975, to the date of a valid offer of
reinstatement, less his net earnings during this period, to be
computed in the manner described in F. W. Woolworth
Company, 90 NLRB 289 (1961), with interest as described
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).40 In
addition, I shall recommend that Respondent be required
to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 41
The Respondent K-D Lamp Division, Concord Control,
Inc., Cincinnati, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or refusing to reinstate any employee
because he has engaged in a protected strike.
(b) Discouraging membership in International Union,
United Automobile, Aerospace, and Agricultural Imple-
ment Workers of America and its Local 1258, or any other
labor organization, by discharging or refusing to reinstate
employees, or otherwise discriminating in any manner in
regard to their hire or tenure of employment or any term or
condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Hugh McQueary immediate reinstatement to
his former job or, if his former job no longer exists, to a
substantially equivalent job, and make him whole for any
loss of pay he may have suffered by reason of the
discrimination against him, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
41 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of 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
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary or useful to analysis of the amount of backpay
due under the terms of this Order.
(c) Post at its place of business in Cincinnati, Ohio,
copies of the attached notice marked "Appendix." 42
Copies of the notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by it, in
42 In the event that the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that the said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "